Rishi Sunak’s threat to pull UK out of the ECHR

Sunak and Suella Braverman, the home secretary, are finalising plans for the most draconian immigration legislation seen in this country. Officials say the plans, to be unveiled within weeks, will take Britain to the “boundaries” of international law.

But senior figures say if judges at the European Court of Human Rights in Strasbourg rule that the new plans are unlawful, the prime minister is open to withdrawing from the convention.

“The PM has been clear he wants to introduce legislation that meets our international obligations,” a source familiar with Sunak’s thinking said. “This bill will go as far as possible within international law. We are pushing the boundaries of what is legally possible, while staying within the ECHR. And we are confident that when it is tested in the courts, we will win.

“But if this legislation gets onto the statute book and is found to be lawful by our domestic courts, but it is still being held up in Strasbourg, then we know the problem is not our legislation or our courts.

“If that’s the case, then of course he will be willing to reconsider whether being part of the ECHR is in the UK’s long-term interests.”

Senior figures say the prime minister is prepared to deploy the nuclear option before the general election if the European court strikes down his plans. But that would put the government on a collision course with MPs and particularly the House of Lords, and it is highly unlikely it would happen before the election due in 2024.

The Tories would then put withdrawal from the ECHR at the heart of their manifesto, drawing a sharp dividing line between the Conservatives and Labour. The plan is proof, allies say, that Sunak shares the hardline instincts of the Tory right on immigration.

The political imperative to stop the boats is heightened by the estimate of 65,000 illegal arrivals this year. Widespread polling and Tory focus groups show that immigration is in the top three issues for voters, with the economy and the NHS. Political aides believe concerns about illegal immigration are strong even in parts of the country little affected by it. They think it has become a test of competence.

The number of illegal migrants coming from India on small boats hit 250 in January alone

BEN STANSALL/AFP/GETTY IMAGES

The 65,000 figure comes from an official computer model that tracks migration flows around the world. Last year, when 45,000 illegal migrants came to the UK, the model was accurate to within 600 people.

The reason for the increase is that large numbers of people are seeking to move from central Asia, particularly Afghanistan, through Turkey and into Europe.

It was also revealed last week that the number of illegal migrants coming from India on small boats hit 250 in January alone, more than the 233 in the first nine months of last year. If that continues, numbers could hit 70,000 or 80,000 this year, the government’s worst-case scenario.

The good news for Sunak is that none of this modelling includes the deterrent effects of the government’s latest crackdown on illegal immigration or the likely deterrent effect of the new bill becoming law.

The number of people coming from Albania weekly has already fallen to “single figures” after the government struck a deal to return illegal migrants there. Last year 32 per cent of illegal migrants came from Albania, a Nato ally that hopes to join the EU, meaning it is safe to send people back there.

Sunak’s new bill will make it illegal to claim asylum in Britain for those who come here illegally. It will outline plans to deport them within “days or weeks” rather than “months or years” to their country of origin or to Rwanda, with which Britain has signed a deal.

A No 10 source said: “For the first time, if you come here illegally, you can expect to be detained and removed from the UK. It’s as simple as that. You won’t be able to claim asylum in the UK — which 90 per cent of small-boats arrivals did last year — and you won’t be able to abuse our world-leading modern slavery protections either.

“Instead, your claim will be swiftly processed and you will be removed to a safe country, whether that’s the country you came from if it is safe, like Albania, or a safe country we have an agreement with, like Rwanda.”

The legislation will also rewrite some of Britain’s modern slavery rules, which are used by eight out of ten asylum seekers coming to the UK. There will also be provision to set up new detention centres for arrivals, some of them on old Ministry of Defence land.

The government has already won a High Court ruling that the Rwanda programme is legal. Campaigners will fight in the Court of Appeal in April to have the judgment overturned. It could then be referred to the Supreme Court, but ministers are hopeful that appeal judges will rule that there are no legal grounds for that.

Sunak expects the European court to rule on the Rwanda plan by the end of this year, and ministers believe Strasbourg will be wary of overturning a ruling by Britain’s highest court. The new bill will, he hopes, be passed this year with a Strasbourg hearing likely early next year. Isaac Levido, the Tory election chief, has told the prime minister he must show progress on illegal immigration before the general election, expected in May or June 2024.

Winning the Rwanda case is essential for the government or it will not be able to deport asylum seekers who come from non-friendly countries, since they cannot be sent home. Once the Rwanda scheme has full legal approval, ministers will seek to sign deals with other safe countries.

The new legislation is taking time because Sunak wants it to be legally watertight. A previous bill, the Nationality and Borders Act 2022, has achieved little.

A Downing Street source said: “We know how critical it is to have a bill that not only gets through parliament but that can be upheld in the courts. As we have seen with Rwanda, anything we do in this space will be challenged — and so it needs to be legally watertight.”

The Supreme Court, now presided over by Lord Reed, is believed to be more likely to take the government’s side than it was under Baroness Hale, who was president when the court ruled Boris Johnson’s prorogation of parliament unlawful in 2019.

But the real test will be whether the European Court of Human Rights seeks a confrontation. The government’s position is effectively an ultimatum to the Strasbourg court not to put Britain in a position where it has little choice but to leave the convention. Ministers believe it is possible that the Strasbourg court could refuse to hear such a case, though that may be wishful thinking.

“The PM is as frustrated as the public that the number of people arriving here illegally in small boats has risen fourfold in the last two years,” a senior figure said.

“He wants to go as far as legally possible to fix the issue — and he is not afraid to push the limits of the refugee convention or ECHR to prevent our country from being exploited by organised crime gangs and those that would skip the queue.

“If people crossing the Channel know that when they arrive in the UK they will be put in detention, their claims will be processed in a matter of days or at most weeks, and then they will be flown to a safe country like Rwanda, they will stop coming.”