New Plan for Immigration

We will be posting various questions, thoughts, information, ideas here in the run up to 6 May 2021 when the New Immigration Plan consultation ends, see here: Government Consultation process announced – responses to be filed by 6 May 2021 11.45pm:

8 April 2021: Update: See also:

3 April 2021: David Forbes looks at The Immigration Plan and the “Sovereign Borders” Bill:

We have all, individually and severally, been invited to respond to a Consultation about Priti Patel’s immigration plan over the next few weeks. But we are not invited to challenge the title  “Sovereign Borders” attached to the Bill which will emerge after the Consultation. Nor are we invited to question whether “sovereign borders” is an appropriate concept to apply to complex issues of migration and asylum which are defined in customary international law.

Sovereign Borders, as some will remember, is the title of the Australian initiative to turn back boat people from its territorial waters starting in 2014. It is perhaps no accident that Tony Abbot, the Australian Prime Minister of that day, has been invited to be a special adviser on post-BREXIT trade arrangements. It is also no coincidence that a similarly-structured (but much less inclusive) Consultation was held last year on the 2025 UK Border Strategy. This was in relation principally to trade and customs arrangements, but not excluding migration. There, in his foreword as Chancellor of the Duchy of Lancaster, Michael Gove prefaced his strategy with the words, “now that Britain has regained full sovereignty over its borders”.

At least the much broader inclusiveness of this year’s Immigration Consultation is welcome. This openness reflects the government’s Section 23 agreement with the Equality and Human Rights Commission to ensure, in the light of the Windrush debacle and the recommentations of the Wendy Williams Report, that all relevant Stakeholders are properly engaged in the development of new immigration policy. We all need to take advantage of this largesse.

But we should challenge the Sovereign Borders label as misleading because it implies that somehow Britain has acquired powers it lacked before Brexit and has shed supposedly burdensome human rights responsibilities. This is surely questionable and misleading. After all, Britain did have sovereign borders between 1973 and 2020; Brexit did not create or establish the borders freshly in 2020.  Under the EU we had taken advantage of a right to opt out of the Schengen free movement area and opt in to its Information System.  Meanwhile, progress towards the objective of “ever closer union”, to which Brexiteers objected, will not deprive EU member states of sovereignty over their borders, even while they share sovereignty increasingly in other areas of policy. Viewed in the coldlight of day the final Withdrawal Agreement is far from facilitating the UK’s pursuit of increased sovereignty over its borders. A panoply of committees exists to resolve disputes and promote compromises and adaptations in a strictly multilateral framework. The UK will not be able to duck this process or, indeed, its ongoing involvement with the Council of Europe’s Commission and Court of Human Rights under the European Convention in Strasbourg.

In short, sovereignty will turn out to be, as it always has been since The Peace of Westphalia in 1648, a multilateral, not a unilateral, concept. Within this framework of multilateralism and collective human rights responsibilities, it is clear that solutions to arrivals via the Channel remain largely dependent at present on continuing bilateral agreements with France, the progenitor of the Human Rights concept. And, as Peter Rickets, former UK Ambassador to France and National Security adviser has pointed out, the sub-text of Anglo-French cooperation on Defence and Security is France’s strong influence on the EU’s Political and Security Committee. It will be in Britain’s interest not to upset France or the European Union as a quid pro quo for France’s acquiescence in “protecting” England’s southern shores from the Channel arrivals.

This limitation to autonomous action is also the lesson learned from Australia’s ”Sovereign Borders” initiative. Following its instigation, hot pursuit of people smugglers into Indonesia’s waters caused huge resentment in that country and a need for Australia to make a strategic climb-down. Meanwhile Papua New Guinea’s High court declared unlawful the treatment of rejected asyum seekers pushed back on to its territory. Australia did “solve” its problem of “boat people”, but only at the cost of good relations with its neighbours and deep distress for  thousands of former boat people who are still in limbo seven years on. Australia’s international image as a signatory of the Refugee Convention and other international human rights instruments has been tarnished in the process.

Against the background of all this “realpolitik” the fact is that since the Universal Declaration of Human Rights in 1948, the individual – providing he or she is not a criminal – has shared sovereignty with the State. His or her rights  have been enshrined within the Refugee Convention, the European Convention on Human Rights, the International Convention on the Rights of the Child and many other examples of customary international law. The government, which is still digesting the Lessons of Windrush Learned, needs to acknowledge this explicitly in its Immigration Plan. It should favour maximising security for all, including the unfortunate boat people, over a false concept of sovereignty. Respecting Human Rights will do more for Britain’s image in the world than a quixotic pursuit of sovereign borders.

David Forbes

3 April 2021