Are Reform UK’s plans for dealing with 'illegal migration' legally feasible?

The plans announced by Nigel Farage at a press conference this week, badged under the name Operation Restoring Justice, ⁸ https://assets.nationbuilder.com/reformuk/pages/253/attachments/original/1756202533/REFORM_Immigration_Enforcement.pdf?1756202533  would involve both the UK’s disengagement from international treaties and a radical programme of domestic legislation. This would include:

• leaving the European Convention on Human Rights (ECHR)
• “disapplying” the 1951 Refugee Convention, the UN Convention against Torture and the Council of Europe Anti-Trafficking Convention
• repealing the Human Rights Act 1998 (HRA) and replacing it with a “British Bill of Rights”
• passing an Illegal Migration (Mass Deportation Bill).

The proposals represent what would be a dramatic change of approach in long-standing UK goverment policy. This blog sets out some of the legal and legislative challenges that would be likely to arise should a future Reform UK government pursue such plans.

Leaving international conventions

Catherine Barnard for UK in a Changing Europe has produced an excellent analysis of the proposals to leave the ECHR and the Refugee Convention. ¹¹ https://ukandeu.ac.uk/leaving-the-echr-and-the-refugee-convention/  In summary: it would be legally possible for the UK to leave these conventions, but that would come with major legal and political consequences – in particular for the Belfast/Good Friday Agreement and the UK-EU Trade and Co-operation Agreement. Withdrawal would require six months’ notice in the case of the ECHR, and 12 months’ in the case of the Refugee Convention.

There is, alternatively, the possibility of seeking changes to the ECHR (this would be complicated but has happened before) but Reform UK does not seem interested in that.

It seems the party envisages (perhaps temporarily) “disapplying” or “derogating from” the Refugee, Torture and Anti-Trafficking conventions, rather than denouncing (that is, leaving) them entirely. It’s not clear why: perhaps they think temporary suspension will enable them to avoid the application of the conventions more quickly than by giving notice to denounce them permanently.

The Reform UK document says they would rely on the doctrine of “necessity” in the Vienna Convention on the Law of Treaties, but as legal commentator Joshua Rozenberg KC points out in his Substack ¹² https://rozenberg.substack.com/p/the-bill-for-mass-deportation  the concept of necessity is not used in that convention, so again it’s not clear what is proposed here. 

Domestic legislation

Reform UK’s proposed legislation would include some elements which are familiar from the previous Conservative government, namely in repealing the HRA and replacing it with a “British Bill of Rights” (though it was then the policy of the Conservative government to remain in the ECHR); and imposing a legal duty on the home secretary to deport “illegal migrants” (section 2 of the Illegal Migration Act 2023 contains a similar duty, although this has not been brought into force).

In addition, Reform UK’s legislative package would:

• “create a detention power without Hardial Singh constraints” (this is the case which sets principles governing when, and for how long, someone can be detained for immigration control purposes)
• provide that if a person comes to the UK illegally, they are ineligible for asylum
• create criminal offences of re-entering the UK after deportation, or of deliberately destroying one’s identity documents
• provide that anyone who is deported is banned from re-entering the UK for life.

At this stage, the party has summarised its proposed legal approach in less than a page, but this would be hugely radical and complex legislation and the detail would take much time to work out and to draft. 

Some questions and some possible limits 

Some of the questions that would need to be resolved in the drafting of the legislation include the following:

• The reference to “illegal” migrants implies that there would still be some legal migrants, including presumably genuine asylum seekers. How would these categories be defined, and who would decide which category an individual fell into?
• What role would the courts have in reviewing these and other decisions taken under the new legislation? A Reform UK government would no doubt want to minimise the role of the courts but where parliament has created legal rules – duties, obligations, rights, restrictions, controls, conditions – it is the role of the courts to interpret and apply those rules. 
  
  Previous attempts to oust the role of the courts have not gone well and would undoubtedly be challenged during the passage of the legislation through the Lords. Most recently, the Safety of Rwanda (Asylum and Immigration) Act 2024, passed under the last Conservative government, sought to exclude the courts from considering whether Rwanda was a safe country and from reviewing decisions to remove migrants there. These measures were highly controversial and have not been brought into force.
• In particular, what “rights” would replace the existing rights under the ECHR and HRA? How would those rights apply (if at all) to migrants, including asylum-seekers? How (if at all) could they be enforced or relied on in the courts?
• How would the legislation deal with common law rights – those rights developed by the domestic courts over centuries of case law, which opponents of the ECHR are fond of saying provide equivalent protection to it? There are – for example – long-standing common law protections against torture, mistreatment or arbitrary detention, and rights to a fair hearing. 
  
  Would the proposed legislation disapply or modify those rights in the case of some categories of immigrant – including even habeas corpus for the purpose of allowing indefinite immigration detention? As noted earlier, it is the role of the courts to give effect to legislation passed by parliament, but are there limits – including an assumption that there are some rights so fundamental that no parliament can have intended to abrogate them? That raises the possibility of quite a serious clash between government and the courts.

The plans will raise many other legal and political questions which Reform UK would need to answer in order to implement these plans.

Passing the legislation

Reform UK’s proposed legislation would need to pass both the Commons and the Lords. The Commons might be relatively straightforward in a situation of a Reform UK majority, but the Lords (even if in the end it did not block the legislation) could be expected to give it the closest scrutiny, in particular its implications for individual rights, the role of the courts and the extent of powers conferred on ministers. The parliamentary process could well take over a year, during which the existing law would continue to apply.