Is Shabana Mahmood doomed to fail?

Labour home secretary Shabana Mahmood announced major reforms to the UK’s asylum system this week. Under the proposals, refugee status would no longer create a straightforward route to permanent settlement. The UK government would also gain new powers to revoke refugee status once a migrant’s home country is judged to be ‘safe’, allowing for his or her return. For those who arrive irregularly, the path to settlement will become far longer: new arrivals would be required to wait 20 years before they can apply for permanent residency.

The UK government also plans to legislate on how British courts interpret the European Convention on Human Rights (ECHR), particularly Article 8, which protects the right to family and private life. The aim is to narrow what is meant by ‘family’, limiting this to immediate family such as parents or children, in line with what ministers describe as ‘the British people’s expectations’.

The plans have been widely seen as a shift to the right by Labour on immigration policy. Reform UK tentatively welcomed the proposals. Its newest MP, Danny Kruger, said in parliament this week that he ‘welcomes’ and ‘recognises’ the home secretary’s ‘rhetoric’. Leader Nigel Farage even cheekily suggested Mahmood could join Reform. The Tories, meanwhile, say the measures are a good start but do not go far enough. Kemi Badenoch claimed in parliament that leaving the ECHR is the only way Labour could achieve its aim of stemming illegal migration – a move that Labour is bitterly opposed to. ‘Any plan that does not include leaving the ECHR as a necessary step is wasting time we do not have’, she said.

Badenoch is right. The Human Rights Act 1998 incorporates the ECHR into UK law. Under Section 2 of that act, any court or tribunal must consider any judgment, decision, declaration or advisory opinion of the European Court of Human Rights. Our courts don’t have to follow Strasbourg to the letter, but they must at least consider its decisions. Labour’s proposal is to pass domestic legislation, mandating a narrower interpretation than that adopted by Strasbourg.

Labour’s proposed workaround has never been tried before. Out of the democratic members of the Council of Europe, none has passed primary legislation deliberately instructing its courts to apply a narrower interpretation of an ECHR right than that given by the court. At the very least, this will give rise to legal challenges and uncertainty.

In fact, it would create a dangerous precedent for the European court. After all, what would stop other countries using domestic law in a similar way? Italy has recently been subject to negative judgment regarding its treatment of asylum seekers rescued from the Mediterranean. What is to stop Italy passing a law restricting the application of Article 3, which prohibits inhumane and degrading treatment? Wouldn’t this undermine the entire point of the Strasbourg court, whose aim is to create uniform standards of rights across Europe?

If Labour were serious about reforming our asylum system, it would recognise the need to leave the ECHR entirely, not to try to find a legal fudge. Indeed, it would also go further and leave the Refugee Convention – which was passed in the 1950s and has barely been looked at again since. These archaic international treaties leave us subject to decisions from foreign courts and prevent us from creating a truly democratic asylum system fit for the 21st century.

Until Labour commits to leaving these conventions behind, its attempts at ‘bold’ asylum reforms are unlikely to get very far.

Luke Gittos is a spiked columnist and author. His most recent book is Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, which is published by Zero Books. Order it here.