Contentious UK proposals to detain people awaiting asylum decisions in other countries risk running into a series of legal challenges under international human rights and refugee treaties, leading immigration barristers have warned.
The opinion, commissioned by Freedom from Torture, a human rights charity, branded as unlawful wide swaths of home secretary Priti Patel’s plan to overhaul the UK immigration system which is expected to soon form the basis for legislation.
The 70-page opinion, seen by the Financial Times, criticised proposals to detain people awaiting the outcome of asylum claims overseas, a provision in a new bill which could be published as soon as next week.
Steve Crawshaw, Freedom from Torture’s policy and advocacy director, said the latest reports of “bizarre plans” to “offshore” asylum seekers were a reminder of how the UK was seeking to wash its hands of the commitments it helped to shape.
The Home Office on Monday did not rule out making provisions for an offshore migrant hub in Rwanda, following a report in The Times that Patel had opened talks with Denmark over sharing such a centre in Africa.
One Whitehall official said it was “no secret” the government would like to pursue such an option.
The analysis by barristers Raza Husain QC and Eleanor Mitchell from Matrix chambers, and Jason Pobjoy from Blackstone chambers, said asylum seekers sent to a third country would remain subject to the European Convention on Human Rights, the treaty that the UK helped to draw up in the wake of the second world war.
According to the opinion, those facing transfer would be eligible for the same legal protections as in the UK, and there would be grounds to challenge their potential removal as a contravention of their right to a private and family life.
The opinion also warned that plans for offshore processing risked putting the UK in breach of its obligations under the 1951 United Nations Refugee Convention.
The convention, which the UK played a vital role in devising, says states must not in most circumstances penalise asylum seekers who use illegal means to enter their country to seek asylum. The opinion argued that subsequent legislation gave the Refugee Convention the same force as domestic law.
The Home Office proposals, first published in March, would regard as inadmissible most asylum claims from people who reached the UK via safe third countries or entered the UK illegally. However, the barristers wrote that the plans contravened the UK’s obligation not to discriminate against those who entered the country illegally to file an asylum claim.
“The inadmissibility regime is in our view inconsistent with the UK’s obligations under Article 31 of the Refugee Convention,” the barristers wrote.
Crawshaw said the “authoritative analysis” showed the UK was seeking to drive a “coach and horses” through the UN Refugee Convention. “It beggars belief that the government seems determined to plough ahead regardless,” he said.
In September, the FT reported the home secretary’s plans to explore the construction of an asylum processing centre on Ascension Island, a British overseas territory more than 4,000 miles from the UK in the south Atlantic, for migrants coming to Britain.
The Home Office insisted its proposals were “entirely in line” with the UK’s international obligations, including the Refugee Convention. “Vulnerable people will always continue to be welcomed through our safe and legal routes,” the department said.