Blog post by Cameron Roberts, student at NYU and current intern at the University of London Refugee Law Clinic
On his first full day in 10 Downing Street, recently minted Labour Prime Minister Keir Starmer declared the Rwanda plan “dead and buried.” However, this hopeful development came as no surprise as Starmer has spent the past few years criticizing the plan in Parliament. Getting rid of the Rwanda scheme though does not remove the legacy of the past 14 years of Tory reforms on immigration policy. The flashiest plan by far may have been discarded, but the more impactful plans are still in place. Reforms ushered in by Conservative leadership over the past 14 years have curated a new legal framework upon which the Home Office and Immigration Judges make decisions on asylum cases. The Illegal Migration Bill, Nationality and Borders Act, and even the legally dubious Safety of Rwanda Act are alive and well. Starmer has made no indication that these laws will be on their way out and with Labour legends like Tony Blair warning him to “keep tough controls on immigration” to ward off the influence of the far right this third-rate legal landscape is here to stay. Considering the fragility of the UK’s political environment, highlighted by fears of a right-wing surge and the continued political concurrence on reducing net migration, it becomes critical to understand where Starmer is taking the UK. Unfortunately, it will not be much different from where the country already is.
Labour vs Tory Asylum Policy: More of the Same
Rishi Sunak’s tenure as Prime Minister is defined by many radical missteps on migration reforms, best encapsulated by his three-word policy catchphrase: “stop the boats.” But he is not the only politician who has become a fan of this worn-out verbiage. Keir Starmer himself has been a proponent of the catchy messaging, often agreeing with Sunak about stopping small boats from arriving on Britain’s coastline but claiming Labour had a better strategy to achieve the misguided goal. Unfortunately, Labour and Tory concurrence on immigration and asylum policy stretches beyond small boats.
On the issue of small boats, the Tories have been primarily “focused on enforcement and deterrence,” exhibited through the implementation of the Illegal Migration Act in 2023. The law makes it easier for the government to remove access to asylum for individuals who arrive via irregular routes. The law aims to dissuade migrants from taking “dangerous journeys” to reach the UK using the threat of detention and removal upon arrival. Labour has made no mention of scrapping the Illegal Migration Act, instead pledging in their manifesto to establish a “Border Security Command” to eradicate human smuggling gangs both parties have long blamed for the influx of irregular arrivals at UK borders. The hyperfocus on human smuggling is a commonality among UK leaders across the political spectrum. However, this presents new challenges as criminal justice focused approaches to curbing human trafficking often fail to address the real crisis: a lack of safe routes available to asylum seekers. The Labour plan, which is reliant on the work of “former police, military or intelligence” professionals, will introduce a new mechanism that borders on criminalizing the movement of asylum seekers.
For the asylum backlog issues Labour is also bringing more of the same solutions as their predecessors. Conservative leadership hired new Home Office caseworkers en masse to handle case backlog. At the end of 2023 backlogged cases were at 95,000. Labours solution? Hire more case workers. This strategy will continue as is under the new government which could be good news for some, but the Illegal Migration Act restricts government decision making on certain asylum cases. Without removal of asylum seekers per the legislation’s guidance or a repeal of its guidelines by Labour leadership the issue of backlogged cases will persist.
The Unchanged Legal Landscape
The convergence on asylum policy is exhibited not just through what Labour has pledged to do but also through what they have been noticeably silent on. The only Tory plan Labour has pledged to repeal is the Rwanda scheme. Yet Labour has pledged to create new return agreements, likely to be reminiscent of the Rwanda plan on a country specific scale. Moreover, Labour has made no mention of ridding the immigration system of the changes brought on by the Illegal Migration Act or the Nationality and Borders Act (NABA).
The Nationality and Borders Act, criticized by the former United Nations High Commissioner for Human Rights Michelle Bachelet as being “in contravention of international law and standards,” radically overhauled the UK immigration system. Most notably, NABA introduced a new standard of proof for assessing asylum claims—going beyond the previously used reasonable degree of likelihood and requiring decision makers to also assess claims with the civil law standard of the balance of probabilities. NABA creates a legal environment where asylum seekers are held to the civil standard which remains overly reliant on objective evidence. For a migrant fleeing vulnerable situations, this is an unrealistic expectation. This law impacts all asylum seekers who arrived in the UK after 28 June 2022 and will affect anyone who arrives after 5 July 2024. A Labour government is not changing this new normal ushered in by Sunak.
The same rings true for the Illegal Migration Act and the Safety of Rwanda Act. Both, like NABA, altered the legal landscape asylum seekers face. Most notably, the Safety of Rwanda Act’s legal innovation does not go away with Starmer’s declaration that the Rwanda plan is dead. The law, which requires “Every decision-maker…conclusively treat the Republic of Rwanda as a safe country,” is the first of its kind. This legislation may not be fully implemented as the Tories intended but its mere creation gives Labour the opportunity to mimic the law in the future to quickly advance return agreements. The Labour manifesto on immigration places an outsized emphasis on returns, meaning the Safety of Rwanda framework is not dead and gone.
Conclusion
The Labour victory on the 4th of July is not the Independence Day from conservative asylum policy that voters and asylum seekers hoped for. Starmer is treading lightly on change and his actions in office thus far have been performative. The future for a UK immigration policy that centers human rights rather than numeric targets tied to net migration is bleak. The Labour party has an opportunity to reverse the past 14 years of countless mistakes and violations of international legal norms, as they exit the opposition, they should not let fear of far-right opposition hold them back from rectifying mistakes on immigration and asylum policy.
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This is out of date. The new government has already removed the part of the Illegal Migration Act which refused asylum to those arriving after a certain date, thus consigning them to a limbo state. It’s too soon to be so pessimistic. The news about family reunification for Afghan children & partners is good, if not enough. Angela Eagle is working on safe routes.