Why does Britain need to leave the ECHR to tackle illegal immigration, but Denmark or Sweden do not?

Is Robert Jenrick right to make leaving the ECHR a flagship policy?

As per their longstanding tradition, the Tories are currently talking about leaving the ECHR. Robert Jenrick has made it the flagship symbol of his restrictive position on immigration in the leadership campaign. He has claimed that “as long as we remain a member of the ECHR, we cannot end illegal migration or remove dangerous foreign criminals from our country.” and that “we certainly weren’t able to set up a robust but important and credible deterrent, such as the Rwanda one, because of our continued membership with the ECHR”.

Jenrick is far from the first Conservative politician to make claims like these or to talk about either leaving the ECHR or reforming or replacing the Human Rights Act 1998 which gives the ECHR effect in domestic law. The Tories first promised to replace the HRA with a British Bill of Rights in their 2010 manifesto, promised again in 2015, and came closest to achieving this in 2022 with the attempted Bill of Rights Bill, sponsored by Dominic Raab, which would have reduced the hold of the ECHR over British courts and governments while remaining a party to it.

Now with Jenrick, the focus has hardened to leaving the ECHR itself, a somewhat clearer and also more radical position that avoids the ‘cakeist’ criticism of the Bill of Rights Bill that it would appear to signal reform but would fundamentally still leave Britain subject to the judgements of the Strasbourg court.

The question these policies always make me wonder though is this: why is leaving the ECHR claimed to be such a necessity in Britain in order to enact restrictive policies on illegal immigration, when this view is apparently not shared by other ECHR signatories that have the same goals?

Why has Denmark been able to enact a restrictive immigration policy for decades, why has Sweden been able to significantly cut its asylum seeker numbers in recent years to a level half of that of Britain per capita, why has Italy been able to cut arrivals by sea by 60% this year? In none of these countries, as far as I’m aware, has ECHR membership been raised as the primary impediment to enacting their policies.

These countries are hardly Azerbaijan, another ECHR signatory that, with a 4% compliance rate, mostly just ignores the rulings of the court entirely.¹ They are similar to Britain, liberal democracies with a strong rule of law (or at least the Scandinavian ones are). Like Britain, they have incorporated the ECHR into domestic law (Denmark in 1992 and Sweden in 1995), so there should be no reason that the convention should be especially burdensome for British governments.

So what’s different about the British case? Is there really something specific to Britain that means the ECHR is particularly onerous to a government wanting to restrict immigration? Or is leaving the ECHR merely a convenient piece of political symbolism, that, much like Brexit, would not really solve the deeper problems we face, and was supported in many cases just to advance the careers of its advocates?

This is an important question to answer because, while there are of course, many fine people in the Tory party, there are also many others who are merely concerned with their own positions (and social respectability) and have found the best way to achieve and maintain these is to continually ‘talk right and govern left’. While I would currently endorse him for leader out of the two options, it is still, to me, unclear which of these two types Robert Jenrick is.

How does the ECHR affect British immigration policy?

The legal basis

There are two ways in which the ECHR is invoked to frustrate attempts at control of immigration. The first is the principle of non-refoulement, a principle of international law that asylum applicants should not be returned to a country where they might be at risk of serious harm. 

This principle does not derive from the ECHR but from the 1951 Refugee Convention and its 1967 Protocol (which expanded the scope of the convention, originally designed for refugees displaced in Europe by WW2, to be worldwide and without temporal restrictions). However under the ECHR’s Article 3 (freedom from torture and inhuman or degrading treatment) a refoulement prohibition has been developed by the case law of the Strasbourg court (the ECtHR).

The second way is via the ECHR’s Article 8 (respect for family or private life), which can be invoked to prevent deportation of foreign criminals or failed asylum seekers on the grounds that they have developed a family life in Britain. This legal principle is more specific to the ECHR.

The Human Rights Act 1998 basically gives effect to the ECHR in UK law as well as putting requirements on public bodies to act in accordance with it, and allowing the courts to make nonbinding declarations of incompatibility between it and UK law. Leaving the ECHR would render the HRA useless, therefore when I refer to the effects of the ECHR, this includes those of the HRA.

The Rwanda plan

How much was the failure of the Rwanda plan down to Britain’s membership of the ECHR?

Boris Johnson announced the plan in April 2022, with the first flight being scheduled for June. This set off various legal challenges in domestic courts but none succeeded in blocking the intended initial flight on the 14th June (although by this point successful individual challenges had reduced the number of people due to be deported from up to 130, to 7).

However on the day the flight was due to take off, lawyers representing one of the deportees successfully applied to the ECtHR for an injunction to prevent his deportation until the conclusion of legal action in Britain. This meant the rest of the deportees could apply for an injunction too, and the flight was therefore cancelled, as it turned out, permanently.

The ECtHR’s injunction was justified on the basis that legal action in the UK had not yet concluded. In December 2022 the High Court ruled that the plan overall was lawful, but the Court of Appeal (in June 2023) and the Supreme Court (in November 2023) then ruled that it was unlawful. These rulings were not against the plan in principle, but were on the grounds that Rwanda specifically was not a safe country at that time, and thus deportations there would violate the principle of non-refoulement. The Supreme Court noted that the principle of non-refoulement is given effect not only by the ECHR but also by other international conventions to which Britain is party, and also by a number of domestic statutes, e.g. the Asylum and Immigration Appeals Act 1993.

So we can say then that Britain’s membership of the ECHR did in the event directly block the first Rwanda deportation flight. It also seems that it was one of the legal bases, but not the only one, for the overall plan to be ruled unlawful.

However, as parliament remains sovereign, the Conservative government got around the Supreme Court’s judgement by signing a new treaty with Rwanda that prevented it sending deportees elsewhere, and passing the Safety of Rwanda (Asylum and Immigration) Act 2024 which declared it a safe country. Shortly after this though, the Tories lost power in the election on the 4th July, after which Labour cancelled the Rwanda plan entirely.

In sum then, Britain’s membership of the ECHR was clearly a significant hindrance to the Rwanda plan going ahead, especially due to the ECtHR’s injunction preventing the first flight, but ultimately it’s likely it would have been ruled unlawful regardless. However in the end parliament simply overrode legal rulings on the plan, and it was the Tories’ loss of power that caused its ultimate failure.

There seems no reason why in an alternative world where the Tories had managed to implement the plan before they lost power, it could not have gone ahead. You could certainly make the argument that, absent the ECtHR’s intervention, the plan might have got going earlier and thus helped them in the election, but it seems highly unlikely that this alone would have prevented their defeat. 

Stopping the channel boats

How important was the ECHR in our inability to stop the boats directly? Other countries have succeeded to a greater or lesser extent: since 2013 Australia has reduced arrivals by sea to almost zero, and more recently Italy has reduced them by 60% this year.

Italy has in fact also had recent legal trouble with their policy: in February their supreme court ruled that returning migrants to Libya was illegal (or at least that the actions of a captain who had done so in 2018 were), on the grounds that they amounted to refoulement. However it is unclear what effect this ruling has actually had in practice, subsequent reports on Italy’s handling of illegal migration still credit its deal with Libya with reducing numbers.

It seems likely that as Italy’s deal with Libya is to train and equip the Libyan coast guard to stop boats leaving, this is not covered under the Italian supreme court’s ruling, as Italy is not directly involved.

The British case is different because the boats depart from France. France is a safe country, so there would be no legal issue with returning them there on non-refoulement grounds. Instead the problem comes from the fact that the French government refuses to take them back, and there seems no reason why they would change their position on this under current circumstances.

Therefore leaving the ECHR would not in any way enable a ‘stop the boats’ policy, unless intercepted boats were somehow towed directly to Rwanda or another country that had previously been legally ruled on on the grounds of being unsafe. But as we have seen, it is not only the ECHR that prevents non-refoulement, and parliament can always just override these rulings anyway.

Deportation of foreign criminals

Under the UK Borders Act 2007 the Home Secretary has a legal duty to deport foreign criminals who have been sentenced to at least 12 months imprisonment. A deportation can, however, be appealed if it would breach the subject’s rights under the Refugee Convention or the ECHR, with the ECHR’s Article 8 (respect for family or private life) being the most commonly relied upon defence. Between 2008 and 2021, 2400 appeals were successful on human rights grounds.  

So in this case it is true that the ECHR is the chief legal impediment, being responsible, in the time period studied, for about 200 failed deportations per year. Not the greatest issue numerically, but not insignificant either considering the damage they would be likely to do if they remained in Britain. This is one of the few themes where we can indeed say that the ECHR is the main impediment.

Asylum decisions in general

Britain’s asylum framework is incorporated into domestic law (separate from the HRA) and is primarily based on the principle of non-refoulement. While as described previously, Article 3 of the ECHR can also be invoked to prevent refoulement, it is not the primary piece of relevant legislation, and thus leaving the ECHR in isolation would have little impact on asylum law.

Looking more broadly, most countries in the world are signatories to the Refugee Convention, but this does not stop Japan, for example, from a heavily restrictive asylum policy, accepting a record 303 asylum seekers in 2023, only 2% of the 13,823 who applied. How law is interpreted and policy is implemented is always the mos important thing, rather than the law itself.

Deporting failed asylum seekers

In recent years the asylum system has become even more dysfunctional, due to the fact that since 2015, even most of those whose claims fail end up remaining in Britain.

According to the Migration Observatory at least, this trend cannot be explained merely by more recent applicants not yet having had time to be returned, but reflects a genuine decrease in returns. The reasons however are unclear.

The Home Office claims rather opaquely that “The longer-term fall in returns was due to a number of factors, including tighter screening of passengers prior to travel and changes in visa processes and regimes.”

It’s not really clear what this means, or whether these are the real reasons at all, but in any case, the drastic drop is unlikely to have been caused by Britain’s membership of the ECHR, as to my knowledge there was no new relevant legislation or case law at the time of the decrease. Instead it seems more likely to be due to a failure of policy implementation.

The effects of the ECHR overall

We can say then that the ECHR and the Human Rights Act that gives it effect is one of the big legal impediments to a more restrictive asylum and deportation policy in Britain. It is not the only one however, so leaving it would not be sufficient to remove these impediments. While there is an argument that it especially onerous due to having its own court and being incorporated into domestic law,the Supreme Court judgement on the Rwanda plan, for example, did not emphasise this.

It also remains unclear just how important legal impediments really are at all, given the wide variation in what can be achieved by more effective implementation within the current rules, and also the fact that parliament can just override these legal impediments anyway as it did with the Safety of Rwanda Act 2024.

So should Britain leave the ECHR?

As a policy option in theory

Given that comparable European countries have tightened up their asylum policy without leaving the ECHR, there are clearly many options available within the existing legal framework. Some examples are Denmark’s return centres to encourage failed asylum seekers to leave the country, emphasis on asylum being a temporary state given only until it is safe to return, and its proactive designation of safe areas so asylum seekers can be returned there.

In many ways the Conservative government was less competent on asylum than the previous Labour one, despite the rhetoric, therefore there is clearly much more that they could have done. The fact that we have parliamentary sovereignty should really make this even easier. Further acts of parliament (as with the safety of Rwanda act) should declare more countries safe and tighten up the criteria for persecution to the most serious cases (as was the original intention of the Refugee Convention). Coupled with this there should be more effective implementation of deportations of failed cases, including more pressure on their countries of origin to take them back if they are unwilling to do so, as Jenrick has recently advocated for.

Furthermore, it is clear that there is currently a strong appetite in Europe to fix illegal migration. 17 European countries are now calling for a ‘paradigm shift’ to deport rejected asylum seekers. I would predict that some curtailment of the influence of the ECHR over migration policy is likely at the European level over the next decade, as Denmark attempted to do, without, at the time, much support, in 2017.

In theory this would be a better option for Britain than simply leaving the convention, given the difficulties this would cause in areas like Northern Ireland, and given that most of the convention’s content is unobjectionable anyway. The abandoned 2022 Bill of Rights Bill here could have had the advantage that if the ECtHR continued to rule against Britain, this could be used in combination with other European countries to force reform of the court itself.

However there are no practical signs of these international developments as of yet, and in its absence, it’s undeniable that leaving the ECHR would certainly help somewhat with implementing a more restrictive asylum policy. Despite the fact that principles like non-refoulement are also found elsewhere, the ECHR does have an attached court and is directly given effect in domestic law, meaning it has an additional legal force that say, the Refugee Convention does not.

There is also argument that law in general actually does carry more force in Britain than in comparable countries, and that therefore Britain does need to change the law explicitly rather than just work around or ignore it. Though while I’m confident this is true in comparison to much of the world, I’m sceptical it applies compared to Northern European countries which are the most useful comparators here. It’s also possible we have a more troublesome and well funded NGO sector here using the law to frustrate government policy, which could only be curtailed by changes in the law.

In a world then where we had a competent governing class working in the national interest, I would not advocate the flagship policy for tackling illegal immigration to be leaving the ECHR, at least until other options had been exhausted. This is not because I necessarily disagree with it as a policy, but more because I do not believe it is really that much of an impediment in most cases: there are far more targeted things to try first.

As a policy option for the next Tory leader

However in the real world we have the options we have, so is it a good policy for a Tory leadership candidate to adopt? I generally advocate a ‘speak softly and carry a big stick’ approach to emotive issues if you want to get stuff done: leaving the ECHR is the opposite of this. It’s a big, seemingly radical policy that would provide a focal point for opposition and alienate many potential Tory voters (e.g. the Lib Dem switchers), even those who otherwise want to reduce immigration but want to do it in a nice, pantsuiter way.

As Gavin Rice’s research points out, even among the 2024 Tory - Lib Dem switchers, a majority want immigration cut by ‘a lot’. However if your stereotypical Reform voter cares little for ‘Britain’s international reputation’ and would like to see Royal Navy ships in the channel intercepting migrant boats, his Lib Dem equivalent is more amenable to the pantsuit model.

These two groups are about equal in size on the surface. Lord Ashcroft Polls reports that 23% of 2019 Tory voters voted Reform in 2024, while about the same amount, 21%, voted for parties to the Tories’ left (12% Labour, 7% Lib Dem, 2% Green).

Having discredited themselves on immigration over the last 14 years, the Tories are in a bind and have no good options. The next leader needs to convince Reform voters that this time they are serious. Promising to leave the ECHR is a strong signal of this, although counting against it, voters are likely to remember the Tories spouting similar rhetoric for the past decade. At the same time they need to win back some of the voters who abandoned them for the Lib Dems and for Labour.

I would judge that overall a policy of leaving the ECHR, if, crucially, backed up by a promise of apparent competence, would win back more Reform voters than it would lose Labour/Lib Dem switchers, many of whom clearly abandoned the Tories for reasons of incompetence not ideology (as they were happy to vote for them when they made similar noises before). Therefore I would endorse Jenrick and his proposal, but without a huge amount of enthusiasm for it as an actual policy.

1. Out of deference to my numerous Azerbaijani readers, I should state that Nagorno-Karabakh has of course long been recognised by the subject of this article: international law, to be part of Azerbaijan, and that those Armenians fled of their own free will!