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The EU has warned Rishi Sunak’s government that the plan to ban small boat migrants from making asylum claims in the UK “violates” international law.
The European Commission’s home affairs commissioner Ylva Johansson said she had warned Suella Braverman that the Illegal Migration Bill breached human rights law.
“I spoke to the British minister yesterday on this and I told her that I think that this is violating international law,” Ms Johansson told Politico.
It comes as legal experts warned that parts of the UK’s trade agreement with the EU could be scrapped if the government quits the European Convention on Human Rights (EHCR).
Ms Braverman has told Tory MPs that there was a “more than a 50% chance” that the bill was incompatible with the ECHR.
Ministers are braced for legal challenges to the plan to prevent anyone who arrives in the UK by unauthorised means from staying after it has already been denounced by the UN’s refugee agency as an effective “asylum ban”.
Prof Steve Peers, expert in EU and human rights law, warned that Boris Johnson’s Brexit deal – the 2020 trade and cooperation agreement (TCA) – was at risk.
“If the UK left the ECHR or denounces all or part of it, it is fairly clear that the EU would suspend the police and security agreement,” he told The Guardian.
Catherine Barnard, University of Cambridge’s professor of EU law, added: “It is clear that the EU absolutely had it in mind that the UK might try and leave the convention and respect for it runs through the TCA like writing through a stick of rock.”
The home secretary confirmed she had briefed Ms Johansson on the planned asylum crackdown and deportation plan before she delivered her Commons statement setting out the details.
But, speaking on ITV’s Peston show, Ms Braverman also made clear that the UK was no longer bound by EU rules so was free to set its own migration policy.
“I explained to her in quite general terms the measures that we were proposing and she did express to me she thought that they would be unlawful,” said Ms Braverman.
“I invited her to read the detail, and I am very happy to speak to her about the detail of the bill,” the home secretary said on the conversation.”
She added: “But we are no longer members of the European Union and so we are free to determine our own borders and migration policy. We believe our measures to be lawful, proper, necessary, compassionate and the fair thing to do.”
The row comes as Mr Sunak prepares to travel to France on Friday where he is expected to seek further help from president Emmanuel Macron in stopping the migrant boats leaving French beaches.
Mr Macron will reportedly ask Mr Sunak for a “multi-year financing settlement” for enhanced security patrols at Calais when the pair meet at a bilateral summit in Paris this Friday.
Immigration Minister Robert Jenrick acknowledged on Wednesday that they would be deploying some “novel” legal arguments to defend the measures, but said he was confident they would prove effective.
“We are confident that we have got strong legal arguments. They are in some cases new and novel legal arguments. I don’t think that should surprise anyone,” he told Channel 4. “These are new legal principles but they are likely to be upheld by the courts.”
Staff within the Home Office told The Independent that the home secretary’s plans are mere “empty threats” and will not work, while former Tory ministers called for more safe and legal routes to be established for asylum seekers.
A Home Office official told The Independent that the asylum system had not been overwhelmed by small-boat crossings, as claimed by Ms Braverman, but “because of how it is run”.
“Once you’ve saturated Rwanda, where do you send them?” they asked. “It all works for Albanians, but what about the rest? It’s empty threats.”
Meanwhile Ms Braverman has insisted that she had not sanctioned an email sent out in her name accusing civil servants of blocking previous government attempts to tackle illegal migration.
The message, sent to thousands of Conservative Party members, blamed “an activist blob of left-wing lawyers, civil servants and the Labour Party” for the failure of previous efforts.
However, Ms Braverman said: “I didn’t write that email, I didn’t see it, and it was an error, really, that it was sent out in my name.”
She said she had been “incredibly impressed” with the dedication and hard work of officials in the Home Office who had been working on the latest measures.
Earlier Conservative Campaign Headquarters (CCHQ), which distributed the email, admitted that “the wording wasn’t seen by the home secretary” and said it is “reviewing” its internal clearance processes.