The Tories’ calamitous failure to control our borders has driven them to the verge of oblivion

This is Rishi Sunak’s final gambit, his last chance of avoiding oblivion. The Supreme Court’s verdict on his Rwanda plan to end the small boats crisis was devastating, a veritable slam-dunk humiliation, exposing the Government as legally illiterate rank amateurs. 

Facing the certainty that the boats will keep on coming, the PM has been jolted into thinking the unthinkable. He is proposing to effectively invalidate the findings of the Supreme Court that Rwanda is not safe – risking a constitutional crisis – and to partly opt the UK out of the myriad international treaties limiting his freedom of action on migration, infuriating the cultural elites, the wokerati and human rights lawyers. 

Detail is lacking, and I fear that his Plan B is too ad hoc, insufficiently radical and presumably doesn’t actually involve fully withdrawing from the ECHR and other treaties. But it is a leap in the right direction and deserves qualified support: a revolution is required if we want to regain control of our borders, as the Supreme Court’s judgment demonstrates. 

The principle of non-refoulement is at the heart of its decision: refugees cannot be returned to a country where they could be persecuted “on the grounds of race, religion, nationality, membership of a particular social group or political opinion”. The Supreme Court ruled that Rwanda cannot be trusted on that point, pointing to plentiful evidence, and stated that it would take significant improvement over a number of years for the Court to change its mind. 

I fear that Sunak’s treaty with Rwanda to “guarantee” that it behaves won’t convince the judges. Sunak’s advisers may agree: they also want Parliament to state that it believes Rwanda to be safe, in the hope that this forces the Supreme Court to back down. But will it? Won’t the judges just refuse to accept this? And will there be a majority in Parliament to vote to disregard the Court’s assessment? 

The implication that “Lefty judges” are to blame for the rejection of the Rwanda plan is absurd: they simply stated the law and took evidence into account. It is the politicians who are at fault. As Suella Braverman put it, the PM allowed himself to succumb “to magical thinking – believing that you can will your way through this without upsetting polite opinion”. One cannot: an entire legal superstructure needs to be repealed, and an entire ideology refuted. Legislating to make Rwanda “safe” is another instance of magical thinking, of plastering over the cracks of a broken system. 

Sunak’s fatal conceit was to be in denial about the web of international obligations that bind Britain into an obsolete approach. Non-refoulement is guaranteed by the United Nations 1951 Convention relating to the Status of Refugees and its 1967 Protocol. Refoulement is prohibited under other international conventions we have ratified, including the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the 1966 UN International Covenant on Civil and Political Rights. Ominously, non-refoulement may now also form part of “customary international law”, the Court suggested, thanks to Tony Blair signing up to a 2001 Declaration. 

Last but not least, refoulement also breaches the European Convention of Human Rights, of which we are a member; since a 1989 judgment by the activist European Court of Human Rights, the non-refoulement doctrine has been considered a core ECHR requirement. This has been applied directly into British law by Blair via the Human Rights Act. Non-refoulement has also been given effect in our domestic law numerous times by Parliament, including in 1993 (under John Major), 2002 and 2004. 

Crucially, derogating from the ECHR – something Sunak now appears to be promising – would not be enough to allow Rwanda. We would have to quit or derogate from all of the other treaties mentioned by the Supreme Court, as well as changing oodles of domestic legislation. Will Sunak be willing and politically able to do this, especially given the fury it will provoke among the “sensibles”? 

There is a greater question: do we believe in nation states, or do we prefer global technocratic governance? Do we believe that democracies have the right to control their borders and decide who is allowed to enter, or do we believe in largely or entirely open borders? The non-refoulement principle made sense in the aftermath of the Second World War. For all its pretensions of universality, it only really applied to Europe, and to a small number of genuine refugees at a time of limited communications, no mass flights and numerous barriers to the movement of people. It was a great humanitarian achievement, supported by Left and Right. 

This consensus no longer exists. In 2023, the non-refoulement principle is no longer fit for purpose. Many of those who arrive in the UK come through safe countries, yet this is deemed irrelevant. It is too hard to deport failed candidates. The law has been weaponised to undermine the very concept of citizenship. The entire approach is based on a lie: that Western nations can be responsible for all the worlds’ problems. 

We cannot be. The potential numbers eligible for refugee status are too large. Tragically, hundreds of millions of people around the world face a well-founded fear of persecution, but the West couldn’t cope with even a tenth or twentieth of them. Our social cohesion is already breaking, as witnessed by the monstrous displays of anti-Semitism on our streets.

Sunak should bite the bullet, abandon the principle of non-refoulement, and shift instead to quantitative caps (letting in a generous number of refugees every year from safe routes) and qualitative checks (only accepting candidates who are grateful and wish to integrate). 

Long-distance migration isn’t the way to deal with every humanitarian crisis. It would be better for Western countries to create safe harbours near war zones, and to tear down barriers to trade. African, Asian and Middle East nations must step up and take responsibility for their neighbours. 

This is decision time. Will Sunak impose a radical new immigration settlement and defeat the Blob, the elites, many Tory MPs and the entire Civil Service? Or will his fightback end in fudge and delay, and guarantee the biggest Tory wipe-out since 1906?