Housing migrants in tents is not only wrong, it is illegal

Housing unaccompanied children in hotel rooms, imprisoning refugees without cause and preventing them from getting to court, and creating tented refugee camps in disused army bases around the country are all against the law.

The law so often gets in the way of what governments want to do because they think it will make them popular. They can’t just lock up criminals and throw away the key. They can’t just change the rules of elections to make it harder to vote the poorer you are. They can’t just throw the men, women and children who come in small boats across the Channel back into the sea.

The current home secretary doesn’t accept this legal limitation. For her, politics is everything. If it’s what she wants to do politically then she is not going to let the law get in the way. If she can’t change the law, then she will break it. And no doubt she thinks a groundswell of public opinion will either intimidate the courts or protect her position in some other Trumpian way.

Yesterday, the High Court condemned her systematic housing of unaccompanied asylum seeker children in hotels as illegal. As a country, we have set minimum standards for the care of children. She did not regard herself as bound by these minimum standards in respect of asylum-seeking children. If she wants to change the standard, then she should try to persuade parliament that where the child is an asylum seeker our minimum standards don’t apply.

Her Illegal Migration Act, which became law a week ago, allows the state to imprison asylum seekers for a minimum of 28 days even where it is evident from the outset they will not be deported and there is no basis for their imprisonment. And she has curtailed in that act their right to seek legal redress. Understandably, she was unable to certify this was in accordance with our human rights commitments because they prevent imprisonment without cause and restrict access to the courts. If she wants to disapply those protections, then change the law and leave the European Human Rights Convention.

And now we learn she is buying marquees to house asylum seekers. She has bought tents to house up to 2,000 migrants on disused military sites. They are going to go up in the next few days and will be in use in the next few weeks. The Home Office justifies this development as being only for short periods of excessive demand from migrants. Exactly the same justification as was used in respect of the lone children in hotel rooms, just rejected by the courts.

As a former lord chancellor and justice secretary who was in charge of our courts, I can tell you that it is illegal for the state to house – other than for an emergency lasting for a few days – migrants in tents. The law imposes minimum standards and permanent accommodation, and tents do not meet those standards.

The prime minister and the home secretary are no doubt inspired in their law-breaking by the reading of polls and the output of focus groups which tell them the country wants the government to get a grip on illegal immigration and stop the boats.

They have to decide whether they want the UK to act within the law in getting a grip on illegal migration – for example, by sticking to the commitments the nation made to people fleeing persecution – or whether they want to downgrade legal protections, and make it clear the UK is now outside the group of nations that has a serious commitment to human rights and the rule of law.

Those commitments are not just the bedrock of the culture of our country – we play by the rules, fairness matters, everyone is entitled to be protected from a bullying government or a bullying fellow citizen – but they are also the foundation of our prosperity. People do business in and with the UK because we are deeply committed to the rule of law, which means contracts and obligations will be adhered to and enforced by the courts.

Both the PM and the home secretary have attacked lawyers for assisting asylum seekers and migrants to exercise their legal rights. If the lawyers are acting dishonestly then they should be put out of business. But the vast majority of those lawyers are not. They are holding the government to the standards the law sets. To lump them in with people smugglers, as the Tory government has done repeatedly, is to compound the abandonment of legality. Break the law, and attack those who seek to hold the government to account for doing so.

Suella Braverman has never hidden her indifference to the law. Rishi Sunak, no doubt spooked by the devastating recent by-elections, now seems willing to join her down the path to illegality. They make a grave mistake if they think the country will tolerate the illegal inhumanity they are trying to introduce by stealth. Yes to getting a grip on immigration, no to abandoning our commitment to the law in doing so.

Lord Falconer is a British Labour peer and barrister who served as lord chancellor and secretary of state for justice under Tony Blair from 2003 to 2007