The government’s flagship “one in, one out” deal with France was intended to smash the business model of criminal gangs who smuggle migrants across the Channel on small boats.
Sir Keir Starmer announced it in July, during French President Emmanuel Macron’s State Visit to the UK, and promised a “groundbreaking” new venture to solve a knotty political problem.
But the PM tacitly acknowledged at the time that there would be choppy waters ahead, while admitting there is “no silver bullet” for the small boats crisis.
At the High Court on Tuesday, the government stumbled and fell at the first hurdle, when an Eritrean man successfully secured a temporary reprieve from deportation to France.
He had been booked on to a flight out of the UK taking off at 9am on Wednesday morning, but his trip was cancelled thanks to the court’s late intervention.
It is understood lawyers for a host of asylum seekers in a similar position - due to be flown back to France as part of the ‘one in, one out’ deal - have put in letters to the Home Office, officially notifying them of objections to deportation.
And so Labour finds itself at the start of a bumpy legal battle to try to make sure the deportation flights go ahead and its policy gets off the ground in reality.
In the meantime, it faces accusations from its political opponents that Starmer’s deal with Macron was too weak to effectively smash the small boats gangs.
How does the ‘one in, one out’ deal work?
Britain can deport an asylum seeker to France who has crossed the channel on a small boat, and in exchange a migrant with a strong claim for asylum in Britain will come the other way.
The intention is wipe out the incentive for migrants to make the perilous Channel crossing, if they know there is a strong chance of quickly being put back on a plane to France.
The government says the deal is part of a package of measures to tackle the issue, including a nationwide crackdown on illegal working.
“Migrants arriving via small boat will be detained and returned to France in short order”, the PM promised.
“In exchange for every return, a different individual will be allowed to come here via a safe route, controlled and legal, subject to strict security checks, and only open to those who have not tried to enter the UK illegally.
“This will show others trying to make the same journey that it will be in vain, and the jobs they’ve been promised in the UK will no longer exist.”
The previous Conservative government faced humiliation with its controversial Rwanda deportation scheme, which cost £700 million and failed to remove a single person from the UK.
Starmer’s government scrapped the scheme, and says its deal with France – which includes a commitment that French authorities will do more to stop boats loaded with migrants from setting sail – is the future plan, co-operating with European allies to find solutions.
What went wrong this week?
The High Court block on the Eritrean man’s deportation was embarrassing and frustrating for the government, but does not necessarily signal that the policy is sinking.
Each deportation effort by the Home Office will be subjected to its own individual scrutiny.
The High Court granted the Eritrean man a “short period of interim relief” ahead of his deportation, to allow further time for representations to be made to officials about whether he should be forced back to France.
His lawyers have said he has a “trafficking claim”, he says he has a gunshot wound in his leg, and he is asserting that he would faces “destitution” in France.
The Home Office defended the case, saying it was reasonable to expect the man to claim asylum in France.
But Mr Justice Sheldon concluded the trafficking claim could warrant a full trial, while there are question marks over whether the government has sufficiently investigated his case.
In his ruling, late on Tuesday evening, the judge said he doubted there is a “real risk” of destitution if the man is returned to France.
The timetable for the case to come back to court is not clear, but the Eritrean man’s lawyers will now have a chance to make further representations to the Home Office, before a further decision is made by the government on whether he should be deported.
If his removal is approved once more, further court hearings are likely so that a judge can determine if the deportation would be lawful.
This could be the first of many legal battles to come, starting with individual efforts by migrants to avoid being put on the flights.
The Rwanda plan was effectively sunk by a lengthy legal battle over the legality of the entire policy, brought by individuals facing deportation who challenged whether their safety was being put at risk.
The Labour government could face its own High Court challenge over the legality of the France deal, though it will not be on the same strident safety and human rights grounds that were mounted in the Rwanda case.
What’s next?
The government is refusing to provide a running commentary on deportation plans, no doubt in part to avoid a humiliating narrative of flights being booked and then abandoned.
The Conservatives have jumped on Tuesday’s High Court defeat to suggest that the France deal was always doomed to failure.
The Opposition believes that the Human Rights Act must be set aside for immigration cases, to try to swat away legal challenges. Reform UK has put forward a similar policy plan.
But the Home Office remained bullish on Wednesday that its plans would continue unabated, despite the legal setback.
“Under the new UK-France Treaty, people crossing in small boats can now be detained and removed to France. We expect the first returns to take place imminently.
“Protecting the UK border is our top priority. We will do whatever it takes to secure our borders.”
On the other flank, the government has been accused of trying to appease right wing agitators on immigration, and of blundering when selecting migrants to send to France.
Lawyers say victims of torture and trafficking are among those who have been detained pending removal, and children were also reportedly held for a short period of time in a detention centre.
Charity Detention Action says migrants in custody are put through assessments late at night, over the telephone or on a video conference instead of in-person, and it is resulting in poor quality reports which are supposed to determine their fate.
The High Court is likely to hear further applications from asylum seekers for interim relief from a deportation order, in a bid to block their own removal.
The government stands the best chance of successfully overcoming those challenges if it can show the court that proper investigations have been conducted into the cases, and migrants due for removal do not have a strong claim for asylum in this country.
This battle for the government will also shine a light on the Home Office and the state of systems in place to deal with asylum claims.
It is by no means a fight that Starmer’s government will ultimately win.
More than 30,000 migrants have arrived in the UK by small boat this year – the highest number by this time in the year since records started being made in 2018.
Success for the government will be measured not by the odd small boat arrival being put on a plane, but by the establishment of a functioning system which is not tied in endless legal knots and is able to put significant numbers, quickly, on to planes back to France.
Only then will it become clear to the thousands who make the hazardous trip across the Channel each year that it may not be worth it at all.
