The judges and people smugglers are united in disregarding the importance of borders

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Central to a democratic nation is the idea that citizenship brings rights. It follows that if non-citizens can arrive illegally and then avail themselves of those rights, the interests of citizens are damaged. Democracy is thus damaged too. This – not racism – is the main reason why most voters hate illegal immigration.

The influx of people by boat on to the south coast of England makes this illegality visible. Illegal immigration by other means has, in fact, fallen sharply, as has net migration. This is mainly because of Covid, partly because of Brexit, but also because, contrary to widespread belief, there has been effective co-operation between French and British about tunnel crossings. Until about two years ago, a farming neighbour tells me, it was commonplace for fruit lorries from the Continent to arrive at a Kent packhouse, open their doors and disgorge several stowaways who then ran away. No longer.

Instead, the rickety boats come, in growing numbers. This week, as was eventually inevitable given the crowding and the heartlessness of the smugglers, one such boat sank, drowning almost all on board.

We live about a dozen miles from the coast where such boats land. Friends who live closer sometimes watch the arrivals at Winchelsea Beach, Dungeness or Hastings, landings that are often assisted by the RNLI. They bear no ill will to the people seeking the opportunities that Britain offers. But they do feel oppressed by the sense of helplessness. One, a doctor, points out that if a comparable boat capsized in nearby waters, “30 severely hypothermic or half-drowned human beings appearing at once would overwhelm the hospital in a way that no wave of Covid has managed to do”. There is little preparation. An air of fatalism hangs over the whole subject of the boats, as if nothing can be done.

The easiest, most enjoyable thing just now is to blame the French. Far be it from me to defend Emmanuel Macron. He is undoubtedly seeking electoral advantage in next year’s presidential election. But if you imagine the situations reversed, with us in Britain being lectured by France that we must not let illegal immigrants leave our shores for theirs, I think you can see how the French might feel.

In the short term, with a lack of trust between Macron and Boris Johnson, made worse by No10’s strange decision to publish in advance the Prime Minister’s letter to the president about joint policing, the prospects of a joint approach are poor.

Nevertheless, the true interests of both countries are closely aligned. Britain does not want the boats, of course, but nor does France. It is terrible for President Macron that this week’s drowning happened on his watch. It is also extremely unpleasant for the residents of northern France that Calais is a sort of fortress and that people smugglers infest their territory. Immigration is a considerably fiercer issue in French politics than in ours, highly damaging to Macron.

If France agreed to let us turn the boats back – an agreement that would, admittedly, cost us a great deal of money – it would not be long before the business model of the smugglers collapsed and with it, their frightening sway. An unstated reason why French police sometimes just stand and watch as the boats load up on remote beaches is that they are heavily outnumbered and literally outgunned by the smugglers. Kill the trade, and all that goes.

More widely, this is a European issue – and by “European”, I do not mean EU alone. We in Britain groan under the weight of asylum applications: one good aspect of the forthcoming, rather limited Nationality and Borders Bill is that it will pare down our absurdly extensive rights of asylum appeal. But both Germany and France have far bigger numbers of asylum seekers than we do and face a greater existential risk from trans-continental migration.

The recent migrations into Poland laid on by Belarus (with Russian backing) are not far short of undeclared war. Non-European migrants have been press-ganged, sometimes even flown in, to attempt mass incursions there. Western Europeans well understand that this is a hostile political act, not a spontaneous movement of refugees, and are co-operating to resist it. Britain, for instance, is contributing engineers to Poland to help reinforce physical borders.

In the Channel, there is no comparable plot by a nation or nations to invade us with a conscript army of the wretched of the earth, but there is a situation that is politically dangerous to Western democracy. Borders define rights, responsibilities and jurisdictions. If those borders are not upheld, those rights and responsibilities are undermined, and jurisdictions become blurred. This gives advantage to bad actors, such as people smugglers and Islamist terrorists.

This blurring of jurisdictions began in the 1970s and became much more apparent in our Continent, first after the collapse of the Soviet Union in the early 1990s and later with mass movements from disturbed parts of the Muslim world and Africa. The people most responsible for this have been judges, and the “human rights” lawyers for whom this has become a big industry.

In an interesting study – titled Immigration, Strasbourg and Judicial Overreach – published by the think tank Policy Exchange earlier this year, Professor John Finnis, the distinguished legal philosopher, and Simon Murray, a barrister practising in the immigration field, explained what has gone wrong with “human rights”.

To avoid renewing the horrors of the Second World War, the victors, with Britain playing the leading role, drew up the European Convention on Human Rights (ECHR) in 1950. With similar aims, the Convention Relating to the Status of Refugees was signed the following year.

Finnis and Murray argue that the original documents understood their limits. Their authors sensed danger if rights were too absolute for sovereign states to handle. Thus they contained no obligation to let in refugees if they arrived at borders en masse, no legal (as opposed to moral) obligation to accept refugees at all and no absolute obligation to provide refuge to asylum seekers who were a danger to the community.

Many years later, however, judges began to develop the doctrine that the ECHR is a “living instrument” – a lawyer’s way of saying that judges are free to make it mean whatever they think the spirit of the age demands. They used this latitude to expand enormously all the definitions – what is meant, for example, by the right to privacy and family life in Article 8.

Gradually, their judgments incentivised illegal immigration because they meant that, once you got into the country of your choice, no one could get you out. In Britain, Tony Blair gold-plated the “living instrument”, turning the ECHR into our Human Rights Act.

So there is co-operation, in effect – though not, of course, in intention – between the judges and the people smugglers. The former give illegal immigrants a get-out-of-jail-free card, and the latter, for large sums of money, get them where they want to be.

As Finnis and Murray put it, this liberal interpretation of rights “incoherently privileges preventing risks to non-citizens over risks to citizens”.

That, unfortunately, is where we are. It is pretty much where we shall remain unless we in Britain – and preferably the entire free world – decide the law should respect the borders and wishes of democracies instead of disregarding them.

The task of reining back judicial overreach is similar to the “taking back control” sought by Brexit. So far, our leaders have lacked the stomach for it.

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