THREAD 5:
Earlier today we were *inexplicably* tagged in this article by Telegraph Home Affairs editor @CharlesHymas. It’s paywalled (free 1m trial available) so we’re going to set out the substantive points it raises in replying: [1/24] https://www.telegraph.co.uk/politics/2020/09/01/immigration-officers-fearful-complaints-aftermath-windrush/

The article arises from an interview with Tony Smith, a former director-general of the Border Force. Mr Smith says “Windrush sensitivities” are making Border Force officials *afraid* to arrest and deport illegal immigrants. [2/24] https://en.wikipedia.org/wiki/Tony_Smith_(civil_servant)

Mr Smith says morale is at an all-time low b/c officials don’t feel supported by the public OR the civil service; the enforcement system has been “broken” by lawyers, evinced by the fact that deportation attempts are being thwarted. [3/24]

He adds: “[Officials] are fearful of arresting someone they should not because of Windrush, and that there will be a huge inquiry in the Home Office as to why they arrested someone.”

Let’s dig into this constitutionally ignorant and morally deranged argument. [4/24]

When he says “Windrush sensitivities”, he means the fallout from the scandal, which arose b/c the HO systematically targeted individuals who had clear, unambiguous rights to remain, and deprived them of those rights. This was, and remains, contrary to the law of this land. [5/24]

He’s effectively arguing one of these two things: (i) officials are scared to do something illegal, b/c doing that to the Windrush generation caused the HO problems; or (ii) they are scared to do something legal because they fear it will be wrongly/unfairly criticised. [6/24]

If Mr Smith is arguing (i), he’s saying the Border Force shd be allowed to operate above the law and the reason they can’t is that Windrush makes that difficult. *Deep breath* First, we really hope he understands that it can’t act illegally just as a matter of principle. [7/24]

Second, nice try on “Windrush sensitivities”. The Comp Scheme is a shambles and hundreds of rightful citizens remain stranded overseas, separated from their families. The HO has not suffered for its treatment of the Windrush generation in the slightest or learned a thing. [8/24]

That aside, it’s more likely that he’s arguing border officials want to do something *legal*, but are scared to do so, because of these “Windrush sensitivities”. That hinges on whether what they want to do is legal, and if yes, whether criticism based on Windrush is fair. [9/24]

This is the Dublin Regulation. It is the law until the end of the Brexit transition period, i.e. 31 Dec. Arts 7 - 11 set out refugees’ rights to have their asylum claims determined by EU states where they have family. [10/24]
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013R0604&from=EN

This is the HO’s policy brief on the Dublin Reg, which notes the same on p 6. Contrary to the tabloids’ sirensong, there is no obligation on refugees to claim asylum in the first place they land - they can legally claim where they have family. [11/24] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/909412/dublin-III-regulation.pdf

Dublin Art 3 requires the state where the claim is made to examine the claim. States cannot toss out like garbage human beings who might be fleeing persecution without first evaluating their claims, just because it’s inexpedient for them to take the time and do the work. [12/24]

Arts 21-26 set out a *procedure* that has to be followed to transfer refugees back to another state. The UK can legally follow that procedure if it’s relevant; what it can’t do is sweep refugees back into the sea or have them deported as soon as they set foot on dry land. [13/24]

To be clear, ALL that the law asks is that the claims are read and assessed. What the HO has tried and failed to do - and what Mr Smith would apparently like - is some sort of Acme-style eject button. The law (mainly) prevents only that - the narrowest end of the wedge. [14/24]

Part of the problem is Mr Smith and others have wrongly labelled refugees “illegal immigrants” to suit their newspaper-headline-ends. Officers of the Court - aka “activist lawyers” - are required to protect and enforce the law, independently of govt, above all else. [15/24]

Lawyers are doing just that, as demanded by the unwritten constitution of the United Kingdom. If Mr Smith feels having the Border Force stand on the beach with a butterfly net IS or ought to be legal, his problem is not lawyers - it’s Parliament and the Queen. [16/24]

What the Border Force would *like* to be able to do - deport without due process - is not legal, which is why the HO is getting clobbered in court in many cases. If that makes officials feel demoralized, it’s the Border Force/HO’s fault for putting them in that position. [17/24]

I.e. it’s their fault for allowing officials to think their jobs are above the law; creating a climate that rewards (explicitly or implicitly) acting like they ARE above the law; and making them feel their worth is vested in turfing out human beings in crisis. Fix THAT. [18/24]

What Mr Smith would like is illegal. Is it then legitimate to criticise officials if they go ahead and do what he’d like? Yes, obviously. Officials of any stripe must always be criticised for doing illegal things, and such criticism is fair and right by definition. [19/24]

So when Mr Smith extracts his tiny violin to play the Ode of the Border Force’s Plight, we are minded to say this: if you really think being stopped from acting illegally makes you the victim, you were never fit to hold your post and have no business in the civil service. [20/24]

A word to @Telegraph/ @CharlesHymas: this isn’t great journalism. E.g: the 2nd par states Mr Smith “also criticised the ditching of targets for removals after Amber Rudd’s resignation over the Windrush affair, which meant officers “don’t know what good looks like".” [21/24]

This implies removals were based solely or principally on targets, which isn’t an admission @ukhomeoffice has made; and Border Force officials are incapable of assessing claims in a non-arbitrary way. All of this is left unprobed, as is Mr Smith’s current pvt sector role. [22/24]

You lead with “Windrush sensitivities” but neglect to mention that targets led to illegal deportations - an admitted fact - with the net effect that the article reads as if some part at least of the Windrush generation were illegal immigrants. They were not. Do better. [23/24]

PS: For useful, legally cogent commentary on asylum/refugees/human rights, try @DLPublicLaw @JCWI_UK @ZoeJardiniere @BellaSankey @AdamWagner1 @ColinYeo1 @GardenCourtLaw @Goldsmith_Imm @refugeecouncil @safepassageuk @SatbirLSingh @minnierahman @chaipatel0 @DetentionAction [24/24]