Government lawyers have reportedly told the home secretary that she has a “less than 30 per cent” chance of successfully defending the policy if it was challenged in the courts.
The legal assessment comes from internal Home Office papers obtained by The Guardian. The leaked documents allegedly say that the Home Office should expect a legal challenge over the planned tactic to force small boats carrying migrants back into French waters.
They also say that any challenge would be “reputationally damaging” and could force the Home Office to disclose further documents, the Guardian reported.
The tactic has already been rejected by the French government, who warned that pushing ahead with the plan “would risk having a negative impact on our cooperation.”
They said that “safeguarding human lives at sea takes priority over considerations of nationality, status and migratory policy.”
UK Border Force staff have already been trained to use the “turn-around” tactics but said they would only use them when deemed safe to do so.
Priti Patel’s “turn around” tactics would involve the border force blocking a migrant boat’s passage into UK waters. The Border Force would then contact the French coastguard to tell them that there was a vessel in their territorial waters in need of rescue.
This would then place the legal obligation for the migrant boats onto the French. If the migrant boat was already in UK waters, Border Force officers on jet skis would force it to turn around.
One Home Office document about the tactics allegedly explained that the lawfulness – or vires – of the plan could be successfully challenged. It read: “Whilst confirmation that the tactics are lawful would be very welcome, legal advice is that a ruling against the government is the more likely outcome in relation to vires.
“Counsel has advised that the prospect of successfully defending a claim on vires is less than 30%.”
It continued: “The attorney general said the government should expect a legal challenge on the tactic. A challenge could be brought by the representatives of any migrant subject to the tactic or by a migrant pressure group to the police itself.
“While the prospects of successful challenge are highest in relation to vires, a challenge would likely be brought on grounds relating to proportionality and compliance with the government’s obligations under the Human Rights Act.”
It also described a successful legal challenge as “reputationally damaging”, saying: “this needs to be factored into the presentational consideration.”
It was also warned that “the tactics may have to be suspended pending the outcome of the court’s decision resulting in months of delay.”
At least 853 people came to the UK on small boats last Wednesday, the highest daily number of people making the crossing this year.
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