Two weeks ago, when I wrote my previous post, Brexit Ultras were cock-a-hoop because they believed that the EU and Ireland were being forced to ‘pay the price’ for having refused to countenance an Irish land border during the Brexit negotiations. As a result, asylum seekers within the UK were now entering Ireland via Northern Ireland so as to escape the possibility of being removed to Rwanda (or supposedly: see the post itself for discussion).
That ebullience has turned to dismay with this week’s ruling by Northern Ireland’s High Court that parts of the Illegal Migration Act do not apply in Northern Ireland (NI) because they breach human rights law and, thereby, breach the Windsor Framework. This is likely to mean that asylum seekers in NI cannot be deported to Rwanda, although the government will appeal against the ruling. Meanwhile, to the ire of Brexiters generally, and NI unionist Brexiters in particular, a potential incentive for asylum seekers to locate in NI, rather than the rest of the UK, has been created. Suddenly we are back to the old familiar lament that "Britain is paying the price for surrender to the EU" (£)
The roots of this lie deeper than the Windsor Framework, extending to both the 1998 Good Friday Agreement (GFA) and the original Northern Ireland Protocol (NIP). Although much of the discussion of these has been to do with trade and economic borders, central to the EU’s position in the Brexit negotiations was that there should be no dilution of the GFA, and included within that was that there be no diminution of the human rights provisions contained within the GFA (matters of no small concern to the US, as well).
The UK government agreed to this, and it is worth stressing that it did so quite willingly for, at the time, apart from perhaps a few on the fringe, Brexiters, and certainly the Brexit government, were adamant that Britain had no intention at all of threatening such rights, or the GFA in any respect, and all talk to the contrary was just more ‘Project Fear’. That the EU nevertheless sought legal commitment to this intention was, as can now be seen, a sensible and necessary precaution.
Not my Brexit (as always)
Thus when former Home Secretary Suella Braverman railed this week that the Windsor Framework has “failed upon its first contact with reality”, and is operating contrary to the “assurances given” to her at the time, that is pure nonsense. In fact, on its first contact with reality (as regards human rights), the Windsor Framework has done exactly what was intended from the outset. It is not clear what ‘assurances’ she was given, or who gave them, but if she believed otherwise then she is incompetent. However, this isn’t really the point she’s making. What she actually is trying to do is to disavow the fact that she was a member of the government which agreed the Windsor Framework (and, further back, one of the Tory MPs who voted unanimously for the NIP).
In this, Braverman is following a now familiar pattern as regards the Brexit arrangements for NI (and Brexit more generally). Over and over again Brexiter MPs who voted for them claim that they were misled, for example into believing the NIP to be temporary, or into believing that there would be no sea border, and, now, over the human rights provisions it entailed. There may be some truth in these claims to the extent that Boris Johnson repeatedly misrepresented the Protocol. However, that is no excuse for such MPs not to have grasped this central part of the Brexit Withdrawal Agreement, the more so given that one of their leading figures, Iain Duncan Smith, insisted that no more time need be spent debating it. The same goes for the Windsor Framework, and especially for a government minister like Braverman.
But all of this is a smokescreen. The reality is that, from the outset, Brexiters didn’t understand or care what their project meant for Northern Ireland and many of them still do not, or affect not to believe it. Only when, as individuals, they are in government, are they forced to confront it, as they are other Brexit realities. That happened to Theresa May and, for all his huffing and puffing, to Boris Johnson when he was Prime Minister, though he left a political crisis over the NIP the resolution of which, via the Windsor Framework, was one of Rishi Sunak’s few achievements, and one of the few times he faced down the Brexit Ultras. The same thing happened to Braverman, whilst she was in office, including when, in her second stint as Home Secretary she voted for the Windsor Framework.
But some Tory Brexiters either never held government positions or, as happened with numerous Brexit Secretaries and Brexit Ministers, resigned those positions rather than accept the realities of Brexit. They could then join the Farageist extra-parliamentary chorus of how Brexit has been betrayed and could have been done ‘properly’ if only the government had ‘stood up to’ the EU. So Braverman’s reference to ‘assurances’ that have proven false is simply her alibi for what the government she was part of did, and a brandishing of her credentials to join the ranks of the betrayed.
The Tory Brexit failure
All this in turn is part of the wider picture of what Brexit has done to the Tory Party. For the most basic and most brutal truth is that what has been their flagship policy since 2016, and defining purpose since 2017, has manifestly failed. That failure was well-captured by Rafael Behr’s pithy formulation in his Guardian column this week: “Brexit was a huge bet against the idea that geography mattered to economic and security policy in the 21st century. Geography won.” Week-in and week-out the evidence of that grows, with the latest examples including its role in the delays to the opening of the Co-Op Live Arena, its role in medicine shortages, and the border delays for perishable goods imports. Conversely, the realities of geography have continued quietly to play out, for example in shadowing new EU regulations (such as those relating to plastic bottle caps) and in re-joining the European High Performance Computing Joint Undertaking.
But we need hardly rehearse once again all the economic and geo-political damage and pointlessness of Brexit, still less to trudge through all the wearisome attempts by Brexit ideologues to disprove it, or to grab hold of some tiny shred, usually misrepresented anyway, of supposed justification. The clinching evidence of its failure is that if Brexit had been anything even remotely like the success that was promised then, as we approach the first election since leaving the EU, the Tories would undoubtedly be trumpeting that success, and making their record of delivering it the central plank of their electoral platform. Instead, they barely mention Brexit any more, and instead grub around with endless ‘re-sets’, gimmicks about banning civil service ‘woke lanyards’, and, of course, the more serious, but still gimmicky, Rwanda policy.
The nature of those gimmicks reflects how Brexit has been a failure in a different way; a failure not just for the country but for the Tory Party itself. For whilst the causes of Brexit are multiple, there can be no doubt that a significant one was the attempt by David Cameron and others to destroy the electoral threat of the UKIP ‘revolt on the right’. In that respect, its failure has been not just abject but total. Not only has that threat regathered (or perhaps we should say re-formed), as Reform UK, requiring the Tories to continue to seek ways to negate it, but the Tory Party itself has been substantially ‘UKIPified’. In particular, a substantial part of the right, both within and outside the party, regards Brexit as a foundational belief, but believes equally strongly that it has been betrayed.
The silence of the Tory leadership
So the Tory leadership, meaning not just Sunak but the party as a governing party, is now in an impossible situation (of its own making, so weep no tears). It can’t claim Brexit to be a success, because those who do not have a foundational belief in its rightness can clearly see it has failed, whilst those for whom its rightness is a foundational belief also believe that it has been betrayed. But it can’t denounce Brexit as a failure or a betrayal, since it is the Brexit the Tory leadership actually delivered.
This situation grows directly out of the wider political climate which Brexiters, meaning not just politicians but commentators and activists, have created since 2016. They showed no interest in trying to persuade their opponents that, despite their doubts, it could be successfully delivered – remainers were just told to ‘suck it up’, which they declined to do. Yet Brexiters themselves have been the most adamant that Brexit hasn’t been successfully delivered.
So the Tory leadership now has nowhere to stand: it can neither boast of Brexit nor disown it. It has to insist both that Brexit was the right thing to do, which only a minority of voters now believe, and that it was done in the right way, something which only a minority of that minority now believe, which isn’t electorally viable. Hence the near-silence (matched only, though for quite different reasons, by the Labour opposition).
The noisy minority
By contrast, Brexiters who insist Brexit was the right thing, but was not done in the right way, have a much easier time of it, so long as they can avoid the taint of responsibility for how it was done. This is the seam of grievance that is being assiduously and very loudly mined by Reform and by many Tories. For them, things like the Belfast court ruling offer the opportunity to keep punching on the bruise that the Tory government bungled Brexit, and did so through lack of true belief in real Conservatism.
Moreover, they can propound a Brexit 2.0 agenda of leaving the ECHR, as well as even more draconian anti-immigration and anti-asylum policies, far more easily than can the Tory leadership. For, in government, the practical consequences of this agenda would be all too clear. Sunak can make noises about the ECHR, but any government actually derogating from it would encounter massive problems, not least in relation to the GFA and the NIP. Outside government, these problems can be denied, or discounted simply by proposing to violate those agreements as well.
On immigration generally, whilst the government is willing to countenance considerable damage to universities and to businesses with its recent clampdowns, it is less clear that it would be able to weather the storm caused by the kinds of restrictions its even more right-wing critics want. It is one thing for voters to demand much lower immigration, quite another if they are forced to face the reality of the consequences. Even surveys showing majority support for reducing immigration also show majority support for making immigration easier for many key occupations, especially the NHS and social care. Certainly any government actually implementing a very low immigration policy of the sort advocated by Reform UK would immediately run into huge practical difficulties and, crucially, would still be denounced by those outside government as not going far enough.
For practical difficulties do not matter outside government, and, as with Brexit itself, they can be dismissed as ‘Project Fear’, generated by a self-interested globalist elite. That is why, in these dog days of Tory government, those within the party who aspire to its future leadership, perhaps including Braverman or Robert Jenrick, can develop ever-more impractical ideas, just as Reform can.
The same goes for those, like Liz Truss, canvassing for the PopCons, or for Jacob Rees-Mogg, who this week proposed an electoral pact (£), not far short of an effective merger, between the Conservatives and Reform, albeit that Farage immediately rejected that, at least for now. Meanwhile there is talk of self-styled ‘media personality’ Matt Goodwin and self-proclaimed ‘disruptor’ Dominic Cummings each launching new, populist, anti-immigration parties of their own. If so, there will be multiple parties fishing in the same murky, but electorally fairly limited, water, leaving all of them frustrated in their pursuit of power, not least because, in the process, they will abandon many of the centre-right voters upon whom the the Tories used to rely.
Chasing the dragon
Brexit and its aftermath are the key to all of these developments, and, although it is impossible to know how they will play out, there is a good chance that they will yield a long-term fracturing of the political right. That’s something which used to be thought more likely on the left. To an extent, it is what happened when the SDP split from Labour in the 1980s, and it might have been expected in the form of an ‘Old Labour’ split from ‘New Labour’ during the Blair years, or a Blairite split from Corbyn’s Labour, or the Corbynite left setting up a new party in opposition to Starmer. Arguably, the effect, and ultimate fate, of the SDP may have inoculated the Labour Party against such subsequent splits. But the post-Brexit right, high on dreams of purity and addicted to the dramas of betrayal and purges has, perhaps appropriately, not had the benefit of the vaccine.
It's against this background that many current events should be understood, including the perhaps not very important or enduring one of the Belfast High Court ruling. That ruling is, at one level, a reminder of the mess that Brexit has created as regards Northern Ireland and of the impracticality of separating the UK from all of the international obligations that Brexiter ideas of sovereignty entail. At another level, it is one more piece of ammunition for the Brexiters to propose making an even greater mess in Northern Ireland, since their ultimate aim is to renege on the NIP and the Windsor Framework (and in some cases probably the GFA, as well), and to redouble on their fantasy of sovereignty by reneging on the ECHR (£). The more general application of that logic is, perhaps, the ultimate trap that Brexit has created: anything and everything that shows the folly of Brexit is, for Brexiters, the justification to commit even worse follies.
If that seems like political madness given the electoral system, and public opinion, it is sustained by the memory of the high of 2016 when, very briefly, the Brexiters could lay claim to embodying the ‘will of the people’ and could believe that they really were the silent majority, not the noisy minority. It was a heady moment. The hit proved short-lived and ultimately disappointing, but, for Britain’s political right, it proved to be a gateway drug, and there is not much they will not do in search of another fix.
Friday 17 May 2024
Friday 3 May 2024
Brexit border bewilderment
I don’t suppose that there is much political interest today in anything but the local election results, about which I’ll say nothing here except that anything now happening to the Tory Party is inextricably, even when indirectly, bound up with Brexit. And, as the length of today’s post testifies, it’s not as if there is any lack of other Brexit news to discuss. Much of that news concerns, in different ways, the issue which both defines and bedevils Brexit: borders.
Early in the Brexit process, I wrote a post on ‘why Brexiters don’t understand borders’, which touched on some of the topics which will feature in today’s post, and it concluded as follows:
“I referred earlier to a very good article in the Daily Telegraph [by Peter Foster] on the implications of Brexit for Ireland and Northern Ireland and, within it, there is a revealing sentence from an unnamed British civil servant working on Brexit: ‘It seems as if every day something new we hadn’t thought of comes up’. That could almost be the strapline (and perhaps will be the epitaph) for Brexit. At every stage in the debate, Brexiters insist that it will be easy and that those who say otherwise are doom mongers; but every time those claims meet reality there turns out to be far more complexity than Brexiters believed (or at least than they told the electorate). Borders and what they mean are perhaps central to the Brexiter mindset: it is to say the least unfortunate that they don’t understand them. It is doubly unfortunate that we are all going to have to pay a very high price for their enlightenment.”
That was written in March 2017, but it is a suitable introduction to this week’s main Brexit developments.
Bordering on the ridiculous
The ongoing saga of the introduction of import controls reached a key moment on Tuesday, when the latest phase of controls came into force – except for those which didn’t, and for those hauliers who were waived through even when they had non-compliant paperwork, and for those consignments requiring the attention of inspectors who clock off between 7pm and 7am – further adding to the uncertainty and confusion surrounding the process. I’ve discussed this exhaustively, or at least exhaustingly, for years now, most recently in last week’s post, but it is still a notable moment not least because it has brought an upsurge in media attention, including reports in the Mail, on the BBC, and a particularly hard-hitting item on ITV News, as well as questions from MPs.
Amongst these media reports, an especially informative one came from Ellen Milligan of Bloomberg because it focused on the impact of the controls upon EU exporters, taking the important example of Danish bacon exports to Britain, tracing them from pig farm to arrival at the port of Immingham on the east coast of England. This was proper, detailed reporting getting, almost literally, out into the field, and it exposed the sheer bureaucratic complexity and cost Brexit has imposed on EU firms exporting to Britain (which, of course, has a mirror image for British firms exporting to the EU). In the process, it illustrated why smaller firms simply cease to engage in such trade. A report covering similar themes, but considering the case of Polish exporters appeared in The Times (£).
Counting costs
Apart from being informative in their own right, these articles were a useful addition to the bulk of the reporting, which was more focused on the UK importers, who also bear some of the new burdens, such as having to pre-notify and declare imports. Quite what all these costs amount to is a matter of dispute. The ITV report commissioned expert analysis suggesting a figure of £2.9 billion per annum, whereas the government claims it is only £330 million. A discrepancy of that magnitude suggests that totally different methodologies are being used, but since neither figure has any published details of how it was arrived at it is impossible to judge. However, Dr Anna Jerzewska, a leading international expert on trade and customs, was asked to provide an independent evaluation of the analysis underlying ITV’s figure, and stated it to be “robust”.
One yardstick by which to judge the government’s figure is that the Times report quoted the extra costs to just one Polish haulier of fresh poultry to the UK as being in the region of £1 million to £1.5 million per year. If correct, that makes the figure of £330 million a year for the total cost inherently implausible and, whilst of course I cannot prove this, I suspect that it is based only on the direct costs to UK importers. And whilst it is impossible to know without seeing the government’s – specifically DEFRA’s – calculations, it would not be unduly cynical to think that it has chosen a methodology to downplay the costs. Apart from anything else, if the costs really are so small, then what is the justification for the repeated delays in implementing the controls?
Mounting risks
It's true that there may be other answers to that question, in addition to cost, with one possibility being a desire to avoid the bad publicity for Brexit of border queues. But whatever the answers are, the delays demonstrate irresponsibility, given that the Department for Environment, Food and the Rural Affairs (DEFRA) itself is saying (accurately) that “a robust and proportionate border regime is vital to ensure we can protect our food system against biosecurity threats” and that “these border checks are fundamental to protecting the UK’s food supply chain, farmers and natural environment against costly diseases reaching our shores.” What, then, of the continuing elevation of the risk of those threats from the ongoing delays in implementing the border regime?
Indeed, there is much disingenuity in the entire way the government is presenting this issue (just as there is in the way that Kemi Badenoch presented the latest trade figures this week). The DEFRA announcement just referred to includes another example, suggesting that the new regime represents a “saving” because it is (supposedly) cheaper than the original plan for the post-Brexit regime. Perhaps so, but it still represents a cost of Brexit. That fact is also continually smudged when the government (and some media reports) imply that all this is not so much about Brexit as about the government’s decision to develop an entirely new Border Target Operating Model (BTOM) for imported goods, for reasons of bio-security policy.
This misleading implication is possible because it is true that the BTOM is designed to cover imports from the whole of the world, not just from the EU, and in that sense has elements which are not directly to do with Brexit. However, it would not need to include EU imports (or not to anything remotely like the same extent) had it not been for Brexit, and it is highly unlikely that, but for Brexit, the BTOM would have been introduced for rest of world imports. For, despite much misunderstanding, some of it apparently wilful, along the lines that there is no reason why imports from the EU should be any riskier now than when Britain was a member of the single market, this is not so. The government is introducing controls on EU imports, albeit far too slowly, not for the fun of it but because they are now necessary for such imports, just as they have always been for non-EU imports.
What happens now?
This story still has some way to run. Not only is this phase of controls not yet fully operational, but there are new phases coming in October, and still more next year, including the introduction of import controls on goods from Ireland. Equally, there is a time lag between controls at the borders and the knock-on effects on the viability of businesses, prices, and product availability on the shelves. More in future posts, no doubt.
Border bafflement
Meanwhile, borders also feature in another of this week’s big news stories, the row between the UK and Ireland over asylum seekers. I don’t think that in all the years I have been writing about Brexit, I’ve ever come across an issue so convoluted and difficult to unpick, especially as the story was still unfolding whilst I wrote this post. As a result, I’m still not sure if I have got the details right, and (as always, in fact) I’m more than open to correction.
Initial reports suggested that the Irish government intended to pass a law so as to be able to return asylum seekers who are entering Ireland via Northern Ireland (NI), to the extent of accounting for 80% of “recent arrivals” of such asylum seekers (ASs) in Ireland, although this figure has subsequently been questioned. Moreover, it was held that the reason this was happening was the British government’s ‘Rwanda policy’. The political context of Ireland’s announcement is the increasingly violent far right anti-immigration and anti-asylum seeker protest movement, so it can be read an attempt to appease this, rather as Britain’s Rwanda policy is an attempt to appease similar movements and political pressures in the UK.
It has been questioned whether the Rwanda policy is what is driving any increase there may be of ASs moving to Ireland via NI. Clarity is not aided by the British government’s contradictory response, with, on the one hand, a Downing Street spokesperson saying “it is too early to jump to conclusions” about whether the Rwanda policy was having this effect whilst, on the other hand, Rishi Sunak implicitly endorsed the claim that it was by saying that it shows the policy is already “working as a deterrent”. Those things can’t both be true. Moreover, if there is such an increase, whatever the cause, then unless, I’ve missed them, there is no reporting on how this is happening. Presumably it would entail ASs arriving in Great Britain and making their way to Cairnryan in Scotland and thence by ferry to Larne (which, as I understand it, requires passengers to provide photo ID). But, if so, there would surely be reports of large numbers of them doing this?
An additional complexity is understanding just what it is that the proposed Irish legislation would do. The early reports seemed to suggest it would mean legislating to deport the relevant ASs to the UK, However, it quickly emerged that Ireland’s plan was actually to legislate that Britain is a “safe third country” to which ASs can be returned in the face of a recent Irish High Court ruling to the contrary (this ruling was not, however, because of the UK’s Rwanda policy).
Whatever form any eventual Irish legislation takes, it is not obvious what would follow. On the face of it, deporting ASs who had arrived via the UK back into the UK would be no more feasible or legal than the idiotic claims by hard line Brexiters that ASs arriving in Britain from France could simply be returned en masse to France. One such is Richard Tice of Reform UK, who – like a schoolboy boasting to his friends that he has a wonderful girlfriend, but they wouldn’t know her ‘as she goes to a different school’ – insisted this week that he has ‘advice from his own lawyers’ saying this would be legal. It is an irony, though, given those claims, that the Brexiters have been so outraged by suggestions that Ireland might apply the same approach to Britain that they want to apply to France.
Early in the Brexit process, I wrote a post on ‘why Brexiters don’t understand borders’, which touched on some of the topics which will feature in today’s post, and it concluded as follows:
“I referred earlier to a very good article in the Daily Telegraph [by Peter Foster] on the implications of Brexit for Ireland and Northern Ireland and, within it, there is a revealing sentence from an unnamed British civil servant working on Brexit: ‘It seems as if every day something new we hadn’t thought of comes up’. That could almost be the strapline (and perhaps will be the epitaph) for Brexit. At every stage in the debate, Brexiters insist that it will be easy and that those who say otherwise are doom mongers; but every time those claims meet reality there turns out to be far more complexity than Brexiters believed (or at least than they told the electorate). Borders and what they mean are perhaps central to the Brexiter mindset: it is to say the least unfortunate that they don’t understand them. It is doubly unfortunate that we are all going to have to pay a very high price for their enlightenment.”
That was written in March 2017, but it is a suitable introduction to this week’s main Brexit developments.
Bordering on the ridiculous
The ongoing saga of the introduction of import controls reached a key moment on Tuesday, when the latest phase of controls came into force – except for those which didn’t, and for those hauliers who were waived through even when they had non-compliant paperwork, and for those consignments requiring the attention of inspectors who clock off between 7pm and 7am – further adding to the uncertainty and confusion surrounding the process. I’ve discussed this exhaustively, or at least exhaustingly, for years now, most recently in last week’s post, but it is still a notable moment not least because it has brought an upsurge in media attention, including reports in the Mail, on the BBC, and a particularly hard-hitting item on ITV News, as well as questions from MPs.
Amongst these media reports, an especially informative one came from Ellen Milligan of Bloomberg because it focused on the impact of the controls upon EU exporters, taking the important example of Danish bacon exports to Britain, tracing them from pig farm to arrival at the port of Immingham on the east coast of England. This was proper, detailed reporting getting, almost literally, out into the field, and it exposed the sheer bureaucratic complexity and cost Brexit has imposed on EU firms exporting to Britain (which, of course, has a mirror image for British firms exporting to the EU). In the process, it illustrated why smaller firms simply cease to engage in such trade. A report covering similar themes, but considering the case of Polish exporters appeared in The Times (£).
Counting costs
Apart from being informative in their own right, these articles were a useful addition to the bulk of the reporting, which was more focused on the UK importers, who also bear some of the new burdens, such as having to pre-notify and declare imports. Quite what all these costs amount to is a matter of dispute. The ITV report commissioned expert analysis suggesting a figure of £2.9 billion per annum, whereas the government claims it is only £330 million. A discrepancy of that magnitude suggests that totally different methodologies are being used, but since neither figure has any published details of how it was arrived at it is impossible to judge. However, Dr Anna Jerzewska, a leading international expert on trade and customs, was asked to provide an independent evaluation of the analysis underlying ITV’s figure, and stated it to be “robust”.
One yardstick by which to judge the government’s figure is that the Times report quoted the extra costs to just one Polish haulier of fresh poultry to the UK as being in the region of £1 million to £1.5 million per year. If correct, that makes the figure of £330 million a year for the total cost inherently implausible and, whilst of course I cannot prove this, I suspect that it is based only on the direct costs to UK importers. And whilst it is impossible to know without seeing the government’s – specifically DEFRA’s – calculations, it would not be unduly cynical to think that it has chosen a methodology to downplay the costs. Apart from anything else, if the costs really are so small, then what is the justification for the repeated delays in implementing the controls?
Mounting risks
It's true that there may be other answers to that question, in addition to cost, with one possibility being a desire to avoid the bad publicity for Brexit of border queues. But whatever the answers are, the delays demonstrate irresponsibility, given that the Department for Environment, Food and the Rural Affairs (DEFRA) itself is saying (accurately) that “a robust and proportionate border regime is vital to ensure we can protect our food system against biosecurity threats” and that “these border checks are fundamental to protecting the UK’s food supply chain, farmers and natural environment against costly diseases reaching our shores.” What, then, of the continuing elevation of the risk of those threats from the ongoing delays in implementing the border regime?
Indeed, there is much disingenuity in the entire way the government is presenting this issue (just as there is in the way that Kemi Badenoch presented the latest trade figures this week). The DEFRA announcement just referred to includes another example, suggesting that the new regime represents a “saving” because it is (supposedly) cheaper than the original plan for the post-Brexit regime. Perhaps so, but it still represents a cost of Brexit. That fact is also continually smudged when the government (and some media reports) imply that all this is not so much about Brexit as about the government’s decision to develop an entirely new Border Target Operating Model (BTOM) for imported goods, for reasons of bio-security policy.
This misleading implication is possible because it is true that the BTOM is designed to cover imports from the whole of the world, not just from the EU, and in that sense has elements which are not directly to do with Brexit. However, it would not need to include EU imports (or not to anything remotely like the same extent) had it not been for Brexit, and it is highly unlikely that, but for Brexit, the BTOM would have been introduced for rest of world imports. For, despite much misunderstanding, some of it apparently wilful, along the lines that there is no reason why imports from the EU should be any riskier now than when Britain was a member of the single market, this is not so. The government is introducing controls on EU imports, albeit far too slowly, not for the fun of it but because they are now necessary for such imports, just as they have always been for non-EU imports.
What happens now?
This story still has some way to run. Not only is this phase of controls not yet fully operational, but there are new phases coming in October, and still more next year, including the introduction of import controls on goods from Ireland. Equally, there is a time lag between controls at the borders and the knock-on effects on the viability of businesses, prices, and product availability on the shelves. More in future posts, no doubt.
Border bafflement
Meanwhile, borders also feature in another of this week’s big news stories, the row between the UK and Ireland over asylum seekers. I don’t think that in all the years I have been writing about Brexit, I’ve ever come across an issue so convoluted and difficult to unpick, especially as the story was still unfolding whilst I wrote this post. As a result, I’m still not sure if I have got the details right, and (as always, in fact) I’m more than open to correction.
Initial reports suggested that the Irish government intended to pass a law so as to be able to return asylum seekers who are entering Ireland via Northern Ireland (NI), to the extent of accounting for 80% of “recent arrivals” of such asylum seekers (ASs) in Ireland, although this figure has subsequently been questioned. Moreover, it was held that the reason this was happening was the British government’s ‘Rwanda policy’. The political context of Ireland’s announcement is the increasingly violent far right anti-immigration and anti-asylum seeker protest movement, so it can be read an attempt to appease this, rather as Britain’s Rwanda policy is an attempt to appease similar movements and political pressures in the UK.
It has been questioned whether the Rwanda policy is what is driving any increase there may be of ASs moving to Ireland via NI. Clarity is not aided by the British government’s contradictory response, with, on the one hand, a Downing Street spokesperson saying “it is too early to jump to conclusions” about whether the Rwanda policy was having this effect whilst, on the other hand, Rishi Sunak implicitly endorsed the claim that it was by saying that it shows the policy is already “working as a deterrent”. Those things can’t both be true. Moreover, if there is such an increase, whatever the cause, then unless, I’ve missed them, there is no reporting on how this is happening. Presumably it would entail ASs arriving in Great Britain and making their way to Cairnryan in Scotland and thence by ferry to Larne (which, as I understand it, requires passengers to provide photo ID). But, if so, there would surely be reports of large numbers of them doing this?
An additional complexity is understanding just what it is that the proposed Irish legislation would do. The early reports seemed to suggest it would mean legislating to deport the relevant ASs to the UK, However, it quickly emerged that Ireland’s plan was actually to legislate that Britain is a “safe third country” to which ASs can be returned in the face of a recent Irish High Court ruling to the contrary (this ruling was not, however, because of the UK’s Rwanda policy).
Whatever form any eventual Irish legislation takes, it is not obvious what would follow. On the face of it, deporting ASs who had arrived via the UK back into the UK would be no more feasible or legal than the idiotic claims by hard line Brexiters that ASs arriving in Britain from France could simply be returned en masse to France. One such is Richard Tice of Reform UK, who – like a schoolboy boasting to his friends that he has a wonderful girlfriend, but they wouldn’t know her ‘as she goes to a different school’ – insisted this week that he has ‘advice from his own lawyers’ saying this would be legal. It is an irony, though, given those claims, that the Brexiters have been so outraged by suggestions that Ireland might apply the same approach to Britain that they want to apply to France.
Agreement, what Agreement?
At all events, Sunak has unequivocally rejected the idea of any agreement to take ASs back from Ireland, at least unless the EU agreed that the UK could return ASs to France. However, this is where things get particularly opaque, because politicians, not least the Irish Taoiseach Simon Harris, and many media reports have spoken of an already existing post-Brexit bi-lateral agreement under which such returns are possible, and Sunak seems to accept there are ‘operational arrangements’, albeit no legal obligation (£), to effect returns. The agreement referred to appears to be related to the operation of the Common Travel Area (CTA), the system, going back to 1923, although with some intermissions, whereby there is freedom of movement for British and Irish citizens across and throughout both jurisdictions.
However, despite all the references to it, no one seems to be clear about what this asylum deal actually is. The continuation of the CTA after Brexit was affirmed by a Memorandum of Understanding (MoU) between the British and Irish governments, created in May 2019 and it seems possible that this is the agreement in question, although it says nothing specific about asylum seekers [1]. It also doesn’t tally with the 2020 date given in media reports for the MoU, and although there was a CTA MoU in that year it related specifically to healthcare. The 2020 Withdrawal Agreement also makes reference, in the Northern Ireland Protocol, to the maintenance of the CTA, but again does not seem to suggest any specific agreement on asylum returns, and anyway anything that was in this Agreement would, unlike a MoU, be legally binding on the UK.
On social media, attention has also been drawn to an unsourced fragment of text which refers to the two countries facilitating the return of individuals to “their country of origin” if they have entered the CTA unlawfully. A lot of digging reveals that the source of this is a still operative, but pre-Brexit, 2011 Joint Statement by the two governments about securing the CTA’s external border, which relates in turn to the somewhat secretive and still ongoing joint Operation Gull programme which serves that purpose [2]. However, this doesn’t mean returning such individuals to the country within the CTA from which they came, it means (potentially) the country from which they originated, and it certainly isn’t the post-Brexit agreement Harris and others appear to have in mind.
Nevertheless, to the extent that there is CTA dimension to this, which is to say a specifically UK-Ireland agreement, and even more if there has been a specific post-Brexit agreement relating to asylum returns, then the parallels between UK-France or UK-EU arrangements do not hold.
Brexit aspects
So here Brexit begins to enter the story more explicitly, albeit in complicated ways. One aspect is that, pre-Brexit, the Dublin III regulations enabled, in some though by no means all cases, Ireland to return ASs to the UK (and vice versa) if that was where they had made their first application for asylum. And this indeed happened. According to Bernard Ryan, Professor of Migration Law at Leicester University, in the period 2008-2014, the UK made 1334 such requests to Ireland, resulting in 753 transfers of persons, and Ireland made 815 requests to the UK, resulting in 357 transfers. However, post-Brexit, the UK is no longer a part of the Dublin regulations (a side-issue here is that these regulations are themselves in the process of change).
Amid much confusion in media reports and social media discussions this week, Law professors Colin Murray and Steve Peers produced an excellent detailed briefing on the current legal situation. What it revealed is a complex hodge-podge of EU law, Irish law, UK law, the particular post-Brexit provisions for NI, and, indeed, the provisions, both legal and customary, of the CTA. It is well worth reading in full, but on my interpretation (which I stress again is highly tentative) there is nothing here which, in any ordinary meaning of the term, constitutes an agreement, whether relating to the CTA or not, whereby ASs arriving in Ireland from the UK can simply be returned.
Instead, as Murray and Peers put it: “Amid the tangle [of] post-Brexit arrangements, both countries appear to be talking at cross purposes”, a situation not helped by the “low trust context” which militates against them “engaging with each other in the close collaborative relationship that the CTA requires”. They don’t say it explicitly, but I assume they mean by that the context created by Brexit and the manner it was undertaken.
A second aspect is that several Brexiters have responded to the current row (£) by suggesting that it somehow means that Ireland and the EU are reaping the results of having insisted during the Brexit negotiations that there could be no land border between Ireland and Northern Ireland, and specifically no checks on people moving between the two jurisdictions by virtue of the CTA. They are also suggesting that Ireland is about to install such a border, though this is based on what would seem to be a misunderstanding of a report that the Irish government has deployed extra police on “frontline” duties of prevention and deportation.
Undoubtedly those now claiming a ‘gotcha’ moment (£) are those who have never understood or accepted that the Good Friday Agreement effectively precludes such a border. In any case, they are now missing the rather crucial fact that it was British Brexiters, more than anyone else, who had been adamant that the CTA would continue and, moreover, that this was their supposedly definitive rebuttal of the ‘Project Fear’ warnings issued by Tony Blair, John Major, and others, about what Brexit would mean for the Irish border.
How did we get here?
Most notably, this was the position of Boris Johnson and of the then Northern Ireland Secretary (and keen Brexiter) Theresa Villiers. It was a position founded on ignorance, to the extent that, as the Brexiters (or, at least, the ones who had to take responsibility for enacting Brexit) gradually came to grasp, the issue about the border was not just about the movement of people but also the movement of goods and livestock, and the various processes and checks needed (the same, indeed, as with the GB-EU border controls discussed above). Hence, by a long and slow route, we ended up with the Irish Sea border, with all that that has meant, including the Windsor Framework.
Along the way, discussion of the free movement of people across the island of Ireland became curiously muted. Amongst the pre-referendum warnings of the remain campaign, Major and Blair had highlighted not just the matter of customs controls but that of immigration from the EU. For example, Blair said that if there were no immigration controls between Ireland and Northern Ireland then: “It would make a nonsense of their entire argument for leaving which is all to do with the free movement of people in the European Union.”
At stake was that if there were no border checks then what would stop someone coming to Ireland quite legally from any EU country, under freedom of movement rights, then entering the UK via Northern Ireland and living or working illegally? I was not alone in thinking, in the early days of the Brexit process, that this was going to be a major question. Indeed, at that time, the government itself mooted the idea of moving frontline UK immigration controls to Ireland’s ports and airports (no one seemed to give any consideration at all to the possibility of movement in the other direction, from the UK to Ireland, whether that be of ASs or non-EU nationals residing legally in the UK).
In the event, whereas customs and other controls on goods were located across the Irish Sea, the issue of illegal immigrants from the EU was left to detection when in situ by landlords, employers, banks etc., and surprisingly little has been heard of it since. The only time it has become a matter of much public debate was not in relation to EU nationals or to asylum seekers but when it was raised in 2022, by the then British Home Secretary Priti Patel, in relation to Ukrainian refugees accepted by Ireland potentially entering the UK through ‘the back door’, under cover of the CTA. However, I’m not aware of any evidence that this actually happened, or if it did then to any great extent, nor of there being any talk at that time of a ‘returns agreement’. And so things rested until the last week or so.
What happens now?
How this current row will play out remains to be seen. Some reports have suggested that the two governments are keen to dial-down a dispute which has been “escalated out of all proportion”. I am not so sure. It arises out of what, in both countries (as in many others), is an extremely toxic politics around immigration in general, and asylum in particular, which many politicians are all too ready to exploit and exacerbate, especially with both countries facing general elections in the next twelve months.
Not the least of that toxicity is the wholly repellent dehumanization of ASs as some sort of malign parcel to be passed from country to country to ‘deal with’ or worse, according to the depraved comments of Reform’s Deputy Chair Ben Habib, left to drown. Habib later tetchily claimed to have been misrepresented, but his comments, which seemed to shock even the Talk TV shock-jock Julia Hartley-Brewer who conducted the interview, are on the public record for people to judge for themselves.
Whatever the challenges they may pose, these are people, including people broken and traumatized by suffering. And if it should be that some are ‘economic migrants’, whose asylum claims are not valid, well, they are still people and, very likely, people who have become economic migrants as a result of great hardship. Either way, they should have their claims processed quickly and fairly. Doing so does, indeed, pose challenges, as does the successful support and integration of those whose claims are found to be valid. The way to deal with those challenges can only be through concerted global action, both as regards the organization of asylum claims and destinations and as regards the multiple root causes of the need for asylum-seeking. That isn’t easy, to say the least, but it is emphatically made more difficult by nationalism and xenophobia.
This is clearly a bigger issue than the EU and Brexit, and it can hardly be said that the EU or its member states are paragons of virtue (one of the silliest of Brexiter ideas is that those who oppose Brexit see the EU, in this or any respect, as some kind of nirvana or, conversely, that its failure to be perfect in every respect is a good reason not to belong to it). But it is at least an attempt to address asylum collectively in at least one segment of the globe. One of the follies of Brexit is that it has absented the UK from this attempt, whilst another is the antagonism and mistrust it has brought to Anglo-Irish relations. By no means all the costs of Brexit, and perhaps not even the greatest costs of Brexit, are economic.
Notes
[1] The 2019 MoU was drawn up at a time when a ‘no-deal Brexit’ (i.e. no Withdrawal Agreement) was possible, and I wonder if the references to 2020 are because, in effect, its provisions became duplicated by the Withdrawal Agreement/ Protocol. If it should emerge that there was a MoU about asylum returns, separate to the Withdrawal Agreement, then Sunak would be right to say that it was not binding in international law, but to renege on such a MoU, relating as it would to NI, would surely have very severe reputational consequences and damage relations with Ireland, the EU, and the US.
[2] The secrecy about this arises, I assume, not because of the asylum issue but because of the still existent NI terrorism threat.
There will be no post next Friday
At all events, Sunak has unequivocally rejected the idea of any agreement to take ASs back from Ireland, at least unless the EU agreed that the UK could return ASs to France. However, this is where things get particularly opaque, because politicians, not least the Irish Taoiseach Simon Harris, and many media reports have spoken of an already existing post-Brexit bi-lateral agreement under which such returns are possible, and Sunak seems to accept there are ‘operational arrangements’, albeit no legal obligation (£), to effect returns. The agreement referred to appears to be related to the operation of the Common Travel Area (CTA), the system, going back to 1923, although with some intermissions, whereby there is freedom of movement for British and Irish citizens across and throughout both jurisdictions.
However, despite all the references to it, no one seems to be clear about what this asylum deal actually is. The continuation of the CTA after Brexit was affirmed by a Memorandum of Understanding (MoU) between the British and Irish governments, created in May 2019 and it seems possible that this is the agreement in question, although it says nothing specific about asylum seekers [1]. It also doesn’t tally with the 2020 date given in media reports for the MoU, and although there was a CTA MoU in that year it related specifically to healthcare. The 2020 Withdrawal Agreement also makes reference, in the Northern Ireland Protocol, to the maintenance of the CTA, but again does not seem to suggest any specific agreement on asylum returns, and anyway anything that was in this Agreement would, unlike a MoU, be legally binding on the UK.
On social media, attention has also been drawn to an unsourced fragment of text which refers to the two countries facilitating the return of individuals to “their country of origin” if they have entered the CTA unlawfully. A lot of digging reveals that the source of this is a still operative, but pre-Brexit, 2011 Joint Statement by the two governments about securing the CTA’s external border, which relates in turn to the somewhat secretive and still ongoing joint Operation Gull programme which serves that purpose [2]. However, this doesn’t mean returning such individuals to the country within the CTA from which they came, it means (potentially) the country from which they originated, and it certainly isn’t the post-Brexit agreement Harris and others appear to have in mind.
Nevertheless, to the extent that there is CTA dimension to this, which is to say a specifically UK-Ireland agreement, and even more if there has been a specific post-Brexit agreement relating to asylum returns, then the parallels between UK-France or UK-EU arrangements do not hold.
Brexit aspects
So here Brexit begins to enter the story more explicitly, albeit in complicated ways. One aspect is that, pre-Brexit, the Dublin III regulations enabled, in some though by no means all cases, Ireland to return ASs to the UK (and vice versa) if that was where they had made their first application for asylum. And this indeed happened. According to Bernard Ryan, Professor of Migration Law at Leicester University, in the period 2008-2014, the UK made 1334 such requests to Ireland, resulting in 753 transfers of persons, and Ireland made 815 requests to the UK, resulting in 357 transfers. However, post-Brexit, the UK is no longer a part of the Dublin regulations (a side-issue here is that these regulations are themselves in the process of change).
Amid much confusion in media reports and social media discussions this week, Law professors Colin Murray and Steve Peers produced an excellent detailed briefing on the current legal situation. What it revealed is a complex hodge-podge of EU law, Irish law, UK law, the particular post-Brexit provisions for NI, and, indeed, the provisions, both legal and customary, of the CTA. It is well worth reading in full, but on my interpretation (which I stress again is highly tentative) there is nothing here which, in any ordinary meaning of the term, constitutes an agreement, whether relating to the CTA or not, whereby ASs arriving in Ireland from the UK can simply be returned.
Instead, as Murray and Peers put it: “Amid the tangle [of] post-Brexit arrangements, both countries appear to be talking at cross purposes”, a situation not helped by the “low trust context” which militates against them “engaging with each other in the close collaborative relationship that the CTA requires”. They don’t say it explicitly, but I assume they mean by that the context created by Brexit and the manner it was undertaken.
A second aspect is that several Brexiters have responded to the current row (£) by suggesting that it somehow means that Ireland and the EU are reaping the results of having insisted during the Brexit negotiations that there could be no land border between Ireland and Northern Ireland, and specifically no checks on people moving between the two jurisdictions by virtue of the CTA. They are also suggesting that Ireland is about to install such a border, though this is based on what would seem to be a misunderstanding of a report that the Irish government has deployed extra police on “frontline” duties of prevention and deportation.
Undoubtedly those now claiming a ‘gotcha’ moment (£) are those who have never understood or accepted that the Good Friday Agreement effectively precludes such a border. In any case, they are now missing the rather crucial fact that it was British Brexiters, more than anyone else, who had been adamant that the CTA would continue and, moreover, that this was their supposedly definitive rebuttal of the ‘Project Fear’ warnings issued by Tony Blair, John Major, and others, about what Brexit would mean for the Irish border.
How did we get here?
Most notably, this was the position of Boris Johnson and of the then Northern Ireland Secretary (and keen Brexiter) Theresa Villiers. It was a position founded on ignorance, to the extent that, as the Brexiters (or, at least, the ones who had to take responsibility for enacting Brexit) gradually came to grasp, the issue about the border was not just about the movement of people but also the movement of goods and livestock, and the various processes and checks needed (the same, indeed, as with the GB-EU border controls discussed above). Hence, by a long and slow route, we ended up with the Irish Sea border, with all that that has meant, including the Windsor Framework.
Along the way, discussion of the free movement of people across the island of Ireland became curiously muted. Amongst the pre-referendum warnings of the remain campaign, Major and Blair had highlighted not just the matter of customs controls but that of immigration from the EU. For example, Blair said that if there were no immigration controls between Ireland and Northern Ireland then: “It would make a nonsense of their entire argument for leaving which is all to do with the free movement of people in the European Union.”
At stake was that if there were no border checks then what would stop someone coming to Ireland quite legally from any EU country, under freedom of movement rights, then entering the UK via Northern Ireland and living or working illegally? I was not alone in thinking, in the early days of the Brexit process, that this was going to be a major question. Indeed, at that time, the government itself mooted the idea of moving frontline UK immigration controls to Ireland’s ports and airports (no one seemed to give any consideration at all to the possibility of movement in the other direction, from the UK to Ireland, whether that be of ASs or non-EU nationals residing legally in the UK).
In the event, whereas customs and other controls on goods were located across the Irish Sea, the issue of illegal immigrants from the EU was left to detection when in situ by landlords, employers, banks etc., and surprisingly little has been heard of it since. The only time it has become a matter of much public debate was not in relation to EU nationals or to asylum seekers but when it was raised in 2022, by the then British Home Secretary Priti Patel, in relation to Ukrainian refugees accepted by Ireland potentially entering the UK through ‘the back door’, under cover of the CTA. However, I’m not aware of any evidence that this actually happened, or if it did then to any great extent, nor of there being any talk at that time of a ‘returns agreement’. And so things rested until the last week or so.
What happens now?
How this current row will play out remains to be seen. Some reports have suggested that the two governments are keen to dial-down a dispute which has been “escalated out of all proportion”. I am not so sure. It arises out of what, in both countries (as in many others), is an extremely toxic politics around immigration in general, and asylum in particular, which many politicians are all too ready to exploit and exacerbate, especially with both countries facing general elections in the next twelve months.
Not the least of that toxicity is the wholly repellent dehumanization of ASs as some sort of malign parcel to be passed from country to country to ‘deal with’ or worse, according to the depraved comments of Reform’s Deputy Chair Ben Habib, left to drown. Habib later tetchily claimed to have been misrepresented, but his comments, which seemed to shock even the Talk TV shock-jock Julia Hartley-Brewer who conducted the interview, are on the public record for people to judge for themselves.
Whatever the challenges they may pose, these are people, including people broken and traumatized by suffering. And if it should be that some are ‘economic migrants’, whose asylum claims are not valid, well, they are still people and, very likely, people who have become economic migrants as a result of great hardship. Either way, they should have their claims processed quickly and fairly. Doing so does, indeed, pose challenges, as does the successful support and integration of those whose claims are found to be valid. The way to deal with those challenges can only be through concerted global action, both as regards the organization of asylum claims and destinations and as regards the multiple root causes of the need for asylum-seeking. That isn’t easy, to say the least, but it is emphatically made more difficult by nationalism and xenophobia.
This is clearly a bigger issue than the EU and Brexit, and it can hardly be said that the EU or its member states are paragons of virtue (one of the silliest of Brexiter ideas is that those who oppose Brexit see the EU, in this or any respect, as some kind of nirvana or, conversely, that its failure to be perfect in every respect is a good reason not to belong to it). But it is at least an attempt to address asylum collectively in at least one segment of the globe. One of the follies of Brexit is that it has absented the UK from this attempt, whilst another is the antagonism and mistrust it has brought to Anglo-Irish relations. By no means all the costs of Brexit, and perhaps not even the greatest costs of Brexit, are economic.
Notes
[1] The 2019 MoU was drawn up at a time when a ‘no-deal Brexit’ (i.e. no Withdrawal Agreement) was possible, and I wonder if the references to 2020 are because, in effect, its provisions became duplicated by the Withdrawal Agreement/ Protocol. If it should emerge that there was a MoU about asylum returns, separate to the Withdrawal Agreement, then Sunak would be right to say that it was not binding in international law, but to renege on such a MoU, relating as it would to NI, would surely have very severe reputational consequences and damage relations with Ireland, the EU, and the US.
[2] The secrecy about this arises, I assume, not because of the asylum issue but because of the still existent NI terrorism threat.
There will be no post next Friday
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