On Wednesday, we were inexplicably tagged in a Telegraph article by Home Affairs editor Charles Hymas. We are going to set out the substantive points it raises.
First published in September 2020.
The article arises from an interview with Tony Smith, a former director-general of the Border Force. In it, Mr Smith says “Windrush sensitivities” are making Border Force officials afraid to arrest and deport “irregular immigrants”.
Mr Smith says morale is at an all-time low because 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.
He adds that: “[Border Force 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.
When he says “Windrush sensitivities”, he means the fallout from the scandal, which arose because the Home Office 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.
He is effectively arguing one of these two things: (i) officials are scared to do something illegal because doing that to the Windrush generation caused the Home Office problems; or (ii) they are scared to do something legal because they fear it will be wrongly/unfairly criticised.
If Mr Smith is arguing (i), he is saying that the Border Force should be allowed to operate above the law and the reason they can’t is that Windrush makes that difficult.
First, we really hope that he understands that the Border Force can’t act illegally just as a matter of principle.
Second, nice try on “Windrush sensitivities”. The Compensation Scheme is a shambles, and hundreds of rightful citizens remain stranded overseas, separated from their families. The Home Office has not suffered for its treatment of the Windrush generation in the slightest or learned a thing.
That aside, it is more likely that he is arguing that 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.
This is the Dublin Regulation. It is the law until the end of the Brexit transition period, i.e. 31 December. Articles 7-11 set out refugees’ rights to have their asylum claims determined by EU states where they have family.
This is the Home Office’s policy brief on the Dublin Regulation, which notes the same on page 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.
Dublin’s Article 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 is inexpedient for them to take the time and do the work.
Articles 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 is 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.
To be clear, all that the law asks is that the claims are read and assessed. What the Home Office 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.
Part of the problem is that the Telegraph and many others have wrongly labelled refugees “illegal immigrants” to suit their newspaper-headline-ends.
Though Mr Smith prefers to call them “irregular immigrants”, he still won’t call them what they are, which is refugees – a legally relevant distinction.
Officers of the Court – also known as “activist lawyers” – are required to protect and enforce the law, independently of government, above all else. 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 is Parliament and the Queen.
What the Border Force would like to be able to do – deport without due process – is not legal, which is why the Home Office is getting clobbered in court in many cases. If that makes officials feel demoralized, it is the Border Force/Home Office’s fault for putting them in that position, i.e. it is 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.
What Mr Smith would like is illegal. Is it then legitimate to criticise officials if they go ahead and do what he would like? Yes, obviously. Officials of any stripe must always be criticised for doing illegal things, and such criticism is fair and right by definition.
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.
When Mr Smith asks for sympathy for Border Force officials
In a short Twitter exchange that followed the publishing of his interview in the Telegraph, Windrush Lives questioned Mr Smith’s views that “Windrush sensitivities” are unfairly hurting the Border Force, making it difficult to illegally round up and deport refugees.
If you’re of a delicate constitution, please look away now. Mr Smith’s response was:
The sheer arrogance and dismissiveness of this shocked us.
Mr Smith was at the Home Office until 2013 – around the time many Windrush victims began to be persecuted, illegally detained, wrongfully deported, and denied access to benefits and healthcare.
If a bus driver deliberately mowed down 50 pedestrians, and when told the suffering of his victims was horrific, replied with “yes, it was tragic of course, but I’m traumatised, and you’re being mean to me”, what would the bus company do? What would the papers say?
Mr Smith’s company, Fortinus Global, is a “specialist border security consultancy”. He now privately does work similar to that he did for the government. Any government or private entity employing him does so knowing that this is the level of his regard for the consequences of his work.
Next came the implication that because many Border Force officials are of Black and minority ethnic background they are entitled to special consideration. This is in a context where they hold power and wish to abuse that power, using it to inflict harm on the powerless.
Whether or not because of his long career at the Home Office, Mr Smith has lost purchase on reason. All discrimination – including racial discrimination – arises from the dynamics of power. Being Black doesn’t give you a free pass to use your power to subjugate other Black people.
The highlight of this tapestry of weapons-grade bovine waste product was the appeal to sympathy on the grounds of Border Force officials’ “portrayal in some parts of the media”. Because that is apparently equivalent to arrest, deportation, poverty, alienation, being made sick.
Mr Smith comes and talks to us about the unfairness of media representation when he or his officers have had to contend with the real-world social consequences of actually being maligned and marginalised – not on film or in print, but in the flesh.
The Windrush generation owes him and his officials nothing. They wrecked their lives. Their hyper-inflated view of their own suffering is hysterical – not in the funny sense, but in that they have lost grip on reality.
More broadly, no citizen – Windrush victim or otherwise – owes support to the government to aid it in trampling the rights of individuals. It is not and has never been the premise of civil society that people must somehow enable their own subjugation.
We and other rational individuals will never support this government’s bid to trample the rule of law and demonize lawyers protecting refugees’ rights, to distract from the government’s mounting pile of policy catastrophes. We understand that may hurt their feelings, of course.
Finally, a word to the Telegraph and Charles Hymas: This isn’t great journalism.
The second paragraph of the article states that 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”.”
This implies removals were based solely or principally on targets, which isn’t an admission the Home Office 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 private sector role.
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.
For useful, legally cogent commentary on asylum/refugees/human rights, try:
- Duncan Lewis Public Law
- Joint Council for the Welfare of Immigrants
- Zoe Gardner
- Bella Sankey
- Adam Wagner
- Colin Yeo
- Garden Court Chambers
- Goldsmith Chambers
- Refugee Council
- Safe Passage
- Satbir Singh
- Minnie Rahman
- Chai Patel
- Detention Action
Windrush Lives is a group seeking justice and reparations for Windrush victims persecuted by the ‘hostile environment’. They are currently campaigning for a Windrush victim, ex-serviceman Anthony Williams.
You may wish to help them raise funds for him.