One of the core policy offerings of the populist Reform UK party is to repeal the Human Rights Act 1998 (HRA 1998), and, simultaneously, withdraw the UK entirely from the European Convention on Human Rights (ECHR).
Nigel Farage, amongst other right-wing politicians, argued that this is necessary to “stop the boats”, as, according to him, it would make it easier to deport foreign criminals and unauthorised migrants. This was recently echoed by Kemi Badenoch, the current Leader of the Opposition, who pledged to take the same steps, citing broadly similar reasons.[i]
The incumbent Labour Party has explicitly refused to leave the ECHR, instead pledging to smash the criminal gangs running this trade, and seeking a closer co-operation with France on this issue. This, so far, has seen limited success.
This is a seductive argument, but it is built on a fundamental misunderstanding of how the law actually works. On the surface, the populist argument seems logical. Without the ECHR, the Strasbourg court would lose its power over the UK, theoretically narrowing the avenues of appeal and speeding up deportations. However, this argument suffers from two seriously misguided assumptions:
- (a) The ECHR and HRA 1998 are the only recourse available to potential deportees; and
- (b) Therefore, both these instruments act as a major obstacle to the process of removal.
Context
Before analysing the first assumption, it’s vital to understand some context and history. The Council of Europe (not an EU institution) was founded in 1949 with its headquarters in Strasbourg. The ECHR, which is a product of the Council of Europe, was signed in 1950 by 12 European countries, with the UK being one of the first signatories.
The Strasbourg court was established in 1959 to adjudicate on the Convention. Today, almost all European countries are part of the Council of Europe except for Russia and Belarus.
Although the UK was one of the first signatories of the Convention, it did not automatically become part of UK domestic law. This is because the UK has a dualist system of international law.
This means that, for an international treaty to become part of our domestic body of law, it must be incorporated through an Act of Parliament. The ECHR was incorporated into domestic law by the Blair government through the HRA 1998.
Before the HRA 1998, the UK courts could not apply the ECHR directly, although in cases involving state overreach and potential human rights violations, they could look to the Convention for guidance, and it was interpreted as a persuasive, but not binding, legal authority.
It’s important to note, however, that prior to HRA 1998, applicants could nevertheless challenge the government’s decision in the Strasbourg court. The whole point of the HRA 1998 was to ‘bring rights home’[ii], thus allowing people to enforce the ECHR in domestic courts, and so reduce the need to go to Strasbourg.
Alternative Legal Routes
So, are the ECHR and HRA 1998 the only recourses available to potential deportees? The answer is no.
If a prospective Reform UK or Conservative administration were to repeal HRA 1998 and withdraw us from the ECHR, there are at least two other avenues available to a potential deportee.
First are the general principles of the Common law, specifically judicial review. A potential deportee could argue that there was an aspect of illegality, unreasonableness or procedural fairness that was not satisfied (for example, he was refused the right to a fair hearing, which is a Common law principle), which therefore renders the decision unlawful.
Provided some procedural hurdles have been met, the potential deportee could challenge the government’s decision in UK courts, with or without the ECHR. Of course, Parliament – which enjoys a legislative supremacy – could restrict the application of judicial review in such cases, but that is not dependent on the operation of the ECHR and the HRA 1998.
Second, there is at least one international treaty which could be used to challenge such a decision, such as the Geneva Convention of 1951,[iii] which enshrines the principle of non-refoulement. This means that a state cannot deport an individual to a third country or his home country, if there is a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”[iv].
Crucially, this principle is not limited to refugees but rather applies to any individual. However, this principle is also reflected in the UK’s domestic asylum law.
While the 1951 convention has not been fully incorporated into UK law, similarly to the ECHR pre-1998, it would nonetheless be a highly persuasive authority in cases involving deportations. It is also a customary principle of international law more broadly.
It is, of course, plausible that a potential Reform UK or Conservative administration could also withdraw the UK from the Geneva Convention and/or reform domestic asylum law, but so far, there is little to no political discourse about such measures.
This is by no means an exhaustive list of all potential legal avenues which could be used to challenge the process of removal. However, it serves to show that the ECHR is not the only recourse available to potential deportees.
Practical and Administrative Obstacles
The second misguided assumption – that the ECHR is a major obstacle to removing people – is perhaps the more profound error, as it misdiagnoses the entire problem. The major obstacles to removing people are (a) practical and (b) administrative. The biggest practical obstacle is a lack of a comprehensive returns agreement, not the Strasbourg court.
When the UK was still part of the European Union, it was part of the EU Dublin Regulations, meaning that other EU countries (most notably France) had a legal duty under Article 18 (1) (b)[v] to take back people who reached the UK through irregular routes.
This allowed the UK to send most asylum seekers back to France without considering the merits of their asylum claims. The Dublin Regulations ceased to have legal effect from January 2021 as part of the transition period. This is reflected by the number of small boats arrivals from the past 6 years. The Migration Observatory[vi] has constructed a chart (below) to show this drastic increase in small-boat arrivals.
It is quite visible that post-January 2021, the number of arrivals increased rapidly. Before the period from January to March 2017, the number of arrivals was below 10,000. This reached a peak of about 48,670 in November 2022, and never fell back to below 10,000, which was the norm pre-2021.
While it is true that the Strasbourg court can, and does, intervene to stop deportations in individual cases, usually through Rule 39 Orders – these are interim measures that allow the Court to stop deportations in circumstances where there is “imminent risk of irreparable damage”[vii] – these are exceptionally rare, and only deployed in unique circumstances.
The most recent example was in 2022, when the Strasbourg Court prevented the departure of some asylum seekers from the UK to Rwanda. Importantly, however, the Rwanda flight was grounded not just because of the ECHR, but because the UK’s Supreme Court also later ruled the policy unlawful on largely the same grounds (the principle of non-refoulement).
Arguably, such high-profile cases are a symptom of the system not working effectively due to a lack of a broader framework, rather than the root cause of the problem.
Furthermore, while the Strasbourg Court’s injunction powers might be an obstacle to removing people in high-profile cases, such as the Rwanda case, it is still not a major obstacle in the vast majority of cases.
In fact, according to official government figures, ‘in the year ending March 2025, there were 9,838 asylum-related returns, 29% more than in the year ending March 2024’[viii]. In the same period, the returns of foreign national offenders increased by 21%. More recent data, from the year ending June 2025, shows that there were 10,652 asylum-related returns, 31% more than in the year ending June 2024[ix].
Another obstacle to removal is the administrative issue. It is well-known that for years, the Home Office, as well as other governmental departments, has been underfunded, in real terms, as part of the Conservative government’s austerity programme.
This has resulted in decisions on asylum cases taking much longer. Combined with the increased number of arrivals post-2021, and in Q2 2024, only 22% of applications received an initial decision in the first 6 months.
This is visible on the Migration Observatory’s analysis[x]. Crucially, in the third quarter of 2021, only 5 % of applications received a decision in the first 6 months. This correlates well with the post-2021 period, where the number of small boats began to spiral due to the UK leaving the Dublin Regulations.
However, it must be emphasised that this slowdown is not exclusively caused by the increase in small boat arrivals, but is also the product of Russia’s full-scale invasion of Ukraine in 2022. This resulted in many Ukrainian families seeking asylum in the UK, resulting in a peak number of asylum claims in 2023 – about 173,000 – where the duration of wait for an initial decision was greater than 6 months, according to the National Audit Office[xi].
Conclusion
While right-wing populist rhetoric can lead us to believe that the ECHR and the HRA 1998 are a major obstacle to removing people from the UK, this is demonstrably untrue in the vast majority of cases.
The root cause of the higher small-boats crossings is not the Strasbourg-based court, nor the ability of asylum seekers or other people to rely on these instruments, but rather a lack of a comprehensive, Dublin-like agreement.
In addition, the administrative obstacle is also a potent factor, which is not an easy fix and requires more funding for asylum case workers as well as more effective internal procedures that will speed up the process of review without compromising the quality of decisions.
Further, the latest governmental figures show that ECHR does not prevent, nor does it slow down the process of removal in the vast majority of cases, although the Strasbourg court does intervene in some cases, such as the infamous Rwanda case, which is reasonable given the significant implications for the individuals involved.
Crucially, abandoning these instruments will not leave potential deportees with no legal recourse. Common law principles, unless restricted by an Act of Parliament, will still apply. The courts will also look at the non-refoulement principle, which is partially reflected in the UK’s domestic asylum law, and is also a pillar of international law.
As such, if a potential Reform UK or Conservative administration were to repeal the HRA 1998 and withdraw from the ECHR, on their own, these measures would not “stop the boats” as they are not the root cause of the current issue.
[i] Sam Franics, UK will leave ECHR if Tories win election, Badenoch says, (BBC) < https://www.bbc.com/news/articles/c1mxy2j2elro >
[ii] Government White Paper, Rights Brought Home: The Human Rights Bill, (1997) < https://assets.publishing.service.gov.uk/media/5a75a15040f0b67b3d5c7fd3/rights.pdf >
[iii] The Geneva Convention relating to the Status of Refugees [1951]
[iv] Ibid, Art 1 (2)
[v] REGULATION (EU) No 604/2013 (Dublin Regulation iii), Art. 18 (1) (b)
[vi] The Migration Observatory, People Crossing the English Channel in Small Boats, (Figure 1) < https://migrationobservatory.ox.ac.uk/resources/briefings/people-crossing-the-english-channel-in-small-boats/ >
[vii] British Institute of Human Rights, Interim Measures of the European Court of Human Rights, < https://www.bihr.org.uk/get-informed/legislation-explainers/what-are-interim-measures >
[viii] UK Government, How many people are returned from the UK?, (2025) < https://www.gov.uk/government/statistics/immigration-system-statistics-year-ending-march-2025/how-many-people-are-returned-from-the-uk >
[ix] UK Government, How many people are returned from the UK?, (June 2025) < https://www.gov.uk/government/statistics/immigration-system-statistics-year-ending-june-2025/how-many-people-are-returned-from-the-uk >
[x] The Migration Observatory, The UK’s Asylum Backlog, (Figure 5) < https://migrationobservatory.ox.ac.uk/resources/briefings/the-uks-asylum-backlog/#:~:text=One%20of%20the%20main%20issues%20was%20that,for%20a%20sharp%20slowdown%20in%20asylum%20decision%2Dmaking >
[xi] National Audit Office, The asylum and protection transformation programme, (2023), Page 20, figure 3.
