No Channel migrant deal if UK quits ECHR, say Brussels sources

A boat is crammed with men wearing life vests
A group of migrants crossing the English Channel on Saturday, in an attempt to reach the UK - Steve Finn Photography

Britain will only gain a deal with the EU to send Channel migrants back to France if it remains in the European Court of Human Rights, French and European sources have said.

The warnings come after Boris Johnson called for a referendum on the UK’s membership of the court and its governing European Convention on Human Rights (ECHR).

The former prime minister said there was a “strong case for a proper referendum”, after accusing the court of being “legally adventurist” and “trying to second-guess what national jurisdiction should do”.

But EU diplomatic sources made clear the UK might be able one day to have a bloc-wide migration deal, or to leave the ECHR – but never both.

Paris and Berlin have called on a reluctant Brussels to negotiate an EU migration deal with the UK, to replace the Dublin Regulations system Britain left at Brexit.

They wear blankets and walk in a line into a tent with first aid symbols on its doors
A group of people thought to be migrants landed at Dover by the RNLI on Saturday - Gareth Fuller/PA

A French interior ministry source told The Telegraph that staying in the ECHR was a “precondition” of any future deal, which will require the unanimous support of all 27 member states.

“The problem is that we cannot leave this framework ourselves and as we are bound by a bilateral agreement [on migration], Britain is necessarily bound by it too,” the source said.

Council of Europe

The ECHR is not an EU institution but part of the older and larger Council of Europe, which includes all 27 EU member states and the UK.

After Brexit, membership of the ECHR was used as the foundation for Brexit agreements including the trade deal, the withdrawal agreement, the extradition agreement and the pact allowing for the lucrative sharing of commercial data.

Shared membership of the ECHR also underpins the Good Friday Agreement.

“The EU has, to an extent, predicated its relationship with us on our ECHR membership. Neither the trade deal nor the withdrawal agreement would be sustainable without this,” said Anand Menon, director of the UK in a Changing Europe think tank.

“There might be those who quibble about whether the EU is right to do this, but, right or not, it’s what they will do. You might as well ask if a shark is right to eat a cute seal. It is just what it does,” he added.

The boats are seen from above
Small boats recovered from the Channel are kept in a warehouse in Kent - Gareth Fuller/PA

Fabian Zuleeg, of the Brussels based European Policy Centre think tank, said: “For any meaningful co-operation in the area of migration, refugees and internal security, it is hard to see how this would work without the UK continuing to be covered by the ECHR, for political and for legal reasons, as well as being a very negative signal for co-operation in all other policy areas.”

One EU diplomat told The Telegraph: “Even with the EU decisively moving towards more restrictive migration policies, adherence to fundamental rights and the ECHR will always remain the framework within which the EU operates.

“So any EU-UK migration agreement will be bound by those principles.”

Rwanda plan

Europeans were disturbed by Tory calls to quit the ECHR, after the court prevented flights taking Channel migrants from the UK to Rwanda, seeing it as a betrayal of shared values.

France and Germany are both cracking down on illegal migration after the terrorist attack in the German city of Solingen and the advent of a new Right-wing government in France.

But Olaf Scholz, the German chancellor, only agreed to discuss the small boats after Sir Keir Starmer ruled out leaving the ECHR.

Shortly after his election victory, Sir Keir ditched the Rwanda plan. At the European Political Community summit at Bleinheim Palace in July, he said Labour would “never” leave the ECHR, as he launched his reset of relations with the EU.

On Wednesday, Sir Keir met Ursula von der Leyen, the European Commission president, for their first substantive talks in Brussels.

An EU-wide migration deal was not on the table but Ms Von der Leyen said there was scope to explore co-operation in that and other areas.

In a joint statement, the two leaders said they had reaffirmed their “mutual commitment to uphold international law and to the ECHR”.

Bruno Retailleau, France’s interior minister, met Yvette Cooper, the Home Secretary, at a G7 ministerial meeting in Italy on Friday.

They agreed to call for a meeting of the Netherlands, Belgium, Germany, France, the UK and Ireland to discuss the future migration relationship with Britain, which could build support for the proposed EU deal.

Mr Retailleau also pressed his Italian counterpart to support the EU-level deal with Britain, although Rome is thought to be more reluctant.

Migration remains a hugely divisive issue in the EU, which will make a bloc-wide deal difficult to achieve because it requires unanimous support.