The government is debating a range of extreme policy ideas, ranging from the sinister to the ridiculous, to tackle the ‘crisis’ of a modest number of asylum-seekers reaching our shores. It’s a crisis that has been confected. Numbers of asylum applications in the UK have in fact been consistently falling for years and were 37 per cent down in April–June this year compared with the same period last year.1Immigration statistics: asylum applications, initial decisions and resettlement, Home Office, 27 August 2020, table Asy_D01. It’s true that crossings by boat are up as a method of arrival (approximately 6,000–7,000 so far this year)2Precise figures are unavailable, but see, for example, Adrian Zorzut, ‘Dominic Cummings “obsessed” with Channel crossings, claims Home Office official’, The New European, 2 October 2020 and ‘Record 400-plus migrants cross Channel in one day’, BBC News, 2 September 2020. but that is very likely to do with the worldwide pandemic and associated travel difficulties. And, of course, as ever, it is developing countries that continue to host the overwhelming majority of the world’s refugees.3Eighty-five per cent of the world’s 26m refugees in 2019: Global trends: forced displacement in 2019, UNHCR, 18 June 2020.

Some ideas that have appeared in the press could be straight out of an episode of The Thick of It: wave machines that would push back into the Channel small boats carrying asylum-seekers or dinghy-disabling nets the Clandestine Channel Threat Commander is said to be preparing. For those asylum-seekers who do manage to arrive, it's been reported that proposals have included sending them to Moldova, Morocco or Papua New Guinea for processing, or detaining them on disused ferries or decommissioned oil platforms in the North Sea. And, of course, there is the proposal to build offshore detention centres on the remote islands of Ascension and St Helena in the south Atlantic.

It’s hard to know where to start. The islands form part of a British overseas territory, and as such they occupy an odd legal space. There are 14 such territories across the globe. In theory, the UK parliament retains the power to legislate for the territories, but most, including these islands, have their own devolved legal systems independent of the UK. They have their own constitutions and Bills of Rights. However, they come under the supervisory jurisdiction of the High Court4R v Secretary of State for Foreign and Commonwealth Affairs ex p Quark Fishing Ltd [2005] UKHL 57 at para 65. and the Privy Council is the final court of appeal.

The infamous Australian offshore model provides an ugly cautionary tale. The Republic of Nauru and Manus Island in Papua New Guinea housed camps, in exchange for aid, where asylum-seekers who arrived by boat to Australia were held indefinitely, sometimes for years. The level of suffering inflicted on the people held there, families with children among them, is hard to comprehend. Conditions were overcrowded. There were water shortages, hunger strikes, numerous self-harm and suicide attempts. Detainees were reported to have sewn their lips together and at least two people set themselves on fire. Whistleblowing staff reported multiple incidents of sexual abuse against women and children. In November 2012, Amnesty International visited Nauru and described it as ‘a human rights catastrophe … a toxic mix of uncertainty, unlawful detention and inhumane conditions’.5Nauru Camp a human rights catastrophe with no end in sight, Amnesty International media release and Nauru Brief, 23 November 2012.

In a letter of 12 February 2020, the International Criminal Court stated that the Australian government appeared to have committed a crime against humanity in breach of article 7(1)(e) of the Rome Statute because of the duration and conditions of detention and suffering in the camps at Nauru and Manus Islands.6The letter concluded that the crimes allegedly committed did not appear to satisfy the contextual elements of crimes against humanity under article 7.

Detaining asylum-seekers for ‘processing’ has, of course, been around for decades. It was a Labour government that first introduced the Detained Fast Track system at Oakington Immigration Reception Centre over 20 years ago, sanctioning the detention of asylum-seekers for the processing of their asylum claims. Successive administrations expanded and staunchly defended the model in the face of repeated successful legal challenges. In August this year, the Home Office repurposed Yarl’s Wood Immigration Removal Centre as a short-term holding facility for asylum-seekers arriving from the Channel.7Jamie Grierson and Diane Taylor, ‘Yarl’s Wood to house arrivals from small boats crossing Channel’, Guardian, 18 August 2020. As anyone who works with immigration detainees will tell you, human rights abuses against this population can and do take place here in the UK with alarming regularity. A public inquiry about the treatment of detainees at Brook House is looking into some of them right now. If that is what is possible in plain sight, then we have to be very worried about what would happen offshore.

Whether these leaks are just bluster or not is difficult to say, but we cannot afford to be complacent. This is a government that appears to be prepared to undermine and even disregard the rule of law when it does not suit its political aims. That it may try to pursue a proposal to build offshore detention centres cannot be dismissed out of hand. The question is whether parliament is both willing and capable of stopping it.