The law is preventing the UK from controlling its borders

Under the deal, the UK can send certain people arriving illegally on small boats back to France. In return, the UK has to accept an equivalent number of migrants who apply for asylum in the UK lawfully.

The legal challenge was brought by five small-boat asylum seekers – four from Eritrea and one from Sudan – selected for a return to France. Their lawyers objected to several elements of the ‘one in, one out’ scheme as it affected their clients. The court ruled all the elements lawful, bar one – namely home secretary Shabana Mahmood’s decision to remove a particular protection relating to human trafficking.

The protection in question is known as the national referral mechanism for modern slavery. It means that those asylum seekers the authorities have decided have not been trafficked have the right to ask for the decision to be reconsidered. This provides a means for an illegal migrant to remain in the UK during the reconsideration period.

The Home Office’s reasons for removing this protection were powerful. In a witness statement given to the court, a Home Office representative said: ‘It is not, and to my knowledge has never been, the intention of the Home Office for a reconsideration window to act as a barrier to removal.’ If the national referral mechanism became a barrier to removal, he said, it ‘could provide an opportunity for [it] to be misused by individuals raising false modern-slavery claims in order to delay removal and seek release from immigration detention’. He then noted that ‘40 per cent of individuals notified of the intent to return them to France under the Treaty have been referred into the [national referral mechanism]’.

This 40 per cent figure hints at the major problem posed by this decision. Many of the asylum seekers arriving on small boats may meet the definition of trafficking because of experiences they have had during their journeys to the UK. The definition covers anyone who has been subject to a broad range of actions, including the ‘transportation, transfer, harbouring or receipt of persons’, using force, coercion or deception, for the purpose of exploitation. Transportation by people smugglers does not, by itself, amount to trafficking: there must also be the necessary element of exploitation. Such exploitation can include, for example, forced conscription into a foreign army.

We should be sympathetic to genuine victims of the above. But as the high proportion of illegal migrants using this mechanism shows, it is clearly now serving as yet another way to prevent individuals’ removal to a safe country.

Furthermore, those claiming to be victims of modern slavery can rarely provide any evidence of this aside from their own personal account. This was demonstrated in this particular High Court case. One account of being trafficked was described as being ‘poor on details’; others seemed to turn largely on whether a psychologist or psychiatrist decided that the claimant showed signs of trauma or PTSD.

It’s worth noting something else, too. These people are not necessarily claiming to be at risk of exploitation if they are returned to France. And they are not claiming to be victims of modern slavery in the UK either. These cases turn on whether people have been victims at some point in the past. The right to stay in Britain should surely not be a reward for surviving terrible things.

This decision shows why the national referral mechanism and the raft of international and domestic laws limiting the state’s ability to control our borders need urgent reform. We cannot hope to have a secure border while such important decisions are being delegated to psychologists, lawyers and judges. They are applying a framework which gives insufficient weight to the public interest in swift and effective removal of illegal arrivals.

A nation that cannot control its borders is barely a nation at all.

Luke Gittos is a spiked columnist and author. His most recent book is Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, which is published by Zero Books. Order it here.