Suella Braverman is the new Home Secretary, replacing the outgoing and failed Priti Patel. It is Braverman’s first cabinet position. She previously served as a controversial Attorney General. In July 2022 Braverman launched her own bid to become Prime Minister when Boris Johnson was forced to resign. Knocked out of the leadership race in the second round, she then backed Liz Truss. Her support for Truss and her reputation as a hardliner and Brexiteer see her promoted from a fairly junior, technical position to a key role in the new government.

Braverman takes the helm at a turbulent time for immigration law and policy in the United Kingdom. Government lawyers appear in the High Court this week to defend the legality of the government’s Rwanda deal, asylum backlogs continue to grow and even corporate migration routes are subjected to significant delays.

Immigration policy

With outgoing Home Secretary Priti Patel claiming the credit for ending free movement, implementing the new so-called “points based” so-called “system” — it is not based on points and it would be charitable to call it a system — passing the Nationality and Borders Act and negotiating the Rwanda deal, it may prove hard for Braverman to carve out a distinctive immigration policy of her own. The asylum system is collapsing under huge backlogs, removals and deportations are at historically low levels and delays are building across the rest of the immigration system; a rational approach might be to focus on governance rather than change. But that would sit ill with Braverman’s combative public persona.

It is abundantly clear from her previous statements that Braverman strongly opposes entry by asylum seekers without prior permission and that she is fully committed to Patel’s Rwanda policy. If she cannot remove at least a small number of refugees to Rwanda or elsewhere, Patel and her loyalists will forever claim Patel could somehow have made it happen. But reducing small boat crossings depends either or both on creating safe and legal routes to claim asylum (unlikely) or a returns agreement with the French or the European Union. Any such agreement is likely to involve some sort of compromise or legal framework, and perhaps oversight by the Court of Justice of the European Union. This might well be perceived by some as diluting British national sovereignty. Sometimes it takes a known hardliner to make such concessions, though.

The Times reports that Braverman wants to pursue a deal with the French, along with greater use of immigration detention and some sort of restriction of asylum support. Given asylum support is already at destitution levels, it is hard to imagine anything more than symbolic changes on this front.

There is still an open question of what government immigration policy actually is. With the net migration target abandoned, does the government want more migrants, less migrants, or what sort of migrants? There is little clue in Braverman’s past pronouncements that she is really interested in these questions. But she has never previously had to engage with immigration issues. The existing fudge may continue.

We may see her views on wider immigration policy take shape in the coming months.

Legislation

One thing we can probably expect is new immigration legislation. Home Secretaries like to leave some sort of legislative legacy, so we can probably look forward to a new Act of Parliament of some sort. The problem with this is that the government basically has all the legal powers it needs to do what it wants. This became clear with Patel’s Nationality and Borders Act 2022. Most of the Act is basically filler, from a lawyer’s point of view. The Rwanda policy is being pursued with old legislation from 2004, for example, and the policy of treating some refugees differently to others could have been implemented through the Immigration Rules, just as it already has with family members. Other changes were scraping the bottom of the Home Office’s barrel of old ‘asks’ from the 1990s and early 2000s that were dropped because they were basically a waste of everyone’s time.

But. It took Theresa May four years to pass her Immigration Act 2014. It took Priti Patel three years to pass her Nationality and Borders Act 2022. Braverman doesn’t necessarily have that sort of time because the next election is due in 2025 at the latest. Perhaps she will end up focussing more on existing policy levers and managing her department.

European Convention on Human Rights

Aside from Brexit, which is supposedly now “done”, the one distinctive policy position Braverman is thought to cherish is withdrawal from the European Convention on Human Rights. She advocated withdrawal from the treaty in her short-lived leadership bid, explaining that it was the ECHR that “thwarted” the Rwanda flight.

Braverman was Attorney General at the time she made these comments, fuelling criticism that she was failing in her constitutional role of acting as an independent guardian of the rule of law who provides impartial legal advice. Some also observed that it was unwise for the government’s law officer to admit that the Rwanda deal was contrary to human rights laws at a time the government’s lawyers were arguing the opposite in court.

Braverman’s leadership bid failed, though, and Liz Truss calls the shots as Prime Minister. Very quickly, key journalists have been briefed that withdrawal from the European Convention on Human Rights is not going to be pursued. Even Dominic Raab’s bizarre Bill of Rights Bill is being abandoned.

Human rights laws make a very useful punchbag for populist politicians but perform a value function for ministers in government. The reality is that human rights laws interfere very little with government policy. But they do provide cover for not acting in certain ways. And Prime Ministers tend to be more aware of their country’s international standing than domestically focussed ministers. They are often fond — overly fond, some say — of international get-togethers. Withdrawal from the Council of Europe and repudiation of a major human rights treaty would probably put a bit of a dampener on international bonhomie. International relations would be harder, not easier, at a time of considerable international uncertainty.

Braverman as a lawyer

In the clip above, you can hear Braverman holding herself out as a barrister specialising in immigration law. Whether she was a Free Movement reader is unknown. She was appointed to the Government Legal Department C Panel (for fairly junior public law work) in 2010 and a search of BAILII under Braverman’s maiden name throws up some probable cases of hers.

Braverman studied law at Cambridge, made use of her European free movement rights to undertake a master’s degree in European and French law at the prestigious Panthéon-Sorbonne University in Paris and qualified as a New York attorney. She was called to the Bar in 2005 and was a pupil at what is now Cornerstone Chambers before becoming a tenant at No 5 Chambers in Birmingham. She entered the House of Commons in 2015.

Lawyers — much as it pains me to say this — do not necessarily make great politicians. Or managers, for that matter. As with acting and actors in Team America: World Police, a legal education seems to imbue some of us with an unwarranted belief we possess semi-mystical powers.

Braverman undoubtedly has an impressive if undeveloped legal background. This has not stopped her from making provably wrong, sometimes nonsensical, statements when it has been politically convenient to do so. Her bizarre response to Labour MP Emily Thornberry’s question whether she leaked her own legal advice stands as one of the most stark examples:

Braverman very clearly politicised the role of Attorney General. I’m trying not to be unfair here, but I think she herself would argue that previous post-holders and other government lawyers had been too politically timid and risk-averse.

She also seems to have a litigation lawyer’s understanding of international law: supposedly, it’s not “binding” because a domestic judge generally can’t find a state’s acts or omissions unlawful in domestic law on that basis. But at an inter-state, international level, international law does bind sovereign states, even if only at a practical level because they have agreed to it and their reputation depends on it. Where a state says it will do something, it should do it, basically. It is true that most breaches of international law will be free from immediate legal consequence, in the sense that the state usually cannot be taken to an international court and forced to comply. But that does not mean international law does not bind states.

As a “barrister specialising in immigration law” it will surely be tempting for Braverman to involve herself in the legal detail of some of the issues she faces as Home Secretary. There may be a a risk she will override or ignore legal advice from the Government Legal Department, the Attorney General’s office or external counsel. The Johnson years showed us how weak British constitutional constraints really are.

This could lead to very grave errors. She may feel more confident than her predecessor Patel to demand maritime push-back policies or similar are implemented, for example. As with her rapid abandonment of her attachment to withdrawal from the ECHR, though, the more likely outcome is that once the stakes are higher and the consequences real, she will follow advice.

Tone and competence

Ultimately, Priti Patel failed as Home Secretary because she asked the impossible and could not run her department. Whatever qualities Patel possesses, competently managing a massive, sprawling department of thousands of civil servants was not one of them. Her embittered parting shot at ”political opponents, and left-wing activists, lawyers and campaigners” whom she accuses them of standing up for criminals, terrorists, people smugglers and others was typical of her tenure. In the absence of policy successes, such bombast was all that was left to Patel.

Braverman seems equally ideological in her approach. We can surely expect more of the same rhetoric, at least if she is not getting her own way. But she may prove more subtle and effective than Patel. The internal advice Braverman issued as Attorney General on providing legal advice and assessing risk was undoubtedly controversial. It was also thoughtful, nuanced and focussed on achieving real change.

Braverman has talked of being ”the shy Tory in my Chambers of ‘right-on’ human rights lawyers”. She claimed that some of her “biggest battles” since her time in government were with officials and complained of a Remain bias within the civil service.

Similar complaints about alleged lack of commitment by Home Office officials seem inevitable, if unwise.

There have been no reports of outright bullying by Braverman in her role as Attorney General, unlike Patel. But by itself that is hardly an endorsement of her managerial style.

So, Braverman is something of an unknown quantity. That is the case for most new Home Secretaries. Theresa May has been the most ideologically coherent and committed Home Secretary we’ve seen for years, with dire consequences for black Britons, migrants and their families. As far as I can recall, there was little sign of that anti-immigration commitment before she was appointed.

We know that Braverman said she was committed to withdrawal from the ECHR but she is not pursuing the policy. We know she says she is committed to the Rwanda policy. Might she also explore other options, though? Even if she were to succeed in removing some refugees to Rwanda, the policy is widely considered unlikely to be effective in reducing Channel crossings. If Channel crossings remain high, she will be seen to have failed as Home Secretary so she has a real interest in finding an effective policy as well as a symbolic one.

Braverman has a combative style in public. She has a strong if rather junior legal background. She is not, though, a particularly experienced politician or minister. A high level of ideological commitment has led her to make nonsensical public statements in support of causes she holds dear. She may well be blind to policies or solutions that do not match her preconceptions. The Home Office is an extremely challenging brief. We’ll find out more of what she plans to make of it in the coming months.

There’s lots wrong with our asylum, immigration and citizenship laws. If you want to be properly informed, check out my book Welcome to Britain, now available in paperback.

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