Reporting in The Times this week has revealed that nearly half of the 400,000 migrants who were due for deportation in the past two years have been allowed to remain in the UK. In August 2024, the Home Office compiled a list of those who had either overstayed their visas or whose asylum claims had been rejected, and who consequently had no right to be in Britain. Of these, around 200,000 had been declared “non-removable” by Home Office lawyers.

In normal circumstances, revelations like this would be embarrassing for the home secretary, but these are not normal times. As the team emerging around presumptive prime minister Andy Burnham weighs up which current cabinet figures will remain in post, illegal migration and border policy poses one of the biggest dilemmas of all. Shabana Mahmood is regarded as among the toughest on the issue, and there is some pressure on Burnham to replace her with a figure whose stance is more reflective of the liberal inclinations of Labour’s base. However, these leaks to The Times emphasise the scale of the challenge that the Home Office faces, and the real risk that Labour will be blamed for losing control.

At the heart of the problem are the various pieces of legislation which offer protections to migrants in certain circumstances that prevent their deportation. The most important of these is Article 8 of the European Convention of Human Rights (ECHR), and the Modern Slavery Act brought in under Theresa May. Article 8 means that deportations can be challenged on the grounds that it would violate an individual’s fundamental right to family life. Meanwhile, the Modern Slavery Act says that those who have been trafficked into the country or forced into work should not be deported. Countering or disproving claims made by migrants under these rules is exceptionally difficult and time-consuming for the Home Office. This is true to the extent that they appear to be judging that around half of them are simply not worth the effort at the outset.

All of this further adds to Britain’s illegal migration crisis, as it cements our reputation for having a very low deportation rate. For migrants who have spent a great deal of effort and money making their way to Europe, getting into the UK is one of the most reliable ways they can lock in their progress.

Mahmood is due to publish the Home Office’s new Immigration and Asylum Bill on Tuesday. The timing of these leaks suggests we can expect to see reforms aimed at clearing the backlog. These reforms may include bringing the appeals process in-house to the Home Office — it currently sits with an independent tribunal — as well as limitations to appeals under Article 8, preventing it from being used to block deportations at the last minute.

Whilst these reforms seem sensible in themselves and may further enhance Mahmood’s reputation as a relatively tough home secretary, they will not address the legislative root causes of the problems. The ECHR, in particular, means that the real authority in many cases remains the courts rather than the Home Office. The Modern Slavery Act means that migrants and their lawyers can wage a war of bureaucratic attrition on a department that is already faced with a helplessly large caseload.

Whether or not Andy Burnham decides to retain Shabana Mahmood’s services as Home Secretary, it is exceptionally unlikely that any government he led would have the political appetite for serious legislative reforms to the Modern Slavery Act, let alone to Britain’s relationship with the ECHR. This leaves the Home Office treading water against a tide that shows no signs of abating, and ultimately being forced to decide what percentage of its workload it has the capacity even to attempt.

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Chris Bayliss is an independent consultant who works on energy infrastructure in the Middle East.

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