Rules barring illegal migrants from winning British citizenship are facing a potentially explosive legal challenge on human rights grounds.
The application for a judicial review could leave the Government unable to block applications from migrants, the Daily Mail can reveal.
It comes as the Home Office confirmed only 26 migrants have been removed under Labour’s ‘one in, one out’ deal with France, while more than 10,000 have reached Britain since the scheme’s launch.
It includes 1,075 on Wednesday alone – the third highest daily number so far this year.
Labour introduced new measures in February which say anyone making an application for UK nationality will ‘normally be refused’ if they previously entered the country illegally, such as by small boat.
The Government was forced to act because it is repealing primary legislation introduced by the Conservatives – under 2023’s Illegal Migration Act – which brought in a similar bar on migrants securing UK nationality.
Now a law firm is seeking permission for a judicial review of Labour’s measures, claiming they breach the European Convention on Human Rights (ECHR) and the Refugee Convention.
Migrants arrive at Dover on Wednesday after being picked up from dinghies mid-Channel by the UK Border Force
The challenge will place renewed pressure on Prime Minister Sir Keir Starmer and his Attorney General Lord Hermer, who have repeatedly vowed they will never allow Britain to leave the ECHR.
It comes just days after Conservative leader Kemi Badenoch confirmed taking Britain out of the human rights treaty is now official Tory policy.
Shadow Home Secretary Chris Philp said Labour had made a ‘catastrophic mistake’ repealing the Tory measures, leaving the citizenship restrictions wide open to legal challenge.
‘Illegal immigrants should under no circumstances ever get citizenship,’ he said.
‘Labour made a catastrophic mistake by deciding to repeal the Illegal Migration Act which would prevent this.
Migrants were sent back to France aboard the charter flight, pictured, last Thursday – which carried 10 people – and another on Thursday this week, which carried nine
‘The weak rules they have put in place can be legally challenged which, predictably, is what is now happening.’
He added: ‘It is now clearer than ever that the UK must leave the ECHR in order to protect our borders.
‘The Conservatives have now committed to do that but Labour is too weak to do the same.’
Foreign nationals who have lived in Britain for five years can apply to naturalise as a UK citizen, but they have to show they are of ‘good character’.
Under previous rules, anyone who arrived illegally – such as by small boat – could apply for citizenship after six years here.
After being granted ‘leave to remain’ for a minimum of five years by the Home Office they could seek ‘indefinite leave to remain’, and then apply for citizenship a year later.
The Tories’ 2023 Act barred anyone from claiming British citizenship if they entered the country ‘unlawfully’.
But Labour’s Border Security, Asylum and Immigration Bill, which is currently going through Parliament, will repeal those measures.
Instead, Labour changed guidance to Home Office caseworkers which widened the definition of who would no longer be considered of ‘good character’.
They state anyone who ‘previously entered the UK illegally will normally be refused’, and specifically mention anyone who came to Britain by small boat or in the back of a lorry.
Law firm Wilson Solicitors said it was launching the bid to bring a judicial review of the new policy on behalf of an unnamed Syrian refugee.
The firm argues it is ‘unlawful’ because it ‘fails to direct decision makers to take account of the impact of refusal on Article 8 ECHR rights’, which sets out the ‘right to private and family life’, and is ‘discriminatory’ under Article 14.
It also says the Home Office’s policy ‘misdirects decision-makers as to the law, specifically Articles 31 and 34 of the Refugee Convention’.
Only 26 migrants have been returned to France under the ‘one in, one out’ deal so far – including some sent back aboard a Home Office charter flight last week, pictured
Those two articles set out how government should ‘as far as possible facilitate the assimilation and naturalisation of refugees’ and should not ‘impose penalties on account of their illegal entry or presence’.
A statement on Wilson Solicitors’ website says: ‘If permission is granted, we would expect there to be a full hearing and a decision on the judicial review by the High Court some time in 2026.’
Nigel Farage’s Reform UK has vowed to ditch the ECHR and last week Opposition leader Ms Badenoch confirmed the Tories will take Britain out of the treaty if the party wins the next election.
A detailed legal review led by shadow attorney general Lord Wolfson concluded the ECHR placed ‘significant constraints’ on the government, and Ms Badenoch said the move was necessary to ‘protect our borders’.
The Home Office confirmed 19 people who arrived by small boat have been sent back in the last week under the ‘one in, one out’ scheme.
It brought the total removed to France to 26 since the launch of the programme on August 6.
Over the same period 10,040 small boat migrants have reached Dover by small boat.
It included 1,075 on Wednesday this week, aboard 15 dinghies.
The latest arrivals brought the total since the start of the year to 35,476, up 33 per cent on the same period last year.
The total number since Labour came to power now stands at 58,718.
In addition, as part of the ‘inward’ route agreed with France, a further 18 migrants have come to the UK.
A Home Office spokesman said: ‘Anyone who enters the UK illegally faces having their British citizenship application refused.
‘We are reviewing the application of Article 8 in immigration cases to ensure our rules are effective, secure our borders, and reflect the public’s expectations.
‘Our good character policy is compliant with the UK’s international obligations.’
