Joelle Grogan and Alice Donald explain what the UK government’s Illegal Migration Bill sets out to do, how it would work, and whether it is likely to breach the UK’s obligations under international law and what the implications might be.
Where have we got to and what happens next?
A Committee of the Whole House scrutinised the Illegal Migration Bill line by line on 27 and 28 March 2023. A Committee of the Whole House takes place on the floor of the House of Commons, with every MP able to take part, and without oral or written evidence being heard. Committees of the Whole House are mainly used for Bills of major constitutional importance and those which the government wishes to pass with speed.
Numerous amendments to the Bill were submitted in advance of the debate. No opposition motions succeeded.
Amendments tabled by a group of Conservative backbench MPs were not pressed to a vote. The amendments would have made it harder to challenge removal orders issued by courts, blocked courts from ordering individuals to be returned to the UK once removed, and required the Bill’s provisions to operate notwithstanding any orders of the European Court of Human Rights or any other international body. The Conservative backbenchers decided not to press for a division in the Commons after a promise by ministers of ‘meaningful engagement‘ on the issues raised over the Easter recess.
The Bill had earlier been debated at second reading on 13 March, when an amendment tabled by the Leader of the opposition that opposed the Bill in its entirety was defeated by 312-249 votes.
The Joint Committee on Human Rights is conducting legislative scrutiny of the Bill. It has issued a call for evidence with a deadline of 6 April. Oral evidence sessions with legal and policy experts were held on 22 and 29 March.
In two unusually direct interventions in a legislative process, the Council of Europe Commissioner for Human Rights, Dunja Mijatović, said the Bill creates ‘clear and direct tension with well-established and fundamental human rights standards’, while the Council of Europe’s main anti-trafficking body said the Bill would make it harder to prosecute traffickers and combat human trafficking.
The report stage and third reading of the Bill will take place after the Easter recess, before it passes to the House of Lords.
The House of Lords is likely to seek to amend the Bill. Any amendments would then go back to the Commons for consideration. The legislation could potentially go back and forth between the chambers, a situation known as ‘ping pong’.
The Bill would not be subject to the Salisbury convention, according to which the Lords should not reject second or third readings of government bills which were foreseen in the governing party’s election manifesto. This is because the change in asylum law was not part of the 2019 Conservative manifesto. The only reference to refugees in the 2019 Conservative manifesto was the commitment to ‘to grant asylum and support to refugees fleeing persecution, with the ultimate aim of helping them to return home if it is safe to do so’.
Why has the government introduced the Illegal Migration Bill?
Prime Minister Rishi Sunak made stopping ‘small boats’ crossing the English Channel one of his five key priorities in January 2023. One of the tools to do this is the Illegal Migration Bill.
The purpose of the Illegal Migration Bill is to ‘prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by requiring the removal from the United Kingdom of certain persons who enter or arrive in the United Kingdom in breach of immigration control’.
What is the current legal position in the UK?
The UK announced plans in 2021 to overhaul its immigration system, following withdrawal from the European Union.
The most significant change to asylum policy resulted from Brexit. From 31 December 2020, the UK is no longer part of the Dublin Regulation (also known as Dublin III), the EU law which sets out which member state is responsible for the examination of an asylum application. This is usually the country where the asylum-seeker first arrives. No agreement was reached on asylum policy in the Trade and Cooperation Agreement (TCA) between the UK and EU, as the UK did not want to be a third party to Dublin III, and the EU excluded asylum policy and any alternative proposals from negotiation.
While the UK expressed the intention to agree bilateral arrangements with EU member states for the return of asylum-seekers, no agreements have been reached. On 10 March 2023, Prime Minister Rishi Sunak and French President Emmanuel Macron reached a further agreement for the UK to fund enforcement measures and the building of a detention centre in France. This followed a funding agreement in 2022. This is not, however, a ‘returns agreement’ whereby the UK would return asylum seekers to France.
In 2022, the government introduced the Nationality and Borders Act. Its aim was to ‘discourage asylum-seekers from travelling to the UK other than via safe and legal routes’. It did so through, first, by introducing new rules on ‘inadmissibility’ with the aim of preventing people from claiming asylum in the UK if they have a prior ‘connection’ to a safe third country, including one through which they travelled en route to the UK.
Second, the 2022 Act introduced a ‘two-tier’ system allowing for differential treatment between refugees, which reduces the rights of those who enter the UK irregularly. Specifically, they will require ten years of residence before becoming eligible for indefinite leave to remain, instead of the usual five. Moreover, they may not be able to bring their partner or children to join them in the UK.
What issues have been highlighted with the current system?
The Explanatory Notes to the Illegal Migration Bill highlight the increasing number of asylum-seekers entering the UK irregularly. In 2022, 45,700 people crossed the Channel in small boats, as compared with 28,500 in 2021, and 8,500 in 2020. It also highlights that the annual cost of the system is £3 billion, including £6 million spent a day on housing. The Explanatory Notes also underline that all people who arrive on Channel crossings travel through safe European countries, and a percentage originate from safe countries including Albania.
The government argues that the high volume of small boat arrivals has led to the increasing backlog of asylum claims which have yet to be processed by the Home Office. On 31 December 2022, 132,200 main applicants were awaiting an initial decision on their asylum application.
However, it should be noted that the sharp rise of the backlog predates the increase in small boat arrivals, and the backlog has actually been attributed to the fall in the number of applications processed by the Home Office.
A majority of claims to refugee status ultimately succeed: in 2022, three quarters of all those whose claims for asylum were decided were allowed to stay in the UK.
What are the Illegal Migration Bill’s main provisions?
The Illegal Migration Bill imposes a duty on the Home Secretary to make arrangements for the removal of a person from the United Kingdom if they meet four conditions. The first is that they entered the UK in breach of immigration laws. The second is that they entered the UK on or after 7 March 2023, meaning that the Bill has retrospective effect. The third is that they travelled through a safe third country en route to the UK. The fourth is that they require leave to enter or remain, but do not have it.
People meeting these conditions- and their family members, including children – must be removed ‘as soon as is reasonably practicable’, unless the Home Secretary considers that there are ‘exceptional circumstances’ preventing their removal.
The Home Secretary is not required to remove unaccompanied children, but has the power to make arrangements for their removal as soon as they turn 18.
“The Bill provides for a permanent bar on those who fall within the scheme from ever re-entering the UK or being given leave to remain or citizenship, with limited exceptions”.
If someone meets the conditions for removal, the Secretary of State has a duty to refuse to process any asylum claim they make, along with any claim that removal to their country of origin would breach their human rights.
The Bill allows a person to challenge their removal by arguing that there would be a real risk of ‘serious and irreversible harm’ if they were to be sent to the territory specified in the removal notice. They will have a week to bring such a claim from their place of detention; however, no formal process is established to do this as no Home Office asylum interview will take place.
All other legal challenges to removal, including those on human rights grounds, would only be considered by the UK courts after a person’s removal from the UK.
People within the scheme will be removed either to their home country (where it is deemed safe) or a safe third country where their claim for asylum will be processed.
The Bill confers the power to detain people pending their removal and while it is determined whether they should be subject to the removal duty. The detention power applies to families with children and to unaccompanied children.
Immigration judges will have the power to grant bail after a person has been detained for 28 days, but bail will not necessarily be granted, which means detention could continue for longer periods. The Bill does not however, exclude the power of courts to grant the ancient common law remedy of habeas corpus, which protects against unlawful detention and could lead to the release of detainees.
The Bill will disqualify potential victims of slavery or human trafficking from protection from removal, modern slavery support, and any requirement to be granted leave. There would be exceptions for people cooperating with an investigation or criminal proceedings.
Finally, the Bill provides for a permanent bar on those who fall within the scheme from ever re-entering the UK or being given leave to remain or citizenship, with limited exceptions on human rights grounds or in ‘compelling circumstances’. The citizenship ban extends to their UK-born children.
Has the Bill been consulted on or subject to an impact assessment?
An impact assessment is ‘an analysis of the likely impact of a range of possible options for implementing a change in policy‘ (Erskine May). Impact assessments are usually produced by the government when introducing draft legislation. The Illegal Migration Bill was introduced to the House of Commons on 7 March 2023 without an impact assessment.
The Children’s Commissioner for England has said she wants to see evidence of what assessment has been made of the impact of the Bill on children’s rights.
The Law Society also expressed concern that there has been no public consultation on the Bill, including with lawyers, ‘to ensure the bill is workable, provides due process for those claiming asylum or is compliant with international law.’
How will the Bill operate in practice?
The Bill places a legal duty on the Home Secretary to remove any person who has arrived through irregular routes either to their home country (where it is deemed safe) or a safe third country. 57 countries are identified in the schedule to the Bill as countries to which a person can be removed, including all EU states. Eight countries in Africa are identified as safe ‘in respect of men’ only.
At present the UK has no arrangements in place that would enable the transfer of asylum-seekers to safe third countries in practice. As noted above, there are currently no bilateral agreements with EU countries enabling the return of irregular migrants or asylum-seekers who have passed through them on the way to the UK. Agreements with other listed third countries, such as Rwanda, have not been operationalised: the High Court ruled the Rwanda asylum policy to be lawful in December 2023, but the decision is currently under appeal.
The Refugee Council says the measures will lead to ‘tens of thousands’ of refugees being detained. It calculates that the cost – based on the Home Office prediction of 65,000 people crossing the Channel in 2023 – would be £219m per year for 28 days in detention or £1.4bn for six months in detention. Suella Braverman told Parliament the government will ‘roll out a programme of increasing immigration detention capacity’, which reportedly includes two disused RAF bases.
Is the Bill compatible with international refugee law?
The Home Secretary, Suella Braverman, was asked in the House of Commons whether she was confident that the Bill was compatible with the 1951 Refugee Convention, which among other things protects the right of asylum-seekers to enter a state, to have their claim assessed, not to be penalised for entering a state illegally, and not to be expelled to a territory where they would face persecution. She replied: “The Bill introduces measures that we consider to be compliant with all our international obligations – in fact, we are certain.”
However, the UN Refugee Agency has said it is ‘profoundly concerned’ by the Bill. It says: ‘The legislation, if passed, would amount to an asylum ban – extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how genuine and compelling their claim may be, and with no consideration of their individual circumstances.’
It adds that this would be ‘a clear breach of the Refugee Convention’.
Could the Bill be compatible with the European Convention on Human Rights?
Suella Braverman was unable to make a declaration under section 19(1)(a) of the Human Rights Act 1998 that the Bill’s provisions are compatible with the ECHR. Instead, she took the unusual step of declaring – under section 19(1)(b) of the HRA – that she was unable to make a statement of compatibility, but that the government nevertheless wishes Parliament to proceed with the Bill.
“The Prime Minister has said that the UK will not withdraw from the Council of Europe and the ECHR.”
The ECHR memorandum attached to the Bill states that the Convention rights raised by its provisions are: the right to life; the prohibition of torture and inhuman or degrading treatment; the prohibition of slavery; the rights to liberty and security, a fair trial, respect for private and family life, and an effective remedy, and the prohibition of discrimination.
The memorandum argues that the Bill’s provisions do not infringe these Convention rights because of various safeguards and exceptions.
It identifies only one reason why the Home Secretary could not make a statement of compatibility with the ECHR – the fact that the duty to remove, the power to detain and the permanent ban on ever being granted citizenship status apply even to victims of modern slavery. The memorandum justifies this approach by saying that ‘radical solutions’ are required to put a stop to the small boats crossing the Channel.
Commentators argue that the suspension of modern slavery protection is ‘fairly obviously in breach’ of the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings and is likely to lead to litigation under Article 4 of the ECHR, which prohibits slavery.
What would the Bill mean for future litigation before the European Court of Human Rights?
Experts venture that the Bill is likely to lead to more challenges against the UK at the European Court of Human Rights (ECtHR) in Strasbourg.
This is partly because the Bill would disapply section 3 of the Human Rights Act, which empowers and requires courts to interpret Acts of Parliament so that the rights, duties and powers that they establish can only be exercised in ways that are compatible with – and do not lead to breaches of – Convention rights. If this is not possible, all the higher UK courts can do is issue a ‘declaration of incompatibility’ under section 4 of the HRA, signalling to ministers and Parliament that it needs to be changed.
Disapplying section 3 of the HRA from the Illegal Migration Bill makes it more likely that declarations of incompatibility will be made, because UK courts will have little or no scope to interpret laws so as to avoid the existence of incompatibilities in the first place.
In addition, as explained above, the Bill would prevent UK courts from hearing human rights claims from asylum-seekers. In turn, more cases are likely to be taken to the ECtHR. If the UK loses those cases, it will either have to comply with the ECtHR judgments or defy them, which would be a breach of its international law obligations under the ECHR.
How would the Bill affect UK compliance with urgent orders of the European Court of Human Rights?
The Bill has implications for the UK’s future compliance with urgent orders, known as interim measures, which the ECtHR exceptionally issues where there is an imminent risk of irreparable harm.
On 14 June 2022, the Court issued an interim measure to prevent the removal of an applicant to Rwanda as part of the UK-Rwanda asylum agreement until the legality of the scheme has been established.
The Bill empowers the Home Secretary to make regulations about interim measures ‘as they relate to the removal of persons from the United Kingdom under this Act’. The Explanatory Notes to the Bill say that this provision is a ‘placeholder’, which suggests that it will be replaced by a substantive clause via a government amendment during the passage of the Bill.
“The perception that the UK does not follow its own international obligations could weaken the argument that other countries should follow theirs.”
The provision has been interpreted as a warning that it will be used to ignore future interim measures in UK cases. This would be in breach of the UK’s obligations under the ECHR: interim measures are binding and the obligation to comply with them cannot be overridden by any national legislation.
What happens if the Bill breaks international law?
There are no specific sanctions for the breach of international law. However, failure to meet international obligations could lead to reputational damage, particularly with treaty partners where it raises questions of commitment to international law.
The UK positions itself internationally as a leading defender of the rule of law, democracy and human rights on the international stage. The Foreign Affairs Committee has urged the government to challenge states that seek to ‘subvert the international system and weaken rights’.
The perception that the UK does not follow its own international obligations could weaken the argument that other countries should follow theirs.
Could the UK withdraw from the European Convention on Human Rights?
The Prime Minister has said that the UK will not withdraw from the Council of Europe and the ECHR. However, in response to concerns that the ECtHR could prevent the operation of the Bill, some Conservative backbenchers have argued that the UK should withdraw from the Convention if the ECtHR ‘frustrates’ the operation of the Bill.
The Home Secretary has said that, “In a whole range of policy areas, I think sometimes the jurisprudence from the Strasbourg court is at odds with the will of Parliament or British values more generally.” On whether the UK would ignore rulings of the ECtHR in response to the Bill, she added that questions would need to be asked about “whether the balance has been properly struck”.
To leave the ECHR a state must formally notify the Council of Europe of its intention to withdraw. The state ceases to be a member of the Council of Europe (and the ECHR) at the end of the financial year of notification. At a domestic level, the UK would have to repeal the Human Rights Act 1998 through an Act of Parliament. Many Acts, including devolution legislation concerning Scotland, Northern Ireland and Wales, refer to the ECHR and would need to also be amended.
Could the Bill affect UK-EU relations?
The EU has expressed concern about the introduction of the Illegal Migration Bill. The EU Home Affairs Commissioner, Ylva Johansson, told Suella Braverman that she considers the Bill “is violating international law”, adding: “You have to have some kind of individual assessment of people coming before you just put them into detention.”
The most significant threat to the UK-EU relationship is if the UK withdraws from the ECHR as a consequence of this Bill. French MEP Nathalie Loiseau cautioned that cooperation between the UK and EU depended on the UK maintaining its commitment to the ECHR.
The Good Friday/Belfast Agreement, an international agreement between the UK and Ireland, requires the ECHR to be part of the law in Northern Ireland. The Northern Ireland Protocol affirms the UK’s commitment to maintain the ECHR, and this would not change with the Windsor Framework. If the UK withdrew from the ECHR without provision for Northern Ireland, it would violate both international agreements.
The UK-EU Trade and Cooperation Agreement (TCA) also contains an obligation for both the UK and EU to continue their commitment to human rights. This shared commitment is an ‘essential element’ of the TCA. In general, a ‘serious and substantial’ failure to fulfil this obligation which ‘threatens peace and security or that has international repercussions’ could lead to the suspension or termination of the Agreement by the other party.
Higher thresholds for human rights protection exist in Part Three of the TCA concerning law enforcement and judicial cooperation in criminal matters (for example, the extradition of a criminal suspect). In this area, both the UK and EU have committed to ‘giving effect to the rights and freedoms in that Convention domestically’. The EU has indicated that it would terminate the operation of cooperation on criminal matters if the UK were to withdraw from the ECHR.
By Dr Joelle Grogan, Senior Researcher, UK in a Changing Europe, and Dr Alice Donald, Associate Professor of Human Rights Law, Middlesex University.