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18 Jul 2023

Constitution

Policies

Joelle Grogan and Alice Donald explain what the UK government’s Illegal Migration Bill sets out to do, how it would work, whether it is likely to breach the UK’s obligations under international law and what the implications might be.

Why did 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, which was introduced on 7 March 2023.

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 stage is the Bill at now? 

The Bill received Royal Assent on 20 July 2023, becoming the Illegal Migration Act 2023.

What happened to amendments that were proposed to the Bill?

On 17 July, the Lords either withdrew or were defeated on a series of amendments which had been introduced by a cross-party group of peers and rejected by MPs. This ended the situation known as ‘ping pong’, where legislation goes back and forth between the chambers.

Defeated amendments would have ensured that the Bill’s provisions should be interpreted consistently with the UK’s obligations under relevant international human rights treaties, and that asylum claims must be processed if a person has not been removed from the UK within six months.

Other amendments voted down in the Lords would have limited the time that an unaccompanied child can be detained to 72 hours (or 96 hours with ministerial approval) and exempted people who have been unlawfully exploited in the UK from provisions which would otherwise require their removal.

The Lords also rejected an amendment giving the National Crime Agency a legal responsibility for tackling organised crime across the Channel.

Amendments that were withdrawn included a measure to prevent the removal of LGBT people to certain countries. Others would have imposed a duty on the Home Secretary to create safe and legal routes to the UK for refugees, and to develop a 10-year strategy with international collaboration to tackle the refugee crisis and people smuggling.

On 11 July, the government made some concessions in response to earlier Lords amendments. One means that the Home Secretary’s obligation to remove anyone entering by irregular routes will no longer apply retrospectively to when the Bill was published on 7 March 2023. However, anyone who has entered by irregular routes since 7 March will still be ineligible for re-entry, settlement and citizenship. Other changes agreed by the government mean that unaccompanied children will be granted immigration bail after eight days of detention, and that pregnant women can only be detained for a maximum of 72 hours, unless further detention of up to seven days is authorised by a minister.

What are the Illegal Migration Bill’s main provisions?

The Bill imposes a duty on the Home Secretary to make arrangements for the removal of a person from the United Kingdom if they entered the UK in breach of immigration laws, if they have travelled through a safe third country en route to the UK, and if they require leave to enter or remain, but do not have it. The Bill as originally introduced gave the ‘duty to deport’ retrospective effect to 7 March 2023, but as noted above the government conceded on this matter in its response to a Lords amendment.

People meeting the conditions for removal – 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, as revised at the report stage in the Commons, allows a person to challenge their removal by arguing that they would face ‘a real, imminent and foreseeable 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.

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, explicitly 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 human trafficking from protection from removal, modern slavery support, and any requirement to be granted leave, with exceptions for people cooperating with an investigation or criminal proceedings.

A clause added at the report stage in the Commons relates to decision-making about a person’s age when they claim to be a child under 18. It would give the Home Secretary the power to make regulations such that a person whose age is disputed may be treated as an adult rather than a child if they refuse to undergo a scientific age assessment, such as x-rays of their bones or teeth.

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.

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, 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.

ImmigrationSecondly, 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. However, the government is pausing this differentiation policy from July 2023, saying that the Illegal Migration Bill tackles the same issue.

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.

Has the Bill been subject to an impact assessment?

An impact assessment was published on 26 June 2023. Impact assessments are usually produced by the government when draft legislation is introduced, which was 7 March 2023 in the case of the Illegal Migration Bill.

The impact assessment estimates the cost of removing an individual from the UK to be £169,000. It states that at least £106,000 would be saved for every person deterred from entering the UK by irregular means. This means that, at current spending levels, the Bill would need to deter 37% of projected arrivals to enable cost savings for the taxpayer.

The assessment said the delivery plan for the Bill was still being developed and it was ‘not possible to estimate with precision the level of deterrence’ the Bill will have. It acknowledges that academic consensus is that there is ‘little to no evidence’ that policy changes deter people from leaving their home countries and seeking refuge.

On 5 July 2023, the government published a children’s rights impact assessment. It finds that ‘taken in totality, including in particular the overriding interest to protect children from the risk of death, trafficking, etc. the Bill will have a positive impact’. The Children’s Commissioner responded: ‘I am far from convinced that is the case. Indeed, I am concerned that the threat to a child of deportation at 18 will be a gift to traffickers, as children will feel less able to seek help from professionals and instead go missing into the hands of exploiters’.

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.

Rwanda is the only country where an agreement has been reached; however, on 29 June 2023, by a majority of two to one, the Court of Appeal ruled that the government’s Rwanda policy is unlawful. This was because Rwanda is not deemed a safe third country due to defects in its asylum processes which create the risk that people could be wrongly returned to countries where they face persecution. on 13 July, the Home Secretary was given permission to appeal to the Supreme Court.

Does the UK have adequate detention capacity to implement the Bill?

The Refugee Council says the Bill 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.

Home Secretary Suella Braverman told Parliament the government will ‘roll out a programme of increasing immigration detention capacity’, which reportedly includes disused RAF bases and barges. The government’s impact assessment states that various options exist for how additional detention capacity might be acquired, making it difficult to estimate the true cost.

Is the Bill compatible with international refugee law?

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 that the Bill ‘is at variance with [the UK’s] obligations under international human rights and refugee law and will have profound consequences for people in need of international protection’.

Is the Bill compatible with the UK’s obligations under the European Convention on Human Rights? 

Suella Braverman was unable to make a declaration under the Human Rights Act that the Bill’s provisions are compatible with the European Convention on Human Rights (ECHR). Instead, she took the unusual step of declaring that she was unable to make a statement of compatibility in relation to three provisions, 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 on its introduction 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 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.

supplementary memorandum issued 26 April 2023 identified two further measures that were added to the Bill in the Commons regarding which the government was unable to make a statement of compatibility. One is a measure that would exclude those wishing to challenge an age assessment from any appeal and limit judicial review to matters of law, not matters of fact. The other gives immigration officers new powers to search for, seize and retain electronic devices, such as mobile phones, from individuals who are liable to be detained under the Bill, and to access, copy and use any information on such devices.

With regards to the suspension of modern slavery protection (which has been challenged through a Lords amendment), the parliamentary Joint Committee on Human Rights (JCHR) says the weight of evidence it received during its scrutiny of the Bill was ‘overwhelmingly clear’ that this would be in breach of the UK’s obligations under the Council of Europe Convention Against Trafficking and Article 4 of the ECHR, which prohibits slavery.

The JCHR has also raised concern about the removal of a clause that gives ministers discretion as to whether or not to comply with interim measures indicated by the European Court of Human Rights (ECtHR) in Strasbourg. Interim measures are urgent orders which the ECtHR exceptionally issues where there is an imminent risk of irreparable harm. The Joint Committee on Human Rights (JCHR) had said the clause permits deliberate breaches of the UK’s binding obligation to abide by interim measures and should be scrapped.

What would the Bill mean for future litigation before the European Court of Human Rights?

The JCHR warns the government that the Bill is likely to lead to more challenges against the UK at the European Court of Human Rights.

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.

ImmigrationDisapplying 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.

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 because of the Illegal Migration Bill?

The Prime Minister has said it would not be necessary to withdraw from the ECHR in order to enact his new proposed laws. However, a Downing Street source acknowledged in February 2023 that the Bill was ‘pushing the boundaries of what is legally possible, while staying within the ECHR’, adding that, if the legislation was ‘held up in Strasbourg’, Rishi Sunak would be ‘willing to reconsider whether being part of the ECHR is in the UK’s long-term interests’. 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.

Channel crossingsThe 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.

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