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Bordering On The Illegal? How the Illegal Migration Bill Contradicts International Law

Home Secretary Suella Braverman introduced the UK Government’s Illegal Migration Bill to the House of Commons on 7 March 2023. This bill, which has now reached its report stage, is the latest in the Government’s legislative attempts to counter political and media pressure over its handling of immigration and asylum issues – in particular, the controversy over ‘small boat’ crossings in the English Channel. Since official records began in 2018, the number of people annually attempting to enter the UK via this route has risen steeply – from around 300 in 2018 to over 28,000 in 2021 and over 45,000 in 2022. Furthermore, earlier this year, Prime Minister Rishi Sunak made ‘stopping the boats’ one of his five key policy promises to the British electorate.

The Bill’s stated purpose 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 breach of immigration control.’

The Bill’s long title also states that it is intended, in this context, to make provision for matters including:

‘...detention for immigration purposes;…unaccompanied children;…victims of slavery or human trafficking;…the inadmissibility of certain protection and certain human rights claims relating to immigration;[and]…the maximum number of persons entering the United Kingdom annually using safe and legal routes.’

The most contentious of the provisions involve new powers to detain ‘small boats’ migrants for at least 28 days, to reject any asylum claim that they may make, and then to deport them – potentially to Rwanda. The Government argues that these steps are necessary in order to deter illegal migration and to encourage refugees instead to use ‘safe and legal routes’ to claim asylum. Specifically, the Bill imposes two new legal duties on the Secretary of State:

  1. To make arrangements for the removal ‘as soon as reasonably practicable’ of people who (i) enter the UK without permission after 7 March 2023 and (ii) did not come directly from a place where their life or liberty were threatened. This duty applies regardless of whether the migrant has submitted a legal claim challenging their removal from the UK, including any application for judicial review of the Home Department’s decision.

  2. Where an individual meets the conditions in (1), automatically to reject any asylum claim from them, together with any claim that deporting them to their country of origin would breach their human rights.

The Bill also gives officials new powers to detain people potentially subject to removal under these ‘arrangements’. Detainees will not be able to apply for immigration bail or judicial review during the first 28 days of detention and their detention can be continued beyond 28 days in circumstances where there is still a 'reasonable prospect of removal’. Existing rules on the length of time that pregnant women and families with children can be detained are disapplied in such cases, as are, with very few exceptions, the protections normally afforded by modern slavery legislation to confirmed or suspected victims of trafficking.

The Bill provides for individuals to be removed to their home country if that country is deemed ‘safe’ by the UK Government. The list of ‘safe’ countries now comprises the 27 EU member states plus Iceland, Norway, Liechtenstein, Switzerland and – significantly - Albania. The Government previously announced that Albanian nationals comprised 42% of all migrants crossing the Channel in small boats between May and September 2022 and they have become a particular focus of anti-immigration campaigners.

Individuals from other countries would not be deported to their home countries but would instead be sent to ‘safe’ ‘third countries’ of which they are not citizens, such as Rwanda, with which the UK Government signed a Memorandum of Understanding in January 2023 for the establishment of an asylum transfer scheme. Under this scheme, the UK can send certain asylum-seekers to Rwanda, which will then assess whether to grant them permission to stay there long-term or be returned to their country of origin. In either scenario, such individuals would have no right to return to the UK.

Opponents of the Bill were quick to question its compatibility with the European Convention on Human Rights. Solicitor and legal commentator Joshua Rozenberg noted that the Government already appears to be anticipating a future challenge in the European Court of Human Rights in Strasbourg in that, when introducing the Bill for its second reading in the Commons, Braverman failed to make a declaration of confidence that the Bill was compatible with the rights guaranteed by the Convention. Instead, she made a ‘Section 19b statement’, essentially acknowledging that there is a more than 50% chance that it may not be compatible, but confirming that the Government nevertheless wished to go ahead with it.

Although incompatibility with the Convention does not prevent the Bill being enacted into UK law, it greatly increases the chance of individual legal claims being referred to Strasbourg, and the ECHR then ruling against the UK Government. What would happen next in that scenario?

In 2022, the Government was forced to abandon its first attempt to deport asylum seekers to Rwanda after the ECHR imposed an urgent ‘interim measure’ – essentially an injunction – to prevent an Iraqi national being removed until three weeks after the delivery of the final UK court decision in his judicial review proceedings.

Rozenberg notes, however, that the wording of Clause 49 of the Bill appears to be laying the ground for the UK Government to ignore any future interim measure that the ECHR may seek to impose to block it. If the UK Government did indeed take such a step, that might itself amount to a breach of Article 34 of the Convention and, as Rozenberg notes: 'Article 34 is a treaty obligation and Parliament cannot relieve the government of its duties to comply with international agreements.' The stage could therefore be set for an unprecedented clash between Westminster and Strasbourg.

Another legal headache is the precedent set by the Court of Appeal in 2021, which found that those crossing the Channel in small boats may not have actually broken the law. In December of that year, judges quashed the convictions of three men who it found had been wrongly jailed for 'assisting unlawful immigration' by taking dinghies across the Channel, ruling they had not committed an offence. The Government’s subsequent Nationality and Borders Act 2022 sought to respond to this by making such arrivals an immigration offence in themselves, but it is still likely that there will be legal challenges to the Bill’s provision that all asylum claims from individuals who enter the UK by irregular means will be automatically rendered void.

Other criticism of the Bill has focused on whether its provisions are workable in practice. Labour MP Stephen Kinnock argued during a Parliamentary debate on 20th March that the Government simply does not have the facilities to detain tens of thousands of asylum seekers, potentially indefinitely, in the absence of any agreement with the EU for returning those deemed inadmissible to the UK and in circumstances where Rwanda will only be able to take a very small number of those earmarked for removal. (The Times has recently reported that the Government may be planning to adapt two former RAF bases in Lincolnshire and Essex to house detainees pending their removal.) The Immigration Services Union, representing UK Border staff, has called the plans ‘quite confusing’ and noted that they do not seem feasible without the Rwanda deportation policy functioning.

Labour leader, Sir Keir Starmer, has also criticised the Bill as ‘unworkable’, arguing that it undermines the UK’s reputation as a country committed to upholding human rights. The Law Society of England & Wales has raised concerns about the Bill’s potential impact on the rule of law and access to justice. There have also been calls – including from some Conservative politicians – for the Government to offer more ‘safe routes’ to the UK for refugees, something that Rishi Sunak has promised to consider only when the numbers of arrivals have fallen.

Concerns have been raised by international human rights specialists. Dunja Mijatović, the Council of Europe’s Commissioner for Human Rights, warned that the Bill would remove essential protections by preventing irregular migrants from having their asylum claims properly assessed. The United Nations High Commissioner for Refugees (UNHCR) likened the Bill to a ban on asylum and to the UK essentially closing its borders to people fleeing persecution. It declared the Bill to be inconsistent with the UK's obligations under the Refugee Convention, the 1954 Convention relating to the Status of Stateless Persons, the 1961 Convention for the Reduction of Statelessness, and international human rights law. The UNHCR also identified a real and foreseeable risk of ‘refoulement’ (a forcible return of refugees to a country where they are liable to be persecuted) in placing a duty on the Secretary of State to remove people without considering their asylum claims. While the Bill does state that those at risk of ‘serious and irreversible harm’ will not be removed – thereby in principle protecting the obligation of non-refoulement – it is not currently clear how this can be assessed without a legal challenge.

Assuming that the Illegal Migration Bill is ultimately enacted by Parliament without substantial amendment, and assuming that the UK Government remains committed to ‘stopping the boats’, it seems inevitable that this legislation will face significant legal challenges both in the UK courts and in the ECHR. While the interweaving of international and domestic law, sovereignty arguments, post-Brexit geopolitics, and electoral considerations will no doubt make these challenges fascinating from a legal perspective, it is also to be hoped that all involved will remember the human reality that underpins it - the tens of thousands of men, women and children making the perilous voyage across the Channel each year in pursuit of better lives.


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