Table of contents
1. What would the bill do?
The Illegal Migration Bill forms part of the government’s plan to “stop the boats and tackle the unfairness of illegal migration”. Provisions include a duty on the home secretary to remove persons entering the UK illegally after 7 March 2023 who have not directly come from a place where their life and liberty were threatened. Anyone subject to removal would have any asylum or human rights claims they make declared as inadmissible.
2. Commentary on the bill’s compliance with international law
Concerns about the Illegal Migration Bill have been well documented. This includes the bill’s impact on the UK’s international legal obligations under the UN 1951 Refugee Convention which sets out various rights for refugees. Such obligations include the right for a refugee not to be punished for unlawful entry or presence in a territory when they have come directly from a country where their life or freedom was threatened.
The UN Refugee Agency expressed “profound concern” that the bill would introduce an “asylum ban” on asylum seekers arriving in the UK after having travelled through a country where they were only in transit. It argued the refugee convention requires that individuals who enter a country irregularly and have travelled through another country should not be denied the chance to have their claim for protection considered. As explained in an Inter-Parliamentary Union guide to international refugee protection and asylum systems, ‘coming directly’ under the refugee convention includes where a person has arrived from a transit country.
Potential breaches of the refugee convention were also considered in a blog by Dan Cantor, director of the Refugee Law Initiative at the School of Advanced Study of the University of London. Raising similar concerns to the UN Refugee Agency, Mr Cantor said the refugee convention did not stipulate that countries could refuse to determine refugee status on the grounds of irregular entry. He described the bill as a “dereliction of the core convention obligation to determine status”. Additionally, Sophie McCann, migration advocacy adviser at international medical humanitarian aid organisation Médecins Sans Frontiéres, said that policies underpinning the bill could breach the refugee convention and “inflict great harm” on those fleeing violence and persecution.
Several organisations have also raised concerns about the bill’s impact on international legal obligations under the European Convention on Human Rights (ECHR). The ECHR is an international treaty that sets minimum standards for people’s basic human rights and freedoms. The UK was one of several states involved in drafting the ECHR and was one of the first states to ratify it in 1951.
One prominent area of debate has surrounded the issuance of interim measures by the European Court of Human Rights (ECtHR) under rule 39 of its ‘Rules of Court’. According to an ECtHR factsheet, the court only grants interim measures when it believes there is an “imminent risk of irreparable harm”. The ECtHR used interim measures to block the UK’s deportation of individuals to Rwanda in June 2022. Clause 53 of the bill would give a minister the discretion to continue to remove a person from the UK despite interim measures being issued by the ECtHR.
A joint briefing signed by organisations including the Public Law Project, the Bonavero Institute of Human Rights and Amnesty International argued that compliance with ECtHR interim measures was a “clear duty” under international law. They said clause 53 would effectively give parliamentary authority for a future ministerial decision to break that duty. They stated this could have “serious implications” for the rule of law.
However, not everyone has agreed that the UK is legally bound by ECtHR interim measures. A paper by the head of Policy Exchange’s Judicial Power Project, Richard Ekins KC, argued the ECtHR had no lawful authority to grant binding interim relief. Mr Ekins said that imposing legal obligations on countries in this way would be inconsistent with the ECHR. He stated clause 53 would protect the rule of law by “helping to clarify and secure” the home secretary’s statutory duty to remove individuals from the UK who have entered illegally.
A Law Society parliamentary briefing on the bill considered how the bill could affect the rule of law and access to justice. It argued the timescales attached to the bill’s processes would reduce access to justice because individuals would have limited time to issue a human rights, protection or judicial review claim before their removal. The Law Society also expressed concern that the government had been unable to make a statement that the bill was compatible with the ECHR (as required by the Human Rights Act 1998). It warned that not adhering to international legal obligations could “undermine confidence in the UK’s commitment to international agreements” and “damage the confidence of businesses looking to invest in the UK”.
Concerns about the government’s inability to issue a statement on the bill’s ECHR compatibility have also been raised by various other organisations. For instance, a joint civil society solidarity statement signed by a coalition of 175 organisations including the Refugee Council, Save the Children and Friends of the Earth called on the government to withdraw the bill on various grounds, including that it threatened human rights protected under the ECHR.
Despite these concerns, an insight paper by thinktank the Institute for Government (IfG) said the absence of an ECHR compatibility statement did not necessarily mean the bill would be incompatible with the ECHR. However, it said this could lead to future appeals being lodged with the ECtHR who would decide whether the bill adhered to the ECHR. If the ECtHR considered there to be a breach, the IfG said this could lead to a confrontation between the ECtHR and the UK government.
Some have also raised concerns about the bill’s impact on the UK’s international reputation. An article by research organisation UK in a Changing Europe said a failure to meet international obligations could lead to reputational damage with treaty partners. The Institute for Public Policy Research argued the bill could send an international message that the UK was “foregoing its responsibilities under the refugee convention” and hinder future cooperation with other countries. Additionally, a Public Law Project briefing on the bill argued the government’s plans under the bill would threaten the UK’s international obligations to protect refugees and victims of human trafficking and modern slavery. It said this could “undermine the UK’s longstanding humanitarian tradition and reputation as a state that upholds international law”.
3. The government’s position
The government has defended the bill’s provisions and said it remained committed to upholding the UK’s international legal obligations. In a statement in the House of Commons on 7 March 2023, Home Secretary Suella Braverman said the government would always seek to uphold international law. The home secretary also said she was “confident” that the bill was compatible with international law.
On ECtHR interim measures, the government has said it recognised the importance of this mechanism. However, during oral questions in the House of Lords on interim measures, Parliamentary Under Secretary of State for the Ministry of Justice Lord Bellamy said the process raised difficult legal questions which the government was in “constructive discussions” with the ECtHR about.
On the issue of the absence of a statement of ECHR compatibility, the government acknowledged in the bill’s human rights memorandum that certain provisions were “radical” and “new and ambitious”. At the bill’s second reading in the Commons, the home secretary stated the government had been “unable to say decisively that the bill is [ECHR] compatible”. The home secretary said this was because the bill’s provisions were “novel and legally untested” but there were “good arguments for compatibility”. Additionally, the explanatory notes said the government was “satisfied” that the provisions were capable of being applied compatibly with the ECHR.