By Susana Ferrín, Pupil Barrister at No5 Barristers’ Chambers

‘Discretionary’ safe and legal routes

On 7 March 2023, the British Government introduced the Illegal Migration Bill[1] in the House of Commons with the intention of delivering on the Prime Minister’s promise to stop small boats. The purpose of the 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”, as defined under Clause 1(1). A reasonable inference from this stated purpose is that the Bill would propose viable safe and legal routes. The Bill deliberately avoids addressing viable safe and legal routes other than to give the Secretary of State for the Home Department (‘SSHD’) the discretion to make regulations under Clause 51 setting an annual cap on the number and, unescapably, the nationalities of the individuals entering the UK using such routes.[2]

 Ample scope for narrow admissibility

 The Bill would impact virtually every aspect of the UK immigration system in a draconian manner. This proposed legislation would impose two new legal duties on the SSHD: first, the duty to make arrangements for removal; and second, the duty to declare inadmissible any protection or human rights claim made. The proposed measures would apply to any person who requires leave to enter or remain in the UK, who, on or after 7 March 2023, enters the UK without leave, with leave obtained by deception or in breach of a deportation order; or arrives in the UK without valid entry clearance or an electronic travel authorisation as required. The SSHD would have discretion in relation to her duty to remove unaccompanied children, which would only be exercised in exceptional circumstances.[3] The peculiar fact that 7 March 2023 is established as the relevant date of entry or arrival in the UK reflects the intended retrospective application of the Bill from publication rather than enactment, which runs contrary to the rule of law.

Moreover, the person must have passed through or stopped in another country on their way to the UK in which their life and liberty were not threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion. Although the terminology used reflects that of 1951 Refugee Convention, the scope of the Bill is wider. Only sur place asylum seekers or those who fly directly to the UK and arrive legally would escape these discriminatory provisions. It would generate another intricacy to the immigration legal framework by adding another inadmissibility scheme to that created by virtue of the Nationality and Borders Act 2022. Essentially, there would be three groups present in the UK to whom different regimes apply. These measures fail to recognise that the majority of refugees will not have the opportunity to enter the UK with the required leave. On 22 March 2023, the UN High Commissioner for Refugees declared that the Bill “undermines the very purpose for which the Refugee Convention was established”[4]. The SSHD would have no ability to assess the risk of harm that a person who makes an asylum or human rights claim faces if returned to their country of origin. The Bill provides no safeguarding provisions[5] other than to challenge the proposed country of removal under unrealistic timeframes.

The removal dilemma

The Bill provides two exceptions to removal. The first exception is that nationals of Albania, EEA countries and Switzerland, listed in a newly created section 80AA to the Nationality, Immigration and Asylum Act 2002, can be removed to a third country featuring on the list of fifty-seven countries, including the Republic of Rwanda, provided in the Schedule to the Bill, if the SSHD considers that there are “exceptional circumstances” that prevent removal to their home country. The second exception is that if a person comes from a country other than those listed in section 80AA, the SSHD cannot remove them to their country of origin, however, they can be removed to another third country listed in the Schedule. These exceptions to removal are clearly contingent on the acceptance of the person in question by the country of proposed removal. In practice, these removals are unlikely to be executed in the near future as there are no uncapped removal agreements in place with third countries except for the Migration and Economic Development Partnership (‘MEDP’) with Rwanda. Although under the MEDP, Rwanda was initially prepared to receive two hundred people[6]. As ILPA notes, “inadmissibility procedures decrease rather than increase the total of removals”[7]. Additionally, the logistics of such removals would be far from straightforward. They would have to be executed under coercion by private actors, including the captain of a ship or an aircraft, which would likely lead to episodes of violence and incidents of suicide.[8]

Through a human rights lens

At the outset, the British Government acknowledges that this legislative proposal is likely to be contrary to international law. In the explanatory notes, the SSHD indicates, under section 19(1)(b) of the Human Rights Act 1998 (‘HRA 1998’) that she is unable to confirm that the proposed legislation is compatible with European Convention on Human Rights (‘ECHR’). The Bill also disapplies section 3 of the HRA 1998, which, in general terms, requires the interpretation of legislation, both primary and subordinate, to be read and given effect in a manner which is compatible with the Convention rights. It effectively mandates that the courts disregard human rights, and therefore, engage in conduct contrary to the ECHR and other international treaties. As a result, the courts’ powers are restrained to making findings of incompatibility under section 4 of the HRA 1998 and striking down secondary legislation.

Furthermore, the Bill contains ouster clauses. Clause 13(4) seeks to constrain the High Court from considering challenges to unlawful detention during the first twenty-eight days of detention providing for limited exceptions, including bad faith or fundamental breach of the principles of natural justice. It is an absolute affront to the Hardial Singh principle and Article 5 ECHR rights. Clause 48 makes final Upper Tribunal decisions in relation to serious harm and factual suspensive claims i.e. challenges to removal to third countries on the grounds of “real risk of serious and irreversible harm” or a “mistake of fact”, preventing any challenge by way of appeal or judicial review. In addition to these ouster clauses, Clause 46 does not enable to the Upper Tribunal to consider new matters unless the SSHD has given her consent.

In conclusion, the Bill embodies the executive branch’s attempt to interfere with judicial check and balances by undermining judicial independence and granting extensive regulation-making powers subject to limited scrutiny. The proposed legislation cries for the need to change the perception of immigrants within society.

[1]Illegal Migration Bill 262 (7 March  2023). [Online] Available at https://publications.parliament.uk/pa/bills/cbill/58-03/0262/220262.pdf [Accessed March 2023]

[2]Immigration Law Practitioners’ Association (12 March 2023). Illegal Migration Bill. House of Commons Second Reading Briefing. [Online] Available at: https://ilpa.org.uk/wp-content/uploads/2023/03/ILPA-HC-Second-Reading-Briefing-Illegal-Migration-Bill.pdf [Accessed March 2023] at p 49.

[3]Gower, M., McKinney, C., Dawson, J. & Foster, D. (10 March 2023). Research Briefing. Illegal Migration Bill 2022-23. [Online] Available at: https://researchbriefings.files.parliament.uk/documents/CBP-9747/CBP-9747.pdf [Accessed March 2023] at pp16-17.

[4]UNHCR (7 March 2023). Statement on UK Asylum Bill. [Online]
Available at: https://www.unrefugees.org.uk/learn-more/news/news-updates/statement-on-uk-asylum-bill/  [Accessed 27 March 2023].

[5]Immigration Law Practitioners’ Association (12 March 2023). Illegal Migration Bill. House of Commons Second Reading Briefing. [Online] Available at: https://ilpa.org.uk/wp-content/uploads/2023/03/ILPA-HC-Second-Reading-Briefing-Illegal-Migration-Bill.pdf [Accessed March 2023] at p19.

[6]UK Parliament (2022). Asylum: Rwanda. Question for Home Office (UIN 97762), tabled on 28 November 2022, answered on 6 December 2022. [Online] Available at: https://questions-statements.parliament.uk/written-questions/detail/2022-11-28/97762 [Accessed April 2023].

[7]Immigration Law Practitioners’ Association (12 March 2023). Illegal Migration Bill. House of Commons Second Reading Briefing. [Online] Available at: https://ilpa.org.uk/wp-content/uploads/2023/03/ILPA-HC-Second-Reading-Briefing-Illegal-Migration-Bill.pdf [Accessed March 2023] at p16.

[8]Yeo, C. (15 March 2023). Video: Illegal Migration Bill discussion. [Online] Available at: https://protect-eu.mimecast.com/s/WWojCXQ2pHALRLH7MFmN?domain=freemovement.us7.list-manage.com [Accessed March 2023].

 Susana Ferrín is a Pupil Barrister at No5 Barristers’ Chambers