This is a House of Commons Committee report, with recommendations to government. The Government has two months to respond.
Joint Committee on Human Rights
Legislative Scrutiny: Illegal Migration Bill
Date Published: 11 June 2023
This is the report summary, read the full report.
On 7 March 2023, the Government introduced the Illegal Migration Bill (the Bill) to the House of Commons. The Government has said that the Bill will deter ‘illegal’ entry and prevent people smuggling and further deaths in the Channel. The Government is right that the prevention of further loss of life is a priority, especially given its obligations to protect life under Article 2 of the European Convention on Human Rights (ECHR). We also recognise the continuing importance of the UK being able to control its borders.
This Committee routinely scrutinises the Government’s legislation for its compatibility with domestic and international human rights law. This report considers the Bill’s compatibility with the UK’s human rights obligations, including the UN Refugee Convention, the European Convention on Human Rights (ECHR), the UN Convention on the Rights of the Child (UNCRC) and the Council of Europe Convention on Action Against Trafficking (ECAT). Upon introduction of the Bill, the Home Secretary made a rare declaration that she was unable to make a statement under section 19 of the Human Rights Act 1998 (HRA) that the Bill is compatible with the ECHR rights. This is only the third occasion upon which a section 19(1)(b) statement has been issued at the introduction of a Bill since the Human Rights Act was enacted and gives us significant cause for concern. We would have liked the opportunity to have questioned the Home Secretary about this. We invited the Home Secretary to give evidence on the Bill and she was unable to do so. We also wrote to the Home Secretary with detailed legal questions on the Bill in order to inform our report and requested a response by 24 April 2023. The Home Secretary belatedly responded to us by letter dated 2 June 2023. We therefore did not receive her response before the Bill commenced Committee Stage in the House of Lords. The Home Secretary did not give any explanation for her undue delay in responding to our letter and many of the questions remain unanswered. We consider both the delay and her lack of explanation for the delay to be discourteous not just to this Committee but to both Houses of Parliament. In her response of 2 June, the Home Secretary defended the government’s position. She reiterated that radical solutions were required to stop small boats crossing the channel, and confirmed her view that this approach does not mean the Bill is not compatible with international law.
The Bill is the UK’s Government’s most recent legislative response to the global migration crisis. In mid-2022, the UN Refugee Agency (UNHCR) estimated that there were 103 million forcibly displaced people worldwide. Of those, 32.5 million are refugees and 4.9 million are seeking asylum — the highest number since the UNHCR was created in 1950.1 This number is likely to increase given the deadly conflict that has erupted in Sudan. Hundreds of thousands of civilians have been displaced and have fled to neighbouring Central African Republic, Chad, Egypt, Ethiopia, and South Sudan. As a consequence of this Bill, if any of these men, women and children make their way to the UK, they would be liable to detention and removal to a third country deemed safe by the Government, without any consideration of their case, in breach of the object and purpose of the Refugee Convention which guarantees a right of asylum to refugees irrespective of the nature of their journey.
Given the sheer scale of this global crisis, it cannot be solved by one country alone. There are very limited safe and legal routes for certain persons in need of international protection to come to the UK. However generous the British people are in welcoming those fleeing persecution and war, the vast majority of refugees and persons in need of international protection are not and will not be eligible for such routes.
Some of the written and oral evidence we received expressed the view that the Bill is not the right approach as it would ultimately lead to the UK failing to play its part in the global system of refugee protection that relies on international co-operation and responsibility sharing. Those principles are enshrined in the Refugee Convention, which is binding on the UK as a matter of international law.
Clause 2 of the Bill would, if enacted, place a duty on the Secretary of State to make arrangements to remove any person who enters the UK irregularly and has not come directly from a territory where their life and liberty was threatened (which includes anyone who has stopped in or passed through a country where their life or liberty was not threatened). Where the Home Secretary is under a duty to make arrangements for removal of a person (the removal duty), she is also required to declare the person’s asylum claim inadmissible, meaning their application would not be considered within the UK asylum system. Human rights claims relating to removals to a person’s country of origin would also be declared inadmissible. The Bill would make significant changes to the law on immigration detention and bail, modern slavery, citizenship and settlement, and legal proceedings in asylum cases, as well as introducing broad new powers for immigration officers to search people and premises. It would remove the right of appeal for children who have been wrongly assessed as adults. It would also allow for children to be penalised for refusing to consent to scientific methods for conducting age assessments. The Bill would allow for Ministers to ignore interim measures issued by the European Court of Human Rights (ECtHR). It would also introduce a duty on the Secretary of State to make regulations specifying the maximum number of persons to be admitted to the UK for settlement each year via safe and legal routes.
The key mechanism within the Bill is the new duty placed upon the Secretary of State to make arrangements to remove persons who enter or arrive in the UK irregularly, who have not “come directly” from a territory where their life and liberty was threatened. This removal duty extends to children who arrive with their families, as well as victims of trafficking and slavery. For those children who arrive alone, the Secretary of State has a power (not a duty) to make arrangements to remove these unaccompanied children. If they are not removed from the UK beforehand, they will automatically become subject to the removal duty on the day they turn 18. Unless a person can flee their country of persecution or conflict via a resettlement scheme, or enter the UK on some other lawful basis before claiming asylum, many of those who wish to seek asylum in the UK are likely to be caught by the provisions of this Bill. The removal duty applies retrospectively to anyone who entered or arrived on or after the 7 March 2023, the date the Bill was introduced to the House of Commons on the basis that this would prevent people making the journey before the Bill receives royal assent. The scope of this duty is extremely broad and would deny the right to asylum to the vast majority of refugees, including children and victims of modern slavery (see clauses 2–3).
We are particularly concerned by the Bill’s implications for children, who are affected by every aspect of this Bill. The Government has a clear legal responsibility to protect the best interests of children under the UN Convention on the Rights of the Child (UNCRC). The Home Office has stated that the provisions in the Bill relating to children are intended to deter children from making dangerous journeys to the UK and dissuade adults from inciting them to make such journeys. However, it is clear that such aims cannot negate or override the UK’s duty to protect the rights of all children in the UK.
Under the provisions of the Bill, children who arrive with their parents are subject to the Secretary of State’s duty to make arrangements for their removal. They can be detained indefinitely at any place deemed “appropriate” for as long as the Secretary of State deems is “reasonably necessary” until they are removed from the UK. Unaccompanied children can also be removed either to be reunited with their parent anywhere in the world; to their countries of origin if from an EEA state (plus Switzerland or Albania); to a non-EEA (plus Switzerland and Albania) country of origin or embarkation (unless a protection or human rights claim is made); or in any other circumstances as may be specified in regulations. Unaccompanied children can also be detained in any place deemed appropriate, although this power must be exercised only in accordance with regulations to be made by the Secretary of State, which may include time limits.
The Bill places Home Office accommodation for unaccompanied children in England on a statutory footing. The Bill does not define what form such accommodation must take. Home Office accommodation under the Bill will not be subject to the duties under the Children Act 1989, which are the main way children’s welfare is safeguarded in England. No standards or requirements are set for Home Office accommodation under the Bill. The Home Office has been accommodating unaccompanied asylum-seeking children in hotels since 2021. Child-focused organisations have expressed concerns about the welfare of children in Home Office accommodation to date, given the number who have gone missing (and remain missing) and the inadequate and sometimes unsafe nature of the accommodation. The Bill also empowers the Home Office to direct an unaccompanied child to be moved from local authority accommodation – which is subject to the safeguards under the Children Act 1989 – to Home Office accommodation, which is subject to no equivalent legal safeguards. (See clauses 15–20).
The Bill also seeks to limit the ability of individuals to challenge age assessments which conclude that they are adults (see clause 55). The Bill prevents an age assessment decision being appealed and limits judicial review to matters of law, not matters of fact. Any judicial review would be non-suspensive. There are potentially serious legal consequences of wrongly treating a child as an adult, as the provisions of the Bill would require the Secretary of State to make arrangements to remove any child incorrectly assessed to be an adult before their judicial review has been determined. The UK’s legal obligations to protect children mean that children must be protected from any adult who falsely claims they are a child and this is extremely important from the point of view of safeguarding. However, it is difficult to see how the Bill’s restriction on challenges to age assessments achieves that aim or is compatible with the best interests of the child, section 55 of the Borders, Citizenship and Immigration Act 2009, or the child’s rights under Articles 6 (right to a fair trial) or 8 (right to private and family life) ECHR.
The Bill also allows the Secretary of State to make regulations to penalise individuals who refuse to consent to “scientific methods” to determine their age without “reasonable grounds” for that refusal (see clause 56). Definitively assessing whether a person is a child, and if so, the age of the child, is notoriously difficult. As of March 2023, the Home Office’s policy was not to use scientific methods in age assessments, even though it has the power to do so under the Nationality and Borders Act 2022. The Government introduced the age assessment provisions after the Bill had already been introduced, after the window for submitting evidence to us has closed. Nevertheless, we considered the human rights implications of age assessments when scrutinising the Nationality and Borders Act 2022 last year. At that time, the overwhelming evidence from medical practitioners was that no scientific method currently exists which is capable of determining whether a person is a child or an adult accurately and consistently. The Government has not provided any evidence to prove otherwise. If such methods are developed, the penalisation of children who refuse them has the potential to breach their rights under the UN Convention on the Rights of the Child (UNCRC) and the ECHR given that the child may have many reasons for not wishing to have their body integrity interfered with, particularly after a traumatic journey to the UK or abuse. The Home Office has not yet set out what would constitute a reasonable ground for refusing such an assessment.
There are other ways in which we believe that the provisions affecting children are likely to fall short of compliance with the obligations in the UNCRC and the ECHR. The provisions regarding children may breach children’s rights under Article 8 and, potentially, Article 3 ECHR (prohibition of torture and inhuman and degrading treatment or punishment) depending on the nature of their treatment whilst detained or in Home Office accommodation. Any use of powers to remove a child without first considering their asylum claim also engages Article 22 UNCRC, which requires states to provide appropriate protection and humanitarian assistance to children seeking asylum.
The Secretary of State’s ‘removal duty’ will also apply to victims of trafficking (VOTs) and victims of slavery (VOSs) who have entered or arrived in the UK irregularly and indirectly. The Bill disapplies various protections currently afforded to VOTs and VOSs such as the entitlement to a 30-day recovery period where they will not be removed from the UK; support and assistance; limited leave to remain; and the protection from removal. Instead, VOTs and VOSs who arrive irregularly and indirectly will be deemed a “threat to public order” and will therefore be disqualified from the existing legal protections. The only exception is where a VOT or VOS is cooperating with a criminal investigation or prosecution and the Secretary of State considers it is necessary for them to remain in the UK. However, there is a presumption that it is not necessary for them to remain in the UK even if they are cooperating with an investigation (see clauses 21–28). Again, the weight of evidence we received was overwhelmingly clear that this would be in breach of the UK’s obligations under the Council of Europe Convention Against Trafficking (ECAT) and Article 4 of ECHR (prohibition of slavery). Removing protections from VOTs and VOSs is a response to what the Home Secretary has described as “abuse” of our modern slavery laws. Many have disputed this claim that the system is being abused, including former Prime Minister Theresa May MP who has said that there is no evidence to support this claim.
The Bill expressly disapplies section 3 of the Human Rights Act 1998 to prevent the courts and other public authorities from reading and giving effect to the Bill, so far as possible, in a way which is compatible with Convention rights. Section 3 HRA is essentially supplanted by a provision requiring the courts instead to read the Bill, so far as possible, to give effect to the purpose of preventing and deterring unlawful migration. Disapplying section 3 HRA removes a valuable protection against human rights violations and will mean that some of those who wish to enforce their rights are unable to do so effectively in domestic courts. It is likely to result in challenges to the Bill being taken to the European Court of Human Rights, which is a longer and be more expensive process for litigants (see clause 1).
All persons caught by the new removal duty will have their asylum claims declared as inadmissible, meaning the merits of their case will not be considered in the UK. Such individuals will be removed from the UK as soon as “reasonably practicable” either to their country of origin if they came from an EEA country, Switzerland or Albania, or to a ‘safe’ third state (as listed in the Schedule to the Bill) such as Rwanda. In essence, this Bill repeals, for the vast majority of refugees, the right to asylum which underpins the whole premise of the Refugee Convention, to which the UK is bound by as a matter of international law. Human rights claims relating to removals to a person’s country of origin would also be declared inadmissible. In the absence of any individualised assessments of the risks faced by persons subject to removal, the automatic inadmissibility and return of persons to ‘safe’ states risks breaching the principle of non-refoulement (i.e. not being returned to face persecution) which is guaranteed by both the Refugee Convention and the ECHR. (See clauses 4–5).
The Bill provides broad powers of detention covering all those who the Secretary of State has a duty to make arrangements to remove under clause 2. Numerous restrictions on immigration detention that currently apply would be removed, including restrictions on the time that unaccompanied children, families with children and pregnant women can be detained. While regulations could reinstate time limits on the detention of unaccompanied children, their content is as yet unknown. The Bill would alter all immigration detention powers so that they would apply for “such period as, in the opinion of the Secretary of State, is reasonably necessary”. This alters the current position that it is for the courts, not the Home Office, to decide whether a period of detention is or is not reasonable. This change risks unbalancing the immigration detention system so that it no longer meets the requirements of Article 5 ECHR (the right to liberty).
Furthermore, the power would be to detain persons “in any place that the Secretary of State considers appropriate”. Given the numbers who have previously arrived in the UK who would in future be subject to the removal duty, and given the current limited capacity of the immigration detention estate, this gives rise to concerns about the conditions in which detainees will be held. Detention in inadequate facilities raises issues under Articles 8 (private and family life), 5 (liberty) and 3 (prohibition on inhuman and degrading treatment) ECHR. (See clauses 10 and 11).
Detained individuals would be unable to secure bail from the independent First-tier Tribunal within the first 28 days of detention. Detainees would also be denied the ability to judicially review their detention apart from on the very limited grounds of bad faith or fundamental breach of natural justice. It is hard for us to see why detainees should be deprived of access to courts and tribunals if the Home Office is confident that their detention is necessary and lawful. The ouster of judicial review does not prevent applications for habeas corpus, but the evidence we received indicates that habeas corpus applications will not be sufficient to ensure that detainees can challenge their detention on Article 5 grounds. These provisions seem likely to be inconsistent with the right to speedily challenge one’s detention before a court, specifically guaranteed by Article 5(4) ECHR. Moreover, there is a clear risk that denying bail and judicial review will result in detention in breach of Article 5 being allowed to continue. (See clause 12).
The Bill sets out future, lifelong immigration penalties for those who enter the UK irregularly and indirectly. The Bill bans such individuals from ever being able to obtain entry into the UK or leave to remain in the UK in the future, except in very limited circumstances. It also makes them ineligible for any sort of British citizenship except in very limited circumstances. The Bill would penalise children for the choices made by their parents to bring them into the UK via an irregular route even when the child has no control over their parents’ action. For this reason, the evidence submitted to our inquiry on this point was that these provisions are likely to contravene Article 2 of the UNCRC, which requires the UK to take all appropriate measures to ensure that children are not punished or discriminated against based on the status or activities of their parents of family members. (See clauses 29–36).
The Bill provides that a person who is able to bring a legal claim challenging their removal will still fall within the Secretary of State’s removal duty even if their claim is ongoing. The Bill does, however, allow for two narrow ‘suspensive claims’, which would prevent a person being removed pending the determination of their claim. Even a successful suspensive claim based on serious and irreversible harm, preventing immediate removal, would not stop the duty under clause 2 subsisting — meaning that the claimant would still be subject to removal as soon as that option became available. These exceptional ‘suspensive claims’ are on narrower grounds than the duty not to remove an individual to face a real risk of a breach of Article 2 or 3 ECHR (non-refoulement), and therefore risk a breach of Convention rights.
Suspensive claims are also subject to such a tight timescale that there is a serious risk that claimants will not be able to secure legal assistance and gather necessary evidence so as to present their claims effectively, thereby denying them an effective remedy in practice. The cumulative effect of tight timeframes, high evidential thresholds, restricted appeal rights and ouster clauses severely undermines the effectiveness of suspensive claims as a safeguard against individuals being removed from the UK to face human rights violations. (See clauses 37 to 51).
To ensure that no way of preventing removal other than a suspensive claim is available, the Bill would also prohibit the courts from issuing interim remedies such as injunctions prohibiting removal. This is an exceptional interference with the courts’ ability to take action to ensure justice is done. It puts human rights at serious risk by preventing the courts taking steps to prevent removal if they consider the suspensive claim system is inadequate in an individual case. (See clause 52).
The Bill gives Ministers legislative permission to ignore interim measures indicated by the European Court of Human Rights (ECtHR). Where a Minister decides to ignore an interim measure such that the ‘removal duty’ continues to apply an individual, the Bill also prevents the courts from having regard to interim measures when considering proceedings under the Bill. As we noted in our Bill of Rights Bill report, disregarding interim measures violates the UK’s obligations under the ECHR. We understand that the Government is discussing this issue with the ECtHR but, at present, to ignore an interim measure of the ECtHR would be a breach of the UK’s legal obligations. (See clause 53)
To assist the Government in determining an individual’s immigration status, gaining intelligence and securing evidence for prosecutions, the Bill would also introduce new powers to search those who come within the removal duty, or are suspected to, for any devices that contain information in electronic form. These powers would allow immigration officers to conduct searches, including strip searches and searches within the mouth, as well as searches of vehicles, premises and property on the basis of no more than a suspicion that a person is in possession of a mobile phone. The device could be seized and retained and the private information contained on it copied. The exercise of these powers would involve a substantial interference with the right to respect for privacy guaranteed under Article 8 ECHR, with minimal safeguards. The Government has understandably been unable to confirm that in their view this provision is compatible with Convention rights. We are concerned that they are nevertheless proceeding with this clause. (See clause 14)
Clause 58 of the Bill requires the Secretary of State to make regulations specifying the maximum number of persons who can enter the UK through ‘safe and legal routes’. It is not clear how this cap is intended to work. It would be contrary to the UK’s binding international law obligations under the Refugee Convention for the UK to reject asylum applications duly made in its territory; a domestic quota could not displace those international law obligations. On the other hand, if the Government’s intention behind the cap is to limit the number of people the UK resettles from third countries at the Government’s discretion, the ‘cap’ would constitute more of an internal, non-binding Government quota and would therefore not contravene the Refugee Convention.
In this report, we use the word ‘irregular’ rather than ‘illegal’ to describe persons who have entered or arrived in the UK without a legal basis. This reflects the position in international law. Everyone has the right to seek and enjoy asylum from persecution. The claiming of asylum is not illegal.
The Government is rightly concerned about the loss of life in the Channel. So are we. However, our role here is to scrutinise legislation for its compatibility with human rights law. In our view, it is clear that the Bill would deny the vast majority of refugees access to the UK’s asylum system, despite the fact that there will have been, in many cases, no means for them to enter the UK by safe and legal routes. It prohibits the consideration of their protection or human rights claims irrespective of the merits of their cases. It permits them to be subject to detention without time limits, including pregnant women and children who are normally subject to special protections. It renders them liable to removal from the UK, either to their country of origin or to a ‘safe third state’ with which they may have no connection, without any individualised assessments of risk being undertaken. It also restricts their access to the courts and their ability to remain in the UK while they challenge removal on human rights grounds.
We conclude that this Bill breaches a number of the UK’s international human rights obligations and risks breaching others. The Home Secretary herself has been unable to certify that the Bill is compatible with Convention rights. We therefore urge the Government to consider our conclusions and recommendations in order to address the human rights incompatibilities within this Bill. We suggest, in the Annex to this report, ways in which this Bill could be amended.