Illegal Migration Bill: 07-03-23
On Tuesday 7th March 2023, the Home Secretary introduced a new Bill called the “Illegal Migration Bill”. The Bill puts a duty on the Home Secretary to arrange the removal of people who come to the UK without permission if they have not arrived directly from a country where their life and liberty is at risk. If they make an asylum claim, it will be declared “inadmissible” – so it won’t be heard – and there is no right to appeal.
The Home Secretary said, "our approach is robust and novel, which is why we cannot make a definitive statement of compatibility under section 19(1)(a) of the Human Rights Act 1998" - meaning she cannot make a statement that the law is compatible with the human rights in the European Convention on Human Rights and the Human Rights Act. She has instead made a Section 19(1)(b) statement that says while she can't say the law is compatible with human rights, she wants to proceed with it anyway. Parliament can choose to do so because of the principle of parliamentary sovereignty (that Parliament is the ultimate power in the UK and cannot be overruled).
Our Chair, Sir Nicolas Bratza, told Channel 4 news that it was "curious to say that [the Government] couldn't give a statement of compatibility with the Convention but nevertheless were satisfied that it was compliant with international law - of course the Convention is an important part of international law".
The Bill was not published until after the Home Secretary’s speech. It is now available to read online. It has some things in common with the Rights Removal Bill – including that it raises a number of human rights concerns.
Here's what some MPs had to say about the Bill, including concerns about the UK's future membership of the European Convention on Human Rights.
Rule 39 (Interim Measures)
Iain Duncan Smith MP asked the Home Secretary to talk about the European Court of Human Rights’ role in the Rwanda case and whether anything has changed. The Home Secretary said the Bill will introduce “conditions” on how the UK will comply with Rule 39 orders.
A Rule 39 order tells States to take or not take steps where there is an “imminent risk of irreparable damage” to someone’s human rights. When the UK signed up to the European Convention on Human Rights, it agreed to follow these to ensure the European Court of Human Rights can function as intended.
The European Convention on Human Rights
Chair of the Joint Committee on Human Rights, Joanna Cherry, said “isn’t the plan behind this legislation simply this: the legislation will go through in the certain knowledge that the domestic courts of the United Kingdom will find that it’s incompatible with international law and the European Convention on Human Rights and then the Tories will fight the next general election on a promise to take the UK out of the European Convention on Human Rights?”
The Home Secretary said many people denounced the Rwanda policy as cruel and illegitimate but the High Court recently said it’s legal.
Section 3 of the Human Rights Act
In response to a question from William Cash MP on the European Convention on Human Rights and the Refugee Convention, the Home Secretary said that Clause 1 of the new Bill disapplies Section 3 of our Human Rights Act.
The Bill has now been published and Clause 1(5) says: “Section 3 of the Human Rights Act 1998 (interpretation of legislation) does not apply in relation to provision made by or by virtue of this Act."
Section 3 of our Human Rights Act means that the Government and public bodies like the Home Office must apply other laws and policies in a way that upholds our rights so far as possible. When this doesn't happen, individuals can seek justice in the courts. Whilst courts can never overrule an Act of Parliament, where possible they can apply other laws compatibly with human rights.
The UK Government has also tried to get rid of Section 3 through its Rights Removal Bill (which is still on the Parliamentary timetable). We said this “jeopardises the ability of public body staff to make human rights-respecting decisions…Laws will suddenly have to be interpreted in different and unknown ways, creating chaos [and it removes] the ability to practically challenge decisions that put…rights at risk.”
John McDonnell MP said he welcomes people seeking asylum in his constituency. He said he is amazed at the range of skills and qualifications they have and they “just want employment – they want to be able to contribute but they’re trapped in this system.” He also asked the Home Secretary to “please tone down her inflammatory language. It’s putting these people at risk and those who represent them.”
The Home Secretary said they’re “making good progress” on the backlog but did not address the question about the language.
Response from the Council of Europe
Tommy Sheppard MP said the Bill is “most certainly going to be in contravention of the European Court of Human Rights…If this Government is determined to break the ECHR, I am certain it will lead to a challenge to the credentials of the delegation from this Parliament to the Council of Europe.”
The Home Secretary said the Bill is a “humanitarian set of measures”.
The Good Friday Agreement
Tonia Antoniazzi MP said the Prime Minister recently committed to staying in the European Convention on Human Rights because leaving it would breach the Good Friday Agreement. She asked if the Home Secretary agrees.
The Home Secretary said the Bill meets international obligations.
Blocking legal challenges
Chris Stephens MP asked the Home Secretary confirm that she will not seek to revisit “ouster clauses” – which stop people bringing a judicial review of a decision.
The Home Secretary said the Bill will “dramatically reduce the avenues and options for legal challenge”.
Children & the Right to Education
Andy Slaughter MP told the Home Secretary that there are children from Afghanistan who were living in his constituency but were moved to new hotels 200 miles away just before they started their GCSEs. He said the Home Office have not arranged new schools for them and initially denied they moved at all. He asked if the Home Secretary would look at their cases and her policy.
The Home Secretary said he can’t complain because Labour voted against their measures to streamline the asylum process.
Kirsty Blackman MP said this “is not being done in our name. We did not vote to leave the ECHR”.
The Home Secretary said, “people didn’t vote for abuse of our generosity”.
We have previously raised concerns about the UK Government ignoring evidence from people across the UK when making drastic changes to human rights laws.
Rachael Maskell MP (of York Central in England’s only human rights city) asked the Home Secretary if she would publish the legal advice that said the Bill is compatible with international law including the European Convention on Human Rights. The Home Secretary said the UK Government does not disclose legal advice.
Article 3 & Protection from Destitution
John Stevenson MP asked the Home Secretary if she would “give additional confidence to the British people in our immigration system” by immediately stopping the use of hotels to house asylum-seekers.
The Home Secretary explained that the Home Office has a duty to provide appropriate support to people waiting for their asylum decision and said “it is important…to avoid destitution and homelessness.”
A Fair Claim
Patrick Grady asked how the Home Secretary “can know if someone is a genuine asylum-seeker or not unless they’re allowed to make a claim and that claim is fairly and independently assessed?” He asked whether the Home Secretary has ever listened to the stories of the people who come here on small boats.
The Home Secretary said, “we need to all work together to find a pragmatic and compassionate and fair solution.”
Patrick emphasised the point that people arriving in the UK are human beings. This speaks to the key principle underpinning human rights law – that the rights belong to all of us simply because we’re humans. The European Convention on Human Rights and the Human Rights Act were created to recognise that and that it should not be left to the government of the day to decide who has rights and who does not.
We’re currently busy analysing the Bill and its implications for human rights. Check back soon for explainers and updates or sign up to our eNews to get our monthly newsletter.
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