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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.

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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.”

Inflammatory language

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.

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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.

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Legal Advice

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.

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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.”

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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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Research & Communications Associate

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