Refugees, Deportation and Detention: The Illegal Migration Bill

Guest post by Catherine Briddick. Catherine is an Assistant Professor at the University of Warwick. She teaches and researches international human rights and refugee and law. Catherine is on Twitter @CateBriddick.

Introduction

The first reading of the Illegal Migration Bill took place in the House of Commons on 7th March 2023. The Bill, in its current form, creates a group of people who will be subject to a duty to deport and a power to detain. Refugees, and others within this group with international protection needs, are denied the ability to be recognised and protected as such. The Bill also removes rights from those who have been trafficked and subjected to modern slavery.

The post is in two parts. First, a summary of the Bill’s main clauses, second, an initial analysis from an international legal perspective. As will become apparent, the Bill, if passed, denies protection contrary to UK’s international legal obligations. Both this denial of protection, and the distress and violence that the envisaged deportations and detentions will entail, are legally and morally wrong.

An Overview

Clause 1(1) of the Bill states

The purpose of this Act 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.

This “Introduction” serves political and legal ends. It explains the aim of the legislation, deterrence, and provides an interpretative reference point for the clauses that follow (clause 1(3)).

Clause 1(5) of Bill disapplies section 3 of the Human Rights Act 1988. This provision requires courts to interpret legislation compatibly with the European Convention on Human Rights 1950 (the ECHR). The effect of this clause may be to subject those affected by the Bill to a different, denuded kind of decision-making. It may also lead Courts to make more declarations of incompatibility, declarations that the legislation conflicts with an ECHR-protected right.

Clause 2 (with clause 5) imposes a duty on the Secretary of State to “make arrangements” for certain people’s removal “as soon as is reasonably practicable” – the duty to deport. The duty applies to a person who arrives in the UK on or after 7 March 2023 without permission and not “directly” from a country in which their life and liberty were threatened. This is likely to apply to a significant proportion of those seeking protection in the UK, not just those who are compelled to arrive by boat.

Clause 2(7) and 3 varies this duty in the case of unaccompanied children, by enabling, but not requiring, their removal.

The duty (adults) or power (unaccompanied children) to remove applies “regardless” of whether the person makes a claim for international protection, as a victim of slavery or trafficking, or for judicial review (clause 4).

A person may, in theory, be removed to their own country, the country they travelled to the UK from, or any country that may admit them. Family members may be removed with them (clause 8).

Clause 5 sets out some exceptions. The first applies to people from countries listed in clause 50(3) (essentially EEA counties and Albania). People from these places cannot be returned to their country if they make an asylum claim and “exceptional circumstances” prevent it (clause 5(4)-(5)). However, they can be removed to another, safe, country.

The second exception applies to people from countries not on the list – the rest of the world. Again, these people cannot be returned to their country if they make an asylum claim, but they can be removed to another country considered safe (5(8)-(9)).

Challenges to removal to third counties may be possible in certain circumstances (clauses 40-48).

In some ways, these exceptions are a continuation of pre-Brexit arrangements which enabled the UK to remove people to other European counties in certain circumstances. They also relate to the Government’s plans to remove people to Rwanda to have their protection claims decided there. As explained below, there are significant practical and legal barriers to both of these.  

The duty to deport is accompanied by a requirement to bar and a power to detain.

Claims for international protection made by people subject to deportation “must” be declared inadmissible. To recap, this covers claims for refugee and human rights protection as well as for protection as a victim of trafficking or slavery. As this is not a decision on a claim, but a bar on making it, there is no right of appeal (clause 4). This power is, as Colin Yeo describes, “the end of conventional asylum law practice and appeals in the UK, exactly 30 years after they were first introduced by a Conservative government….”

Clauses 11-14 expand the Secretary of State’s detention powers. Those subject to the duty to deport may be held as long as “reasonably necessary” (clause 12). Judicial reviews of detention are precluded during the first 28 days (clause 13(4)). Bail may then be granted. As Joshua Rozenberg explains, the Bill does not prevent Courts from granting the common law remedy of habeus corpus, a particular kind of challenge to detention.

Clause 21 strips protections from recognised victims of trafficking and slavery, notably the reflection and recovery period. A narrow exception is created for certain victims who cooperate with investigations.

Clause 51 requires the Secretary of State to make regulations to “cap” the numbers of those able to enter the UK using “safe and legal routes”.

The above is, of course, just a sketch of some of the Bill’s provisions. There is much that I have not been able to discuss, including financial support (clause 9), the disapplication of the duty to consult the Independent Family Returns Panel (clause 14) and the transfer of children to and from local authorities (clause 16).

Some Observations

The Bill creates a group of people who are very unlikely to be removed, who will be subject to draconian detention powers, but who cannot access the asylum system, remain, or integrate in the UK.

Legally, this group may not be removed to their countries under the Bill’s own provisions.

Practically, these people will also not be removed to other counties because, as the UNHCR explains:

Returns or transfers to safe third countries may nonetheless be appropriate if certain thresholds are met – in particular, if Refugee Convention rights will be respected there, and the arrangement helps share the responsibility for refugees equitably among nations. The framework in place between EU member states is an example of such an arrangement. Currently, the UK is not part of any such agreement, and its bilateral arrangement with Rwanda fails to meet the necessary international standards.

Indeed, it is reported that the first flight to Rwanda will not take off until 2024, even if the Government wins legal challenges to its “asylum partnership agreement”.

If all those who could be deported were detained, the numbers of people held would also be unprecedented. The practical, financial, and human consequences of this are hard even to consider.

Those likely to be affected by the Bill are from countries with very high refugee recognition rates: Afghanistan (98%), Eritrea (98%), Libya (99%) Syria (98%) and Yemen (99%). Many people from these countries are unable to secure permission to enter the UK. As Cathryn Costello and Itamar Mann explain, there is a relationship of inverse proportionality between the risk of harm a person faces in their country of origin and their ability to travel legally to somewhere that is safe. This is the case notwithstanding the UK’s “bespoke” arrangements for some people from Hong Kong, Ukraine, and Afghanistan. These schemes do offer rights, but they are limited, and cannot easily be mapped onto the UK’s international protection obligations. Thousands of people have come to the UK from Ukraine and Hong Kong. However, according to a House of Commons Library research briefing, just four people have been accepted under Pathway 2 of the Afghan Citizens’ Resettlement Scheme (the route for those who have fled Afghanistan and are referred by UNHCR).

The Bill, if it becomes law, will breach a number of the UK’s international legal obligations, including under the ECHR and Refugee Convention. These instruments must be interpreted in “good faith” according to their “object and purpose” (Vienna Convention on the Law of Treaties, article 31(1)). The UK cannot rely on domestic laws to justify its breach of international ones (article 27).

On the ECHR, the Home Secretary has stated on the face of the Bill that:

I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights, but the Government nevertheless wishes the House to proceed with the Bill.

This is, I believe, the first time that such an extraordinary admission has had to be made.

Any attempt to remove someone pursuant to such legislation is likely to be challenged. Applications may be made to the European Court of Human Rights (ECtHR) and interim measures, including short-term prohibitions on removal, may be granted where there is a real risk of irreversible harm.

Clause 49 of the Bill enables the Secretary of State to make regulations about the ECtHR’s interim measures decisions. Interestingly, according to clause 57(6) no regulations may be made to bring the duty to deport into force unless regulations have been made under clause 49. The Government seems to be seeking to prevent, or circumvent, the Court’s intervention. How precisely this is to be achieved is unclear. It is also not just removal that will be challenged before the Court. Detention and the denial of rights and status may breach other ECHR rights, including in relation to trafficking (see further below).

On the Refugee Convention, denying a refugee the right to be recognised as such is to deny them protections the Convention guarantees – including on work, integration, and naturalisation. It is unsurprising, therefore, that the UNHCR has been clear that:

The effect of the bill (in this form) would be to deny protection to many asylum-seekers in need of safety and protection, and even deny them the opportunity to put forward their case. This would be a clear breach of the Refugee Convention and would undermine a longstanding, humanitarian tradition of which the British people are rightly proud.

The Bill’s clauses on trafficking breach the Council of Europe’s Anti-Trafficking Convention. They are also contrary to the recommendations of this Convention’s monitoring body which has “stressed the importance of ensuring that unconditional assistance is provided to victims”.

Space precludes a discussion of the Bill’s treatment of children and the UN Convention on the Rights of the Child.

Conclusion

The Refugee Council’s Enver Solomon describes the Bill as “performative cruelty”. Michelle Foster and Katie Robertson have highlighted the “devastating human toll” of the Australian policies that the UK seeks, in part, to emulate. The political ramifications of this legislation are also likely to be considerable. Duties imposed will not be met. Public trust in both politicians and the UK’s already failing asylum system will be further eroded.

The Home Secretary and Prime Minister have justified the Bill in terms of a broader pledge to “stop the boats”.  Notwithstanding all the above, many are simply asking “will it work?” Will the suffering and the illegality (to draw on the Bill’s title) deter? I am not going to venture an opinion on this, as I do not think it is possible to do so at this point. Instead, I am asking myself how our thinking about protection became so impoverished that this pledge, and this claim to deter, became the ones that matter.

I would like to thank Professor Mary Bosworth and Professor Lucia Zedner for their comments on this piece. All errors and shortcomings remain my own. Comments welcome.

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