Bill has more than 50% chance of incompatibility with European Convention on Human Rights
Following a statement by the Home Secretary to the House of Commons, the Illegal Migration Bill was published yesterday afternoon.
The Bill and accompanying publications can be accessed from here. The direct link to the 66-page Bill is here. The 46-page explanatory notes (direct link here) provide a helpful overview of the Bill.
The explanatory notes sum it up as a bill with the objective to "create a scheme whereby anyone arriving illegally in the United Kingdom will be promptly removed to their home country or to a safe third country to have any asylum claim processed."
More broadly, the Bill's purpose is to: "Make provision for and in connection with the removal from the United Kingdom of persons who have entered or arrived in breach of immigration control; to make provision about detention for immigration purposes; to make provision about unaccompanied children; to make provision about victims of slavery or human trafficking; to make provision about leave to enter or remain in the United Kingdom; to make provision about citizenship; to make provision about the inadmissibility of certain protection and certain human rights claims relating to immigration; to make provision about the maximum number of persons entering the United Kingdom annually using safe and legal routes; and for connected purposes."
A rare 'section 19 statement' prefaces the Bill, as Home Secretary Suella Braverman was unable to state that the provisions of the Bill are compatible with rights under the European Convention on Human Rights (ECHR).
HuffPost UK obtained a copy of the letter sent to MPs by the Home Secretary in which she says provisions in the Bill are more than likely not compatible with ECHR rights, though the Government is confident the Bill is compatible with international law.
"Our approach is robust and novel, which is why I've made a statement under Section 19(1)(b) of the Human Rights Act 1998. This does not mean that the provisions in the Bill are incompatible with the Convention rights, only that there is a more 50% chance that they may not be. We are testing the limits but remain confident that this Bill is compatible with international law. Both Houses will have an opportunity to thoroughly scrutinise the Bill and once approved the measures in the Bill will have been expressly endorsed by Parliament and we would expect the courts to take that into account," Braverman wrote to MPs.
A 14-page memorandum by the Home Office was published along with the Bill to explain the Government's position with regard to compatibility with the ECHR. It can be downloaded here.
In a post on Substack, Joshua Rozenberg considers whether the Bill might be illegal. He notes: "Of course, a bill is not illegal simply because it does not comply with the human rights convention. Whatever parliament enacts is law. But Braverman's inability to make the normal human rights statement is an acknowledgment that the European Court of Human Rights may rule against the UK on a future challenge."
With its overriding objective to stop asylum seekers coming to the UK via small boats, the Bill will effectively prevent those who arrive irregularly in the UK or arrive via a safe third country from claiming asylum. Such claims will be considered permanently inadmissible. As BBC News noted, the Bill will give Border Force officers new powers to detain almost everyone who crosses the English Channel for at least 28 days. People will face removal to either their own country of origin or a safe third country without consideration of their asylum claim.
Suella Braverman said the Bill would fulfil the recent promise made by the Prime Minister that anyone entering the UK illegally will be detained and swiftly removed.
The United Nations High Commissioner for Refugees (UNHCR) released a strongly-worded statement expressing its 'profound concern' over the Bill. UNHCR said the Bill would extinguish the right to seek protection in the UK for those who arrive irregularly.
Of particular note, the UNHCR said the Bill would clearly breach the Refugee Convention, stating: "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."
UNHCR urged the Government, and all MPs and Peers, to reconsider the Bill and to instead pursue more humane and practical policy solutions.
Significantly this evening, POLITICO reported that the European Union's Commissioner for Home Affairs, Ylva Johansson, has said she believes the Bill does violate international law.
Labour's Shadow Home Secretary Yvette Cooper said yesterday the Bill was a re-run of last year's failed National and Borders Bill that had made things worse.
Cooper said the new Illegal Migration Bill fails on return agreements like its predecessor, and its unilateral approach will make it harder to get new agreements with France and other European countries. Predicating that the legislation will merely exacerbate current problems, Cooper stated: "Thousands of people will be put in indefinite taxpayer funded accommodation, never having their case resolved."
Garden Court and Free Movement's Colin Yeo said similar, noting: "It's a terrible piece of legislation that denies refugees their rights under the Refugee Convention. But a law in the UK cannot magically invent somewhere to remove people to. So we'll likely end up with tens of thousands of people who are refugees but whose claims cannot legally be assessed and who cannot work, who have to live on minimal state support in hotels. For ever."
The Refugee Council's Enver Solomon called it an unworkable, costly and nasty piece of legislation that treats refugees like criminals and would see the UK cast alongside Russia and Belarus as countries who show no respect for international law. Writing for the Guardian, Solomon said the Bill was "performative cruelty that will lead only to yet more chaos, cost and human misery".
Jonathan Featonby, chief policy analyst at the Refugee Council, added on Twitter: "One of the rather perverse implications of the new asylum bill is that the Home Office will end up indefinitely accommodating and supporting people whose asylum claims they could refuse and then return if they actually processed their claim."
The human rights group Liberty called the Bill a "shocking attack on the rule of law" that will effectively allow the Government to commit human rights abuses without consequences.
Lubna Shuja, president of the Law Society, said: "We will be carefully combing the detail of this bill to determine whether it will lead to the Home Office delivering a fair and workable process, and seeking clarity from the government on whether it is compatible with the UK's international obligations. Britain should have an asylum system that is fair and fit for purpose. It should make decisions - which have a profound impact on people's lives - in line with our international commitments."
Needless to say, much will be written about the Illegal Migration Bill in the coming days as it is studied in detail, and the legislation undoubtedly faces a difficult journey though Parliament and the courts.
Garden Court's Stephanie Harrison KC told the Evening Standard: "It's bound to end up in the courts because it is not stretching international law, it's breaching international law."