Bill would seek to prevent UK courts from interpreting its provisions in line with the European Convention on Human Rights
In a letter to all members of the House of Commons and the House of Lords, the Council of Europe's Commissioner for Human Rights has said it is essential that MPs and Lords vote to reject the Government's Illegal Migration Bill.
"[I]t is now essential that members of Parliament and peers prevent legislation that is incompatible with the UK's international obligations being passed", the Commissioner, Dunja Mijatović, wrote.
Mijatović said access to asylum procedures is a key component of the system of human rights protection in Europe, and the Bill would strip away one of the essential building blocks of the protection system by effectively preventing people arriving irregularly from having their asylum claims assessed.
The letter continues: "Beyond the Bill's overall impact on access to protection, it contains numerous other measures that give cause for concern. While the Bill foresees possibilities to challenge removal, the way these are set out raises serious doubts whether such challenges will be subject to an adequate consideration of the risk of exposure to serious human rights violations. Such doubts relate, for example, to the power of the government to determine how a 'real risk of serious and irreversible harm', which could lead to the suspension of removal, should be defined. There is no clear guarantee that such a definition will be in line with the UK's obligations, including under the European Convention on Human Rights (ECHR), especially the absolute prohibition of exposing people to risks of a violation of their right to life or of their freedom from torture or inhuman or degrading treatment or punishment. The risk of violating this prohibition is further increased by the Bill prohibiting UK courts from interpreting its provisions in line with the ECHR as far as possible under Section 3 of the Human Rights Act 1998."
The Commissioner for Human Rights also expresses concern at the widespread powers of detention in the Bill and warns that there is a risk of such detention becoming virtually unlimited in time and without sufficient possibilities for independent judicial oversight.
"In my view, these provisions raise serious issues under the ECHR and the European Court of Human Rights' well-established case law on the right to liberty and security. I am especially concerned about the Bill's impact on the detention of children. It would reverse the UK's progress in reducing the number of children in immigration detention, a practice that is widely recognised as being extremely harmful. As a reminder, the UN Committee on the Rights of the Child has made it very clear that the detention of children because of their or their parents' immigration status constitutes a violation of children's rights. It has called on states to 'expeditiously and completely cease and eradicate' this practice," Mijatović said.
In concluding, the letter states:
"In short, my assessment is that the Bill would have serious consequences both for the rights of refugees, asylum seekers and migrants in the UK, and for the upholding of the UK's international obligations more generally. The UNHCR has already stated that the Bill is in clear breach of the UK's obligations under the 1951 Refugee Convention. Similarly, in my view, the Bill's provisions create clear and direct tension with well-established and fundamental human rights standards, including under the ECHR.
"Ultimately, the question of ECHR compatibility must lie with the judiciary, with UK courts being at the frontline of making this assessment as ordinary judges of the Convention. However, as already mentioned, the Bill would seek to prevent UK courts from interpreting its provisions in line with the ECHR. This risks creating divergence with the case law of the European Court of Human Rights. In this respect, the Bill adopts some of the troubling elements of the Bill of Rights Bill, whose problematic impact I have discussed in detail in my afore-mentioned report. By preventing UK courts from fully applying ECHR standards and the Court's case law, the Bill would put the onus of the effective protection of the rights of those affected on the European Court of Human Rights. I am concerned that this would undermine the principle of subsidiarity on which the Convention system is built, and of which the UK has been one of the foremost champions. I wish to reiterate that interim measure issued by the European Court of Human Rights, and their binding nature, are integral to ensuring that member states fully and effectively fulfil their human rights obligations."
The Bill is at committee stage in the Commons today and tomorrow, with the Government seeking to move it swiftly through the lower house and on to the Lords. A recent comment piece on the Institute for Government said the expedited timetable of the Illegal Migration Bill highlights how far expectations of parliamentary scrutiny of legislation have dropped over the past decade.