Joint Committee on Human Rights publishes damning verdict after its legislative scrutiny of the Bill
A hugely significant new report was published yesterday by Parliament's Joint Committee on Human Rights presenting the results of its inquiry into the Illegal Migration Bill.
The 154-page report can be downloaded here in PDF format or read online here in HTML format.
In short, the Committee finds that it is overwhelmingly clear that the Illegal Migration Bill breaches a number of the UK's international legal obligations, including the European Convention on Human Rights (ECHR) and the Refugee Convention, and risks breaching others.
The Joint Committee on Human Rights sums up its extensive findings as follows:
"The Government is rightly concerned about the loss of life in the Channel. So are we. However, our role here is to scrutinise legislation for its compatibility with human rights law. In our view, it is clear that the Bill would deny the vast majority of refugees access to the UK's asylum system, despite the fact that there will have been, in many cases, no means for them to enter the UK by safe and legal routes. It prohibits the consideration of their protection or human rights claims irrespective of the merits of their cases. It permits them to be subject to detention without time limits, including pregnant women and children who are normally subject to special protections. It renders them liable to removal from the UK, either to their country of origin or to a 'safe third state' with which they may have no connection, without any individualised assessments of risk being undertaken. It also restricts their access to the courts and their ability to remain in the UK while they challenge removal on human rights grounds.
"We conclude that this Bill breaches a number of the UK's international human rights obligations and risks breaching others. The Home Secretary herself has been unable to certify that the Bill is compatible with Convention rights. We therefore urge the Government to consider our conclusions and recommendations in order to address the human rights incompatibilities within this Bill. We suggest, in the Annex to this report, ways in which this Bill could be amended."
In its report, the Committee explains how clauses 2 and 4 of the Bill represent an effective ban on asylum and would violate the UK's legal obligations under the Refugee Convention. Any refugee who comes to the UK via an irregular or indirect route will automatically have their asylum claim declared inadmissible and will be liable for detention and prompt removal to their country or origin or a third country.
The report states: "Clause 2, taken together with clauses 4 and 5 (which provide for the inadmissibility of asylum and human rights claims and removal from the UK), penalises refugees who come to the UK irregularly and indirectly, including children and victims of modern slavery, by denying them access to the asylum system and making them liable to removal. This is, in effect, a near-ban on asylum and humanitarian protection. Extinguishing the right of asylum for refugees arriving in the UK breaches the object and purpose of the Refugee Convention with which we are bound, in good faith, to comply."
It continues: "Clause 4, alongside clauses 2 and 3, forms the basis for the automatic denial of the right to asylum for the vast majority of asylum seekers entering or arriving in the UK, irrespective of the merits of their claims. The blanket denial of access to the asylum system for persons who enter or arrive in the UK irregularly and indirectly is a clear breach of the object and purpose of the Refugee Convention. In circumstances where removal is not possible or is protracted, the lack of status and permanent denial of access to the asylum system for refugees is likely to breach the Refugee Convention, in particular, the duty to naturalise and assimilate refugees as far as possible in Article 34. The denial of access to a fair and effective asylum system may also violate Article 13 ECHR."
The Joint Committee on Human Rights emphasises: "The UK cannot divest itself of its obligations under the Refugee Convention or the ECHR simply by declaring applications inadmissible and thereby refusing to process them. The prohibition against refoulement, the prohibition against penalisation, and the requirement to facilitate the naturalisation and assimilation of refugees are binding obligations on the UK under the Refugee Convention, irrespective of whether or not a person's status as a refugee has been formally recognised by the UK. Declaring asylum and human rights claims inadmissible does not alter the UK's obligations under the ECHR which protects individuals from being returned or removed to another country where they face a real risk of serious harm."
There is a very real risk that the Bill's approach to removals will breach the prohibition on refoulement of refugees, the Committee says, especially for specific groups such as women and girls, religious minorities, LGBTQI+ individuals, and torture survivors.
The Committee expresses extreme concern over the Bill's huge expansion of the powers of detention and says it would result in an immigration detention system that is not consistent with Article 5 of the ECHR.
"The common law approach to immigration detention, established in the case of Hardial Singh, currently operates to ensure that immigration detention complies with Article 5 ECHR. This recognises that it must be for the courts to determine the legal boundaries of administrative detention. The Bill would alter that approach, leaving it to the Secretary of the State to decide what amounts to a reasonable period of immigration detention," the report explains.
Article 10 of the Council of Europe Convention on Action against Trafficking would also be breached by the Bill, as it would disapply the prohibition on removing a victim of trafficking or modern slavery before the victim identification process has been completed.
In addition, the Bill's restriction on the ability of individuals subject to removal to bring legal challenges before the removal takes place would likely be a breach of international treaty obligations.
"While the Bill allows for 'suspensive claims' in exceptional circumstances, which would prevent a person from being removed from the UK while their claim is assessed, the narrow scope of these claims are unlikely to be consistent with the European Convention on Human Rights. The tight timescale applicable to suspensive claims would also severely restrict the ability of claimants to access legal assistance and present their claims effectively," the Committee notes.
Joanna Cherry KC, the chair of the Joint Committee on Human Rights, said: "I urge the Government to seriously consider the recommendations in this report and take steps to address the human rights incompatibilities in this Bill. The UK has international legal obligations to those fleeing persecution and conflict, victims of modern slavery, and children. The Bill needs to comply with these obligations."