JUSTICE: Rule of law under grave threat in UK; human rights protections for marginalised, including migrants, is being diluted

A significant new report published today by the cross-party legal reform charity JUSTICE looks at threats and challenges to the rule of law in the UK.

It is a substantial and wide-ranging report, over 100 pages long, and you can download it here.

JUSTICE finds that the rule of law has "regressed significantly on multiple fronts" in recent years, and the very democratic fabric of the UK is now under threat.

The report adds that there is a clear growing legislative disregard for human rights, with fundamental human rights protections being diluted to the detriment of society's most vulnerable and stigmatised groups, including migrants.

Fiona Rutherford, JUSTICE's Chief Executive, commented: "The backsliding on the rule of law over the last decade has real implications for us all. … The ability of people to hold the Government to account when they have been wronged at the hands of the state, has been reduced, while at the same time, the law-making process has become less transparent and less inclusive. Ever more rules and regulations are being imposed without proper democratic oversight from Parliament. Society's most marginalised or vulnerable, such as migrants, prisoners, and victims of police action, lack automatic access to justice and are a bellwether for the human rights reduction we all face."

The section of the report covering the human rights of migrants is well worth reading and it is reproduced below for easy reference:

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A JUSTICE Report

The State We're In: Addressing Threats & Challenges to the Rule of Law

September 2023

[…]

Migrants

3.6 Despite the universality of human rights outlined above, migrants in the UK have suffered a diminution of their rights under successive Governments. As early as 2003, shortly after the HRA [Human Rights Act 1998] took effect, then Labour Home Secretary David Blunkett said he was "personally fed up with having to deal with a situation where Parliament debates issues and judges overturn them", [200] following a decision requiring the state to help destitute asylum seekers". [201] This sense that human rights enforcement is unjustly obstructing policies remains salient. Indeed, immigration reform continues to be at the cutting edge of human rights-reducing legislation in the UK.

3.7 The UK and Rwanda agreed to a Migration and Economic Development Partnership in April 2022. It includes a five-year "asylum partnership arrangement". [202] This would enable the UK to send people who would otherwise claim asylum in the UK to Rwanda. The germ of this partnership has its roots in a proposed Labour policy to the European Union in 2003. Under that proposal asylum seekers would have their applications processed in third countries. According to a 2004 Foreign and Commonwealth Office report, the proposal "would involve governments sending asylum seekers to centres in third countries in order to have their asylum claims processed". [203] However, by contrast, the Rwanda policy is not just for processing as individuals will remain in Rwanda even if they are found to be refugees. The first scheduled flight under the asylum partnership arrangement on 14 June 2022 did not depart after an injunction was issued by the European Court of Human Rights ("ECtHR"). [204] Since then, the Court of Appeal ruled that the plan to send asylum seekers to Rwanda is unlawful. This was on the basis that there were substantial grounds for believing there to be a real risk that asylum-seekers would be returned to their home countries where they faced persecution or other inhumane treatment. This meant the Government's policy contravened Article 3 ECHR (the prohibition on torture, inhuman or degrading treatment or punishment). [205] The Lord Chief Justice dissented, and the Government have been granted permission to appeal, with a hearing due to take place later in the year. No transfers to Rwanda will take place before the Supreme Court has reached a verdict.

3.8 JUSTICE has wider concerns that this arrangement risks denying individuals effective access to justice, undermining the rule of law, and failing to protect those in desperate need of asylum. The United Nations High Commissioner for Refugees ("UNHCR") has expressed serious concerns regarding the lack of access to fair and efficient procedures for the determination of refugee status in Rwanda with consequent risks of the state forcibly returning individuals into harm's way (known as refoulement). [206]

3.9 The Rwandan asylum system lacks some of the basic safeguards required to secure effective access to justice: a lack of access to legal representation; no independent appeal route; no provision of reasons for negative decisions, which renders appeal rights impossible to exercise in practice; significant delays in decision making; insufficient access to interpreters; and discrimination against LGBTQIA+ persons. [207] We are deeply concerned that this policy manifestly contravenes the UK's domestic and international human rights obligations.

3.10 Roughly 45,000 individuals made the journey across the Channel from France to the UK in 2022. [208] In response, the Illegal Migration Act 2023 received Royal Assent on 20 July 2023, intended to "prevent and deter unlawful migration" on small boats. Small boats crossing the Channel also gave impetus to the Nationality and Borders Act 2022, [209] which was only passed last year. However, this Illegal Migration Act 2023 is now proposing to disapply or dilute several provisions in its immediate predecessor. [210] The 2023 Act gives the Government two powers with the purported aim of deterring these migrants. First, anyone making the journey by way of a small boat will be denied access to the UK asylum system. Second, individuals will be sent to a third country.

3.11 The Illegal Migration Act 2023 expressly disapplies section 3 HRA, which means that the provisions of the Act are not to be "read and given effect in a way which is compatible with the Convention rights". From its inception, therefore, this Act is seemingly designed to ride roughshod over the UK's human rights obligations. Whilst the Government have maintained its provisions are compatible with our ECHR obligations, [211] it was notable that, on the face of the Bill when presented to Parliament, the Home Secretary confirmed, pursuant to section 19(1)(b) HRA, that she was "unable to make a statement that, in [her] view, the provisions of the Illegal Migration Bill [as then it was] are compatible with the Convention rights". [212] Section 54 of the 2023 Act also gives the Minister the discretion to ignore interim measures of the European Court of Human Rights, which are binding under Article 34 ECHR.

3.12 Most people making the journey in small boats apply for asylum. [213] Yet under the Illegal Migration Act 2023, many applications for asylum are automatically "inadmissible", meaning that they "cannot be considered under the immigration rules". [214] The UNHCR has said that this measure amounts to an "asylum ban – extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how genuine and compelling their claim may be, and with no consideration of their individual circumstances". [215] The same also applies to human rights claims, such as that removal would breach an individual's Article 3 ECHR rights (to not face torture or ill-treatment).

3.13 The Act introduced a duty for the Home Secretary to detain and remove individuals arriving in the UK without a visa either to Rwanda or another safe third country, regardless of whether they fulfilled asylum criteria. [216] The Home Office will not consider the asylum or human rights claim of any asylum-seeker who arrives irregularly. The Home Secretary will also have unprecedented powers to detain individuals, with no access to judicial review or immigration bail for the first 28 days. [217] Once removed from the UK, individuals will face restrictions on returning and from seeking British citizenship in the future. [218] The only route to challenge deportation is through a fast-track suspensive claim procedure in the Upper Tribunal. Under the partnerships that the UK presently has with would-be third countries, it is not clear how migrants or at least the majority of them will actually be removed. Rwanda, for example, only has capacity for 200 individuals. [219] Consequently, Home Secretary Suella Braverman MP may be unable to fulfil a duty she has imposed on herself.

3.14 The 2023 Act weakens important requirements outlined in the European Convention Against Trafficking ("ECAT"), including some entered into domestic law by the Nationality and Borders Act 2022. Concerningly, the power to detain, remove, and deny future protection even applies to victims of modern slavery. Article 13 of the ECAT requires the UK to implement a recovery and reflection period of at least 30 days. Under the Illegal Migration Act 2023, this will no longer apply unless they are actively cooperating with a police investigation and the Home Secretary considers that it is necessary to be in the UK for that cooperation (and there is no public interest in removal due to the threat of them posing serious harm). The Government justifies this suspension by referencing the "public order" exception set out in ECAT. [220] However, that exception was envisaged to be used as an individual assessment of risk, not as a blanket measure for all claimants who arrive in the UK via irregular means. During the passage of the Nationality and Borders Act 2022, there were serious concerns raised that it reduced the 'public order' threshold to receiving a criminal sentence of one year's imprisonment, which would not be compatible with the ECAT. [221] The Illegal Migration Act goes even further and risks further contravening both ECAT and Article 4 ECHR.

3.15 Whilst not identical, there are overlaps between the Government's obligations under ECAT and Article 4 ECHR (the prohibition on slavery and forced labour). Under Article 4 ECHR, the European Court of Human Rights (ECtHR) have held that member states have a duty to take operational measures to protect victims of trafficking and a procedural obligation to investigate situations of trafficking. [222] Indeed, the Government's ECHR memorandum for the Act suggests that issues of human trafficking and Article 4 ECHR are one of the areas the Government are most concerned about; they are only able to state that they consider that the provisions of the Illegal Migration Act are "capable of being applied compatibly with Article 4 ECHR". [223] However, as the previous Prime Minister and former Home Secretary Theresa May MP said, there are "genuine questions of incompatibility" with Article 4 ECHR and aspects of ECAT. [224]

[End]

[224] HC Deb, 28 March 2023, Vo. 730, Col. 887.