Illegal Migration Bill – review by the Human Rights Committee
On 7 March 2023, the Government introduced the Illegal Migration Bill (the Bill) to the House of Commons. The Government’s rationale is that the Bill will deter ‘illegal’ entry and prevent people smuggling and further deaths in the Channel.
The Bill would make significant changes to the law on immigration detention and bail, modern slavery, citizenship and settlement, and legal proceedings in asylum cases. It will also introduce broad new powers for immigration officers to search people and premises.
Upon introduction of the Bill, the Home Secretary made a rare declaration that she was unable to make a statement under section 19 of the Human Rights Act 1998 (HRA) that the Bill is compatible with the ECHR rights.
As part of the Parliamentary procedure, the Bill has been reviewed by the Human Rights Committee. This Committee routinely scrutinises the Government’s legislation for its compatibility with domestic and international human rights law.
Migration Bill – summary
Clause 2 of the Bill would, if enacted, place a duty on the Secretary of State to make arrangements to remove any person who enters the UK ‘irregularly’ and has not come directly from a territory where their life and liberty was threatened (which includes anyone who has stopped in or passed through a country where their life or liberty was not threatened).
Where the Home Secretary is under a duty to make arrangements for removal of a person (the removal duty), she is also required to declare the person’s asylum claim inadmissible, meaning their application would not be considered within the UK asylum system. Human rights claims relating to removals to a person’s country of origin would also be declared inadmissible.
Ban on entry, citizenship and settlement
The Bill sets out future, lifelong immigration penalties for those who enter the UK irregularly and indirectly. The Bill bans such individuals from ever being able to obtain entry into the UK or leave to remain in the UK in the future, except in very limited circumstances. It also makes them ineligible for any sort of British citizenship except in very limited circumstances. The Bill would also penalise children for the choices made by their parents to bring them into the UK via an irregular route even when the child has no control over their parents’ action.
The duty to make arrangements to remove persons
The key mechanism within the Bill is the new duty placed upon the Secretary of State to make arrangements to remove persons who enter or arrive in the UK irregularly, who have not “come directly” from a territory where their life and liberty was threatened. This removal duty extends to children who arrive with their families, as well as victims of trafficking and slavery.
The removal duty applies retrospectively to anyone who entered or arrived on or after the 7 March 2023, the date the Bill was introduced to the House of Commons on the basis that this would prevent people making the journey before the Bill receives royal assent. The scope of this duty is extremely broad and would deny the right to asylum to the vast majority of refugees, including children and victims of modern slavery.
The Bill provides broad powers of detention covering all those who the Secretary of State has a duty to make arrangements to remove under clause 2. Numerous restrictions on immigration detention that currently apply would be removed, including restrictions on the time that unaccompanied children, families with children and pregnant women can be detained.
The Bill would alter all immigration detention powers so that they would apply for “such period as, in the opinion of the Secretary of State, is reasonably necessary”. This alters the current position that it is for the courts, not the Home Office, to decide whether a period of detention is or is not reasonable.
Furthermore, the power would be to detain persons “in any place that the Secretary of State considers appropriate”.
Detained individuals would be unable to secure bail from the independent First-tier Tribunal within the first 28 days of detention. Detainees would also be denied the ability to judicially review their detention apart from on the very limited grounds of bad faith or fundamental breach of natural justice.
The Human Rights Committee’s recommendation
According to the Committee, quite unsurprisingly, key provisions in the Bill would fail to meet the UK’s obligations under international human rights law. The Committee further stated that if this bill is passed it is likely to have a disproportionate impact on vulnerable groups. Therefore, the Committee advised Government to take steps to address the human rights incompatibilities in the Bill.