Call for Evidence
Legislative Scrutiny: Illegal Migration Bill
The Joint Committee on Human Rights is conducting legislative scrutiny of the Illegal Migration Bill as the Bill engages numerous rights under the European Convention on Human Rights (ECHR) which are given effect in domestic law by the Human Rights Act 1998 (“the HRA”). Specifically, the Government recognises the Bill engages:
- right to life (Article 2);
- prohibition of inhuman or degrading treatment (Article 3);
- prohibition of slavery (Article 4);
- liberty and security of person (Article 5);
- fair trial (Article 6);
- private and family life (Article 8);
- right to an effective remedy (Article 13); and,
- prohibition of discrimination (Article 14).
The Bill also engages rights in other international human rights treaties which the UK has ratified, including the Convention relating to the Status of Refugees 1951 (“the Refugee Convention”), the UN Convention on the Rights of the Child, and the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”).
The Illegal Migration Bill was introduced in the House of Commons on 7 March 2023 and had its Second Reading debate on 13 March. Upon introduction of the Bill the Home Secretary, the Rt Hon Suella Braverman KC MP, made a statement required under the HRA that she was unable to certify that the provisions of the Bill are compatible with Convention rights but nevertheless wishes the House to proceed with the Bill (this is known as a section 19 (1) (b) statement).
The Government has said that purpose of the Bill is to “create a scheme whereby anyone arriving illegally in the UK will be promptly removed to their home country or to a safe third country to have any asylum claim processed”. The Government has also said the Bill will:
- deter illegal entry into the UK;
- break the business model of the people smugglers and save lives;
- promptly remove those with no legal right to remain in the UK; and
- make provision for setting an annual cap on the number of people to be admitted to the UK for resettlement through safe and legal asylum routes.
Overview of the Bill
The provisions in the Bill, if enacted, would:
- Place a duty on the Secretary of State to make arrangements as soon as reasonably practicable 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 safe country). Removal would be to either their home country or to a listed third country for consideration of any asylum claims.
- Give the Secretary of State a power to make arrangements for the removal of unaccompanied children who have entered the UK irregularly and have not come directly from a territory where their life and liberty was threatened.
- Make inadmissible any claims for asylum based on the Refugee Convention or human rights claims under the Human Rights Act from people to whom the Secretary of State’s duty (or power) applies.
- Give the Secretary of State the power to remove close family members of those to whom the duty to remove relates, unless they have leave to enter or remain in the UK or the right to live here.
- Confer powers to detain persons to whom the Secretary of State’s duty applies and their family members, including pending their removal and whilst a determination is made as to whether the duty applies.
- Remove the ability of the First-tier Tribunal to grant bail, and strictly limit the ability to judicially review the decision to detain, for the first 28 days of detention.
- Codify certain common law principles relating to immigration detention, but provide that it is for the Secretary of State to determine whether the period of detention is reasonable, rather than leaving that determination to the court.
- Extend the public order disqualification provided for in ECAT to exclude persons who fall within the Secretary of State’s duty to remove from the protections afforded to potential victims of modern slavery and trafficking.
- Provide for a permanent bar on (i) lawful re-entry to the UK, (ii) obtaining limited leave to remain and (iii) securing British citizenship through naturalisation or registration for those who have ever satisfied the conditions for the duty to make arrangements for removal and also their family members.
- Provide that a legal claim will only suspend removal if it establishes either that there is a real risk of serious and irreversible harm arising during the period it would take to resolve the claim, or that the Secretary of State has made a mistake of fact when determining that a person was subject to the duty to make arrangements for These claims would need to be brought and considered within a very limited time frame.
- Confirm that all other claims are “non-suspensive” claims which would be considered by domestic courts once a person has been removed from the UK. This includes claims on ECHR grounds or otherwise.
- Extend section 80A of the Nationality, Immigration and Asylum Act 2002, which provides that asylum claims from EU nationals must generally be declared inadmissible to the UK’s asylum system, to cover nationals from Albania, Iceland, Liechtenstein, Norway and Switzerland and other countries.
- Introduce a duty on the Secretary of State to determine the maximum number of persons to be admitted to the UK for settlement each year via safe and legal routes.
To help inform our work, we would welcome evidence from interested groups and individuals. The Joint Committee on Human Rights invites submissions of no more than 2,000 words.
The deadline for submissions is 6th April 2023.
In particular, the Committee is interested in receiving views on the following…
1. What routes will be available to those who wish to seek asylum in the UK if this Bill is enacted, and would they be sufficient to fulfil the UK’s international obligations under the UN Refugee Convention?
2. Clause 1(5) provides that section 3 of the Human Rights Act does not apply in relation to provisions made by or by virtue of this Act. Section 3 HRA requires courts and public authorities to read legislation in a way which is compatible with Convention rights, so far as it is possible to do so. What are the implications of the disapplication of section 3 HRA?
Duty to make arrangements for removal
3. Clause 2 of the Bill places a duty on the Secretary of State to make arrangements as soon as reasonably practicable 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 passed through or stopped in another a safe country). Is this approach compliant with the UK’s obligations under the UN Refugee Convention? What proportion of asylum seekers currently stop in or pass through a safe third country and would therefore be subject to removal from the UK without any assessment of their claim?
4. Clause 4 provides that any ‘protection claims’ (under the Refugee Convention or claims for humanitarian protection) and or ‘human rights claims’ (under section 6 HRA) made by persons who meets the conditions in clause 2 must be declared inadmissible. What are the human rights implications of clause 4?
5. Clause 5 provides for the destinations to which individuals who are subject to the duty or power to be removed can be sent. Anyone who makes a protection or human rights claim can still be removed to a country on a list set out in the Schedule (which includes nations in Europe, Africa and Asia). If a protection or human rights claim is made by a national of an EU country, or Albania, Iceland, Liechtenstein, Norway and Switzerland, they can also be returned to their own country, unless the Secretary of State considers there are exceptional circumstances preventing it. What are the human rights implications of clause 5? Does the designation of states as safe for removal or return raise any additional human rights concerns?
6. Clause 8 provides the Secretary of State with the power to remove a person’s family members as long as they meet certain conditions, including that they do not have leave to enter or remain in the UK, are not British or Irish citizens, and do not have the right of abode in the UK. What are the human rights implications of clause 8?
7. The duty to make arrangements to remove persons who arrive in the UK irregularly will apply to persons who arrived on or after 7 March 2023 (the date of introduction of the Bill). Is the retrospective effect of the Bill compliant with the UK’s human rights obligations?
Detention and bail
8. Do the powers to detain individuals contained in clause 11 comply with the UK’s human rights obligations, including the Refugee Convention and the prohibition on arbitrary detention under Article 5 ECHR? Is this affected by the powers to detain applying even though the detained person’s examination or removal is not possible “for the time being” (see clause 12(1)(b))?
9. Clause 12 of the Bill would overturn the common law principle that, for the purposes of establishing whether immigration detention is lawful, it is for the court to decide whether there is a reasonable prospect of removal within a reasonable period. Instead, the Secretary of State would determine whether the period of detention is or is not reasonably necessary. Does this change adequately protect against arbitrary detention in breach of Article 5 ECHR?
10. Clause 13 of the Bill would, for the first 28 days of detention, prevent the First-tier Tribunal granting immigration bail to a person subject to removal in accordance with clause 2. It also seeks to oust judicial review in connection with their detention for the same period, although habeas corpus applications could still be made. Are these changes compliant with the UK’s human rights obligations, particularly Article 5 ECHR?
11. To what extent do the provisions of the Bill relating to both unaccompanied and accompanied children comply with the UN Convention on the Rights of the Child and domestic human rights obligations. In particular, is clause 3(2), which gives the Secretary of State the power to remove an unaccompanied child from the UK in certain circumstances, compatible?
12. The Bill disapplies various modern slavery provisions to those who enter or arrive in the UK irregularly in accordance with the four conditions set out in clause 2:
a. Would the removal of potential victims of slavery or trafficking from the UK be compatible with the UK’s obligations under Article 4 ECHR and the Council of Europe Convention Against Trafficking (ECAT)?
b. Is the removal of support provisions for potential victims of slavery or trafficking currently available under the Modern Slavery Act 2015 and equivalent provisions in Scotland and Northern Ireland compatible with the UK’s obligations under Article 4 ECHR and ECAT?
c. Is the removal of the duty to grant limited leave to victims of slavery or trafficking who have received a positive conclusive grounds decision compatible with the UK’s obligations under Article 4 ECHR and ECAT?
13. The Government justifies the disapplication of various modern slavery provisions on the basis that persons who meet the four conditions in clause 2 are a “threat to public order” and therefore the obligations arising under Article 13 of the Council of Europe Convention Against Trafficking (ECAT) do not apply. To what extent is this extension of the public order disqualification compatible with Article 4 and ECAT?
Entry, settlement and citizenship
14. Clause 29 of the Bill amends the Immigration Act 1971 to permanently prohibit any person who has ever met the four conditions in clause 2, or any of their family members who have met the conditions in clause 8, from being granted leave to enter or remain in the United Kingdom, entry clearance or an electronic travel authorisation (ETA). Exceptions are made in limited circumstances. When read with these exceptions, do you think this prohibition is compatible with the UK’s human rights obligations, particularly under Article 8 ECHR?
15. Clause 30(4) provides that, if a child was born in the United Kingdom on or after 7 March 2023 and either of its parents, whether before or after their birth, have ever met the four conditions in clause 2, then the child is an ‘ineligible person’ for the purposes of applying for British citizenship. Is this prohibition compatible with the UK’s human rights obligations, particularly under Article 8 ECHR?
16. The Bill provides that in only very limited circumstances will legal proceedings relating to the removal of a person meeting the conditions in clause 2 or 8 have the effect of suspending that person’s removal. The first circumstance is where they would face a ‘real risk of serious and irreversible harm’ in the destination country while awaiting the resolution of their legal claim. The second is where the claimant alleges that a mistake of fact was made when deciding that they met the relevant conditions. Are these limited circumstances consistent with the UK’s human rights obligations, including, in particular, the prohibition on refoulement?
17. Subject to limited exceptions, a claim that removal should be suspended on either basis must be brought 7 days following receipt of the removal notice. The Secretary of State must then make a decision 3 days following the claim. Appeals must be brought 6 working days following a decision and decided 22 working days following the notice of appeal. Are these time frames sufficient to meet the requirements of procedural fairness and protect claimants against being wrongly removed to face human rights violations?
Capping the annual number of entrants using safe and legal routes
18. Clause 51 of the Bill would give the Secretary of State a duty to make regulations specifying the maximum number of asylum seekers who could enter the UK via ‘safe and legal routes’. The consequence of this cap being breached would be that the Secretary of State would have to lay a statement before Parliament explaining why the number who entered the UK exceeded the number specified in the regulations in a given year. Does such a ‘soft’ cap, in principle, comply with the UK’s obligations under the UN Refugee Convention?
19. Are there any other human rights considerations arising from this Bill that you want to bring to the attention of the Committee?
Important information about making a submission
Written evidence must address the questions as set out above, but please note that submissions do not have to address every point. Guidance on giving evidence to a select committee of the House of Commons is available here.
In line with the general practice of select committees the Joint Committee on Human Rights is not able to take up individual cases. If you would like political support or advice you may wish to contact your local Member of Parliament.
The Committee will decide whether to accept a submission and whether to publish it on its website. All written evidence will be considered by the Committee, whether or not it is published. If your submission is accepted by the Committee, it will usually be published online and will be available permanently for anyone to view. It can’t be changed or removed. If you have included your name or any personal information in your submission, that will normally be published too. Please consider carefully how much personal information you need to share. If you include personal information about other people in your submission, the Committee may decide not to publish it. Your contact details will never be published.
If you would like to ask the Committee to accept your submission confidentially (meaning it won't be published), please say so the start of your evidence, and tell us why. This lets the Committee know what you would like but the final decision will be taken by the Committee.
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