Inquiry into Illegal Migration Bill launched – Home Secretary asked to appear before Committee
16 March 2023
The Joint Committee on Human Rights has launched a new inquiry to carry out legislative scrutiny of the Illegal Migration Bill. The Committee has also written to Home Secretary, Rt Hon Suella Braverman KC MP, requesting that she appear before the Committee to answer questions on the bill.
The Illegal Migration Bill was introduced on 7 March. The Government has argued the bill would deter illegal entry into the UK, combat people smuggling and make it easier to remove people who did not have a legal right to remain. It would also allow for an annual cap on the number of people admitted to the UK under ‘safe and legal’ asylum routes.
The new inquiry will look in detail at how the Illegal Migration Bill engages with rights protected under the European Convention on Human Rights. It will also consider if the bill in its current form meets the UK human rights obligations under other international treaties, including the Refugee Convention and the UN Convention on Rights of the Child.
Chair's comments
Chair of the Joint Committee on Human Rights, Joanna Cherry KC MP said:
“This bill intends to make substantial changes to how the UK treats people coming here to seek asylum. It is disappointing that the Government is seemingly intent to get this bill through Parliament as fast as it possibly can, leaving little time for adequate scrutiny to take place. Scrutiny ensures that legislation works and helps prevent serious problems once a bill becomes law. Given the Government has admitted there is a strong likelihood that this Bill will fail to meet human rights standards, detailed legislative scrutiny is vital, and scrutiny by our committee is all the more important. That is why we feel it is important for the Home Secretary to answer our questions on this and hope she will accept our request.”
Terms of reference
To help inform the Committee’s work, it invites written submissions from interested groups and individuals. Find out how to submit evidence here.
The deadline for submissions is 6 April 2023.
In particular, the Committee is interested in receiving views on the following questions:
General
- 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?
- 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
- 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?
- 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?
- 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?
- 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?
- 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
- 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))?
- 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?
- 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?
Children
- 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?
Modern slavery
- 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?
- 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
- 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?
- 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?
Legal proceedings
- 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?
- 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
- 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?
Other issues
- Are there any other human rights considerations arising from this Bill that you want to bring to the attention of the Committee?
Further information
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