Widespread human rights failings must be addressed in Illegal Migration Bill, Human Rights Committee finds
11 June 2023
The UK would be turning its back on the vast majority of refugees, in breach of a number of binding international human rights obligations, if the Illegal Migration Bill is passed in its current form, the Joint Committee on Human Rights has warned.
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In a report published today, the Joint Committee finds that the legislation would deny access to the asylum system to the vast majority of refugees coming to the UK. It urges the Government not to breach its legal obligations to refugees, children and victims of modern slavery, and to play its part in the global system of refugee protection.
Key provisions in the Bill would fail to meet the UK’s obligations under international human rights law. These include denying refugees access to the asylum system and severely restricting human rights claims, broad detention and search powers, denying protections to modern slavery victims, and removing the right of appeals following age assessments.
Chair of the Joint Committee on Human Rights, Joanna Cherry KC MP said:
“When she introduced this Bill to Parliament, the Home Secretary took the unusual step of making a statutory declaration under the Human Rights Act that she was unable to state that the bill was compatible with the European Convention on Human Rights. However, she has stated elsewhere that the Bill is compatible with international law. We disagree. Having carried out legislative scrutiny of the Bill it is overwhelmingly clear that it breaches a number of the UK’s international human rights obligations including the ECHR and risks breaching others.
“Most people fleeing persecution or conflict have no safe and legal way of getting here. Under the Bill, any refugee or victim of modern slavery who comes to the UK irregularly and indirectly, as most do, will automatically have their asylum claim declared inadmissible. They will also be subject to detention without time limit and removal from the UK irrespective of the merits of their claims.
“The Bill applies not only to refugees but also to victims of trafficking and slavery. By treating victims of modern slavery as ‘illegal migrants’ subject to detention and removal, this Bill would breach our legal obligations to such victims and would risk increasing trafficking of vulnerable people.
“Children are affected by every aspect of this Bill. The Government has a clear legal responsibility to protect the best interests of children. While no one wants children to make dangerous cross-Channel journeys, deterrence cannot override the UK’s binding legal obligations to protect children once they are here. Whether it is removing children’s ability to challenge incorrect decisions that they are adults, giving children life-long bans on re-entering the UK because of the choices made on their behalf by adults, or not putting safeguards for unaccompanied children accommodated by the Home Office on the face of the Bill, the Bill falls far short on providing the protections children need and deserve.
“If this bill is passed it is likely to have a disproportionate impact on vulnerable groups. As well as victims of trafficking and modern slavery and children this will include LGBT people.
“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.”
Duty to make arrangements to remove
The Bill would place a new duty on the Home Secretary to make arrangements to remove anyone who comes to the UK irregularly and indirectly i.e. if they have not come directly from their country of persecution via a legal route. It would apply to victims of trafficking and slavery, accompanied children, and unaccompanied children as soon as they turn 18. The Joint Committee finds that the scope of this duty is so broad that in practice it would remove the right to asylum for the vast majority of refugees coming to the UK.
Those who are caught by the Home Secretary’s ‘removal duty’ will have their asylum claims declared inadmissible meaning that the merits of their case will not be considered in the UK. Human rights claims relating to their countries of origin will also be declared inadmissible. Removals could be to any country deemed to be ‘safe’ by the Government, such as Rwanda.
The Committee find that this would breach numerous legal obligations under the Refugee Convention, which guarantees the rights of refugees irrespective of how they arrived in the country, and would see the UK fail to play its part in the global system of refugee protection.
Children are impacted by every aspect of the Bill. The Bill would allow families with children to be detained indefinitely at any place deemed ‘appropriate’ and for any period deemed ‘reasonably necessary’. Unaccompanied children can also be detained in any place deemed appropriate, although this power must be exercised only in accordance with regulations to be made by the Secretary of State, which may include time limits.
The Bill places the accommodation of unaccompanied children by the Home Office on a statutory footing, but no standards or safeguards for that accommodation appear on the face of the Bill. The threat of removal from the UK when the child turns 18 is likely to harm the child’s ability to live a healthy, happy childhood. It also gives them a perverse incentive to flee the care of authorities, rendering them extremely vulnerable to traffickers, exploiters and criminal gangs.
The Joint Committee finds that the approach of the Bill in respect of children variously breaches or is likely to breach the rights of children under the UN Convention on the Rights of the Child and the European Convention on Human Rights.
Accurately assessing whether a person is a child can be difficult, especially for people who are just over or just under the age of 18. Children are treated differently from adults in the UK’s immigration system for good reason, and wrongly treating a child as an adult can have severe negative consequences for that child and their rights.
The Bill removes all appeal rights and severely restricts judicial review for age assessment decisions, meaning most determinations of a person’s age will not be reviewable by an independent court. Therefore, if a child is wrongly assessed to be an adult, they are unlikely to be able to challenge that decision and will face the presumption of removal from the UK as an adult.
The Committee acknowledges that there are also clear safeguarding issues if adults are incorrectly judged to be children, but the removal of appeal rights does not assist in addressing those issues.
The Joint Committee finds it difficult to see how the removal of the ability to challenge age assessment decisions is compatible with the UK’s obligations to safeguard the best interests of the child under the UN Convention on the Rights of the Child, or the child’s rights under the ECHR, especially their right to a fair trial.
The Committee has previously published evidence from medical professionals that there are currently no scientific methods which can accurately and consistently determine whether a person is a child.
The Bill would nevertheless allow the Home Secretary to make regulations at a future date which would penalise purported-children who refuse to consent to the use of scientific methods to determine their age. Such regulations would explicitly allow the Secretary of State to presume that those who do not comply are adults.
We are concerned that this could result in the penalisation of children who refuse such interference with their bodily integrity because they have suffered traumatic journeys to the UK or been victims of abuse.
The Secretary of State has undertaken not to exercise this power until she is satisfied that scientific methods are capable of assessing age accurately and compatibly with human rights.
Nevertheless the Committee makes clear that any regulations made about this penalisation would have to be carefully drawn to ensure that the circumstances and experiences of the individual child and their best interests are fully considered before determining whether they had reasonable grounds for refusing to comply.
Trafficking and modern slavery
Many existing protections, support and assistance for victims of trafficking or modern slavery would be removed under the legislation. If victims have come to the UK outside of a safe and legal route they will be liable to detention and subject to the removal duty unless they are cooperating with a criminal investigation or prosecution and are required to remain in the UK. These measures clearly breach the UK’s obligations under the Council of Europe Convention Against Trafficking and the European Convention on Human Rights.
The Bill risks breaching article 5 of the European Convention on Human Rights, the right to liberty, by removing current restrictions on immigration detention, including for children, families and pregnant women. It would authorise the Home Secretary to decide on the reasonable length of detention, a decision that is currently made by the courts.
The Joint Committee is further concerned that extending powers for detention would place increased pressure on an already struggling immigration detention system, risking a deterioration of conditions that could breach several articles of the ECHR.
Individuals subject to detention would, for the first 28 days, also have their right to bail restricted and be denied access to judicial review of their detention. This is also hard to reconcile with Article 5 of the European Convention on Human Rights.
Banning future entry
Those who entered the UK irregularly would be banned from ever re-entering or settling in the UK in the future. They would also be barred from obtaining any form of British citizenship. The Bill gives the Secretary of State the discretion to make exceptions to these bans in individual cases.
The Committee finds that whether or not these life-long bans are compatible with international and domestic human rights law will depend on the Secretary of State making extensive and routine exceptions to take into account individual circumstances.
The Committee was concerned that the bans would be applied automatically to children, too, in effect penalising them for their parents’ or other adults’ choices to bring them to the UK irregularly even though they may have had no control over that decision. The Joint Committee finds that this approach is likely to contravene the UN Convention on the Rights of the Child.
Restricting legal challenges
The Joint Committee is concerned by the Bill’s restrictions on the ability of individuals subject to the removal duty to bring legal challenges to their removal before it takes place. These restrictions would likely violate the UK’s 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 reiterated that it would be contrary to the UK’s binding international law obligations under the Refugee Convention for the UK to reject asylum applications duly made in its territory and that a domestic quota could not displace those obligations.
However, it appears to the Committee that the cap is in practice only intended to limit the number of people the UK volunteers to resettle from abroad in cooperation with other states or organisations.
The UK’s participation in such burden-sharing resettlement schemes is and remains at the Government’s discretion, so the cap will in practice only be an internal Government administrative quota for those voluntary schemes and therefore not contravene the Refugee Convention.
Image: UK Parliament/Tyler Allicock