Written Evidence by the Jesuit Refugee Service (IMB0006)

About JRS UK

1. The Jesuit Refugee Service (JRS) works in over 50 countries worldwide to accompany, serve and advocate on behalf of refugees and forcibly displaced persons. JRS in the UK works with those made destitute by the asylum system and those held in immigration detention. JRS UK runs a drop in, activities, hosting scheme (At Home), and legal advice project for destitute asylum seekers, most of whom are pursuing fresh claims; and detention outreach services to Heathrow IRC. We also ran an outreach service to the asylum camp at Napier barracks, for two years from autumn 2020.

Introduction

2. The Illegal Migration Bill constitutes an attack on the principle of asylum, will hugely expand the use of immigration detention whilst reducing its oversight, and will strip foreign national modern slavery survivors of protection. Its human rights implications are wide-ranging. JRS UK oppose it in its entirety. This submission focuses on access to the asylum system, detention,  modern slavery, and destitution as these are the areas closest to our work.

Access to asylum

Duty to make arrangements for removal and inadmissibility

3.                                                                        Clause 2 of the Bill places 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. Clause 4 would mandate that protection and human rights claims made by people subject to clause 2 are automatically deemed inadmissible. This would contravene the UK’s obligations under the UN Refugee Convention:

3.1.            Denying asylum to refugees on the basis that they entered without leave is irreconcilable with the Convention and undermines its purposes. Non-penalisation of refugees for entering a country of intended asylum irregularly is fundamental to the 1951 Refugee Convention.[1] Connectedly, penalising refugees for how they travel ignores the realities of forced migration: Most refugees have no choice of how they travel.

3.2.            Global provision for refugees could not function if all refugees claimed asylum in the first safe country they came to. Most refugees are hosted in developing countries, and the UK receives fewer asylum applications than most other European countries.[2]

3.3.            These clauses also fail to respect rights enshrined in the European Convention of Human Rights [ECHR].

3.4.            The duty of removal and automatic inadmissibility would affect the large majority of people seeking asylum. Although the focus of government statements about it has been on people arriving by small boat, the duty to remove people would apply to most individuals arriving by plane and claiming asylum at the airport. These clauses therefore amount to a ban on claiming asylum in the UK, where those allowed to claim asylum are the exception.

3.5.            Powers to remove unaccompanied children take from children vital protections and fail to respect the rights of the child in both international and domestic law.

3.6.            Plans to relocate people seeking asylum to have their claims considered elsewhere do not meet our obligations to provide protection under the Refugee Convention. Commenting on UK government plans for relocation, the United Nations Humanitarian Commissioner for Refugees [UNHCR] states “The primary responsibility to provide protection rests with the State where asylum is sought.” It is relevant that, under this Bill, the UK would deny any significant responsibility to provide protection to refugees, and its plans for default removal, and attendant relocation, are burden-shifting rather than sharing. The UNHCR sates: “Arrangements should be aimed at enhancing burden-and responsibility-sharing and international/regional cooperation and should not result in burden-shifting.”[3]

3.7.            The duty of removal creates a risk of refoulement that would breach the Refugee Convention; and a risk to life and of inhumane and degrading treatment, in breach of Articles 2 and 3, respectively, of the ECHR. Legal proceedings under the Bill are insufficient to safeguard against this, as discussed below. Relatedly, the UK cannot effectively safeguard against other countries refouling refugees removed from the UK. It would not be possible to do so sufficiently in general. The risk of refoulment is compounded because the Bill does not require that states to which asylum seekers are removed be signatories to the Refugee Convention, nor does it state that they must be safe countries.[4] The Illegal Migration Bill also overtly disapplies protections against removal to a non-Convention state, or a state where one’s life or liberty is threatened, in previous legislation.[5]

Legal Proceedings

4. Both the extremely limited circumstances in which removal can be challenged, and the short timeframes for doing so, are insufficient to ensure procedural fairness or protect claimants from being removed to contexts where they will face harm. They compound the risk of refoulment created by the duty of removal: Removal can only be halted where it poses a risk of “serious is and irreversible harm” is a very high bar that is difficult to evidence. Furthermore, under the Bill, individuals would only have 7 days to bring a claim to suspend their removal. This is insufficient time to gather relevant evidence in any context, and hugely so given that 1) the individuals concerned are likely to be in detention, which obstructs access to justice and makes it harder to gather documents 2) there is a severe shortage of asylum and immigration legal advice, which is likely to be crucial in any challenge.

Detention and bail

5. Clauses 11-14 would create sweeping new powers for immigration detention and would in practice allow arbitrary detention.

5.1.            Deprivation of liberty severely interferes with an individual's rights, and the necessity and proportionality of using it for immigration control purposes is dubious. Being administrative and indefinite, immigration detention in the UK has far fewer safeguards than deprivation of liberty in the criminal justice system, as found by the JCHR in 2019[6], and raised by JRS UK in our submission to the JCHR’s inquiry on the Human Rights of Asylum Seekers in 2022.[7] The Bill would hugely reduce what safeguards do exist.

5.2.            The Bill creates increased, and arbitrary, powers of detention, contravening Article 5 of the European Convention of Human Rights:

• Clause 11 creates wide new discretionary powers for detention of anyone whom an immigration an immigration officer “suspects” may be subject to removal under clause 2. This could be concretised as a broad power to indefinitely detain anyone claiming asylum, anyone with precarious immigration status, or indeed anyone whose immigration cannot be immediately established by immigration officials.
• People meeting the criteria for detention under the Act, of any age, may be detained “in any place that the Secretary of State considers appropriate.”[8] This is concerning on several related levels. First, that the conditions of detention should be subject to neither agreed guidelines nor independent oversight poses an increased risk of detention inhumane conditions. Second, it raises the prospect of elision between asylum accommodation and detention. This has occurred in several instances over the last few years. For instance, in 2021, Tinsley House IRC was briefly ‘de-designated’ as detention, and used ostensibly as asylum accommodation. However, when a JRS UK staff member attempted to visit men ‘accommodated’ there, she was initially told this was impossible because they were detained. During the COVID outbreak at Napier barracks, the High Court ruled that those placed there were unlawfully detained, and the judge remarked that it was relevant that Napier felt prison-like. Against this backdrop, and amid hugely reduced scrutiny (see below) this new legislation could allow scenarios where people go to sleep in ‘accommodation’ to wake up and be told they are now in detention.
• Clause 12 allows the Secretary of State to detain “for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the examination or removal to be carried out, the decision to be made, or the directions to be given” and also, importantly “regardless of whether there is anything that for the time being prevents the examination or removal from being carried out, the decision from being made, or the directions from being given.”[9] That is, barriers to the purpose of detention would not render detention illegal. This constitutes a significant move towards enshrining arbitrary detention in law, and certainly creates a serious risk of widespread arbitrary detention occurring in practice.

5.3.            The Bill would further reduce judicial oversight of detention:

• Clause 13 prevents the first-tier tribunal from granting bail to people detained under the Bill for the first 28 days, so that individuals have no recourse to judicial oversight at all within this period.
• Clause 12 overturns the principle that it is the court’s prerogative to decide whether detention is lawful.
• These together entail a conflict of interest in decisions about the lawfulness of detention, because the decision-maker would also be responsible for immigration control. They also work alongside the increased powers of detention detailed above. This poses a severe risk of unlawful and arbitrary detention.

6. Expansion of detention. This Bill is a key instrument in a growing presumption in favour of detention in an immigration context, whereas it was previously government policy to try to reduce the use detention.[10] This is highly troubling. It must be set in the context that detention is a highly traumatic experience. Torture survivors regularly compare it to torture and describe facing re-trauma from detention, and even for those without specific pre-existing vulnerabilities suffer serious deterioration in mental health in detention. Even a short period in detention can cause long-term trauma.[11] Detention is a cruel practice with serious human rights implications. Its cavalier expansion through this Bill is a matter of deep concern. It is especially disturbing that this Bill creates powers for the indefinite and routine detention of children. Furthermore, to detain people claiming asylum by default, and for extended periods, contravenes the Refugee Convention, as it amounts to a punitive measure.

Modern Slavery

7. Disqualifications of victims of modern slavery from support and leave on the basis of their mode of entry to the UK are incompatible with the UK’s obligations under Article 4 of the ECHR and under the Council of European Convention on Action Against Trafficking in Human Beings [ECAT].

7.1.            Denying support to survivors of modern slavery on the basis of their mode of entry to the UK is profoundly cruel, and contravenes Article 12 of ECAT, which requires signatories to “assist victims in their physical, psychological and social recovery.” ECAT is designed to support trafficking victims and facilitate enforcement against traffickers. This Bill instead punishes trafficking victims.

7.2.            It is simply not credible that an immigration infraction should pose such a significant threat to public order as to justify denying victims of trafficking support for recovery and reflection to which they would under Article 13.

7.3.            Many victims of trafficking are trafficked across borders either irregularly, by deception, or both.[12] That is, it is the very facts of their exploitation that would make them subject to removal and deny them support under this Bill. The Bill’s basis for denying survivors of modern slavery support is therefore not only unjust, but also incoherent.

Destitution and limbo

8. The majority of people whom clause 2 mandates the Secretary of State to remove may prove impossible to remove. They will then be indefinitely in the UK with no way to resolve their status, and this has serious human rights implications. In particular, people will be placed at long-term risk of destitution, which has serious negative consequences for physical and mental health, and similarly at risk of exploitation.[13]

Concluding Remarks

The ‘Illegal Migration Bill’ attempts to create a default ban on asylum. It would result in people arriving to seek asylum in the UK, including children, facing arbitrary and prolonged detention; and it would strip most foreign national survivors of modern slavery of protections to which they are entitled. The Illegal Migration Bill must be abandoned in its entirety.

30/03/2023

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