Written evidence from JUSTICE (IMB0068)

1.      JUSTICE is an all-party law reform and human rights organisation working to strengthen the justice system. It is the UK section of the International Commission of Jurists. Our vision is of fair, accessible, and efficient legal processes in which the individual’s rights are protected and which reflect the country’s international reputation for upholding and promoting the rule of law.

2.      This paper sets out JUSTICE’s response to the Joint Committee on Human Rights call for evidence on the Illegal Migration Bill (the “Bill”). JUSTICE is opposed to this legislation because: (i) it has not been given proper consultation; (ii) there are strong arguments it breaches the UK’s international law obligations; (iii) it seeks to prevent individuals holding the Government accountable for its decisions; (iv) it hands significant power to the executive; and (v) it would apply retrospectively, which is both deeply unfair and undermines legal certainty.[1]

General

Q2: 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?

3.      JUSTICE is opposed to dis-applying key aspects of domestic human rights law to individual legislation. The disapplication of section 3 removes from the courts the ability to read the legislation compatibly with the Convention, therefore it increases the chances of having legislation that is incompatible with Convention rights on our statute books and allows the executive to continue to act in breach of Convention rights.

4.      Further, the disapplying section 3 will not prevent the courts from making a declaration of incompatibility under Section 4 HRA. However, a declaration would not provide the claimant with access to a domestic remedy for ECHR breaches. A declaration under section 4 has been held not to constitute an effective remedy for the purposes of the ECHR.[2] In any event, individuals would have to wait, often for long periods of time, for the incompatible law to be changed by Parliament or the executive[3] and, even when it is changed, they may not be able to benefit as legislative changes are often not retrospective.

5.      We would also note that the Government have issued a Section 19(1)(b) HRA statement that they cannot confirm the legislation is compatible with our ECHR obligations. The Home Office will have sought written advice from its departmental legal advisors on the legislation’s compatibility with the ECHR before issuing this statement.[4] We have legitimate concerns about how the Government would respond to a declaration of incompatibility in light of this.

Duty to make arrangements for removal

Q4: 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?

6.      JUSTICE would highlight a particular concern around Clause 4(1)(d) which states that the duty to deport applies regardless of whether ‘the person makes an application for judicial review in relation to their removal’. It is unclear from the wording of Clause 4(1)(d) if obtaining an order or interim order of a court in a judicial review claim would suspend the duty to deport. The JCHR should seek confirmation of this point.

7.      If interim orders of the court would not prevent removal, this is an extraordinary attack on the rule of law and the constitutional role of the judiciary to legitimately scrutinise Home Office decision-making and prevent unlawful exercise of state powers. As the Immigration Lawyers Practitioners Association (‘ILPA’) have highlighted, this would lead to a ‘constitutional crisis’.[5]

Q7: 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?

8.      JUSTICE would stress that legal certainty requires individuals to know what their rights how and how they can be enforced. This is especially important when the UK’s international legal obligations are at stake and when extremely vulnerable individuals will be affected. As Lord Mance has said,

‘the European Convention on Human Rights incorporates requirements that any restrictions on the freedoms which it enunciates must be “in accordance with” or “prescribed by law”. In short, they must be subject to the accessibility, intelligibility, clarity and predictability of which Lord Bingham spoke’.[6]

9.      Given the considerable asylum caseload backlog, it is likely that the duty to remove will apply to a significant number of people. This is a recipe for legal chaos, uncertainty, distress and will further compound the unacceptable delays in the asylum system.

10.  We would also highlight that there are further aspects of the Bill that will apply retrospectively: Clause 8 permits the removal of family members who arrived in the UK before the Bill was passed and Clause 21(8) gives the Home Secretary (‘SSHD’) powers to retrospectively revoke leave granted legitimately to victims of modern slavery/ human trafficking under the Nationality and Borders Act 2022 (‘NABA’).

Detention and bail

Q8: 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))?

Q9: 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?

Q10: 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.  Clause 12 emphasises the importance of the opinion of the SSHD in what a reasonable period of detention is, raising serious questions about the Bill’s compatibility with Article 5 ECHR. At present, in a judicial review claim, it is for the courts to assess what a reasonable period of detention is applying the Hardial Singh principles. As Lord Thomas said in Fardous v SSHD,

‘in determining the lawfulness of the decision made by the Secretary of State, the court examines the decision on the basis of the evidence known to the Secretary of State when she made the decision…it is this objective approach of the courts which reviews the evidence available at the time that removes any question that the period of detention can be viewed as arbitrary in terms of Article 5 of the European Convention on Human Rights’ (emphasis added).[7]

12.  On Clause 13, no justification is provided for extending the time for an initial bail application to 28 days after initial detention. [8] The benefits of immigration bail applications are that they are free, require limited paperwork and are heard promptly. The Home Office should not fear Tribunal oversight of detention if they are confident about the underlying lawfulness of their decisions. If individuals are refused immigration bail, they cannot apply for another 28 days without a ‘material change of circumstances’.[9]

13.  Clause 13(4) would prevent individuals challenging their detention by judicial review, which is at present a vital safeguard allowing the enforcement of the Hardial Singh principles.[10] The Government states that individuals will be able to apply for a writ of habeas corpus at any time in their detention and rely on grounds including under Article 5 ECHR.[11] Habeas corpus is a historic and little-used legal route within this area given the more predominant use of judicial review. If individuals will still be able challenge their detention using the Hardial Singh principles and full ECHR grounds, then it is unclear why the procedure for challenging detention needs to be upended.

14.  However, habeas corpus tends to be narrower in scope focussing on questions surrounding the legal authority of an individual’s detention, whereas judicial review can consider procedural errors, the failure to consider relevant matters and fundamental unreasonableness.[12] Since Article 5 ECHR has a procedural aspect, JUSTICE is concerned that limiting challenge to detention to habeas corpus will be incompatible with Article 5. 

15.  Clause 13(4) sets out that the powers of the immigration officer should not be held to have been exceeded ‘by reason of any error made’ in the decision to detain unless that decision was made in bad faith or ‘in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice’. This significantly alters the position set out by the Supreme Court in Lumba v SSHD which found that it was for the SSHD to prove detention was lawful and that ‘she cannot do this by showing that, although the decision to detain was tainted by public law error in the sense that I have described, a decision to detain free from error could and would have been made’.[13] Clause 13 gives the SSHD carte blanche to make error-strewn detention decisions without accountability.

Modern slavery

Q12: 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?

Q13: 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?

16.  We have significant concerns that proposals are incompatible with Article 4 ECHR and ECAT.[14] The SSHD would have a legal duty to deport a potential victim of trafficking, who has not been convicted of a serious criminal offence, where they have a positive reasonable grounds decision from the National Referral Mechanism.

17.  The Government states it can rely on the ‘public order’ exemption to its obligations under ECAT due to the situation in the Channel. The situation in the Channel was the justification for NABA which reduced the ‘public order’ threshold to a criminal sentence of at least 12 months. Significant legal concerns were raised at the time by the JCHR and the Independent Anti-Slavery Commissioner.[15] The Bill is now proposing to disapply provisions in NABA which placed ECAT requirements into domestic law.[16]

18.  These concerns would apply to this Bill which applies the ‘public order’ exemption to anyone arriving to the UK irregularly unless they are actively cooperating with a criminal investigation. As the previous Independent Anti-Slavery Commissioner has said, providing a sufficient recovery and reflection period is essential to enable witnesses to provide evidence in criminal proceedings.[17] This will especially be the case when the allegation has only recently been disclosed and the individual is in detention.

19.  In relation to the SSHD’s case that modern slavery laws are being ‘abused’,[18] the Home Office’s data highlights the overwhelming majority of referrals are credible.[19] As the former Home Secretary Theresa May MP set out, ‘the Home Office knows that the Bill means that genuine victims of modern slavery will be denied support’.[20]

20.  On Article 4 ECHR, the European Court of Human Rights has found that member states have a duty to take operational measures to protect victims (or potential victims) of trafficking and a procedural obligation to investigate situations of potential trafficking.[21]

Legal proceedings

Q16: 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?

Q17: 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?

21.  The requirements under Clause 40(5) and 41(5) for an individual to have to provide ‘compelling evidence’ to evidence a suspensive claim is likely to significantly impact victims of torture, who may struggle to comment on highly traumatic personal events, and those with mental health problems. This is especially as these claims are likely to be made when they are adults at risk in an immigration detention centre.

22.  We would highlight practical concerns about the availability of legal advice within detention, whether all detention facilities will be accessible to lawyers, the quality of decisions that will be made and the limited appeal timeframes. Medical evidence is likely to be essential for a ‘serious harm suspensive claim’ which will be practically very difficult in a restricted timeframe. This is especially concerning when Clause 46 restricts “new matters” being raised in appeals and there are stringent limitations on out of time claims/ appeals.

23.  We are concerned about an expedited appeal process given the issues raised in previous litigation.[22] Clause 49 allowing First tier Tribunal judges to act as Upper Tribunal judges in such claims (including, according to the Government, employment judges) may compound this problem.[23] Since vulnerable individuals will be restricted to one expedited hearing, it is even more important that there is proper oversight from experienced judiciary. We would also highlight a concern around limited appeal rights in Clause 43 if permission to appeal is refused in certified claims, since an individual’s risk of ‘serious and irreversible harm’ is at issue.[24]

Other issues

Q19: Are there any other human rights considerations arising from this Bill that you want to bring to the attention of the Committee?

24.  Clause 49 gives the SSHD the wide power to pass ‘regulations’, with limited Parliamentary oversight, on interim measures of the European Court of Human Rights in immigration removal cases. Interim measures are already not binding on domestic courts[25], though they are on the Government under international law. As drafted, the Bill would allow the Government to pass regulations to breach international law. 

25.  Interim measures are used rarely and only in circumstances where there is an ‘imminent risk of irreparable damage’.[26] In the immigration deportation context, this is most likely when Articles 2 and 3 ECHR are engaged. The correct way to address any legitimate issues around the interim measures procedure is through our influence in the Council of Europe, which would be fatally undermined by unilaterally reneging on our international law obligations.

06/04/2023