The ‘Unlawful’ Illegal Migration Act
On the 4th of January 2023, Prime Minister Rishi Sunak unveiled a list of top goals for 2023 comprising of five commitments—one of which was to "Stop the Boats.”1 This promise pertained to inflatable dinghies carrying migrants fleeing economic desolation and war that traverse the English Channel. These migrants are forced to take this dangerous route as they do not have the necessary documentation to enter the UK legally due to the UK government’s failure to provide a legal means of coming to the UK. Although it is lawful under international law to cross a border in search of refuge illegally,2the Government is penalising those who undertake these voyages with its harsh Illegal Migration Act3(the Act). In doing so, it breaches Article 31 of the Refugee Convention,4 which prohibits the penalisation of refugees when they present themselves without delay to the authorities and show good cause for their illegal entry or presence.5It also breaches Article 33 of the same convention6 by violating the principle of non-refoulement, which guarantees that no one should be returned or removed to a country where they would face torture, cruel, inhuman or degrading treatment or punishment, and other irreparable harm.7
The UK government's desire to "Stop the Boats" is motivated by safety concerns about migrants using this route to enter the UK, the expense of, and potential exploitation of the asylum system, and upsetting people-smuggling gangs' exploitative business model.8Nevertheless, this article submits that the Act is illegal under international law. The Illegal Migration Act 2023 was given royal assent on the 23 July 2023. Under the Act, the Home Secretary has a statutory duty ‘to make arrangements for the removal of’ anyone who enters the country illegally ‘as soon as reasonably practicable.’9 However, this duty conferred on the Home Secretary is yet to take effect.10 This is because the duty requires that there is a removal to a third country, but there is currently no valid agreement in place with the exception of Albanian nationals to Albania. In light of developments in the legal battle over the lawfulness of the UK government's Rwandan asylum deal11 as well as the larger rationale and ramifications of pursuing such a policy to address the small boats crisis, this article will examine the enforceability of the aforementioned duty outlined in Section 1(2)(a) of the Illegal Migration Act 2023.
Background to the Bill
Prior to the Illegal Migration Act 2023, the Government introduced the Nationality and Borders Act.12 The Nationality and Borders Act 2022 served as the centrepiece of the then Home Secretary, Priti Patel's, New Plan for Immigration13 —which was unveiled in March 2021. Most of its core provisions went into effect in June 2022 after it was given royal assent in April 2022.14 Compared to the Illegal Migration Act 2023, this Act gave the Home Secretary broad discretionary powers to distinguish between asylum seekers- based on their mode of travel- and therefore whether they could have their asylum claims accepted or rejected. It also replaced the mandate to remove migrants to Rwanda with provisions for the removal of individuals to so-called safe third countries through secondary legislation and immigration rule changes.15 Flexibility may have looked appealing to the UK government at the time, but it exposed the Home Secretary to judicial review; secondary legislation is subject to judicial review whereas the judicial review of primary legislation is ‘restrained by parliamentary sovereignty.’16 Furthermore, asylum claims were processed more quickly under the Nationality and Borders Act 2022 whereas under the Illegal Migration Act 2023, anyone who arrives in the UK via the English channel automatically has their asylum claim dismissed. The intention of these changes seen in the Illegal Migration Act 2023 from the Nationality and Borders Act 2022 was to make the Government free from legal challenge and bar anyone entering the country illegally from using its asylum system.17
The asylum deal with Rwanda
Removing individuals to "safe" third countries is essential to the Home Secretary fulfilling the duty placed on them by the Act. The Rwanda asylum deal18 was signed by the UK and Rwanda on April 13, 2022.19 Through the partnership, the UK government will send illegal migrants to Rwanda where they will have their asylum claims processed.20 In exchange, Rwanda will receive substantial financial benefits,21 with the UK providing it with millions of pounds in development funding.22 Furthermore, some of Rwanda’s most vulnerable refugees will be relocated to the UK.23 The then Home Secretary, Priti Patel, formerly stated that by threatening to deport asylum seekers to Rwanda, the number of those attempting to cross the English Channel would be significantly reduced— effectively deterring migrants from coming.24 Nevertheless, there is evidence to suggest that outsourcing the processing of asylum claims to other countries does not work- as seen in the case of Australia.25
Legal disputes:
Individual immigration lawyers, the PSC Trade Union and concerned NGOs launched several judicial challenges to the Rwanda policy.26 Respectively, the parties involved requested an interim injunction from the High Court to stop the removal of the asylum seekers to Rwanda. However, the High Court ruled that the Rwanda deal was not illegal; it held that the deterrent purpose of the deal ‘pursues a legitimate objective: to protect refugees from exploitation by criminal gangs who, for example, organise the small boat crossings.’27 Eventually, all domestic remedies were exhausted, with the Supreme Court declining permission to appeal on June 14th 2022— the day the first flight to Rwanda was scheduled to take off.28 Counsel then turned to the European Court of Human Rights (ECtHR) and filed an application for an urgent measure29- under Rule 39-30 which is equivalent to an interim injunction. It cited serious triable issues in the ongoing litigation and issues regarding the conditions of Rwanda, specifically the risk of refoulement, torture, and of asylum seekers not being able to return to the UK if the policy is deemed illegal.31 The court heeded these concerns,32 temporarily stopping the asylum seekers from being sent to Rwanda. These concerns were well founded as Rwanda is a country known for its appalling human rights record 33 where asylum seekers are at risk of facing torture and being deported.34 The fact that the UK government was and still is willing to send the asylum seekers to such a place casts significant doubt that the policy is the ‘morally right thing to do.’35
Subsequently, in June 2023 the Court of Appeal overturned the High Court’s ruling, arguing that the Rwanda policy had been applied incorrectly in the individual cases that came before it.36 It also cited violations of Article 3 of European Convention of Human Rights (ECHR)37 due to the inadequacy of Rwanda's asylum system and the possibility of refoulement for those who are sent there to process their claims.38 The Home Secretary was permitted to appeal to the Supreme Court, but her legal attempts were to no avail; the Supreme Court has now ruled that the Rwanda policy is in fact unlawful39 —stating that removal of the claimants to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement,40 striking a devasting blow to Sunak’s immigration policy.41
Placing blame and creating ineffective policies:
The former Home Secretary Suella Braverman emanated her antithetical rhetoric towards the ECHR and the Strasbourg court, claiming that they were incompatible with British values throughout the Rwanda legal proceedings. This is despite a recent survey showing that 77% of people oppose the UK pulling out of the ECHR.42 Additionally, the Act runs contrary to the British values of fairness and compassion43–treating others justly and abiding by the ‘love thy neighbour’ principle. The Government's rhetoric has also taken aim at immigration lawyers' compensation and motive44, despite a growing concern among immigration lawyers for their own safety when dealing with immigration cases.45
The reality for many asylum seekers in the UK who fall victim to this punitive Act is bleak. They are currently living in squalid conditions, as seen in detention centres such as the Bibby Stockholm which contained the deadly legionella bacteria46 that made many asylum seekers ill.47 They have experienced great trauma—not only from experiencing the plight in their countries of escape but also from enduring the treacherous journey across the English Channel. The UK government making them stay in prison-style detention centres clearly displays its hostility towards them, the same hostility encapsulated by the Act. It would be futile for the Government to fight tooth and nail for such an absurd policy, especially when it is projected that sending an asylum seeker to Rwanda to have their claim reviewed would cost £63,000 more per person than it would if the application were decided in the UK.48 Thus, removing asylum seekers to Rwanda is far more costly and goes against the Government's pledge to lower the expense of running the asylum system, demonstrating how flawed it is.
In conclusion, the UK government, out of its insensitivity for the suffering of asylum seekers, has implemented a policy that threatens not only their human rights but their chance of a better life. The Government has nailed its colours to the mast despite the Supreme Court’s ruling that its Rwanda policy is unlawful, as seen by Rishi Sunak’s bold attempts to circumvent its decision with the Rwanda Bill.49 Despite its attempts to “Stop the Boats," it is most likely that criminal gangs will continue to exploit the desperation of migrants, and consequently that many more innocent lives will be lost in the English Channel until a less ideologically driven and more research-based policy is implemented.
References:
[1] Gov.uk, ‘Prime Minister Outlines His Five Key Priorities For 2023’, (Gov.uk, 4th January 2023). <https://www.gov.uk/government/news/prime-minister-outlines-his-five-key-priorities-for-2023> accessed 30 December 2023.
[2] Art. 31, Refugee Convention 1951; See also R v Uxbridge Magistrates Court and another ex parte Admin [1999] EWHC admin 765.
[3] Illegal Migration Act 2023.
[4] Art. 31 (n 2).
[5] UNCHR, ‘Article 31 of the 1951 Convention relating to the Status of Refugees: Non-Penalization, Detention and Protection’ (UNCHR, no date) <https://www.unhcr.org/uk/media/article-31-1951-convention-relating-status-refugees-non penalization-detention-and-protection> accessed 22 November 2023.
[6] Art. 33, Refugee Convention 1951.
[7] OHCHR, ‘The Principle of Non-Refoulement Under International Human Rights Law’ (OHCHR, 2018) <https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon RefoulementUnderInternationalHumanRightsLaw.pdf > accessed 22 November 2023.
[8] Gov.uk, ‘Illegal Migration Bill Overarching Factsheet’ (Gov.uk, 20th July 2023)
<https://www.gov.uk/government/publications/illegal-migration-bill-factsheets/illegal-migration-bill-overarching factsheet > accessed 22 November 2023
[9] ibid; (n 3), s1(2)(a).
[10] ibid, s.68(5).
[11] UK-Rwanda Migration and Economic Development Partnership
examine the enforceability of the aforementioned duty outlined in Section 1(2)(a) of the Illegal Migration Act 2023.
[12] Nationality and Borders Act 2022.
[13] Gov.uk, ‘Home Secretary's Statement on the New Plan for Immigration’ (Gov.uk, 24th March 2021)<https://www.gov.uk/government/speeches/home-secretarys-statement-on-the-new-plan-for-immigration > accessed 22 Nov 2023.
[14] Nationality and Borders Act 2022 (Commencement No 1, Transitional and Saving Provisions) Regulations 2022. 15 s.12(8), or Sch.4 para 9B amending Sch.3, para 20(1) of Asylum and Immigration (Treatment of Claimants etc.) Act 2004 re safe countries list
[16] John Stanton and Craig Prescott, Public Law (3rd edn OUP 2022) 457.
[17] UNCHR, ‘UK Illegal Migration Bill: UN Refugee Agency and UN Human Rights Office Warn of Profound Impact on Human Rights and International Refugee Protection System’ (UNHCR,18 July 2023).
< https://www.unhcr.org/uk/news/speeches-and-statements/uk-illegal-migration-bill-un-refugee-agency-and-un-human rights-office> accessed 3 November 2023.
[18] ibid; (n 11).
[19] Gov.uk, ‘Memorandum of Understanding Between the UK And Rwanda for the Provision of an Asylum Partnership Arrangement’ (Gov.uk, 14 April 2022) < https://www.gov.uk/government/publications/memorandum-of-understanding mou-between-the-uk-and-rwanda/memorandum-of-understanding-between-the-government-of-the-united-kingdom-of great-britain-and-northern-ireland-and-the-government-of-the-republic-of-r>accessed 30 December 2023.
[20] ibid, Part 3- DATA MANAGEMENT AND PROTECTION
[21] ibid; (n 19).
[22] ibid; (n 18).
[23] ibid; (n 18) Para 16.1.
[24] HC Deb 29th June 2023 vol 735, col 515-526 < https://hansard.parliament.uk/commons/2023-06-29/debates/6D789210- ABC0-4694-8F9B-830B494CFE39/MigrationAndEconomicDevelopmentPartnership> accessed 13 October 2023.
[25] Madeline Gleeson and Natasha Yacoub, ‘Cruel, Costly and Ineffective: The Failure of Offshore Processing in Australia’ (Policy Brief 11, Kaldor Centre) August 2021.
[26] R (on the application of AAA & Others) v The Secretary of State for the Home Department (UNHCR intervening) [2022] EWHC 3230 (Admin).
[27] Ibid, [154] (Lewis LJ).
[28] The Supreme Court, ‘Rwanda Permission to Appeal Application Refused’ (The Supreme Court News, 14th June 2022) <https://www.supremecourt.uk/news/stories/rwanda-permission-to-appeal-application-refused.html> accessed 30 December 2023.
[29] European Court of Human Rights, ‘Fact Sheet – Interim measures’ (EctHR, December 2022). 30 European Court of Human Rights, ‘Rule 39’ (EctHR, no date) < https://www.echr.coe.int/rule 39#:~:text=The%20ECHR%20Rule%2039%20Site,site%20will%20immediately%20be%20closed accessed 22 November 23. 31 NSK v UK 28774/22 ECHR 197.
[32] Blackstone Chambers, ‘European Court of Human Rights Grants Interim Measures Preventing Removal of Asylum Seeker to Rwanda Pending Determination of Judicial Review of Rwanda Removal Policy’ (Blackstone Chambers, 15 Jun 2022) <https://www.blackstonechambers.com/news/european-court-of-human-rights-grants-interim-measures-preventing removal-of-asylum-seeker-to-rwanda-pending-determination-of-judicial-review-of-rwanda-removal-policy/ >accessed 30 December 2023.
[33] Tirrana Hassan, ‘The UK’s Convenient Silence on Rwanda’ (Financial Times, 14th April 2022)
<https://www.hrw.org/news/2023/07/06/uks-convenient-silence-rwanda> accessed 20 October 2023
[34] R (on the application of AAA & Others) v The Secretary of State for the Home Department [2023] UKSC 42 (Lord Hoffman) 149.
[35] John Paul Ford Rogers, ‘Migrant Crossings: PM defends Rwanda Plan as the “Morally Right Thing to do”’ (Sky News, 15 April 2022) < https://news.sky.com/story/migrant-crossings-royal-navy-to-take-over-operational-command-in-channel from-today-12589851> accessed 30 December 2023.
[36] R (on the application of AAA & Others) v The Secretary of State for the Home Department EWCA Civ 745
[37] Art 3, European Convention of Human Rights
[38] ibid, Judgement Summary, Page 2 < https://www.judiciary.uk/wp-content/uploads/2023/06/AAA-v-SSHD-summary 290623.pdf> accessed 30 December 2023.
[39] Rajeev Syal and Diane Taylor, ‘Supreme Court Rejects Rishi Sunak’s Plan to Send Asylum Seekers to Rwanda’ (The Guardian, 15 Nov 2023) < https://www.theguardian.com/uk-news/2023/nov/15/supreme-court-rejects-rishi-sunak-plan to-deport-asylum-seekers-to-rwanda> accessed 22 November 2023.
[40] Ibid.
[41] Daniel Trilling, ‘In Defeat of the Rwanda Plan, the Entire Tory Project Lies in Tatters’ (The Guardian, 15 Nov 2023)<https://www.theguardian.com/commentisfree/2023/nov/15/rwanda-plan-tatters-defeat-undermines-entire-tory project > accessed 30 December 2023.
[42] Irish Legal News, ‘Poll Reveals Marginal Support in UK for ECHR Withdrawal’ (Irish Legal News, 21 August 2023) < https://www.irishlegal.com/articles/poll-reveals-marginal-support-in-uk-for-echr-withdrawal> accessed 8 October 2023.
[43] Refugee Council, ‘Almost Three Quarters of Those Crossing the Channel Would Be Allowed to Stay in the UK as Refugees’ (Refugee Council, 2 October 2023) < https://www.refugeecouncil.org.uk/latest/news/almost-three-quarters-of-those crossing-the-channel-would-be%20-allowed-to-stay-in-the-uk-as-refugees/ > accessed 4 November 2023
[44] Sky News, ‘Government Announces Task Force to Target 'Crooked' Immigration Lawyers, (Sky News, 8 August 2023). <https://news.sky.com/story/government-announces-task-force-to-target-crooked-immigration-lawyers 12935767#:~:text=Home%20Secretary%20Suella%20Braverman%2C%20speaking,who%20play%20by%20the%20rules> accessed 22 November 2023.
[45] Diane Taylor, ‘Man Faces Terror Charge Over Alleged Attack at Immigration Law Firm’ (The Guardian, 23 October 2020) <https://www.theguardian.com/uk-news/2020/oct/23/man-faces-terror-charge-over-alleged-attack-at-immigration-law firm > accessed 13 October 2023.
[46] Diane Taylor, ‘Contractors Told About Legionella On Day Asylum Seekers Boarded Barge’, (The Guardian, 13 August 2023) < https://www.theguardian.com/uk-news/2023/aug/13/home-office-was-told-about-legionella-on-refugees-barge on-day-they-boarded> accessed 7 November 2023.
[47] Diane Taylor, ‘Legionella on the Bibby Stockholm Barge: Five Questions For Home Office’ (The Guardian, 14th Aug 2023) < https://www.theguardian.com/uk-news/2023/aug/14/bibby-stockholm-what-happens-now-with-the-plan-to-house asylum-seekers-on-the-barge> accessed 30 December 2023.
[48] The Home Office, Illegal Migration Bill (Impact Assessment, 2023 HO 0438) 124.
<https://assets.publishing.service.gov.uk/media/64999700831311001329637f/Illegal_Migration_Bill_IA_-_LM_Signed final.pdf> accessed 17 January 2024.
[49] The Law Society, ‘Rwanda Bill seeks to overturn finding of fact confirmed by the highest court in the UK’ (Press Release, 11 December 2023) <https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/rwanda-bill-seeks-to overturn-finding-of-fact-confirmed-by-the-highest-court-in-the-uk> accessed 17 January 2024.
BIBLIOGRAPHY:
Primary sources:
Conventions
Art. 31 Refugee Convention 1951
Art. 33 Refugee Convention 1951
European Convention of Human Rights
Legislation
Illegal Migration Act 2023
Illegal Migration Bill
Nationality and Borders Act 2022
Nationality and Borders Bill
Human Rights Act 1998, schedule 3, part 1, article 3
Nationality and Borders Act 2022 (Commencement No 1, Transitional and Saving Provisions) Regulations 2022.
s.12(8), or Sch.4 para 9B amending Sch.3, para 20(1) of Asylum and Immigration (Treatment of Claimants etc.) Act 2004 re safe countries list
Art. 3 European Convention of Human Rights 1950
Table of cases
R (on the application of AAA & Others) v The Secretary of State for the Home Department (UNHCR intervening) [2022] EWHC 3230 (Admin)
R (on the application of AAA & Others) v The Secretary of State for the Home Department EWCA Civ 745
R (on the application of AAA & Others) v The Secretary of State for the Home Department [2023] UKSC 42
NSK v UK 28774/22 European Court of Human rights 197
Secondary sources:
Hansard
HC Deb 29th June 2023 vol 735, col 515-526.
Textbooks
John Stanton and Craig Prescott, Public Law (3rd edn OUP 2022) 457.
Webpages/blogs:
Blackstone Chambers, ‘European Court of Human Rights Grants Interim Measures Preventing Removal of Asylum Seeker to Rwanda Pending Determination of Judicial Review of Rwanda Removal Policy’ (Blackstone Chambers, 15 Jun 2022)
European Court of Human Rights, ‘Fact Sheet – Interim measures’ (ECtHR, December 2022). ——, ‘Rule 39’ (ECtHR, no date).
Gov.uk, ‘Prime Minister Outlines His Five Key Priorities For 2023’, (Gov.uk, 4th January 2023) ——, ‘Illegal Migration Bill Overarching Factsheet’ (Gov.uk, 20th July 2023) ——, ‘Home Secretary's Statement on the New Plan for Immigration’ (Gov.uk, 24th March 2021)
——, ‘Memorandum of Understanding Between the UK And Rwanda for the Provision of an Asylum Partnership Arrangement’ (Gov.uk, 14 April 2022).
OHCHR, ‘The Principle of Non-Refoulement Under International Human Rights Law’ (OHCHR, 2018).
Refugee Council, ‘Almost Three Quarters of Those Crossing the Channel Would Be Allowed to Stay in the UK as Refugees’ (Refugee Council, 2 October 2023
The Home Office, Illegal Migration Bill (Impact Assessment, 2023 HO 0438) 124. UNCHR, ‘Article 31 of the 1951 Convention relating to the Status of Refugees: Non Penalization, Detention and Protection’ (UNCHR, no date)
——, ‘UK Illegal Migration Bill: UN Refugee Agency and UN Human Rights Office Warn of Profound Impact on Human Rights and International Refugee Protection System’ (UNHCR,18 July 2023).
Articles
Ford JPR, ‘Migrant Crossings: PM Defends Rwanda Plan as the “Morally Right Thing to do”’ (Sky News, 15 April 2022).
Gleeson M and Yacoub N, ‘Cruel, Costly and Ineffective: The Failure of Offshore Processing in Australia’ (Policy Brief 11, Kaldor Centre) August 2021.
Hassan T, ‘The UK’s Convenient Silence on Rwanda’ (Financial Times, 14 April 2022) Irish Legal News, ‘Poll Reveals Marginal Support in UK for ECHR Withdrawal’ (Irish Legal News, 21 August 2023).
Sky News, ‘Government Announces Task Force to Target 'Crooked' Immigration Lawyers, (Sky News, 8 August 2023).
Syal R and Taylor D, ‘Supreme Court Rejects Rishi Sunak’s Plan to Send Asylum Seekers to Rwanda’ (The Guardian, 15 Nov 2023).
Syal R, ‘No 10 Has Discussed Possibility of ‘Disapplying’ Key Human Rights Law to Emergency Bill to Head Off Legal Challenges’ (The Guardian, 19 Nov 2023).
Taylor D, ‘Man Faces Terror Charge Over Alleged Attack at Immigration Law Firm’ (The Guardian, 23 October 2020).
——, ‘Contractors Told About Legionella On Day Asylum Seekers Boarded Barge’, (The Guardian, 13 August 2023).
——, ‘Legionella on the Bibby Stockholm Barge: Five Questions For Home Office’ (The Guardian, 14th Aug 2023)
Trilling D, ‘In Defeat of the Rwanda Plan, the Entire Tory Project Lies in Tatters’ (The Guardian, 15 Nov 2023).
The Law Society, ‘Rwanda Bill seeks to overturn finding of fact confirmed by the highest court in the UK’ (Press Release, 11 December 2023).