UK’s illegal migration bill rides roughshod over both domestic and international law

The UK government has introduced its latest effort to deter small boat migration, by vowing to remove all those who arrive in the UK illegally by any route. The illegal migration bill, if enacted, will apply retrospectively, meaning that those who arrived even before the bill’s passage will be subject to detention and arbitrary removal without a legal remedy.

The home secretary, Suella Braverman, immediately recognised the bill was likely to “push the boundaries of international law” and refused to make a statement of compliance with the Human Rights Act 1998. On closer inspection, it does not merely push the boundaries, it rides roughshod over domestic law, common law and the UK’s international human rights obligations.

The government’s justification for turning people away from seeking asylum is that people who have travelled by boat will have passed through other safe countries, where they should have claimed asylum first.

This logic rests on a shaky interpretation of Article 31 of the Refugee Convention, which states that refugees should not be penalised for their entry, providing they come directly and show good cause.

The international right to seek and enjoy asylum was first established by the the Universal Declaration on Human Rights in 1948, and developed in the Refugee Convention of 1951. Crucially, these documents do not say that this right depends on applying for protection in the first safe country.

International refugee law is difficult to enforce through legal mechanisms. It relies instead on a sense of solidarity and surrogacy, whereby host states step in to protect refugees who can no longer live safely in their country of origin.

The UN refugee agency has emphasised this in a harsh critique of the bill, saying that it would not only violate the refugee convention, but would “undermine a longstanding, humanitarian tradition of which the British people are rightly proud”.

Legal challenges are on the horizon for this bill should it receive royal assent. Many of these fall under domestic legislation and fundamental constitutional law principles, notably access to justice and the rule of law.

Arbitrary detention

The bill states that people who arrive illegally can be detained for up to 28 days “with no recourse for bail or judicial review”, before being returned to their country of origin or a safe third country. But since leaving the European Union’s Dublin Regulation, the UK does not have workable arrangements with other countries to do this. Its Rwanda deal is the exception, but this has been stalled by legal challenges and will no doubt require individual case assessments to ensure it meets international obligations.

Past cases have established that the Home Office must act in good faith and proportionately when detaining asylum seekers. Detention should be for the shortest period possible and imposed as a measure of last resort. Home Office guidance establishes that victims of torture, children and vulnerable adults, including those subjected to trafficking, should not normally be exposed to detention.

Additionally, the court of appeal held in 2015 that the government’s “fast track” procedure for asylum seekers (which usually involved a detention of less than 10 days) was unlawful because it interfered with the right to access advice and appeal against removal. There have been numerous cases where acutely vulnerable people were found to have been unlawfully detained.

The government has preempted this by trying to remove rights of appeal from the equation, stating outright in the bill that those who arrive illegally do not have recourse for bail or judicial review.

This opens up the second legal challenge, based on the “right to an effective remedy” when fundamental rights are impacted, outlined in Article 13 of the European Convention on Human Rights. This is often invoked alongside the absolute prohibition of inhuman and degrading treatment under Article 3 of the European Convention on Human Rights.

The two provisions require access to a legal procedure for someone to argue that return to their country of origin would constitute a “real risk” of ill treatment.

Article 3 is enforceable in the UK due to the Human Rights Act, and provides a legal mechanism to respect the international obligation of non-refoulement – that people should not be returned to their home countries if they face threats to their safety.

This extends to chain refoulement, which is when removal occurs via an intermediary “third” country.

Past attempts to oust the jurisdiction of the courts in immigration law have met with resistance from senior judges. There is an evident contradiction in the new bill, as it states that those at risk of “serious and irreversible harm” will not be removed, thereby protecting the obligation of non-refoulement in principle. How this can be determined without a legal challenge is not clear.

There were 45,000 small boat arrivals in 2022. Half came from five countries with asylum grant rates of 80%-90%, meaning that they are incredibly likely to have their asylum cases recognised as valid. Even Albanians seeking protection have a 53% success rate at first instance.

For many of these people, a number of whom are children, they cannot access a safe and legal route to reach the UK. The government’s proposals would turn them away before their cases could be considered.

It is very clear from these statistics that the majority of those arriving “illegally” are indeed refugees, and should therefore derive full protection from the Refugee Convention – including the right to work, education and non-discrimination. As the UN response says:

Branding refugees as undeserving based on mode of arrival distorts these fundamental facts.  

Global challenges of this scale require partnership and responsibility-sharing between nations, not unilateral decisions that undermine refugee protection and fundamental rights.

Helen O’Nions is Associate Professor, Nottingham Law School, Nottingham Trent University.

This article first appeared on The Conversation.