The Illegal Migration Bill is currently going through the UK House of Lords at breakneck speed, with peers being forced to scrutinize the controversial proposals well into the early hours.
This has curtailed the deep scrutiny needed of highly controversial proposals for the UK government’s migration and refugee policy, and will create unintended negative consequences for the UK’s wider international standing.
Significant legal, moral, humanitarian and practical concerns have been expressed by UK charities, the Local Government Association, the Law Society, Bar Council, the Equality and Human Rights Commission, former lord chief justice Lord Justice Thomas, the UN High Commissioner for Human Rights, and even the Archbishop of Canterbury.
These have now been joined by the Joint Committee on Human Rights (JCHR), the cross-party body representing both the House of Commons and the House of Lords which scrutinizes proposed laws for their compatibility with UK and international human rights law.
Global refugee protection is vitally important
As currently drafted, the bill effectively removes the right to seek asylum in the UK for most refugees, potentially undermining a global regime of refugee protection critical for ensuring the safety of those fleeing conflict and persecution.
Notably, the bill breaches the prohibition on ‘refoulement’ under Article 33(1) of the 1951 Refugees Convention, a core obligation which ensures individuals are not removed – directly or indirectly – to a country where they face serious threats to their lives or freedoms.
The current draft also puts the UK at risk of breaching its international law commitments under the European Convention on Human Rights, the UN Convention on the Rights of the Child, and the Council of Europe Convention on Trafficking.
Clauses 2 to 4 of the bill impose a new removal duty on the UK home secretary to make arrangements to remove those who enter or arrive in the UK irregularly, and who have not come directly from a territory where their life and liberty was threatened. And to declare the person’s asylum claim inadmissible without it being considered first within the UK asylum system.
This affects most refugees arriving in the UK – essentially extinguishing the right to claim asylum here – for the simple reason that the UK provides little in the way of safe and legal routes.
It may also violate the prohibition in Article 31 of the 1951 Convention on states imposing penalties on asylum seekers who arrive irregularly. This provision recognizes that fleeing persecution inevitably means individuals will have to cross borders irregularly.
Following its extensive inquiry, the JCHR highlights the bill is incompatible with the UK’s international human rights law obligations, such as denying refugees access to the asylum system, 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.
The committee also recommends deleting a proposal which would allow ministers to ignore interim measures, such as injunctions prohibiting removal, issued on an exceptional basis by the European Court of Human Rights if applicants face a real risk of serious and irreversible harm. For the UK government, or indeed any government, to suggest that it would disobey an order given by an international court is a serious thing.
This also runs contrary to the UK’s constructive leadership on ensuring international justice and accountability mechanisms for Russia’s war in Ukraine, such as the establishment of a new special tribunal. If the UK does not abide by the decision of an international court or tribunal, why would Russia?
If there are perceived concerns about specific processes within the Strasbourg system, the UK prime minister should continue to seek diplomatic solutions to deal with the UK’s concerns. Rushing complex legislation through the UK parliament without full and thorough parliamentary scrutiny raises concerns – not just about the UK’s migration and refugee policy but also its international standing and leadership on agreements its parliament has agreed to.
Political stakes are high
With an election looming, there is domestic pressure to be seen as tough on migration. And the stakes are particularly high as a Court of Appeal judgment is expected soon on the lawfulness of the UK government’s highly controversial proposals to deport asylum seekers to Rwanda. But the proposals are at odds with the government’s commitments to the international rule of law which runs throughout its recent Integrated Review Refresh.
As with any relationship, international agreements are based on the principles of mutual trust, reciprocity, and respect between the parties. That is the case whether we are talking about the UK’s obligations under the Refugee Convention or the European Convention on Human Rights, or ambitions to forge future trade alliances, to tackle climate change, or be leaders in the global regulation of artificial intelligence.
As the parliamentary debates continue the unenviable longer-term task for peers and MPs is to rise above short-term political gains to secure amendments which safeguard the UK’s reputation for promoting and upholding the rule of law both at home and overseas. Without such amendments, there is likely to be much litigation coming before the UK’s domestic courts.
And the outside world will be justified in asking whether the UK really is a reliable, consistent, and credible international partner fully committed to upholding international law, with implications for the UK’s wider global ambitions.
Rashmin Sagoo leads the International Law programme at Chatham House.