by Kathryn Allinson, Lecturer in Law, University of Bristol
It has been a busy few weeks in the life of the Illegal Migration Bill with a record 20 amendments made to it by the House of Lords and the Court of Appeal declaring that removals to Rwanda are unlawful. However, what does this mean for those people seeking asylum in the UK?
Court of Appeal rules that removals to Rwanda are unlawful
The government’s proposed plan to send people seeking asylum to Rwanda was ruled unlawful by the Court of Appeal on Thursday, 29 June 2023. The case was brought by Asylum Aid as well as 10 people from countries including Syria, Iraq and Albania, who arrived in the UK in small boats. Whilst the High Court had supported the government’s policy, the Court of Appeal judges, Lord Chief Justice Lord Burnett, Sir Geoffrey Vos and Lord Justice Underhill, ruled that Rwanda was not a sufficiently safe country and there was too great a risk that genuine refugees could be returned to countries where they risked persecution.
While Lord Burnett supported the UK government, Sir Geoffrey Vos, the Master of the Rolls, and Underhill LJ concluded that the assurances from the Rwandan government were not “sufficient to ensure that there is no real risk that asylum seekers relocated under the Rwanda policy will be wrongly returned to countries where they face persecution or other inhumane treatment”. Lord Burnett ultimately stated that: “The High Court’s decision that Rwanda is a safe third country is reversed. Unless and until the deficiencies in its asylum processes are corrected, removal of asylum seekers to Rwanda will be unlawful.”
The Judges did not find that the policy of removals to a third country breaches Article 31 of the Refugee Convention such that the UK government is not obliged to decide asylum claims of refugees. However, individuals must be removed to a genuinely safe third country where there is a sufficiently robust asylum system. Given the inability of the UK government to secure any further agreements with third countries that are considered ‘safe’ it looks unlikely that such removals are going to be possible anytime soon.
The Illegal Migration Bill subject to 20 amendments in the House of Lords
The Illegal Migration Bill imposes a duty on the Home Secretary to make arrangements for the removal of a person from the United Kingdom if they meet four conditions. They must have entered the UK in breach of immigration laws. They must have entered the UK on or after 7 March 2023, meaning that the Bill has retrospective effect. They travelled through a safe third country en route to the UK. They require leave to enter or remain, but do not have it.
Criticism of the Bill has been widespread with UNHCR deeming it to breach the 1951 Refugee Convention and, on the 11 June, Parliament’s Joint Committee on Human Rights said the Illegal Migration Bill “breaches a number of the UK’s international human rights obligations and risks breaching others.” This includes the European Convention of Human Rights and the 1951 Refugee Convention by restricting human rights and asylum claims, permitting expansive detention and search powers and undermining protection to victims of modern slavery.
Accordingly, when the Bill was considered by the House of Lords it was subjected to a record 20 amendments between 28 June and 5 July with intense debate going late into the night. The amendments included:
- Removing victims of slavery and trafficking from the duty to detain and deport,
- Removal of the retrospective powers to make the Bill apply to any arrival after 7 March (when the Bill was initially introduced),
- An amendment stating that actions under the Bill cannot conflict with the 1951 Refugee Convention or the European Convention on Human Rights as well as other instruments relating to child protection, trafficking and statelessness,
- Ensuring unaccompanied children are permitted to make asylum and human rights claims,
- Maintaining limits on the time pregnant women and children could be detained,
- Preventing LGBTQ+ individuals form being deported where there was a real risk of cruel and inhumane treatment,
- An amendment providing that the Home Secretary to consider asylum claims if an individual had not been removed within 6 months of arrival,
- Maintaining the courts’ role in deciding what is a ‘reasonable’ period of immigration detention rather than granting this to the Home Office,
- Removing the power to ignore interim orders of Courts and Tribunals,
- Creating a duty to create safe and legal route,
- Requiring the government to develop a 10-year strategy on addressing refugees and trafficking.
As a result of these extensive amendments, one crossbench peer, Lord Carlile, has argued that the Bill is ‘dead’ and will be unable to fulfil its purpose of deterring arrivals or removing them to a third country. He proposed the government should withdraw the Bill and await the decision of the Supreme Court. Whilst these amendments are not binding, the Commons have to debate them and revote on the Bill. The more amendments that are debated, the more likely that the Bill will be weakened and impact undermined.
The Illegal Migration Bill was returned to the House of Commons for consideration of the amendments by the House of Lords on Tuesday 11 July where there was intense debate concerning the amendments with a number of backbench Conservative MPs expressing concern about the state of the legislation. However, in the end, the House of Lord amendments were overturned though some concessions were made on time limits for the detention of children and pregnant women as well as removing a clause so the law, if enacted, would no longer apply retrospectively from when it was first announced in March.
What next for the Bill and asylum seekers in the UK?
First, the Government’s Impact Assessment on the Illegal Migration Bill published on June 26 2023 makes clear its ineffectiveness. It will cost £169,000 for every person deported and processed under the Rwanda scheme – more than it currently costs to house an asylum seeker in the UK. The Government argued that this must be considered in light of the potential saving of £106,000 for every person deterred by the scheme which would require 37% of individuals currently arriving in the UK to be deterred by the policy. However, what the Impact Assessment also clearly demonstrates is that there is little evidence to support that such schemes do in fact deter irregular arrivals. Given that June has seen a record number of arrivals (3,824 people) demonstrates the inadequacy of this deterrence narrative. As such, we can expect that arrivals of people irregularly to the UK will continue.
Second, when answering questions before the Parliamentary Liaison Committee, the Prime Minister made clear the government plans to appeal the decision to the Supreme Court. However, the judgments by the Master of the Rolls and Lord Justice Underhill are extensive and rigorous so it is uncertain whether an appeal would be upheld. If it were not, then the UK government would have no further recourse to the European Court of Human Rights and removals to Rwanda would continue to be deemed unlawful. However, if the appeal were upheld then individuals would be able to make further representations to the Strasbourg Court against the implementation of removals.
Third, the Illegal Migration Bill will be returned to the House of Lords for consideration of the latest amendments by the House of Commons. The Bill went back to the Lords on Wednesday as a result of parliamentary ‘ping-pong’, when legislation is batted between peers and MPs until agreement on the wording can be reached. The Lords will be able to propose further amendments which will then be considered by the Commons on Monday before then going back to the Lords next Tuesday. As the Summer recess is scheduled to start on 20 July, the Government are racing to get the legislation passed.
In the meantime, there continues to be a backlog of 70,000 asylum claims in the UK with more people arriving irregularly every week. The Supreme Court is unlikely to consider the appeal before October and no removals to Rwanda will be permitted until that decision is made. Therefore, even if the Illegal Migration Bill is passed in the coming weeks, this will not change the position of the tens of thousands of individuals waiting in limbo in the UK asylum system. The Illegal Migration Bill makes it a duty upon the Home Secretary to deport individuals who arrive irregularly in the UK and to not process their asylum claim. However, with removals to Rwanda grounded and no further agreements reached, this leaves thousands facing prolonged arbitrary detention in the UK.
An amendment proposed by the Lords on 3 July did require the Home Secretary to consider asylum claims of individuals who have not been removed within 6 months and a further amendment made on 5 July required that the government establish safe and legal routes to seek asylum in the UK. If such amendments had been upheld or are reintroduced by the House of Lords in a clearer form, this could offer some hope to people awaiting decisions. However, the Government seem set on preventing any safe routes to seeking asylum in the UK.
There is a long road ahead and in the meantime thousands of vulnerable individuals face uncertainty and destitution. Liberty are calling for the Illegal Migration Bill to be revoked in its entirety. So far, the government has given £140million to Rwanda in support of the agreement and paid over £1000 million in legal fees. It seems time that the government abandon their immoral and illegal plan and instead focus on improving the existing asylum system and creating safe and legal routes for accessing asylum.