Solicitor Rubin Italia analyses the UK government’s controversial Illegal Migration Bill, and explores potential legal challenges this could create.

Rubin’s article was published in Solicitors Journal, 2 August 2023, which can be found here.

The Illegal Migration Bill is aptly named, given the legislation is an illegal attempt by the Government to stop asylum seekers remaining in the United Kingdom despite their rights under the Geneva Convention. After strong challenges from MPs in the Houses of Parliament and fierce opposition from peers in the House of Lords, the government finally managed to force through the bill in July, albeit with heavy amendments to its original text.

Despite this, the Court of Appeal has already ruled that the government’s Rwanda deportation policy is unlawful due to deficiencies in the Rwandan asylum system, with the Illegal Migration Bill also suffering 11 defeats in the House of Lords on the same day, with members backing amendments including limiting the detention of children and pregnant women and inserting protections for LGBTQ+ asylum seekers.

The Rwanda case was heard by the Court of Appeal as a result of a legal challenge to the current government policy to process asylum seekers in Rwanda and, if accepted as refugees, to settle them in the country thereafter. Judges found by a majority of two to one that there were serious concerns over sending individuals to Rwanda for processing and found that the government policy to do so was unlawful.

The Illegal Migration Bill also seeks to curtail similar such legal challenges in the future. However, those that are concerned about liberal interpretation by the courts and lawyers regarding such measures must remember that the UK remains a signatory to the Geneva Convention, which seeks to assist asylum seekers wherever they are from, and as such must always abide by its rules regardless of any domestic bills passed.

These recent defeats over controversial migration policies demonstrate that, despite its recent passage into law, the Government’s policy to “stop the boats” is unworkable at present and will remain so until the case finally reaches the Supreme Court and is ruled upon.

At the same time, while the Government has manufactured “safe routes” for Ukrainian citizens to enter the UK, they have not extended this legal route to refugees from other conflict zones such as Afghanistan, Iraq and Syria, thus creating a two-tier system built on illegal race-based discrimination.

According to the Migration Observatory at the University of Oxford there were over 3000 Afghani Applications in 2021. Those individuals will not be returned on the basis of the Home Office’s current policy and a significant number of those individuals had arrived on small boats crossing the channel. Their permission to remain in the UK starkly contrasts with the rejection of asylum seekers from Yemen or other war-torn areas which are officially recognised as conflict zones, who as such should receive refugee status automatically as well.

When claiming refuge, there is no requirement under the Geneva Convention that refugees arrive legally, and as such asylum seekers who do not arrive via legal channels should not be vilified or considered illegal migrants. The Government’s insistence on legal means of entry fails to consider that persecuted refugees often do not have the means to make legal immigration applications or obtain visas, or are unable to do so for security reasons. Making legal applications may also risk alerting authorities in many refugees’ home countries where they face persecution, making this an impossible option for many asylum seekers.

While the UK may no longer be part of the EU, continued cooperation with European law enforcement agencies is vital for both creating safe and legal routes for asylum as well as forming a migration policy which is both effective and lawful. While Brexit has mean that the UK has extricated itself from Europe, the required joined-up thinking with other European Law Enforcement Agencies would have greatly assisted the Government’s policy-making.

Instead, all that the Government appears to have done by way of collaboration with its European peers is to make payments to the French Government in the hope that extra security on the French side may reduce the numbers. At present, and as had been predicted by many, this policy has been an abject failure, with thousands of migrants still entering the UK each month via small boats crossing the English Channel from France.

Concerningly, the government has also indicated that the Bill may not be compatible with the European Convention on Human Rights, which seeks to uphold principles such as freedom from torture, and the Bill may well face significant legal challenges now that is has been enacted by Parliament.

A large part of the issue appears to be the funding and housing of the asylum claimants, as well as the processing of the individuals. Plans to house migrants on barges docked at ports were met with horror by human rights campaigners, yet the Government remained steadfast in its insistence on the barges’ use, with the first vessel docking in Portland port in Dorset in mid-July in preparation for housing 500 asylum seekers.

Conditions in which asylum seekers are housed have long been a contentious issue, with detention centres dangerously unsanitary and overcrowded, leading to unrest among detainees and legal challenges by NGOs concerned for their welfare. The housing of unaccompanied young asylum seekers at hotels around the country has also led to a spate of problems, including a sizeable number of migrants disappearing, presumed kidnapped by traffickers and forced into slave labour.

While the Government has sought to frame its stance as acting as a strong deterrent to those making perilous journeys to the UK via non-official channels, there is little evidence to support their claims. Instead, migrants are expected to continue arriving en masse, via organised criminal gangs who profit hugely from the Government’s forcing migrants to use their dangerous and expensive services by not making the asylum process more widely available to many citizens, if available at all.

Those in support of the Government’s measures may be temporarily upbeat now that the albeit watered-down Bill has now passed into law, but even they realise the scale of the challenges that lie ahead to actually enforce the rules contained therein. The Government’s unwillingness to shape the Bill to adhere to international protocols including the Geneva Convention are, in effect, designed to fail.

While ministers know that they will be blocked by the courts from taking many of the actions set out in the Bill, the political optics of adopting a seemingly tough stance against migration plays well to its base in the run-up to an election year. While many of the new laws will eventually be forced to be dropped, in the meantime swathes of vulnerable migrants will become collateral damage of the Government’s political posturing.

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