By Gurvinderjit Kaur
Background
The UK Government has produced statistics that show a 60% increase in the number of illegal migrants arriving on small boats into the UK from 2021 to 2022.[1] The journey of crossing seas to get to the UK is extremely treacherous and a large number of these people making the journeys have been lured by people smugglers who charge thousands of pounds, before using these same funds for other severe crimes.[2] The Government argues that it is not fair that those coming into the UK with the intention of being economic migrants are able to exploit the asylum system in place.[3]
What is the Illegal Migration Act?
On 7th March 2023, the Illegal Migration Bill was introduced in Parliament and the Bill became an Act on 20th July 2023. In accordance with this, people who enter the UK illegally should not be allowed to stay. Instead, they will be detained and promptly transferred to either their home country or to a safe third country like Rwanda, where their request for asylum can be reviewed.[4] Section 1(2) of the Act provides that the Home Secretary has a legal obligation to see to arrangements for removing these illegal entrants that fall within this scheme.[5]
The Act covers most people who apply for asylum in the UK and seeks to ‘prevent and deter unlawful migration’ as stipulated under Section 1(1).[6] Certain rules regarding the use of detention powers and the seizure of electronic data came into effect on the 28th of September. The Act's sections relating to the cap on safe and legal routes will also go into effect, with a consultation on the safe routes cap anticipated before the 20th of October 2023.[7]
Additionally, the non-refoulment principle enshrined under Article 33(1) of the UNHCR 1951 Refugee Convention is an important tenet under asylum and international refugee law. It prohibits States from transferring or removing people from their control or jurisdiction if there are good reasons to think they could face persecution, torture, mistreatment, or other serious human rights violations upon their return.[8]
“Safe Third Country” – the Rwanda Case
One aspect that has been debated about is whether Rwanda is considered to be a ‘safe third country’ or not. The Court of Appeal decision in AAA and others v The Secretary of State for the Home Department [2023] EWCA Civ 735 held by a majority of two to one that the UK Government’s Rwanda policy is unlawful.[9]
The Appellants in this case are 10 individual asylum seekers hailing from Syria, Iraq, Iran, Vietnam, Sudan and Albania.[10] They travelled irregularly from France to the UK in small boats across the English Channel. The Government in either late May or early June 2022 decided to send them to Rwanda, where the Rwandan asylum system would be used to decide their claims, rather than the UK Government themselves taking their asylum claims into consideration.
Rwanda was regarded as a ‘safe third country’. The Appellants filed a case in the High Court challenging the legality of the Rwanda policy in general, specifically the Government’s choice to send each of them to Rwanda. So, the main issue before the High Court and the Court of Appeal was if the Rwandan asylum system had capability to deliver reliable outcomes.[11] The Appellants submitted that there is a real risk of sending people to Rwanda and that there would be a breach of Article 3 of the European Convention on Human Rights (ECHR), therefore not making it a ‘safe third country’.[12] This would mean that the non-refoulment principle is in breach.
The majority in the Court of Appeal has determined that Rwanda’s asylum system is flawed, and that there are substantial grounds to suspect that asylum seekers sent there run a real risk of being sent back to their home countries where they have experienced persecution or other inhumane treatment; when in actuality they do have a valid claim for asylum. This Rwandan plan is in breach of Article 3 ECHR, more particularly the test under Chahal v United Kingdom where it stated that when there are compelling reasons to believe that a person would be removed to another State where they would be at a real risk of receiving treatment that is against Article 3, the contracting state has a duty to protect that person from that treatment.[13] This conclusion is supported by what the Court further heard from UNHCR in that Rwanda had a history of violating the human rights of refugees inside its borders, including through forced repatriation to unsafe countries.[14]
Criticisms of the Act
The Law Society opines that the ruling in the recent Court of Appeal judgement calls into question the operation of the Illegal Migration Act.[15] The Government has only secured one removals agreement which was with Rwanda, but since Rwanda is not considered a ‘safe third country’, where would people be removed to? There would be a large backlog of people due to be removed under the Act and they will be in a precarious situation and might remain in government-sponsored housing or in detention. The cost to the taxpayer will rise as a result of this and it is also unclear where those in detention will be kept and how will they get access to proper legal advice.[16]
Furthermore, the Act can lead to more challenges at the European Court of Human Rights. This is partly so because the Act would disapply Section 3 of the Human Rights Act 1998 where Courts need to interpret legislation so that the rights and duties they establish can be exercised only in ways compatible with the Convention. If this is not possible, the higher UK Courts can only issue a declaration of incompatibility as under Section 4 of the Human Rights Act 1998.
Declarations of incompatibility are more likely to be made if Section 3 is disapplied from the Bill because UK courts will have little to no legal interpretation authority. As a result, more cases would likely end up in the European Court of Human Rights if the government fails to act on a declaration of incompatibility, and this could fundamentally reduce the oversight of the UK courts, putting the UK at an increased legal liability.
What now?
The UK’s reputation as a reliable country that upholds its international obligations, which has long supported its position as an alluring hub for international investment and as an advocate of the rule of law, may be significantly impacted by this.
The majority of the Act's provisions are still pending implementation. These specifically include the Home Secretary's obligation to expel individuals who enter the UK illegally after passing through a safe nation.[17]
The government has made it clear that it won't fully implement the Act until after the Supreme Court has decided whether the policy of sending refugees to Rwanda is legal, which is anticipated in the Autumn of 2023. So now, the question is if the Act would be loophole free and efficient after the judgement of the Supreme Court on the Rwanda issue, and if the Act will serve its purpose and aim without hindering the UK’s relationship with the ECHR. I guess only time will tell.
[1] UK Government, ‘Illegal Migration Bill: Overarching Factsheet’ (GOV.UK11 May 2023) <https://www.gov.uk/government/publications/illegal-migration-bill-factsheets/illegal-migration-bill-overarching-factsheet>.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Illegal Migration Act 2023, s1(2).
[6] Ibid, s1(1).
[7] ‘What Is the Illegal Migration Act?’ (Refugee Council 3 October 2023) <https://www.refugeecouncil.org.uk/information/what-is-the-illegal-migration-act/> accessed 21 October 2023.
[8] UNHCR 1951 Refugee Convention, Article 33(1).
[9] AAA and others v Secretary of State for the Home Department [2023] EWCA Civ 745.
[10] ‘AAA and Others v the Secretary of State for the Home Department’ (judiciary.uk29 June 2023) <https://www.judiciary.uk/wp-content/uploads/2023/06/AAA-v-SSHD-summary-290623.pdf>, para 1.
[11] Ibid, para 4.
[12] European Convention on Human Rights, Art. 3.
[13] Chahal v The United Kingdom, Application No. 22414/93, 15 November 1996, para 80.
[14] Diane Taylor and Ben Quinn, ‘Braverman Plan to Send Asylum Seekers to Rwanda Unlawful, Appeal Court Rules’ The Guardian (29 June 2023) <https://www.theguardian.com/uk-news/2023/jun/29/plan-to-send-asylum-seekers-to-rwanda-is-unlawful-uk-appeal-court-rules#:~:text=Braverman%20plan%20to%20send%20asylum%20seekers%20to%20Rwanda%20unlawful%2C%20appeal%20court%20rules,-Rishi%20Sunak%20announces&text=Court%20of%20appeal%20judges%20have,hammer%20blow%20to%20government%20policy.>.
[15] ‘Illegal Migration Act: What’s Changing’ (www.lawsociety.org.uk) <https://www.lawsociety.org.uk/topics/immigration/illegal-migration-act> accessed 21 October 2023.
[16] Ibid.
[17] Joelle Grogan and Alice Donald, ‘Illegal Migration Act 2023’ (UK in a changing Europe15 August 2023) <https://ukandeu.ac.uk/explainers/illegal-migration-act-2023/>.