The Illegal Migration Bill, that had its second reading on the 13 March, is a widespread attack on fundamental human rights and the rule of law. It stops asylum-seekers, victims of trafficking and other migrants from making admissible asylum and human rights claims, deprives protections for those who have been trafficked, and ousts the jurisdiction of the courts. Whilst the subject-matter of the Bill deals with immigration and detention, it has concerning repercussions in strengthening ministerial and prerogative powers, whilst at the same time undermining judicial scrutiny. In short, it sets a very dangerous precedent indeed.
A Duty to Remove
Under the Bill, the Home Secretary MUST remove an adult, or MAY remove an unaccompanied child, if four conditions are met, one of which is arriving irregularly through a third country, without their asylum and/or human rights claims being admitted. Notwithstanding, that the four conditions would have applied to the vast majority of those subsequently recognised as refugees in the UK, such a blanket provision denies the human rights of those reside in the UK, albeit it temporarily. This is a significant undermining of the protection declared in the Human Rights Act 1998 and the UN Declaration on Human Rights. In addition, the Bill removes protections for victims of modern slavery and trafficking, if they come to the UK unlawfully. This is contrary to the Government’s stated commitment to victims of modern slavery and trafficking through the passing of the Modern Slavery Act 2015.
Extending the Powers to Detain
Ancillary to the duty to remove, the Government has proposed extending the powers to detain, overturning the principle that it is for the court to decide for itself whether the length of detention is reasonable. Instead, the courts will have to defer to the opinion of the Secretary of State as to what is reasonably necessary for arrangements to be made for a detainees’ release.
The Bill seeks to remove the jurisdiction of the High Court, other than in habeas corpus, over the Secretary of State’s decision to detain individuals during the initial 28 days of detention. This is an attempt to avoid the legal scrutiny of decisions which interfere with the fundamental liberty of individuals. This provision and the removal of the right to bail during the first 28 days of detention allows the Secretary of State to act with almost total impunity.
Interim Measures of the ECHR
The Secretary of State, through prerogative powers, unscrutinised by Parliament, may make regulations about interim measures of the ECHR. This is again a usurpation of the power of a supervisory, specialist, human rights court.