Illegal Migration Act 2023: disapplied in Northern Ireland and incompatible with the ECHR

In Re The Northern Ireland Human Rights Commission [2024] NIKB 35, the High Court in Northern Ireland held that a number of central provisions in the Illegal Migration Act 2023 were in breach of article 2 of the Windsor Framework (formerly named Northern Ireland Protocol) within the EU Withdrawal Agreement. Those provisions are sections 2(1), 5(1), 5(2), 6, 13(4), 22(2), 22(3) and 57. The court decided that each of them lead to a ‘diminution of’ (that is, they were incompatible with) certain rights within the EU Procedures Directive, Qualification Directive, Trafficking Directive, the Dublin III Regulations and the EU Charter (“the EU Law rights”). As a consequence, the Court disapplied all of those provisions in Northern Ireland.

The Court also held that the following provisions of the IMA 2023 are incompatible with articles 3, 4, and 8 of the European Convention on Human Rights, and as a consequence granted a declaration of incompatibility under section 4 of the Human Rights Act 1998:

• Sections 2(1), 5(1), 6(3) and 6(7) insofar as they impose a duty to remove. 

• Sections 2(1), 5, 6 and 22 insofar as they relate to potential victims of modern slavery or human trafficking. 

• Sections 2(1), 5(1) and 6 relating to children. 

This was an application for judicial review by the Northern Ireland Human Rights Commission (“the Commission”). A separate application, by a child named JR295, was joined after the substantive hearing, which raised some additional points about unaccompanied minors. Those additional points are not examined in this note. 

The Commission was represented by Adam Straw KC, leading Yaaser Vanderman from Landmark Chambers. 

The Court’s conclusions about article 2 of the Windsor Framework

What follows is a more detailed summary of the Court’s conclusions. Article 2 of the Windsor Framework provides that the UK shall ensure that there is no diminution of rights as set out in the relevant part of the Belfast (Good Friday) Agreement 1998. The Court held that “rights” extended to the rights of everyone in the community in Northern Ireland, including asylum seekers. The EU Law rights relied on by the applicants conferred individual rights, and were clear and precise, so had direct effect on 31 December 2020. The specific respects in which the IMA 2023 caused or will cause a diminution of the EU Law rights enjoyed on 31 December 2020 are as follows. 

Effective examination and grant of asylum claim 

The relevant provisions of the Act apply to someone who makes an asylum claim (a claim to be a refugee or for subsidiary protection) after 20 July 2023, and who meets the ‘section 2 conditions’: that is, they arrived in the UK irregularly and indirectly. For any such person, the SSHD is obliged to by section 5(2) IMA to declare such an application inadmissible. This leads to a diminution of rights because: 

1. There will not be the “appropriate examination” of the substance of the application for asylum as required by article 8(2) of the Procedures Directive, and article 4(3) of the Qualification Directive.
2. The UK will not grant refugee status or subsidiary protection to a person who qualifies for it, which is inconsistent with articles 13 and 18 of the Qualification Directive. 

The remaining claims which can be made under the IMA do not provide for the grant of refugee or subsidiary protection status, or for the rights that are contingent on the grant of that status, or for an equivalent remedy. Nor do they provide for the proper and individual assessment and determination of asylum applications as required by EU Law. 

A country of origin human rights claim must be declared inadmissible: s.5(2) IMA. While a third country human rights claim is admissible, a successful claim does not require the same grant of rights, and does not suspend removal. In the opinion of the UNHCR such “out of country remedies are generally ineffective in practice” (report of 2 May 2023).

A successful suspensive claim made under s.38-47 IMA 2023 only disapplies the removal duty. It does not lead to a grant of international protection status, nor the rights contingent on it. It only applies to third country removals, and will not allow an examination of the asylum application on the sole basis of the risk of harm in the person’s own country. 

The Court also held that “A serious harm suspensive claim provides for an elevated and more difficult threshold than the test for refugee status or subsidiary protection in the Qualification Directive. In particular:…” It then gave a number of reasons for that conclusion, which included that (a) the ‘real, imminent and foreseeable risk’ test is a higher threshold than that set out in the Directives, which does not require any risk to be imminent; (c) in a suspensive claim, an applicant must prove the risk arises in the country in the removal notice, rather than in the country of origin; (d) the applicant must provide ‘compelling evidence’ that the serious harm condition is met, whereas there is no such requirement in EU Law; and (e-g) the strict time limits for a suspensive claim, may mean that otherwise meritorious suspensive claims are rejected as being out of time. 

Effective remedy

Sections 5(2 and 4) and 54 lead to a diminution of the right to an effective remedy in article 39 of the EU Procedures Directive, read with article 47 of the EU Charter. That is firstly because there is no route of appeal against a decision taken pursuant to EU Law that the application is inadmissible. Secondly, a suspensive claim is only available in limited circumstances, and a court otherwise has no power to grant interim relief that prevents or delays removal. 

Removal/ non-refoulement

Sections 2, 5 and 6 of the IMA lead to a diminution of the right in article 7(1) of the Procedures Directive, that an applicant may remain in the Member State until their asylum application has been determined. That is firstly because many people will be removed without their asylum claims being individually determined. Secondly, the availability of a suspensive claim does not cure that problem, since it does not lead to a grant of refugee status. 

Thirdly, the duty to remove is inconsistent with the exceptions in articles 25-27 of the Procedures Directive. Article 27 permits a claim to be declared inadmissible in respect of safe third countries if certain conditions are met. The requirement in article 27(2)(a) is not met, namely that national legislation must contain rules requiring a connection between the person seeking asylum and the third country on the basis of which it would be reasonable for that person to go to that country. Further, a number of the countries in Schedule 1 IMA 2023 do not meet the definition of a ‘safe third country’ in article 27(1). A suspensive claim does not remedy the deficiency, in part because it contains a higher threshold than article 27(1). 

There was also a diminution of the right of non-refoulement in article 21 of the Qualification Directive read with article 33 of the Refugee Convention. That is largely for the same reasons as in respect of removal, set out above. In addition, a serious harm suspensive claim does not ensure that the principle of non-refoulement is respected: “A suspensive claim would not be successful on the grounds that the country to which the person is being removed will fail to determine a substantive asylum application properly and in accordance with the EU rules.  Furthermore, the threshold is higher in that the risk must be ‘imminent’ as well as being real.” §138. 

Detention

Pursuant to s.13 IMA, a court and tribunal cannot question or set aside a decision to detain for the first 28 days of detention. An exception to this is an application for habeus corpus. The 28 day rule is a diminution of the right in article 18 of the Procedures Directive to speedy judicial review when an asylum seeker is held in detention.   

Trafficking

Sections 22 and 25 IMA mean that where the section 2(1) duty applies, and a reference relating to the person has been, or is about to be, made to the competent authority for a reasonable grounds decision, the duty in section 18 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 to provide assistance and support, is disapplied. This is a diminution of the right in article 11 of the Trafficking Directive, which requires the Member State to ensure that assistance and support are provided to a victim of trafficking as soon as the competent authorities have a reasonable-grounds indication for believing that the person might have been subjected to trafficking, 

Children

The section 5(2) duty to declare protection and human rights claims inadmissible applies to children on a blanket basis.  This is a diminution of the EU Law right that the best interests of the child should be considered before a claim for international protection is declared inadmissible. Furthermore, whilst a third country human rights claim is admissible, it does not suspend removal, which is inconsistent with the EU law duty to take into account the child’s best interests, in respect of these decisions, prior to removal. Contrary to those rights, under the IMA the best interests of the child will not be a primary consideration before removal of every accompanied child. 

The Court’s conclusions about the ECHR

The Court noted this is an ‘ab ante’ challenge, in that the applicant was not seeking a declaration that its own rights had been breached. It referred to caselaw that there is a higher hurdle in an ab ante challenge. Nevertheless, it granted a declaration of incompatibility in three areas. Its reasons for doing so are as follows. 

Removal

First, the removal provisions in the IMA are incompatible with article 3 ECHR. It is inevitable that the section 2 duty will require removal of persons in circumstances where they have advanced valid protection or human rights claims and those have not been assessed. There will be no examination of whether or not those individuals are at real risk of being subjected to treatment contrary to article 3. The court gave a number of reasons for this conclusion, which included the following: 

• A third country human rights claim may not be determined prior to removal and (if so) the assessments required by article 3 will not occur.
• A suspensive claim will not, in a number of cases, determine whether there are substantial grounds to believe the individual will be at a real risk of treatment contrary to article 3, directly or indirectly, if removed, or the asylum claim is well-founded.
• A serious harm suspensive claim concerns the risk of serious harm in a third country in the removal notice.  By contrast, an asylum claim may be upheld based solely on risk in the country of origin.
• In a serious harm suspensive claim the harm must arise within the “relevant period” whereas there is no such requirement in article 3 claim or an asylum claim.
• A person must supply “compelling evidence” to establish a suspensive claim, whereas that is not required for the purpose of article 3.
• To establish that removal would breach article 3, it is not necessary for the applicant to show a “real, imminent and foreseeable risk of serious and irreversible harm if removed” in the third country as required by a suspensive claim.  It is sufficient for there to be a “real risk” of treatment contrary to article 3, or a real risk of the asylum seeker being denied an adequate and reliable asylum procedure in the third country.
• “Serious and irreversible harm” is more limited than treatment which would infringe article 3. Section 39(5)(c) of the IMA excludes from the definition of ‘serious and irreversible harm’ any harm resulting from differences in the standard of healthcare between the UK and the receiving country. In AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, the Supreme Court followed the Grand Chamber decision in Paposhvili v Belgium [2017] Imm AR 867, and held that an applicant could rely on article 3 when he or she would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to either a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or a significant reduction in life expectancy.
• The very short time limit for a suspensive claim will in many cases inhibit the person’s ability to obtain legal advice and the required compelling evidence of serious harm, and to produce an effective claim.
• A serious harm suspensive claim will not meet the article 3 requirement that the UK authorities examine whether the third country will deal adequately and reliably with the asylum claim.

In Ilias the Grand Chamber made it clear that states may establish lists of ‘presumed safe’ states but, in doing so, this must be sufficiently supported at the outset by an analysis of the relevant conditions in that country and, in particular, of its asylum system: §152.  In R (EM (Eritrea)) v SSHD [2014] UKSC 12, Lord Kerr commented “this calls for a rigorous assessment.” The uncontroverted evidence adduced on behalf of the NIHRC is to the effect that such rigorous assessment has not been carried out in relation to Albania, India, Mongolia, or Mauritius.

Trafficking

Once the IMA is in force, the duty to remove imposed by sections 2, 5 and 6 IMA, read with section 22, will mean that a person in respect of whom a positive reasonable grounds decision has been made will be removed prior to any identification process being complete, or before any asylum claim based on the fear of being re-trafficked has been determined. That is incompatible with article 4 ECHR read with article 10(2) of ECAT, which forbids removal until the process of identification is complete. Further, the disapplication of the duty to provide assistance and support will be incompatible with the requirements to provide support in article 4 ECHR read with articles 12(1) and (2) of ECAT. 

Children

The duty to remove in section 2 and 6 of the IMA (subject to section 4) and the duty to declare certain types of claim inadmissible under section 5 will mean that the accompanied child’s interests will not be a primary consideration and, as such, will not satisfy the “in accordance with the law” requirement in article 8 ECHR. 

Detention

The Court declined to grant a declaration of incompatibility in respect of article 5(4) ECHR, the right to a speedy determination of the lawfulness of detention. That was because the remedy of habeas corpus may be invigorated and may, even within the first 28 days, enable there to be a proper and full determination of the lawfulness of detention. For the purposes of an ab ante challenge, it therefore could not be said that the detention provisions could not be operated in a Convention compliant way.