Illegal Migration Act challenge Factsheet

In September 2023, the Commission issued a legal challenge against the Illegal Migration Act 2023 in the form of a judicial review at the High Court in Belfast. This challenge is against the Secretary of State for the Home Department and Secretary of State for Northern Ireland.

Why has the Commission decided to issue this case?

The Commission decided to issue the challenge due to the significant human rights implications the Illegal Migration Act (IMA) will have for asylum seekers in Northern Ireland, in particular the barriers created for individual legal challenges removing the ability to appeal and judicially review decisions in most circumstances.

The Commission had raised concerns about the compatibility of the legislation with the UK Government’s human rights obligations during its passage through Parliament. The Commission made recommendations to the UK Home Office, which were not followed, and the Bill received Royal Assent on 20 July 2023.

The Commission has issued legal proceedings as a last resort. Once the IMA provisions come into force, they will have a very harmful effect on most asylum seekers who seek refuge in NI, removing the ability to claim asylum except in very limited circumstances. In particular there would be a failure to protect some of the most vulnerable people including children and victims of human trafficking and exploitation.

A number of the Commission’s specific concerns include:

• The IMA provides for the removal of asylum seekers. Once a person is notified of removal, they can then be sent to a country with which they have no previous connection, including countries that are not signatories of the 1951 Refugee Convention.

• Victims of modern slavery and trafficking and children can be removed under the IMA, with support for victims of trafficking being withdrawn.

• A person who is served with a removal notice has limited time to challenge that decision and must produce compelling evidence that they face a “real, imminent and foreseeable risk of serious and irreversible harm if removed” to the country specified in the removal notice.

• Once a person has been detained for removal, they cannot apply for bail within the first 28 days of detention. For many of those who are not subsequently removed, they will be left indefinitely in legal limbo: unable to claim asylum, meaning they cannot work or have recourse to public funds.

The provisions under challenge stand to adversely affect thousands, if not tens of thousands, of individuals each year. The Commission believes that the IMA will, unlawfully threaten their life, dignity and liberty.

What human rights obligations does the IMA breach?

The Commission believes that the IMA is in breach of the UK’s domestic and international human rights obligations under Article 2(1) of the Windsor Framework, 1951 Refugee Convention and the European Convention on Human Rights (ECHR).

Article 2(1) of the Windsor Framework

Article 2(1) of the Windsor Framework is a UK Government commitment to ensure that no diminution of rights, safeguards or equality of opportunity, as set out in the relevant part of the 1998 Belfast (Good Friday) Agreement, results from the UK’s withdrawal from the European Union. The relevant chapter is broadly drawn and opens with a commitment to protect ‘the civil rights and religious liberties of everyone in the community’.

The Commission considers the relevant EU law to be:

• The 2005 Procedures Directive which provides for minimum standards for granting and withdrawing refugee status;
• The 2004 Qualification Directive which sets common criteria to identify genuine people in need of international protection and the content of that protection;
• The 2011 Trafficking Directive which sets out minimum standards throughout the EU in preventing and combating trafficking in human beings and protecting victims.

The Commission has identified a series of provisions in the IMA that fall short of the minimum standards required by these Directives. Had the UK remained in the EU, such reductions in rights would have been unlawful. Therefore, this constitutes a diminution in rights, contrary to Windsor Framework Article 2.

For example, S. 2(1), s. 5(1) and s.6 IMA require removal in specified cases even if a protection or human rights claim has been made, appears incompatible with Article 7(1) of the Procedures Directive which requires that a person may remain in the UK until an asylum claim has been properly determined.

Under UK law[1] flowing from Withdrawal Agreement Article 4, the provisions of the treaty, including the Windsor Framework, continue to have ‘supremacy’ and incompatible domestic legislation can be disapplied with respect to Northern Ireland.

European Convention on Human Rights

Article 3 ECHR is an absolute right which prohibits torture, inhuman and degrading treatment. The Commission argues that the mechanism for a suspensive claim under the IMA does not satisfy the Article 3 duty to conduct an individual assessment prior to removal. Where a suspensive claim is unsuccessful, the person in question would face a real risk of a breach of Article 3 (or of Article 2, the right to life, in certain cases) in the country they are removed to.

Article 4 ECHR is an absolute right which prohibits slavery and forced labour. The Commission argues that, where there is a credible suspicion of trafficking, removing that individual before a conclusive grounds decision or a determination of any asylum/protection claim based on the person’s fear of being re-trafficked is a breach of Article 4.

Article 5 ECHR is a limited right which protects the right to liberty and security. The Commission believes that the prohibition on a Court from determining the lawfulness of detention in the first 28 days of detention is in breach of Article 5.

Article 8 ECHR is a qualified right which protects the right to private and family life. The Commission will argue that removal of a child will, in defined cases engage, the child’s rights under Article 8, for example, when the child has close family in the UK. In such cases, the authorities must treat the child’s best interests as a primary consideration in all actions concerning the child, in accordance with Article 3(1) of the UN Convention on the Rights of the Child.

What powers does the NIHRC have?

The statutory functions of the Commission are available on our website here which include to keep under review the adequacy and effectiveness of law and practice relating to the protection of human rights in Northern Ireland.

Since 1 January 2021, both the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland have had duties and powers to monitor, supervise, advise, enforce, and report on the UK Government’s commitment in Article 2 of the Windsor Framework.

The Commission has issued this challenge under its own motion powers, provided for under s.71(2B) and s.78C of the Northern Ireland Act 1998, which enable a legal challenge without reference to an individual victim.

What is the timeline for taking action?

The Commission requested expedition of this case so that all sides know the proper legal position as soon as possible. On 10 October 2023, the High Court in Belfast granted the Commission leave (on the papers) to apply for judicial review and set a 3-day hearing starting on 29 January 2024.

What will be the outcome if successful?

The Commission has sought Declarations that the IMA is in breach of Article 2(1) of the Windsor Framework and the ECHR.

With respect to Article 2(1) of the Windsor Framework, if the High Court holds that there is a breach, the parts of the law must be disapplied with respect to Northern Ireland.

If the legislation is declared incompatible with the ECHR, it will not be automatically disapplied. Further steps will be required by the UK Parliament to remove the incompatibility.

[1] Section 7A EU (Withdrawal) Act 2018