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Northern Ireland Human Rights Commission begins a legal challenge of the Illegal Migration Act

03 Oct 2023

The Northern Ireland Human Rights Commission has issued a legal challenge against the Secretary of State for the Home Department and the Secretary of State for Northern Ireland on the Illegal Migration Act 2023.

The Act, which received Royal Assent in July, changed the law so that those who arrive in the UK irregularly will be detained and then removed, either to their home country or a third country.

During passage of the legislation through Parliament, the Commission advised that Government proposals where incompatible with the European Convention on Human Rights and other international standards. It noted in particular a failure to protect some of the most vulnerable people including children, victims of human trafficking and exploitation.

The Commission also advised that the legislation was incompatible with obligations set out in Article 2 of the Windsor Framework. As part of the EU Withdrawal Agreement, the UK Government is required to ensure that there is no diminution of certain human rights and equality protections contained within the Belfast (Good Friday) Agreement.

Speaking about the legal challenge, Chief Commissioner of the Northern Ireland Human Rights Commission, Alyson Kilpatrick, said:

The Commission has decided to challenge the Illegal Migration Act in order to protect and uphold fundamental rights. We provided advice to Government during the Bill’s passage through Parliament that sought to amend the legislation and ensure compliance. Exercising our legal powers now is a measure of last resort, but a necessary step to protect those who are most vulnerable and prevent the violations of human rights that will undoubtedly follow if this law remains in place.

“We are concerned that the Act will effectively make it impossible for people who arrive in the UK irregularly to present as refugees. Displaced people often face perilous journeys and are denied access to fundamental rights while trying to find safe pathways to protection. Safe and legal routes of migration are rarely available. This law further denies them basic protections. The Act creates sweeping new detention powers, with limited judicial oversight. Proposed removal of vulnerable people seeking refuge to a third country without a guarantee of them necessarily accessing protection is deeply problematic.” concluded Ms Kilpatrick.


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What are the powers of the Commission?

The Northern Ireland Human Rights Commission (the Commission) protects and promotes the human rights of everyone in NI. The statutory functions of the Commission are available on our website and 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 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 powers, under s.69(5) and s.78C of the Northern Ireland Act 1998, to initiate legal proceedings relating to the protection of human rights and in respect to a possible breach of Article 2(1).

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.

These duties and powers are set out in the EU (Withdrawal Agreement) Act 2020, amending the Northern Ireland Act 1998. In particular, the Commissions’ powers and duties include:

• Advising the government of legislative and other measures that must be taken to implement the commitment.

• Powers to bring, or intervene in, legal proceedings in respect of an alleged breach (or potential future breach) of the commitment.

What advice had the NIHRC previously given in relation to the Illegal Migration Act?

The Commission made a series of recommendations during the passage of the Illegal Migration Bill through Parliament in order to bring it in line with international human rights standards and to protect and uphold rights.

Recommendations included:

  • A number of reforms to the Bill to ensure that detention was used as a measure of last resort.
  • A number of reforms to mitigate the risk of an individual being returned to a place where they may be subjected to torture or inhumane and degrading treatment in contravention of Article 3 of the European Convention on Human Rights (ECHR).
  • The NIHRC recommended that the Bill should have been revised to ensure that the principles of inalienability, universality and proportionality are embedded throughout, including in the language used, to prevent the demonisation and unjustifiable denial of human rights protection to particular groups of migrants.
  • That the purpose and provisions of the current Bill require immediate and thorough reassessment, which should take place through meaningful engagement. The result should ensure that all refugees, people seeking asylum and migrants arriving to the UK are processed and accommodated in compliance with human rights obligations, with particular focus on if, when and how individuals are transferred to a third country.
  • That the Committee explore with the Secretary of State what steps were taken to determine that the Bill complies with Article 2 of the Windsor Framework and that the Human Rights Memorandum to the Bill be amended to set out in detail an assessment of the compliance of the Bill with Article 2 of the Windsor Framework.
  • All journeys into NI, that originate from Ireland, should be exempt from Electronic Travel Authorisation requirements.
  • The UK Government’s focus is on improving case processing and reception conditions, and enhancing cooperation with other countries to expand safe pathways both in and out of the UK.

Read our submission to House of Lords on the Illegal Migration Bill here.

See our full submission to the Westminster Parliament Joint Committee on Human Rights Inquiry on Illegal Migration Bill here.

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