The Challenge
In 2023, the NIHRC issued judicial review proceedings against the Secretary of State for the Home Department and the Secretary of State for Northern Ireland in respect of a number of provisions of the Illegal Migration Act 2023.
The NIHRC had raised concerns about the compatibility of the legislation with the UK Government’s human rights obligations during its passage through Parliament. The NIHRC made recommendations to the UK Home Office, which were not followed, and the Bill received Royal Assent on 20 July 2023. [link to policy subs]
The NIHRC issued these own-motion proceedings under s. 71(2B) and s.78C of the Northern Ireland Act 1998.
Human Rights engaged
The NIHRC identified a number of provisions of the Act that were in breach of Articles 3, 4, 5 and 8 ECHR.
Further, that these provisions constituted a diminution in rights, contrary to Article 2(1) of the Windsor Framework. The relevant EU law is the EU Procedure Directive 2005, EU Qualification Directive 2004 and the EU Trafficking Directive 2011.
Outcome
The High Court declared that sections 2(1), 5(1), 5(2), 6, 13(4), 22(2), 22(3), 25, 54 and 57 were in breach Article 2 of the Windsor Framework of the EU-UK Withdrawal Agreement. These provisions were disapplied by the Court.
The High Court also made Declarations of Incompatibility in respect of sections 2(1), 5(1), 6(3) and 6(7) are incompatible with Article 3 ECHR insofar as they impose a duty to remove; sections 2(1), 5, 6, 22 and 25 are incompatible with Article 4 ECHR insofar as they relate to potential victims of modern slavery or human trafficking; and sections 2(1), 5(1) and 6 are incompatible with Article 8 ECHR insofar as they relate to children.
Judgments
In May 2024, the High Court rejected an application for a stay and confirmed the Order of the Court will take immediate effect.
High Court - Re NIHRC [2024] NIKB 35 and Re NIHRC [2024] NIKB 44
Current Status
The appeal before the Court of Appeal has been stayed. Permission to appeal to the UK Supreme Court, by the Secretary of State for the Home Department, was refused in July 2025.