Northern Ireland Human Rights Commission submission to House of Lords on the Illegal Migration Bill
Date produced May 2023.
Below is a summary of our recommendations and messages.
You can also download the full document through the links provided.
2.8 The NIHRC is gravely concerned that the current draft of the Bill will add to the significant regression of human rights protection to refugees, people seeking asylum and migrants in the UK. The NIHRC recommends that the purpose and provisions of the current draft of the Bill require immediate and thorough reassessment, which should take place through meaningful engagement. The result should ensure that routes to seek and receive asylum in the UK are strengthened and expanded, in accordance with international human rights obligations.
2.9 The NIHRC recommends that the current draft of the Bill should be revised to ensure that the principles of inalienability, universality and proportionality are embedded throughout, including in the language used, to prevent the stigmatisation of refugees, people seeking asylum and migrants who arrive to the UK through unofficial routes.
2.18 The NIHRC recommends that peers explore with Ministers what steps the Secretary of State has taken to assure herself that the Bill complies with Article 2 of the Windsor Framework.
2.19 The NIHRC recommends 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.
2.21 The NIHRC recommends that the key terms in the Bill are defined in an interpretation provision.
2.25 The NIHRC recommends that clause 1(5) of the current draft of the Bill is removed and that continued access to domestic courts for human rights violations is ensured, which is a specific requirement of the Belfast (Good Friday) Agreement 1998.
3.9 The NIHRC recommends that clauses 2 and 4 of the current draft of the Bill are removed and that any proposed amendments to the UK asylum system focus on strengthening and building upon current procedures. The purpose and provisions of the current Bill require immediate and thorough reassessment, which should take place through meaningful engagement. This includes ensuring 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.
3.13 The Bill should ensure that there are explicit safeguards in place for individuals at particular risk or individuals with specific needs in line with human rights obligations and the minimum standards required by the EU Reception and Qualification Directives. This includes ensuring protections are in place for children, women and girls, persons with disabilities, older people, pregnant women, ethnic and racial minorities, single parents with children and individuals who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.
3.17 The NIHRC recommends that the Bill be amended, as regards its effect in NI, to comply with the EU Procedures Directive and the Qualifications Directive in terms of admissibility of claims; the right to remain pending consideration of an application for asylum; and individual consideration of applications.
3.19 The NIHRC recommends that all journeys into NI, that originate from Ireland, should be exempt from Electronic Travel Authorisation requirements.
3.21 The NIHRC recommends that 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.
3.25 The NIHRC recommends that amendments are brought forward to address the potential retrospective application of Clauses 4, 5, 15 and 21, to ensure compliance with Article 7 of the ECHR and the principle of non-retroactivity.
4.6 The NIHRC recommends that the Bill be amended to ensure that migrants and asylum seekers may not be detained other than in exceptional circumstances and in line with the UK’s international obligations and Windsor Framework Article 2.
4.12 The NIHRC recommends that all provisions related to detention must be reviewed and amended to ensure access to justice and judicial oversight on detention powers conferred to the Home Secretary, in line with international human rights obligations and Windsor Framework Article 2.
4.15 The NIHRC recommends that clause 13 of the current draft of the Bill is removed and that the duty to consult the Independent Family Returns Panel is maintained.
5.9 The NIHRC recommends that any action on behalf of refugee, asylum seeking and migrant children, including unaccompanied children, who arrive in the UK by any means should be guided by principles enshrined in international human rights law and Article 2 of the Windsor Framework. This includes ensuring that the best interests of the child are a primary consideration in all decisions and actions taken. This requires ensuring that children are not left in limbo until they reach adulthood and that any linked decisions do not risk exposing an individual who was a child on arrival in the UK to harm or persecution at a later date, including when they reach adulthood.
5.16 The NIHRC recommends that the Bill, unlike what is set out in Clause 10 of the current draft, ensures that a child, either separately or with their family, is not detained for irregular entry or stay in the UK. The Bill should provide for measures that allow children to remain with their family members and/or guardians in non-custodial, community-based contexts while their immigration status is being resolved. The Bill should also expressly require that any such measures adopted should be in the specific child’s best interests.
5.23 The NIHRC recommends that Clauses 15 to 20 are removed from the Bill and that any new proposals for the care and support of unaccompanied children aim to build on the UK’s existing child protection systems, in accordance with the UN CRC and Article 2 of the Windsor Framework.
5.29 The NIHRC recommends that the best interests of the child will be the primary consideration in all age assessment procedures and that provision is made for the child’s voice to be heard in all matters which concern them. This should also mean that all relevant information to the child in advance of, and during the age assessment itself.
5.30 The NIHRC recommends that the Bill be amended to remove the provision enabling a child to be treated as an adult if they refuse consent to undergo medical examination.
6.12 The NIHRC recommends that clauses 21 to 28 of the current draft of the Bill are removed and that protections provided to victims and potential victims of modern slavery and human trafficking are ensured, in accordance with Article 4 ECHR and in accordance with the relevant EU Directives within scope of Windsor Framework Article 2.
7.9 The NIHRC recommends that the proposals under Clauses 29 to 36 which prohibit the entry, settlement and citizenship of any person who arrives to the UK through an unofficial route are removed. The Bill should ensure that individuals are not penalised for seeking asylum in the UK and that the UK settlement and citizenship processes are not arbitrary and adhere to the principle of non-discrimination.
8.15 The NIHRC considers that Clauses 4 and 37 to 49 may breach Windsor Framework Article 2 by diminishing the rights provided to individuals in the EU Procedures and EU Qualifications Directives and recommends that individuals are afforded the protections guaranteed under these Directives in connection with their asylum applications to ensure adherence to the rule of law and the right to an effective remedy.
8.20 The NIHRC recommends that clause 52 of the current draft of the Bill is removed. Steps should be taken to ensure that any subsequent amendments to the Bill are compliant with Article 34 ECHR and Rule 39 of the European Court of Human Rights.