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How Government Seeks To Curb Human Rights Courts In Illegal Migration Bill

Suella Braverman gave in to Tory rebels who wanted to toughen up the Bill (Alamy)

11 min read

The controversial Illegal Migration Bill will be debated in the Commons this week including amendments to further limit the powers of human rights courts in the UK and Europe.

Prime Minister Rishi Sunak and Home Secretary Suella Braverman have repeatedly set out their desire to reduce illegal migration as a government priority. An issue regularly raised by voters, Sunak made one of his five new year pledges: ‘stop the boats’.

The government intends to achieve this aim with the Illegal Migration Bill, but the proposed legislation has been met with criticism from numerous angles across the political divide – and as its passage through parliament continues, different groups are calling for amendments that will either harden its stance or soften its impact. 

The Home Office has now published amendments that would allow the home secretary to gain more powers to ignore the rulings of the European Court of Human Rights (ECHR), as well as tightening the rules around when deportations can be blocked by UK courts.

The government, however, faces criticism that the Bill could fail to protect victims of trafficking, children, and people with protected characteristics such as pregnant women and disabled people. 

Here is everything you need to know:

What is the Illegal Migration Bill?

The Bill would curtail the rights of asylum seekers if they did not arrive in the UK via a safe or legal route. New arrivals will be removed to a ‘third’ country and banned from ever returning to the UK or claiming citizenship.

It would allow authorities to detain Illegal migrants without bail or judicial review within the first 28 days of detention until they can be removed, and the legislation sets out a duty on the home secretary to remove illegal entrants. It will also aim to limit the ability of asylum seekers attempting to prevent deportation by relying on human rights laws.

The Bill was applied from Tuesday 7 March 2023, with all cases backdated to this date, despite the Bill being expected to take months to pass through parliament. Therefore any migrants who cross the Channel illegally from that date will now be subject to the new law. 

How has the Bill progressed through parliament?

At the Commons committee stage in March, the government fought off rebels and rejected four amendments after MPs voted on potential changes. 

Conservative MP Tim Loughton led a rebellion with the support of Labour which tried to get the government to concede on providing “safe and legal” routes for refugees to seek asylum.  

The amendment was not accepted, but Loughton said the government “moved in the right direction” and said he would force through more amendments at a later stage unless the government makes a firm commitment to providing more safe routes. 

An amendment to the Bill which prevents juvenile asylum seekers from being affected by the new powers was also previously rejected. 

What new amendments have been announced by the government? 

On Friday, the government announced its own amendments and stated it would support some of the amendments put forward by backbenchers when the Bill is debated in the Commons at report stage this week. 

After increasing pressure from MPs on the right of the party who want to limit the impact of human rights laws on deportation policies, the government has tabled an amendment to give the home secretary the power to ignore interim measures from the ECHR when making arrangements for the removal of a person from the UK.

The government’s controversial Rwanda asylum scheme has not so far deported any asylum seekers due to clashes with human rights laws. In 2022, a last-minute legal challenge prevented the first plane leaving the UK to deport migrants to Rwanda under the home secretary’s new scheme.

The new amendment will give ministers the legal authority to ignore “Rule 39” orders from the ECHR, such as the one which grounded the Rwanda flight last year. Despite the UK leaving the European Union, the UK Human Rights Act states that UK courts "must take into account" – but not necessarily follow – any judgment or advisory opinion of the ECHR.

Home Secretary Suella Braverman said: "The British public are rightly fed up with people coming to the UK through dangerous small boat crossings, and myself and the Prime Minister are absolutely committed to stopping the boats once and for all.

"The changes I am announcing today will help secure our borders and make it easier for us to remove people by preventing them from making last minute, bogus claims, while ensuring we strengthen our safe and legal routes.

"My focus remains on ensuring this landmark piece of legislation does what it is intended to do, and we now must work to pass it through Parliament as soon as possible so we can stop the boats."

What is “Rule 39”?

The European Court of Human Rights is based in Strasbourg, France (Alamy)

“Rule 39” orders, under the ECHR's Rules of Court, are interim measures which only apply where there is an imminent risk of irreparable damage. 

They are typically used by human rights organisations or NGOs seeking urgent intervention to stop asylum-seekers being extradited or expelled, particularly where the migrants are deemed to be vulnerable individuals whose human rights would be at risk from deportation from another country. 

By giving the home secretary the right to ignore “Rule 39”, those calling for tougher immigration policies hope to minimise the chances of deportations being called off at the last minute. 

What backbench amendments will the government support?

The government confirmed it will support some of the amendments put forward by backbenchers, from both the right wing of the party and by more moderate Conservatives. 

One such amendment, tabled by the 'Common Sense Group' of right-wing Tories, includes measures to prevent UK courts from intervening to stop a removal.

Another amendment which will have the support of the government is one to ensure there are more safe and legal routes for asylum seekers. The new clause will require the Secretary of State to prepare and publish a report on safe and legal routes for entry into the UK.

Ministers have already been working on plans for routes for 20,000 refugees next year, according to the Telegraph.

Who is behind these amendments?

Conservative MPs Bill Cash, Danny Kruger, Jonathan Gullis, John Hayes and Simon Clarke are among those leading the hardline amendments limiting court powers. 

Kruger told the BBC he was "grateful to the prime minister and the home secretary for their work" and said he thinks that the British public "are fed up with London lawyers and Strasbourg judges getting in the way of a sensible migration policy".

Clarke told The Times last month that the Prime Minister had made "really welcome commitments to firm action" on illegal Channel crossings.

“But these must not be frustrated by our human rights framework, which was never drawn up with the current abuses in mind,” he said.

“In the end action, not words, is vital to end the awful situation whereby so many people are currently persuaded to give their life savings to criminal gangs and then to put their lives at risk to cross the Channel illegally.”

Conservative MP Tim Loughton led the amendment for safe and legal routes, with the support of other prominent Conservatives including Caroline Nokes, Robert Buckland, and some Labour MPs.

These politicians are among those who believe the Bill risks undermining human rights, and many have been involved in other amendments which seek to protect vulnerable migrants.

Who opposes these amendments?

Multiple charities have criticised the government for introducing a Bill that could potentially be in breach of international human rights laws.

The director of British Red Cross, Christina Marriott, told BBC News in March that harsher asylum systems "isn't the way" to reduce numbers of people crossing the Channel illegally, and suggested the government instead focus on “good, safe, controlled routes to asylum”.

Think tank the Institute for Public Policy Research (IPPR) has pointed out that Afghans in particular could be put at risk as a result of the Bill, as nearly 1,000 Afghans have tried to cross the Channel in small boats in the first quarter of this year and the total asylum backlog is still more than 138,000.

Marley Morris, IPPR associate director for migration, trade and communities, said: “Today’s migration statistics expose the muddled thinking at the heart of the government’s new migration bill.

“While the government claims there are safe routes for Afghans, these have been plagued by delays and difficulties. Only 22 people were resettled under one of the key Afghan pathways in 2022. 

“While the statistics show some progress is being made on reducing the ‘legacy’ backlog of old cases, the migration bill will simply create a new backlog of people trapped outside the asylum system and with no right to work or access mainstream benefits.” 

The Equality and Human Rights Commission (EHRC) has warned the Bill could breach international human rights protections – although the home secretary herself has admitted this might be the case.

Their latest briefing highlights that the Bill could result in the government failing to protect vulnerable groups such as victims of trafficking, children, and people with protected characteristics such as pregnant women and disabled people.

Labour has been critical of the government's approach, with Shadow Home Secretary Yvette Cooper previously accusing the Conservatives of chasing headlines instead of “setting out serious solutions”. The opposition party will table their own amendments to the Bill to be debated this week.

The Refugee Council has spoken against the attempts to curb human rights courts, but in support of any amendment to introduce more safe routes for refugees.

“Moving away from international agreements that safeguard the rights of refugees and people seeking asylum is not in line with our values as a country with a long and proud history of upholding and protecting human rights," Mark Davies, Head of Communications and Campaigns at the Refugee Council, told PoliticsHome.

“We would welcome amendments to the asylum bill that could help reduce the number of people taking dangerous journeys to find safety in the UK, including the expansion of safe routes such as refugee visas."

Former head of the judiciary of England Lord Thomas told BBC Radio 4 in response to the amendments relating to the power of courts before they were announced: "I think it is a very serious step for the Government to be contemplating putting into force.

"Many people would say having the power to ignore a court order is something – unless the circumstances were quite extraordinary – this is a step a government should never take because it is symbolic of a breach of the rule of law."

He suggested the more hardline amendments would struggle to pass through the House of Lords.

What other amendments have been tabled?

migration bill protest outside parliament
Some Conservative MPs have campaigned for more safe routes for asylum-seekers to enter the UK legally (Alamy)

Some MPs have also called for age checks on asylum-seekers to prevent individuals from pretending to be unaccompanied minors, although it seems unlikely there will be legislative changes for this. 

Other amendments have been put forward calling for enhanced protections for unaccompanied child refugees.

The Labour Party has tabled an amendment to the government’s Illegal Migration Bill that would put a duty of the home secretary to consult with local authorities when choosing areas for asylum seeker accommodation.

The opposition party is also adding an amendment that requires that the secretary of state must establish a process to fast-track asylum claims from specified countries within 60 days of the Illegal Migration Act coming into force.

When the Bill enters the House of Lords, it is likely that a number of peers will also add their own amendments.

What next?

The final Commons stages of the Bill will begin this week with the new amendments to be debated in the chamber.

As it progresses to the Lords, the Bill will be met with further opposition and might take weeks to pass. 

In an interview with ConservativeHome earlier this month, the Prime Minister refused to say he will have delivered his pledge to "stop the boats" by the time of the next general election, which is expected to take place in 2024.

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