Revisiting Canute’s folly: the second reading of the Illegal Migration Bill in the Lords

Introducing the Illegal Migration Bill at its second reading on 10 May, Lord Murray deployed familiar tropes, setting ‘illegal migrants’ (formerly known as asylum seekers) and their legal representatives, against the British people and the courts (House of Lords, 10 May 2023, col. 1782). The Home Secretary warned the Lords that they would be “frustrating the will of the people” if they accepted Lord Paddick’s amendment to reject the Bill in its entirety.

It is very disappointing to see ministers deploying the toxic language of the hostile environment, so much criticised by Wendy Williams in her review of the Windrush affair, where people are deemed illegal by their very existence. A particular low point came when immigration minister, Robert Jenrick, speaking to the Policy Exchange stated that “excessive, uncontrolled migration threatens to cannibalise the compassion of the British public.”

It is important to recognise that considerable damage has already been done to the UK’s reputation internationally (as emphasised by the description of the bill as an ‘asylum ban’ by the United Nations High Commissioner for Refugees (UNHCR) which oversees the global refugee protection system, in addition to unprecedented criticism from regional and global refugee and human rights organisations). Baroness Kennedy told peers how lawyers at the United Nations were asking: “What is happening to Britain—the Britain that led the world in championing the rule of law; that was the flagship nation in creating the rules-based order after World War II; that drafted the European Convention on Human Rights and was key to so many conventions, including the refugee convention, and created the model for the modern slavery legislation that is being taken up in other countries?” (House of Lords, 10 May 2023, col. 1916).

The argument that there are virtually no legal routes to asylum in the UK has been emphasised many times and I will not repeat it here. But the government’s narrative on asylum is beginning to infect discussions around all migration into the UK. Nowhere is it more apparent than the Home Secretary’s misleading statement introducing the bill, which she subsequently withdrew: “let us be honest: by some counts there are 100 million people around the world who could qualify for protection under our current laws. Let us be clear: they are coming here” (Official Report, 8 March 2023, col. 846).

The escalating narrative

On BBC Question Time on 11 May radio host Nick Ferrari responded to critics of the bill noting that eight million migrants had come to the UK since 2015, conveniently ignoring the fact that the overwhelming majority are temporarily here as workers and international students making significant contributions to the economy. There is now an uncomfortable coalescence of xenophobic narratives featuring Brexit, the hostile environment and asylum that references a battle of cultures, values and lifestyles.

The argument that the bill is completely unworkable has widespread, cross-party support. Yet, this is not an experiment without consequence. Some of the most draconian measures centre on the denial of protection from removal for survivors of modern slavery and human trafficking. The bill proposes a sunset clause as the proposals are ‘exceptional’ so they will end when ‘current circumstances’ improve. This will be a very long sunset.

Refugee experts have long recognised that asylum movements can only be managed by investment and support in countries of origin, tackling the root causes of displacement. Yet the UK’s investment in overseas development aid has reduced from 0.7 to 0.5 percent of GDP and it is estimated that up to one-third of that money is now spent on accommodation for asylum seekers in the UK, a cost that has grown exponentially along with the asylum backlog, which leaves people in limbo waiting up to two years for an interview (four times the wait in most other European countries). The Archbishop of Canterbury’s intervention in the debate has received a great deal of attention and he is certainly correct to view it as a “siloed bill” that fails to make the necessary links to conflict prevention and climate management, both of which will continue to drive refugee movements (House of Lords, 10 May 2023, col. 1794).

The legality of the Rwanda plan

It is arguably unwise to push ahead with the bill while awaiting a decision from the senior courts on the legality of the Rwanda plan. Following its decision to include an additional four grounds in the challenge, the Court of Appeal will now hear evidence not examined in the initial High Court decision pertaining to a number of contentious issues. This will include the impact of a similar memorandum of understanding (MOU) between Rwanda and Israel. However, even if the Rwanda MOU is deemed lawful, this cannot prevent review of individual cases where there is an allegation of serious harm, such as that of NSK, an Iraqi man whose case is one of several currently subject to legal challenge. Although the High Court quashed his removal in December, the Home Secretary sought to push ahead, resulting in his application for interim relief (Rule 39 order) before the European Court of Human Rights on the basis of a possible breach of Article 3 if removed to Rwanda. The European Court found that the remedy of returning NSK to the UK following the outcome of the full hearing would not guarantee his fundamental rights.

It should be noted that clause 53 in the bill attempts to avoid the suspensive effect of these orders while also reducing the possibility of suspensive domestic judicial review. This has attracted considerable criticism. The measures provide vital emergency protection. They were used to enable the transfer of poisoned Russian dissident Alexei Navalny to Germany and were recently invoked to prevent two British citizens from being executed by Russia. The court has previously ruled that a failure to comply with Rule 39 orders violates Article 34 of the European Convention on Human Rights (ECHR), whereby contracting parties ‘may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation [...] the contracting parties undertake not to hinder in any way the effective exercise of this right.’

If deemed lawful, removal to Rwanda will only impact a few hundred asylum seekers at most, leaving thousands more in detention awaiting removal. There are no other return agreements in place and the bill enables the Home Secretary to cap the number resettled, preventing any further access to protection. Meanwhile, concerns over the safety of Rwanda for political opponents and LGBTQ+ communities continue to surface. Lord Browne of Ladyton referred to the recent US State Department human rights report on Rwanda describing typical detention conditions as ‘harsh and life-threatening,’ with regular, credible reports of ‘unlawful or arbitrary killings’ (House of Lords, 10 May 2023, col. 1815).

Contrary to the government’s repeated assertion, there is no legal requirement under the Refugee Convention 1951 to make an asylum claim in the first safe country. Section 80B of the Nationality Immigration and Asylum Act 2002 already provides that returns can be made on the basis of connections to countries presumed safe, which include situations where the claimant has previously been in the country and might reasonably have been expected to make an asylum claim but failed to do so, or where, in the claimant’s particular circumstances, it would have been reasonable to expect them to have made a relevant claim. Preventing a suspensive appeal in these cases based on a new list in section 80AA is likely to lead to cases of refoulement in contravention of both human rights and refugee law. Lord Dubs refers to a report by Humanist International identifying ten countries from the list of 57 presumed safe where there are prison sentences for blasphemy and apostasy. Nigeria maintains the death penalty for blasphemy and the President of the Nigerian Humanist Association, Mubarak Bala, is currently serving 24 years in jail for blasphemy. Removing suspensive reviews in such cases will inevitably breach fundamental rights and further tarnish the UK’s reputation.

Trafficking and modern slavery

A particularly contentious aspect of the bill demonstrates the disingenuity behind one of the government’s repeated objectives, namely, to tackle the evil of trafficking and people smuggling. As Theresa May, former prime minister and architect of the hostile environment has stated, the bill “will drive a coach and horses through the Modern Slavery Act” (Official Report, 28 March 2023, col. 886).

Baroness Bennett refers to an “outrageous and persistent slavery-survivor protection gap” whereby only seven percent of referrals under the National Referral Mechanism (NRM) have led to leave to remain (House of Lords, 10 May 2023, col. 1887). The effectiveness of the NRM has reduced significantly since new guidance was issued under the Nationality and Borders Act 2022, with the number of adults receiving a positive reasonable grounds decision now only 49 percent compared with 87 percent in 2022.

Government ministers have continued to suggest that the NRM is being abused by migrants who self-refer from detention as a way of avoiding removal, yet self-referral is not possible, as recognised by DUP peer Lord Morrow who has accused the government of “using a sledgehammer to crack a nut” in clause 21-28 (House of Lords, 10 May 2023, col. 1903).  He refers to the work of the modern slavery charity Hestia, who have seen no evidence to suggest that the process is being exploited, and research from the University of Nottingham and the Human Trafficking Foundation which paints a very different picture:

‘Victims of modern slavery may not know they have entered the UK illegally; traffickers may deliberately withhold information and documentation as a means of control and may have offered to arrange travel on behalf of those they are planning to exploit. Potential victims therefore may be unaware of their status or need for entry documentation, believing traffickers have arranged this for them.’

Clause 4(1)c of the bill will prevent survivors of modern slavery and trafficking from escaping their traffickers as they will no longer be able to claim to be a victim of slavery or trafficking to suspend detention or removal. This is identified as a ‘public order’ exception. Serious concerns have already been raised in Parliament during debate on the Nationality and Borders Act 2022, suggesting that a broad definition of public order could breach Article 4 of the ECHR and the European Convention Against Trafficking.

The measures will inevitably prevent survivors seeking help and will undermine efforts to tackle people smuggling and trafficking. Conservative peer Baroness Stroud argues the measures target victims, “driving them underground, making them less likely to come forward” hindering recovery and damaging the chances of prosecution (House of Lords, 10 May 2023, col. 1911). Labour peer Lord Alton has considerable expertise in the field having worked with a group of cross-party peers to introduce the Modern Slavery Act 2015. He referred to a recent finding from the Joint Committee on Human Rights, that the measures would breach the UK’s obligations under the Council of Europe’s Convention Against Trafficking and Article 4 of the European Convention on Human Rights. He cited the view of the Salvation Army who are a designated referral organisation to the NRM, that far from discouraging traffickers and breaking the cycle of exploitation, it will only exacerbate it, adding to trauma, destitution, homelessness and mental illness. (House of Lords, 10 May 2023, col. 1819). As Theresa May has stated: “It is a slap in the face for those of us who actually care about victims of modern slavery and human trafficking” (Official Report, 26 April 2023; cols. 808-09).

Conclusion

Following a long day of debate, peers voted against Lord Paddick’s amendment by a majority of 103, but this was far from a ringing endorsement. The mood was summed up by Labour peer Lord Coaker who noted that, if the amendment passed, the government would use the Parliament acts to push through a 2019 manifesto commitment. The preference of many peers was for extensive review and amendment during the committee stage. Watch this space.

Dr Helen O’Nions is an associate professor of law at Nottingham Law School
ntu.ac.uk