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  • Surjit Raiguru

United Kingdom's Illegal Migration Bill, 2023: Humanity at Crossroads

This article is authored by Surjit Raiguru, a Third Year law student pursuing BA-LLB [H] from Symbiosis Law School, Pune.


In a triumph for the Rishi Sunak administration, the UK House of Lords approved the Illegal Migration Bill, a piece of legislation that would make it the Home Secretary's "duty" to deport illegal immigrants from the country and dramatically alter current safeguards for asylum seekers. The Bill aims to discourage illegal immigration to the nation, notably by small boats. The UK's Illegal Migration Bill, recently approved by the House of Lords, aims to discourage illegal immigration, particularly via small boats, and expedite the deportation of illegal immigrants. It is argued that the bill rushed through Parliament, limiting scrutiny. It has faced strong condemnation from the United Nations for potentially violating international human rights and refugee laws, including the principle of non-refoulement. The bill also grants the UK Government substantial authority, raising concerns about the separation of powers in the country's democracy. While intended to address immigration issues, the bill has sparked controversy over its impact on refugees' rights, parliamentary oversight, and governance integrity.


UN Condemns UK Immigration Bill In a compelling statement released by the United Nations on Tuesday, the UK Immigration Bill bore the brunt of criticism, facing scrutiny from Volker Turk, UN Human Rights Secretary General, and Fllippo Grandi, United Nations High Commissioner for Refugees. The United Nations, with eloquence and authority, decried the bill, emphasizing its disregard for international human rights and refugee law. They warned that the repercussions would be dire for countless individuals seeking protection from far-off shores, referring to refugees and asylum seekers in need of safety and refuge. Grandi poignantly lamented that this very law, which the UK government contests, is undermining the very bastion of justice that has safeguarded innumerable refugees from grave peril. In a poignant reminder of the issue's urgency, it was disclosed that a staggering 45,000 immigrants from Europe found themselves precariously landing on Britain's shores through diminutive boats in the tumultuous year of 2022. The world is watching, and this criticism will echo in both government halls and among those who care deeply about it.


Compromising Parliamentary Scrutiny

The hasty passage of the Illegal Migration Bill through Parliament has significantly compromised Parliament's ability to conduct thorough scrutiny of legislation proposed by the UK Government. Firstly, contrary to the customary practice of allowing two weekends between a Bill's introduction and its second reading, the Government expedited the Bill's Second Reading in the House of Commons without any evident justification. This rushed approach left limited time for Parliamentarians, civil society, and experts to thoroughly examine the Bill and prepare comprehensive responses. Secondly, the usual process of detailed consideration and evidence-gathering at the Committee Stage was curtailed. Instead, the Bill was allocated merely two days on the floor of the House of Commons, allowing for a mere twelve hours of debate. Such brevity severely hampered the opportunity for in-depth analysis and discussion. Thirdly, at the Report Stage in the Commons, the Government presented over one hundred amendments at short notice. These amendments covered both substantive and highly technical matters, some of which were of major constitutional significance. As a result, many Members of Parliament were left with only a few minutes to address their non-Government amendments.


Unravelling the Core Tenets, Its Infringement and Implications

There are grave concerns regarding the bill's potential infringement upon the tenets stipulated in Article 31 of the Convention relating to Status of Refugees, 1951 (hereinafter referred as 1951 Refugee Convention). Of particular note is the prohibition it establishes, which expressly forbids states from penalizing asylum seekers based solely on the manner of their irregular arrival. The recognition underlying this vital provision is rooted in the understanding that the act of fleeing persecution inherently necessitates irregular border crossings, and to penalize such vulnerable individuals for exercising their right to seek safety would constitute a grave breach of the spirit and essence of international refugee protection.

In its current iteration, the draft bill under consideration stands to fundamentally diminish the ability of the majority of refugees to avail themselves of their right to seek asylum within the United Kingdom. Such a development poses a significant threat to the overarching global framework that has been meticulously established to protect and shelter those compelled to escape from conflict and persecution. Foremost among the concerns raised by the bill is its apparent disregard for the Principle of Non-Refoulement, which stands as a cardinal obligation enshrined within Article 33(1) of the 1951 Refugee Convention. This critical tenet specifically mandates that individuals shall not, under any circumstances, be subjected to repatriation – either directly or indirectly – to a nation wherein their very lives and freedoms face grave peril. The bill's disregard for the principle of non-refoulement, in particular, would send a clear message that the UK is no longer a safe haven for refugees.


Within the proposed bill, Clauses 2 to 4 exert a fresh obligation upon the Home Secretary, demanding the expulsion of those individuals who have entered or arrived in the United Kingdom by irregular means, without having originated directly from a territory where their personal well-being and liberty were imperilled. This imposition, in effect, renders the asylum claim of such individuals inadmissible without the opportunity for due consideration within the UK's asylum system. Regrettably, this provision disproportionately affects a vast proportion of refugees seeking sanctuary in the UK, thereby effectively negating their inherent right to seek asylum on these shores. The bill does not allow for independent oversight of the Home Office's decision-making, and it lacks effective remedies for those who are harmed by the bill. The root cause of this predicament lies in the stark reality that the United Kingdom offers scant safe and legal pathways for refugees to make their entry into the country. Furthermore, Clause 52 of the Bill marks a significant departure from the established legal principles within the United Kingdom, as it effectively extinguishes the authority of any UK court to grant interim remedies that may hinder or delay the removal of an individual from the country.


The bill potentially breaches international human rights laws, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the Convention on the Rights of the Child (CRC)for unaccompanied children. The Bill allows for people to be detained indefinitely without charge while awaiting removal from the UK. This could violate the CAT prohibition on arbitrary detention, particularly if people are detained in poor conditions or without access to legal representation. Also, it does not make adequate provision for unaccompanied children who arrive in the UK irregularly. Unaccompanied children are particularly vulnerable and have the right to special protection and assistance. The Bill's provisions could put unaccompanied children at risk of detention, deportation, and exploitation.


Further, common law principles such as the right to a fair trial and the right to family and private life are also compromised, hindering legal challenges and future opportunities. Moreover, the bill is faulted for discrimination and creating a hostile environment for migrants and refugees. It's crucial to note that the bill awaits Royal Assent and may face legal challenges. The essence of UK democracy lies in upholding a robust Separation of Powers. However, the Illegal Migration Bill undermines this critical principle by conferring excessive authority upon the UK Government, allowing it to assume the roles of legislator, adjudicator, and administrator. Such a power shift erodes the foundations of the UK's constitution and democracy, posing a serious threat to the delicate balance and integrity of its governance.


Conclusion

The UK's approval of the Illegal Migration Bill, despite strong criticism from the United Nations, legal experts, and civil society, highlights significant issues. Rushing it through Parliament has undermined democratic scrutiny, potentially compromising essential checks and balances. Of particular concern is the potential violation of the non-refoulement principle, which could deny refugees the right to seek asylum in the UK, endangering their safety. Equally troubling is the erosion of the separation of powers within the UK's governance structure, granting excessive authority to the government while limiting judicial oversight. This may lead to arbitrary and unjust decisions, hindering refugees' ability to challenge removal from the UK.

While the government argues the bill's necessity to address illegal immigration, its broad scope and lack of safeguards raise substantial human rights concerns. To protect refugees' rights and maintain a just system, a re-evaluation of the bill is imperative. The government should focus on developing immigration policies that prioritize humanity, fairness, and compliance with international standards.



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