Twelfth Report - Legislative Scrutiny: Illegal Migration Bill

It is clear that there is a global migration crisis: tens of millions of people are currently displaced and are fleeing their home countries to escape war and persecution. It is difficult for us to imagine their desperation. In recent years, the number of people coming to the UK to seek asylum has increased. Many of those people have risked their lives by crossing the Channel in small boats, and sadly many people have lost their lives while making that journey. It is right that the Government should seek to prevent further loss of life at sea. Many of those who make dangerous journeys do not have the options of a safe and legal route into the UK. We welcome the Government’s commitment to safe and legal routes and encourage them to specify what these new routes will be as soon as reasonably practicable. (Paragraph 23) Our inquiry and views on the Bill

All but one piece of evidence we received opposed the Illegal Migration Bill. There was disagreement about whether the Bill would achieve its stated aims of deterring illegal entry, breaking the business model of people smugglers and saving lives. The majority of those who provided evidence believed the Bill would fail to achieve its aims. Instead, they said it could lead to people attempting to come to the UK through more dangerous routes, which could both benefit people smugglers (who could charge more for their services) and lead to more people tragically losing their lives on those routes. Others highlighted that the Bill could dissuade people from applying for asylum when they arrive in the UK, meaning they would be undocumented and at greater risk of exploitation.

Some of those who provided evidence expressed the view that a more effective means of deterring individuals from making dangerous journeys would be to provide more safe and legal routes for people to come to the UK, negotiating returns agreements with European countries and quickly processing weak claims.

We also heard that the Bill is likely to have a disproportionate impact on vulnerable groups, including victims of trafficking and modern slavery, children, and LGBTQIA+ people. Given this, it is unfortunate that the Home Office has failed to publish the relevant impact assessments before the Bill concluded its Commons Stages. Those impact assessments are crucial to enable effective and full scrutiny of the Bill, and to enable an assessment of its impacts on vulnerable groups, and of how the Government has reached the conclusion (contrary to the weight of evidence that we have heard) that the Bill will achieve its stated aims, what other alternative methods it has considered to stop people making dangerous journeys, and why it deemed the Bill to be preferable to those alternatives.

We also heard that the Bill could damage both the global system of refugee protection and the UK’s reputation as a compassionate country for those fleeing war and persecution and. The only way to solve the global migration crisis is through 120 Legislative Scrutiny: Illegal Migration Bill international co-operation. The Government should make clear what measures it is pursuing on the international stage to ensure and preserve the efficient working of the global refugee protection system. (Paragraph 55) Compatibility with Convention rights and the disapplication of section 3 Human Rights Act

The Home Secretary believes that the entirety of the Bill is compatible with the UK’s international legal obligations, including those under the European Convention on Human Rights. However, we have concluded that various provisions of the Bill are not compatible with the Convention or with numerous other binding legal obligations on the UK.

The obligation to read legislation compatibly with Convention rights under section 3 HRA is crucial to the legal protection of human rights in the UK. We have previously recommended against the repeal of section 3 HRA and we are equally unconvinced and troubled by its piecemeal disapplication, including under clause 1(5) of this Bill. We are concerned that, by denying those affected by this Bill access to part of the human rights protective framework, clause 1(5) runs counter to the principle that those rights are universal. It also gives rise to concerns in respect of the prohibition on discrimination under Article 14 ECHR. The Bill should be amended to remove the disapplication of section 3 HRA (see Annex, Amendment 1). (Paragraph 90) The duty to make arrangements to remove people from the UK

Clause 2, taken together with clauses 4 and 5 (which provide for the inadmissibility of asylum and human rights claims and removal from the UK), penalises refugees who come to the UK irregularly and indirectly, including children and victims of modern slavery, by denying them access to the asylum system and making them liable to removal. This is, in effect, a near-ban on asylum and humanitarian protection. Extinguishing the right of asylum for refugees arriving in the UK breaches the object and purpose of the Refugee Convention with which we are bound, in good faith, to comply.

Clause 2 penalises refugees in clear breach of the Refugee Convention and Article 31 of the Refugee Convention by providing for a blanket denial of access to the asylum system for those who come to the UK irregularly and indirectly. It is clear that the drafters of the Refugee Convention recognised that refugees might travel through multiple countries prior to seeking asylum. Article 31 does not authorise the Government to deny the protections of the Convention to any refugee who enters the UK indirectly. This is the unequivocal legal position as set out by the UNHRC and confirmed by our domestic courts. Clause 2 should be removed from the Bill as it violates the UK’s legal obligations under the Refugee Convention (see Annex, Amendment 2).

Further, if clause 2 remains in the Bill, the definition of “coming directly” in clause 2(5) must be amended to reflect the position in law and not the Government’s Legislative Scrutiny: Illegal Migration Bill 121 misconstruction of Article 31 (see Annex, amendment 3). The Nationality and Borders Act 2022 will also require amendment to reflect the proper interpretation of Article 31.

Failing the removal of clause 2 from the Bill, exemptions must be introduced to exclude certain categories of person from the duty in clause 2, such as those who have additional vulnerabilities, including victims of trafficking and slavery, survivors of torture, pregnant women, and accompanied children (see Annex, Amendment 4). This would not resolve the clause’s incompatibility with the UK’s obligations under the Refugee Convention.

We welcome the Prime Minister’s recent reaffirmation of his ‘deep and abiding’ commitment to the ECHR and the ECtHR made at the Reykjavik summit. However, clause 53 gives Ministers legislative permission to act in direct violation of the UK obligations under the ECHR. Where a Minister chooses to ignore an interim measure and therefore breach Article 34 of the ECHR, clause 53 also prevents the courts from having regard to interim measures when considering proceedings under this Bill. This clause therefore permits deliberate breaches of our obligation to comply with interim measures of the ECtHR. Clause 53 must be removed from the Bill (see Annex, Amendment 5). Clause 53 must be removed from the Bill (see Annex, Amendment 5).

It is difficult to see how the removal of unaccompanied child refugees under clause 3 could comply with the legal obligations to have regard to the need to safeguard and promote the welfare of children in the UK, and to treat the best interests of the child as a primary consideration except in very specific circumstances, such as family reunification. Clause 3 should therefore be removed from the Bill (see Annex, amendment 6). Failing this, clause 3 must be circumscribed to allow the Secretary of State only to exercise the power in circumstances where removal is clearly in the best interests of the child (see Annex, amendment 7). The Bill’s impact on children more broadly is discussed in detail in Chapter 7.

Clause 4, alongside clauses 2 and 3, forms the basis for the automatic denial of the right to asylum for the vast majority of asylum seekers entering or arriving in the UK, irrespective of the merits of their claims. The blanket denial of access to the asylum system for persons who enter or arrive in the UK irregularly and indirectly is a clear breach of the object and purpose of the Refugee Convention. In circumstances where removal is not possible or is protracted, the lack of status and permanent denial of access to the asylum system for refugees is likely to breach the Refugee Convention, in particular, the duty to naturalise and assimilate refugees as far as possible in Article 34. The denial of access to a fair and effective asylum system may also violate Article 13 ECHR. Clause 4 should be removed from the Bill to allow asylum seekers the right to claim asylum and in doing so have the merits of their case considered (see Annex, Amendment 8).

In circumstances where an individual’s human rights claim is declared inadmissible by virtue of clause 4(2), the UK’s failure to undertake any scrutiny of the merits of an arguable case and the denial of any remedy with suspensive effect may breach 122 Legislative Scrutiny: Illegal Migration Bill Article 13 ECHR on the basis that there are no effective guarantees to protect the individual from returning to face a real risk of rights violations. As above, clause 4 should be removed from the Bill (see Annex, Amendment 8).

The UK cannot divest itself of its obligations under the Refugee Convention or the ECHR simply by declaring applications inadmissible and thereby refusing to process them. The prohibition against refoulement, the prohibition against penalisation, and the requirement to facilitate the naturalisation and assimilation of refugees are binding obligations on the UK under the Refugee Convention, irrespective of whether or not a person’s status as a refugee has been formally recognised by the UK. Declaring asylum and human rights claims inadmissible does not alter the UK’s obligations under the ECHR which protects individuals from being returned or removed to another country where they face a real risk of serious harm.

Whilst the states listed in clause 57 (EEA plus Switzerland and Albania) may be considered to be safe ‘in general’, this does not guarantee their safety for all individuals, particularly those who are members of a particular social group such as female VOTs. It must be possible for such individuals who face a real risk of persecution upon return to make a protection or human rights claim which must be considered on its merits in order to guard against the risk of refoulement. Clause 5 should be amended to remove the requirement for “exceptional circumstances” and instead provide that where persons from EEA countries, plus Albania and Switzerland, make a protection or human rights claim, this claim must be admissible and subject to proper consideration unless it is ‘clearly unfounded’ (see Annex, Amendment 9). An individual must not be removed from the UK and returned to an EEA country or Switzerland or Albania unless and until their claim has been properly considered and decided.

Further, there must be clear criteria set out on the face of the Bill for the inclusion of states as ‘safe’. Any country which has a significant successful grant rate for asylum claims, such as Albania, should not be included on a list of safe states. Albania should be removed from the list of safe states in clause 57 owing to the significant rates of successful asylum claims (see Annex, Amendment 10). Clause 57 should be amended to include criteria for designating countries as ‘safe’ which is based on strict and objective criteria based on reliable information, which includes, at a minimum, that: designated states must have signed and ratified the core UN human rights treaties as well as the Refugee Convention; that individuals must have access to a fair and effective asylum system and to free legal advice and representation; that states must have adequate domestic human rights laws and an effective and accessible justice system. (see Annex, Amendment 11).

The designation of third states as safe “in general”, in the absence of any individualised assessments of risk, is not an adequate safeguard against refoulement. The approach in the Bill runs a very real risk of breaching the prohibition on refoulement, especially for specific groups such as women and girls, religious minorities, LGBTQI+ individuals, and torture survivors. If clause 5 remains in the Bill, it must be amended to ensure that any removals of individuals to ‘safe third states’ must be subject to individualised assessments of risk to guard against refoulement and onward refoulement (see Annex, Amendment 12). (Paragraph 169) Legislative Scrutiny: Illegal Migration Bill 123

The subjective nature of the test for safety of third states is not an adequate safeguard against refoulement. If clause 6 remains in the Bill, it must be amended to provide that the designation of new third states as ‘safe’ must be subject to strict and objective criteria based on reliable information, which includes, at a minimum, that: designated states must have signed and ratified the core UN human rights treaties as well as the Refugee Convention; that individuals must have access to a fair and effective asylum system and to free legal advice and representation; that states must have adequate domestic human rights laws and an effective and accessible justice system (see Annex, Amendment 13).

In order to comply with Article 3 ECHR (freedom from torture or inhuman or degrading treatment), it is imperative the Government does not leave asylum seekers, and those whose claims have been held inadmissible, in a state of destitution. The Bill should provide that everyone with an inadmissible claim should be automatically granted support. (Paragraph 179) Powers of detention and bail

We agree with the conclusion of the House of Lords Delegated Powers and Regulatory Reform Committee that, given the importance and sensitivity of the subject matter, if regulations are made concerning the detention of children the affirmative resolution procedure should apply. Clause 10 should be amended accordingly (see Annex, Amendment 14).

We are extremely concerned by the expansion of powers of immigration detention under the Bill, and the apparent intention to use detention as a matter of course for all those who satisfy the clause 2 conditions. Detention for immigration purposes, particularly when those being detained are likely to be genuine victims of persecution or human rights violations, should be a measure of last resort only.

Given the current capacity of the immigration estate and limited scope for removals to third countries, we share concerns that detaining greater numbers could give rise to the need to use unsuitable facilities, with risks for human rights. Abandoning many of the limitations and safeguards against inappropriate or unjustified detention, particularly for children, families and pregnant women, increases the likelihood that these rights will be infringed. If these detention powers remain within the Bill, it should be amended to retain existing limitations and safeguards regarding the detention of vulnerable groups (see Annex, Amendment 14).

The common law approach to immigration detention, established in the case of Hardial Singh, currently operates to ensure that immigration detention complies with Article 5 ECHR. This recognises that it must be for the courts to determine the legal boundaries of administrative detention. The Bill would alter that approach, leaving it to the Secretary of the State to decide what amounts to a reasonable period of immigration detention. We are extremely concerned that this change would result in an immigration detention system that is not consistent with Article 5 ECHR. The Bill should be amended to ensure that there is independent, judicial oversight of individual liberty and compliance with Article 5 ECHR (see Annex, Amendments 15 and 16). (Paragraph 202) 124 Legislative Scrutiny: Illegal Migration Bill

Protection from arbitrary detention and upholding the right to liberty in the UK depends on judicial supervision. Depriving those detained under the Bill the opportunity to make a bail application to a Tribunal, or a judicial review application in the High Court, even if it is only for the first 28 days of detention, would severely restrict judicial supervision. It would prevent those who are unnecessarily or unlawfully detained from being able to secure release on bail or challenge the lawfulness of that detention. We are unconvinced that allowing for applications for habeas corpus is enough to ensure that this proposal is compatible with Article 5 ECHR, which guarantees the right to have the lawfulness of detention decided speedily by a court. Clause 12 must be amended to ensure that those subjected to immigration detention retain the ability to challenge their detention in the courts and seek bail (see Annex, Amendments 17 and 18). (Paragraph 211) Children: age assessments, and support and accommodation for unaccompanied children

Without the usual safeguards of appeals and full judicial review, and without judicial reviews being suspensive in terms of removal, this legislation seriously risks children being treated incorrectly as adults as well as them being removed from the UK to unsuitable conditions. This is clearly not in the best interests of any child and is likely to breach the child’s rights under Articles 6, 8, and 13 of the ECHR. Clause 55 should be removed from the Bill (see Annex, Amendment 20).

We remain concerned about ‘scientific methods’ being used to assess age in light of the continued opposition from relevant professional organisations and doubts over the accuracy of such measures. We remain unconvinced there is any justification for the use of scientific methods instead of a holistic assessment. We agree with the Government that the Secretary of State’s power to penalise children for not complying with these methods should only be made where there is evidence that the methods involved are consistently accurate and could be applied in a manner that does not breach the individual’s rights under Articles 3 or 8 ECHR. Any such regulations would have to be carefully drawn to ensure that the circumstances and experiences of the individual child, as well as their best interests, are fully considered before determining whether a child has reasonable grounds for refusing to comply and applying any penalty. The Home Office should also issue guidance as soon as possible setting out what would constitute reasonable grounds for refusing consent. Moreover, any penalisation (and the reasons for it) would have to be challengeable in court.

The definition of an unaccompanied child should be brought into line with the current approach in the Immigration Rules (see Annex, Amendment 21).

The Bill is currently unclear about both the nature of the accommodation to be provided to unaccompanied children by the Home Office or the standards and safeguards applicable to that accommodation. Inadequate accommodation could breach the children’s Article 8 rights to a private or family life, or potentially even their Article 3 rights to be free from torture and inhuman or degrading treatment, depending on the severity of the inadequacy. The Bill should be amended to ensure Legislative Scrutiny: Illegal Migration Bill 125 that the safeguards provided by the Children Act 1989 to children in local authority care are replicated for children in Home Office accommodation in England (see Annex, Amendment 22).

The Home Secretary is bound by the UK’s international law obligations under the UNCRC. The Bill as currently drafted fails to make clear the support that should be provided to unaccompanied children in the UK in care of the Home Office in accordance with the UNCRC. The Bill should be amended to set out the type of support that the Secretary of State should provide to unaccompanied children housed in Home Office accommodation. The power to provide such support should also be changed to a duty to provide such support in accordance with the binding obligations under the UNCRC (see Annex, Amendments 23 and 24).

In light of the inadequacies in the current provision of Home Office accommodation to unaccompanied children, it would be difficult for the Home Office to demonstrate that the transfer of a child from local authority care into Home Office accommodation would be in the child’s best interests for the purposes of the UK’s international law obligations under the UNCRC. It would also be difficult to demonstrate that it was compatible with existing domestic law provisions such as section 55 of the Borders, Citizenship and Immigration Act 2009. Unless the standards required of Home Office accommodation are amended to bring them in line with the requirements of the Children Act 1989, as we recommend above (see Annex, Amendments 23 and 24), clause 16 should be amended to remove the power to transfer a child from local authority accommodation into Home Office accommodation (see Annex, Amendment 25).

We are deeply concerned that the threat of removal from the UK when a child turns 18 will be harmful to the child’s wellbeing and ability to live a healthy, happy childhood. It also gives them a powerful incentive to flee authorities’ care, thereby making them extremely vulnerable to traffickers, exploiters, and criminal gangs. This is clearly not in the best interests of the child for the purposes of the UK’s obligations under the UNCRC. We recommend that the duty to remove is not automatically applied when a child turns 18 (see Annex, Amendment 26). (Paragraph 266) Modern slavery

Clause 21 breaches Article 10 of ECAT which provides that if the competent authorities have reasonable grounds to believe that a person has been trafficked, that person shall not be removed from its territory until the identification process has been completed. Clause 21 should be removed from the Bill (see Annex, Amendment 27). Failing that, the Bill should be amended to ensure that no removals take place until a conclusive grounds decision has been taken (see Annex, Amendment 28). Further, any returns of VOTs or VOSs must be subject to an individualised assessment of the impact of such return on the rights, safety and dignity of that person.

Although there is no absolute right for victims of trafficking or slavery to be granted limited leave to remain, Article 14 of ECAT requires states to take into account the needs of the victim when making decisions regarding leave to remain. Such 126 Legislative Scrutiny: Illegal Migration Bill decisions should not be based solely on the means and method of entry into the UK and whether or not the victim is cooperating with an investigation. Clause 21 should be removed from the Bill (see Annex, Amendment 27).

It is, in our view, wholly inappropriate to categorise victims as a threat to public order by the mere fact that they arrived in the UK through an irregular route, particularly given the fact that victims are controlled by their traffickers. Under the NABA 2022, these provisions are already disapplied to certain potential victims of torture (VOTs), on grounds of public order, such as persons convicted of terrorist offences and foreign national offenders. There is clearly no justification for extending the disqualification to all VOTs and victims of slavery (VOSs) who enter or arrive in the UK irregularly, without coming directly to the UK, and without permission to be here.

The Government’s reliance on the “public order disqualification” to disapply protections and entitlements to all VOTs who enter irregularly and indirectly violates Article 13 of ECAT. It is also a breach of Article 26 of ECAT which provides for the non-punishment of victims of trafficking. This is also likely to breach the parallel obligations on the UK under Article 4 ECHR, which are interpreted in light of the requirements of ECAT, to identify and protect every victim of modern slavery. All potential victims of trafficking are entitled to a recovery period. This entitlement is unconditional. Clauses 22–24 must be removed from the Bill (see Annex, Amendments 29–31).

ECAT does not allow states to disqualify potential victims of trafficking from any form of protection and assistance under the ground that they irregularly enter or arrive in a State Party. Article 12(6) states that measures should be adopted to ensure that support is not made conditional upon willingness to act as a witness. The disapplication of section 50A of the Modern Slavery Act 2015 (which provides potential victims of slavery or trafficking are entitled to assistance and support in certain circumstances) is a clear breach of the obligations to provide support to VOTs under Article 12 ECAT. This is also likely to breach the parallel obligations on the UK under Article 4 ECHR, which are interpreted in light of the requirements of ECAT, to identify and protect every victim of modern slavery. As above, clauses 22– 24 must be removed from the Bill (see Annex, Amendments 29–31).

We are concerned that the modern slavery provisions of the Bill not only breach the UK’s legal obligations towards VOTs and VOSs, but may also result in the increase in trafficking and slavery. These clauses must be removed from the Bill. (Paragraph 303) Entry, settlement and citizenship

In order to avoid the sort of Article 8-breaching scenarios which could arise in the absence of decisions being made on the facts of a particular case, applications for exceptions to the ban on Article 8 grounds must be capable of routine consideration by the Home Office on a case by case basis, taking into account the specific private and family life circumstances of the individual. Where it is decided that a re-entry ban is appropriate, the duration of that ban should be tailored to properly balance the individual’s Article 8 rights and the public interest. Where failure to make an Legislative Scrutiny: Illegal Migration Bill 127 exception in an individual case would breach the ECHR, the Secretary of State must be under a duty rather than have a discretion to make such an exception.

The lifelong ban on re-entry or leave to remain should not be applied routinely to children. The Bill should be amended so that the circumstances of each child must be taken into account before a decision is taken to refuse them leave to remain in the UK or to deprive them of any right of re-entry (see Annex, Amendment 32).

We are concerned that the Government has amended clause 35 to remove the power for the Secretary of State to make exceptions in order to comply with other international agreements to which the UK is a party. This risks the UK being placed in breach of its international law obligations under international agreements other than the ECHR. We recommend that the grounds for making exceptions under clause 35 are restored to the version introduced in the Commons (see Annex, Amendment 33).

The exception in clause 35 to the lifelong prohibition on being granted citizenship or naturalising is an important safety valve, but the compatibility of these provisions with the ECHR will depend on the treatment of the circumstances of individual cases as well as the extent to which the Secretary of State uses her power under clause 35 to make exceptions. Where the lifelong ban on citizenship would breach the UK’s obligations under the ECHR, the Home Secretary should be under a duty to make an exception rather than have a discretion to do so. (Paragraph 321) Legal proceedings

Making human rights claims “non-suspensive” can only be consistent with our human rights obligations if pursuing those claims from the destination state is viable. We are concerned that this has not been established for the states deemed safe for removals. The threshold required to establish a suspensive claim based on serious harm under the Bill, and the requirement for “compelling evidence” to support it, puts at risk of removal those who have genuine human rights reasons why they should not be removed. Furthermore, allowing the Secretary of State to redefine “serious and irreversible harm” by regulations opens up the possibility of increasing disparity between the protections against refoulement in domestic law and those to which the UK is committed in international law, including the ECHR. We urge the Government to reconsider its decision to make human rights claims non-suspensive, and the extremely high threshold imposed to establish serious harm suspensive claims. The meaning of “serious and irreversible harm” should not be open to amendment by regulations. Clause 39 should be removed from the Bill (see Annex, Amendment 34).

The Bill’s introduction of extremely narrow suspensive claims does provide some protection against the most serious and immediate human rights abuses, but even this protection is meaningless if the procedural framework prevents effective access to these claims. The time limits placed on each stage of the claim process are so strict that it is hard to see how claimants, who are likely to be traumatised, vulnerable and held in detention, could prepare and present their case effectively. If the suspensive 128 Legislative Scrutiny: Illegal Migration Bill claim framework is to remain within the Bill, the time limits imposed must be made more generous. Furthermore, applications to extend those time limits must themselves have suspensive effect (see Annex, Amendment 35).

By restricting the right to appeal against the refusal of a suspensive claim, and effectively denying the possibility of judicially reviewing the appeal decision, the Bill might speed up this narrow opportunity to suspend removal but it would also substantially increase the chances of errors remaining uncorrected. The risk to those who are removed despite having a human rights claim pending is extremely serious, and every chance to correct errors in decision-making should be available. We do not agree that appeal rights in suspensive claims under the Bill should be limited, but if they are it is important that there is effective judicial supervision of the Upper Tribunal. The Bill should be amended to remove the unnecessary ouster of judicial review (see Annex, Amendment 36).

Interim remedies allow the courts to maintain the status quo while a claim is being considered. They are a vital tool to prevent litigants suffering the very harm they are bringing their claim to prevent. This is essential when the harm in question is a violation of human rights. They are also vital to ensure that justice can be done; to ensure that one party to litigation cannot prevent judicial consideration of the claim against them by removing the claimant from the jurisdiction. Denying the courts their ability to use interim remedies when justice demands it undermines the guarantees of Articles 2 and 3 ECHR. Clause 52 should be removed from the Bill (see Annex, Amendment 37). (Paragraph 352) Electronic devices and credibility

The proposed new power to search for items capable of storing information in electronic form permits substantial interferences with the right to respect for private life with limited justification and minimal safeguards. Particularly concerning is that the power would allow strip searching, including of children, and searching through and copying any information held on a device such as a mobile phone. The Government has been unable to confirm that in their view this provision is compatible with Convention rights. We agree that the provision is unlikely to be compatible with Article 8. These powers represent a significant invasion of privacy. This provision should not have been added to the Bill at a late stage, preventing it being properly scrutinised by Parliament. It should be removed from the Bill (see Annex, Amendment 38).

From a human rights perspective, we remain concerned that an asylum or human rights claimant’s credibility should not be damaged by conduct that may be explained by something other than dishonesty or an attempt to conceal relevant information. Vulnerable asylum seekers may have other justifications for not wanting to hand over access to all their private information to a government official, not least an understandable lack of trust in authority. The Bill should be amended to make clear that the credibility of a claimant who has provided a reasonable excuse for their failure to provide a password etc requested by the Home Office will not be affected (see Annex, Amendment 39). (Paragraph 372) Legislative Scrutiny: Illegal Migration Bill 129 Safe and legal routes and the ‘cap’

If the cap is a ‘soft’ cap or quota for the number of refugees the UK will volunteer to resettle, either from third states as part of cooperation programmes with international partners or as part of country-specific schemes, we are satisfied that such a cap would not itself contravene the UK’s international law obligations. However, a ‘hard’ cap which sought to invalidate or reject the nth+1 asylum application made in the UK’s territory on the basis of a domestic quota would be incompatible with the UK’s international law obligations.

The Government is rightly concerned about the loss of life in the Channel. So are we. However, our role here is to scrutinise legislation for its compatibility with human rights law. In our view, it is clear that the Bill would deny the vast majority of refugees access to the UK’s asylum system, despite the fact that there will have been, in many cases, no means for them to enter the UK by safe and legal routes. It prohibits the consideration of their protection or human rights claims irrespective of the merits of their cases. It permits them to be subject to detention without time limits, including pregnant women and children who are normally subject to special protections. It renders them liable to removal from the UK, either to their country of origin or to a ‘safe third state’ with which they may have no connection, without any individualised assessments of risk being undertaken. It also restricts their access to the courts and their ability to remain in the UK while they challenge removal on human rights grounds. Paragraph (385)

We conclude that this Bill breaches a number of the UK’s international human rights obligations and risks breaching others. The Home Secretary herself has been unable to certify that the Bill is compatible with Convention rights. We therefore urge the Government to consider our conclusions and recommendations in order to address the human rights incompatibilities within this Bill. (Paragraph 386) 130 Legislative Scrutiny: Illegal Migration Bill