Human rights as a principle give practical effect to the notion that all human beings are entitled to a certain threshold of humanity— as derived from a complex relationship between legal and moral rights.1 A stronger set of statutory laws were implemented after the human rights violations that came to light following the atrocities of the Second World War and begged the question of what rights individuals were irrefutably entitled to in law, whether they be social, cultural or political2. This prompted the introduction of the European Convention on Human Rights in 1953; such legislation was a landmark in offering citizens a code of guaranteed, statutory rights that they could rely on. The Convention is an international treaty, legally binding to the states that choose to sign it. Accordingly, once signed, states are under a legal obligation to apply the convention rights into the jurisdiction of member states.3 Though this addressed the requirement to enforce the human rights of individuals in law, the process of doing so was often costly and time-consuming for UK citizens4; the only court that would hear these claims was the European Court of Human Rights in Strasbourg. This led to the enactment of the Human Rights Act in 1998, facilitating the incorporation of ECHR convention rights into UK domestic law. As almost all of the convention rights became UK domestic rights, this meant that claims could be pursued in UK courts 5and individuals could more readily exercise the rights available to them. Though this legislation is not void of criticism, contemporary legislation, such as the Illegal Migration Act 2023, appears to be growing more and more ignorant of human right obligations— particularly when faced with the “complex moral dimension to illegal migration,”.6
The Illegal Migration Act received royal assent on 20th July 20237 and outlines that anyone who arrives in the UK illegally will be detained and promptly removed, either back to their home country or a “safe third country”.8 Some of the aims of the act listed are to “speed up the removal of those with no right to be here,9” and to alleviate pressures on the UK’s “health, housing, educational and welfare services”.10 The enforcement of this act relies on several measures, such as the government’s controversial Rwanda policy, which has been scrutinised by the courts as well as the general public.
Though the act has received royal assent, sections 2-10, and Schedule 1 11of the Act, which place a duty on the Home Secretary to remove irregular immigrants12, are yet to come into force- thus problematizing the enforceability of certain sections of the act. This delay can be attributed to the flawed proposal of the government's Rwanda policy, which is yet to succeed due to legal challenges and the government’s inability to locate a “safe third country”, 13as referenced in the act. The full title of this policy is the UK-Rwanda Migration and Economic Development Partnership which enables the UK to send a small proportion of their asylum seekers to Rwanda in exchange for Rwanda reaping monetary rewards. 14This partnership is essential in ensuring that the Home Secretary can honour her legal duty to remove illegal migrants “as soon as reasonably practicable”. 15 The first flight to Rwanda was due to depart in June 2022 16 but was halted due to legal challenges regarding incompatibility with the ECHR17, though the High Court had originally ruled that the partnership was lawful. In June 2023,18 the Court of Appeal went against this previous High Court decision; proceeding on the premise that East Africa could not be considered a “safe third country”.19 This is due to “deficiencies in their asylum system which risks asylum seekers being sent back to their home countries and potentially facing persecution”;20 perpetuating an apparent violation of Article 3 of the ECHR (the prohibition of torture and inhumane treatment)21The charity “Asylum Aid” who brought the claim of incompatibility against the state asserted that this judgement was a “vindication of the importance of the rule of law and basic fairness when fundamental rights are at stake,”.22On 15th November 2023, the Supreme Court upheld the earlier Court of Appeal judgement23 regarding the unlawful nature of the Rwanda policy and how it left the UK susceptible to human rights breaches. As the Supreme Court yields superiority in the UK court system, this means that the policy cannot be implemented in its current format. Rishi Sunak has demonstrated a keenness to persevere regardless and has asserted that he intends to make the amendments necessary to finalise a formal treaty and has confirmed that he is “prepared to revisit our domestic legal framework”24 to achieve this. The UK government are attempting to salvage the policy, policy; however, this is likely to prove challenging as it means finding another country willing to agree to the treaty or making adequate amendments to deem the policy lawful, which may not be achievable due to obligations derived from human rights legislation. Ultimately the policy was ruled incompatible by the Supreme Court due to the principle of “non-refoulment” 25which is established in both UK and international human rights law; this principle establishes that a person seeking asylum should not be returned to their country of origin if this would put them at risk of harm.
An argument that the government has continually relied upon in their defence of this policy is the notion of deterrence26- the idea that tightening the restrictions surrounding migration will deter asylum seekers from making dangerous small boat crossings into the UK. Such rationale is counter-intuitive, as this narrowing of scope will inevitably not result in fewersmall boat crossings, it will simply lead to fewer small boat crossings which result in safe asylum. Those who are willing to make these treacherous journeys, often accompanied by vulnerable family members or their own children, have reached a point of steadfast desperation. Due to the often dire state of war and persecution occurring in their home countries, they are left with no good options and therefore will seek out asylum through the only means they have left available to them. Systemic ignorance prohibits an understanding of the position of vulnerability that are large proportion of asylum seekers find themselves in; this policy has been posed as coming from a place of humanity when it speaks more to the point of personal privilege in reality. Instead of pumping investment into the development of more opportunities and means of safe asylum here in the UK, legislation is moving in a regressive nature and instead is wilfully presenting further barriers through the current investment of £140 million in the Rwanda policy.27
The formation of the Illegal Migration Act 28also omitted to give due consideration to the issue of modern slavery29, which still holds an almost epidemic level prevalence in the UK. The Office for National Statistics accounts that 5,144 modern slavery offences were recorded by police in the year ending 2019, which was a 51% increase30 from the prior year. It is a form of exploitation and occurs through numerous means, such as trafficking, forced labour and servitude.31 Amendments to the Illegal Migration Bill 32were introduced at the report stage.
These amendments created an exception within the Act so that people who fall under the duty to remove are not disqualified from modern slavery protections if they have been referred to the Nation Referral Mechanism and their case is being considered.33Though this appears to be a safeguarding measure, when observed at a surface level, this exception does not account for the dangers if removal occurs prior to the victim identification process. This instance is inevitable, as crimes of modern slavery are significantly underreported and are among the “most challenging crimes to prosecute”. 34 The implications that the act could have for victims of modern slavery who slip through the system are immeasurable; the immediacy of deportation outlined in the act may lead to a denial of vital support and further exacerbate the vulnerability of victims. It may be argued that deportation in these instances could be contrary to numerous ECHR convention rights. Victims of modern slavery are often subjected to perilous physical and/or sexual abuse, therefore the immediate deportation upon them not being able to present the correct paperwork could lead to the denial of essential medical care and supervision; this may be for both physical and mental ailments. This denial of medical care appears to misalign with Article 2 of the ECHR, the right to life. 35Moreover, the act fails to recognise that in law asylum seekers are victims; modern slavery is a crime, and the victims are being treated as criminals. Deportation poses a serious risk of victims falling back into the cycle of exploitation and therefore could be considered incompatible with Article 3 of the ECHR36. The question of incompatibility of the Illegal Migration Act 37with the ECHR is apparent here, as its disregard enables victims who have already had their human rights forcibly taken from them to be deprived further.
Some may argue that legislation provides modern slavery protections through the implementation of Rule 3938 within the Rules of Court, as incorporated into the ECHR. This rule outlines that emergency interim measures may be implemented to halt the extradition of a person if they are at risk of serious harm.39 A placeholder clause (clause 53)40 was incorporated into the Illegal Migration Bill, which confers a discretion to the Minister to disapply a statutory duty to remove a person if a Rule 39 ruling has been established41. However, this again relies on victims of exploitation through modern slavery being identified, which has proven extremely difficult in previous cases.
In its current format, the Rwanda Partnership has been ruled unlawful and places the entire fulfilment of the Illegal Migration Act under threat. This has caused the UK government to be consistently defensive during the Rwanda litigation- making assertions such as the role of the ECHR opposing British Values- despite 77% of the population being not in favour of the UK leaving the ECHR.42 The effect of such rhetoric yields a huge detriment to the preservation of the safety and security of migrants in this country. The conversation surrounding public policy hugely influences public opinion, with the rhetoric surrounding migrants being largely accusatory. The government asserts that migration has placed unacceptable pressures on the National Health Service, discriminating against those seeking asylum in the UK. The reality is that many migrants embark on these dangerous small boat crossings across the channel as a last resort to obtain safe refuge and a better life for themselves and their families; they sometimes cannot present legal paperwork for entry due to an inadequate provision of safe and regular routes to asylum.
These adverse perceptions of migrants have transcended mere rhetoric and have translated into action. On 10th of February 202343, an anti-migrant protest took place outside of the Suites Hotel in Kirby, Knowsley; a hotel temporarily housing asylum seekers. Crowds of approximately 40044 attended the protest, where displays of violence were carried out and at least three arrests were made. Such incidents demonstrate a direct link with anti-migrant rhetoric, which the government fuel through their implementation of public policy.
The ECHR offered hope— as it was the first recognition in law of the human rights of the ordinary individual. There was a sense of universality within its implementation and guaranteed humanity that every human being ought to be entitled to. However, as it stands, Asylum seekers- both legal and illegal- appear to be an afterthought, as their migration status acts as a barrier to their attainment of the most basic human rights. “Rights protect interests that are sufficiently important to give rise to duties”45 and this enforces an implicit duty to ensure that all can access safe asylum; the government must go further to ensure they comply with this duty.
References
[1] Howard Davies, Human Rights Law Directions (5th edn, OUP 2021) 4.
[2] United Nations, ‘Human Rights’ (un.org,) < Human Rights | United Nations > accessed 19th November 2023
[3] Anne Dennett, Public Law Directions (2nd edn, OUP 2021) 409.
[4] ibid, 409.
[5] ibid.
[6] Rishi Sunak, ‘PM statement on Illegal Migration’ (Gov.uk, 13th December 2022) https://www.gov.uk/government/speeches/pm-statement-on-illegal-migration-13-december-2022 accessed 5th November 2023.
[7] Home Office, ‘The Illegal Migration Act 2023’ (Gov.uk, 8th March 2023) Illegal Migration Act 2023 - GOV.UK (www.gov.uk) accessed 27th October 2023.
[8] ibid.
[9] ibid.
[10] ibid.
[11] Home Office, ‘Illegal Migration Act 2023 Explanatory Notes’ (Gov.uk, 2023) <ukpgaen_20230037_en.pdf (legislation.gov.uk)> accessed 3rd November 2023.
[12] Home Office (n 7).
[13] ibid.
[14] Jennifer Morgan and Lizzy Willmington, ‘The Duty to Remove Asylum Seekers Under the Illegal Migration Act 2023: Is the Government’s Plan to “Stop the Boats” Now Doomed to Failure?” (2023) 54(4) Common Law World Review, 103-109, 103 <The duty to remove asylum seekers under the Illegal Migration Act 2023: Is the government's plan to ‘Stop the Boats’ now doomed to failure? - Jennifer Morgan, Lizzy Willmington, 2023 (sagepub.com)> accessed 14th October 2023.
[15] Home Office (n 7).
[16] BBC, ‘What is the UK’s Plan to Send Asylum Seekers to Rwanda?’ (bbc.co.uk, 11th October 2023) < What is the UK's plan to send asylum seekers to Rwanda? - BBC News> accessed 10th October 2023 17 ibid.
[18] ibid.
[19] ibid.
[20] ibid.
[21] The European Convention of Human Rights, Art 3.
[22] BBC (n 16).
[23] Dominic Casciani and Sean Seddon, ‘Supreme Court Rules Rwanda Asylum Policy Unlawful” (bbc.co.uk, 15th November 2023) < Supreme Court rules Rwanda asylum policy unlawful - BBC News > accessed 20th November 2023
[24] ibid.
[25] ibid.
[26] ibid
[27] BBC (n 16).
[28] Home Office (n7)
[29] Jennifer Morgan and Lizzy Willmington (n 14).
[30] Nicholas Stripe, ‘Modern Slavery in the UK: March 2020’ (ons.gov.uk, 26th March 2020) < Modern slavery in the UK - Office for National Statistics (ons.gov.uk)> accessed 30th October 2023. 31 ibid.
[32] Home Office (n 7).
[33] Policy and Evidence Centre, ‘Explainer: The Illegal Migration Bill Modern Slavery Provisions’ (modernslaverypec.org, 12th July 2023) < Microsoft Word - Modern Slavery PEC Explainer - Illegal Migration Bill v1.5.docx> accessed 27th October 2023.
[34] Nicholas Stripe (n 30).
[35] The European Convention of Human Rights, Art 2.
[36] ibid, Art 3.
[37] Home Office (n 7).
[38] Richard Ekins KC (Hons) and others, ‘Rule 39 and The Rule of Law’, 10-12 (policyexchange.org.uk, 2023) < Rule-39-and-the-Rule-of-Law.pdf (policyexchange.org.uk) > accessed 20th November 2023. 39 ibid.
[40] ibid.
[41] ibid.
[42] Jennifer Morgan and Lizzy Willmington (n 14)
[43] Hope Not Hate, ‘What We Know About the Suites Hotel Anti-Migrant Protests in Kirby’ (hopenothate.org, 11th February 2023) < What we know about the Suites Hotel anti-migrant protest in Kirkby (hopenothate.org.uk)> accessed 1st November 2023.
[44] ibid.
[45] Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran, and David Harris, International Human Rights Law (4th edn, OUP 2022) 27.
Bibliography
Conventions and Treaties
The European Convention of Human Rights 1953
Statutes
Illegal Migration Act 2023
The Human Rights Act 1998
Books
Davies H, Human Rights Law Directions (5th edn, OUP 2021).
Dennett A, Public Law Directions (2nd edn, OUP 2021).
Moeckli D, Sangeeta Shah, Sandesh Sivakumaran, and David Harris, International Human Rights Law (4th edn, OUP 2022).
Journal Articles
Morgan J and Willmington L, ‘The Duty to Remove Asylum Seekers Under the Illegal Migration Act 2023: Is the Government’s Plan to “Stop the Boats” Now Doomed to Failure?” (2023) 54(4) Common Law World Review <The duty to remove asylum seekers under the Illegal Migration Act 2023: Is the government's plan to ‘Stop the Boats’ now doomed to failure? - Jennifer Morgan, Lizzy Willmington, 2023 (sagepub.com)> accessed 14th October 2023.
News Reports and Articles
BBC, ‘What Is the Uk’s Plan to Send Asylum Seekers to Rwanda?” (bbc.co.uk, 11th October 2023) < What is the UK's plan to send asylum seekers to Rwanda? - BBC News> accessed 10th October 2023.
Casciani D and Seddon S, ‘Supreme Court Rules Rwanda Asylum Policy Unlawful’ (bbc.co.uk, 15th November 2023) < Supreme Court rules Rwanda asylum policy unlawful - BBC News > accessed 20th November 2023
Hope not Hate, “What we know about the Suites hotel anti-migrant protests in Kirby” (hopenothate.org, 11th February 2023) < What we know about the Suites Hotel anti migrant protest in Kirkby (hopenothate.org.uk)> accessed 1st November 2023
Stripe N, ‘Modern Slavery in the UK: March 2020’ (ons.gov.uk, 26th March 2020) < Modern slavery in the UK - Office for National Statistics (ons.gov.uk)> accessed 30th October 2023
Websites
Home Office, ‘The Illegal Migration Act 2023” (Gov.uk, 8th March 2023) Illegal Migration Act 2023 - GOV.UK (www.gov.uk) accessed 27th October 2023.
Policy and Evidence Centre “Explainer: The Illegal Migration Bill Modern Slavery Provisions” (modernslaverypec.org, 12th July 2023) < Microsoft Word - Modern Slavery PEC Explainer - Illegal Migration Bill v1.5.docx> accessed 27th October 2023 Richard
Ekins R and others, ‘Rule 39 and The Rule of Law’ (policyexchange.org.uk, 2023) < Rule-39-and-the Rule-of-Law.pdf (policyexchange.org.uk) > accessed 20th November 2023
Sunak R, ‘PM Statement on Illegal Migration” (Gov.uk, 13th December 2022) https://www.gov.uk/government/speeches/pm-statement-on-illegal-migration-13- december-2022 accessed 5th November 2023.
