The Illegal Migration Bill, the government’s answer to the ‘small boats crisis’, was proposed to Parliament on 7 March. Since then, the Bill has faced fierce criticism from international organisations including the UN High Commission on Refugees (UNHCR), from national refugee support organisations, organisations supporting victims of torture, children, trafficking victims as well as from asylum lawyers. Since 27 March the Bill has been debated by a Committee of the whole House, and is now facing its final stages in the Commons. Final attempts to amend the Bill have been tabled.
Abruptly, at this late stage, Home Secretary Suella Braverman has tabled a series of new government amendments,i which MPs have very little time to consider and even less time to debate. Sheona York, Clinic Solicitor at Kent Law Clinic, – comments that some of these amount to a frontal attack on basic legal rights and legal processes. She says:
‘Five measures in particular go well beyond even what might be considered necessary for strict immigration control. New clause 17 seeks to impose a definition of ‘serious harm’ so strict that many people facing ‘inhuman and degrading treatment’ contrary to art 3 ECHR will be excluded from any right to resist removal. New clause 24 seeks to exclude those wishing to challenge an age assessment from any appeal: and judicial proceedings are not to prevent arrangements being made for removal unless the decision was ‘wrong in law’, held to exclude any reconsideration of the facts. New clause 25 provides that refusal to consent to ‘scientific methods’ of age assessment will simply lead to an applicant’s being treated as an adult. New clause 26 provides that, where the European Court of Human Rights makes an ‘’interim measure’ (an injunction), only a Minister of the Crown in person may decide to obey it. And if the Minister makes no decision, immigration officers and Tribunal judges ‘may not have regard’ to that measure – effectively ordering officials and judges to act incompatibly with the Convention and domestic law. New clause 22 directly abolishes all interim remedies, in whatever court, whether on Convention grounds or otherwise.
‘In any other legal context short of war or imminent terrorist attack, can we imagine a threat so serious that only imminent death, persecution or torture may halt someone’s removal; that someone whose documents show they are a child but who cannot immediately obtain them cannot appeal or issue a JR: that no domestic court may stand in the way of a decision to remove, regardless of whatever evidence is presented; and that if the Minister is asleep or on holiday when the European Court issues an injunction no other official or court may take any notice of it. In no other area of UK law has any government attempted to exclude applicants so comprehensively from any consideration even of circumstances recognised to be exceptional, let alone entirely prevent access to the normal common-law checks on administrative decision-making. These measures will lead to scores of decisions ‘so unreasonable that no reasonable public official could make them’,ii and the government will get away with it.
‘In my view, this wholesale curtailment of legal rights and access to remedies amounts to legislative hysteria: the hysteria of a government which knows, but can’t accept, that it can’t ‘stop the boats’ without international cooperation and a functioning asylum system.’
Sheona York is a Clinic Solicitor at Kent Law Clinic, she supervises students working on clients’ immigration and asylum cases. She also works closely with local NGOs and refugee charities and contributes to academic and public debate on immigration issues. Her recently published book ‘The Impact of UK Immigration Law’ (Palgrave Macmillan) provides a rigorous analysis of the administrative and legal failures of modern UK immigration control. It explores topical issues such as Brexit, Windrush and boat channel crossings.
Kent Law Clinic at Kent Law School is a partnership between students, academics, solicitors and barristers. Its mission is to support people that live and work in Kent with a free public service, which provides legal advice and representation to those unable to afford it.