The Government’s Illegal Migration Bill threatens cherished British constitutional principles and puts the most vulnerable people at risk, argue researchers Rachel Solomon and Lee Marsons. The Illegal Migration Bill puts the safety of refugees, migrant children, and victims of modern slavery at risk and thereby raises very serious moral concerns. But the Bill also fundamentally undermines our constitution. As a recent House of Lords’ Constitution Committee report points out, the Bill undermines vital constitutional principles such as the rule of law; human rights; devolution; checks and balances; and parliamentary scrutiny of the executive. The Bill intends to create a system where the human rights of the world’s most vulnerable and persecuted people are ignored The Bill intends to create a system which denies meaningful accountability and access to justice for people subjected to life-changing and, sometimes, life-threatening asylum decisions. One where the human rights of the world’s most vulnerable and persecuted people are ignored. One where power is shifted to the Home Secretary from parliamentarians, the judiciary, the devolved nations, and individuals. One where the UK’s international obligations are violated based on weak justifications. Removing human rights protection: The Bill strips refugees and trafficking victims of protection under the Human Rights Act 1998. Clause 1(5) removes the duty on public authorities, including judges, to interpret the Bill in line with people’s rights under the European Convention on Human Rights (ECHR). It does this by stopping judges using section 3 of the Human Rights Act in relation to the Bill when it becomes law, including for any delegated legislation that the Home Secretary makes using the Bill. Section 3 was used by victims of the Windrush scandal, for example, to ensure that legislation was interpreted in a way that allowed them to receive British citizenship, even after Home Office errors which otherwise denied them this right. This Bill sets a dangerous precedent of disapplying a crucial human rights protection for political gain Prohibiting people from invoking section 3 leaves judges without an effective remedy if they conclude that this Bill violates human rights. While a higher court can still issue a section 4 HRA declaration of incompatibility, even if granted this requires no change in law or practice and, for this reason, the Grand Chamber of the Strasbourg Court has determined that a section 4 declaration will not always be an effective remedy. This Bill sets a dangerous precedent of disapplying a crucial human rights protection for political gain. Since this Bill was published, section 3 has already been disapplied in another government Bill: the Victims and Prisoners Bill. While this is not as bad at the Bill of Rights Bill which tried to repeal section 3 entirely, we must still be wary of the HRA’s “gradual nullification”, its ‘death by a thousand cuts’. The Bill gives the Home Secretary blanket powers to detain people and search and seize possessions, undermining the rights to liberty, privacy, and private property. The Bill imposes an obligation on the Home Secretary to remove people from the UK if they arrived outside an approved route – without doing anything practical to expand even the minimal approved routes that currently exist. This obligation includes removing accompanied children, refugees, and victims of modern slavery (Clause 2 and Clauses 21-28). Clauses 10-11 empower the Home Secretary to detain indefinitely anyone liable for removal. This is a serious interference with the right to liberty under Article 5 ECHR. Moreover, under Clause 10(2), detention can be ordered if an immigration officer “suspects” that someone meets the conditions for removal. People may, therefore, be detained before it is even confirmed whether they are liable for removal. The Home Secretary will have the power to detain individuals indefinitely, based on her subjective views Furthermore, under Clause 11(b), someone may be detained “for such period as, in the opinion of the Home Secretary, is reasonably necessary” to make a decision. The Home Secretary will, therefore, have the power to detain individuals indefinitely, based on her subjective views, with – as we will show later – few effective checks on her power by the courts. Furthermore, Clause 14 gives the Home Office the power to search people liable to be detained, to seize and retain any electronic devices, and to access, copy and use information stored on them. This is a significant interference with the right to peaceful enjoyment of possessions (Article 1, Protocol 1 ECHR) and with people’s privacy (Article 8 ECHR). Breaching the UK’s international obligations: The Bill probably breaches the UK’s obligations under international law, including the European Convention on Human Rights (ECHR), the Refugee Convention, and the Convention on Action against Trafficking in Human Beings (ECAT). Clause 2’s duty to remove people from the UK applies regardless of whether people meet refugee status. This contravenes Article 31 of the Refugee Convention, which requires states to determine whether an individual meets refugee status, and to provide them with protection if they do. Furthermore, under Clauses 10 and 11, those liable for removal may be detained indefinitely. This is contrary to Article 31 of the Refugee Convention, which requires that refugees not be penalised for entering a country through irregular means. Furthermore, the Bill dismantles the UK’s system of protection for victims of modern slavery Moreover, as mentioned above, the Bill may well put the UK in breach of Articles 5 and 8, as well as A1P1, of the ECHR. In fact, the Government was unable to make the usual statement under section 19 of the HRA that the Bill was compatible with the ECHR. Furthermore, the Bill dismantles the UK’s system of protection for victims of modern slavery, probably breaching Article 4 ECHR and the ECAT. Clause 4(1)(c) establishes that the Bill applies to victims of modern slavery, and Clauses 21-28 remove any requirements to provide protection and support, including the 30-day “recovery and reflection period” required under Article 13 of ECAT. These provisions could also put the UK in breach of its core obligations under Article 4 ECHR – such as by failing to provide an effective system of investigation and punishment of human trafficking, given the Bill’s presumption that victims will be removed from the UK even if they are giving evidence in criminal proceedings against their trafficker (Clause 21(5)). The Bill requires all British officials – including judges – to ignore interim measures issued by the European Court of Human Rights unless a Minister directs otherwise, putting vulnerable refugees at risk of serious harm. Clause 53 requires British state officials – including judges – to ignore Rule 39 interim measures granted by the European Court of Human Rights, where that prevents someone’s removal from the UK. The Court itself has made clear that interim measures are binding on the state as refusal to adhere to them would put a country in breach of article 34 ECHR. A legislative requirement to ignore rulings by the European Court of Human Rights would dangerously undermine the authority of the Court and the international rule of law. Unjustifiably broad executive powers: The Bill gives the Home Secretary powers to make regulations with inadequate parliamentary scrutiny. The Bill gives the Home Secretary extensive delegated powers. The Government admits to at least twenty in its Delegated Powers Memorandum. Most of them only require the negative resolution procedure (Clause 63(5)), meaning that there will be limited practical parliamentary scrutiny of any measures. For example, statutory instruments are usually not amendable by Parliament and are rarely rejected. Clause 62 will allow the Minister to alter and even get rid of provisions of primary legislation by delegated legislation The powers sought by the Home Secretary affect tens of thousands of people. Parliamentarians should not be mere spectators in decisions of such political significance. Some of the most significant powers include: Clause 6: Schedule 1 lists the countries deemed safe enough to remove people to. It includes nations with problematic human rights records – particularly for LGBTQ+ people – like Rwanda, Mali, and Sierra Leone. Clause 6 gives the Home Secretary the power to add new countries if she is satisfied they are safe. Given the countries already deemed safe and the lack of parliamentary confidence in rejecting statutory instruments, this power could have life-changing consequences. Clause 39: In a suspensive claim, people can avoid removal if they provide compelling evidence that they would suffer “serious and irreversible harm”. Clause 39 allows the Home Secretary to change the definition. As the Lords’ Constitution Committee put it at  in their report: “the implications of this definition are so significant that it should be amended only by primary legislation”. Clause 58: Grants a power to cap the numbers of refugees using safe and legal routes. Clause 62: Gives the Home Secretary the power to “amend, repeal or revoke any enactment passed or made before… this Act” to help the Bill take effect. This is a broad Henry VIII power, allowing the Minister to alter and even get rid of provisions of primary legislation by delegated legislation. The Bill undermines the balance between Westminster and the devolved administrations. The Bill gives the Home Secretary powers which encroach on devolved competencies. There has been no process of consultation, nor has consent been sought. For example, under Clause 19(1), the Home Secretary has the power to extend the provisions about the accommodation of unaccompanied children (Clauses 15-18) to Wales, Scotland and Northern Ireland. However, the housing and care of looked-after children is under the authority of the devolved administrations. 23 and 24 effectively disapply the modern slavery protections passed by the Scottish and Northern Irish legislatures without their consent Furthermore, by virtue of these regulations, the Home Secretary may repeal, revoke or amend any enactment, including primary legislation from the devolved legislatures (Clauses 19(2) and 19(4)). Finally, Clauses 23 and 24 effectively disapply the modern slavery protections passed by the Scottish and Northern Irish legislatures without their consent. Undermining judicial independence and access to justice: The Bill imposes an unfair system for people challenging their removal, with unrealistic time limits on Home Office and judicial processes, which will encourage low-quality, rushed decisions. The Bill makes the Home Secretary ignore all claims for protection, human rights, modern slavery, and judicial review from anyone liable for removal (Clause 4). The only way to challenge being removed is through “suspensive claims”, either factual (that the Home Office has wrongly identified someone as being removable) or serious harm (that a person would suffer “serious and irreversible harm” if removed) (Clauses 37-54). People have only eight days to make a suspensive claim, which must be in a “prescribed form and manner” (Clauses 41(5) and 42(5)). It is unrealistic that a refugee could complete a complicated application in such a short period. This is especially so when, due to legal advice deserts people may have to do this with limited or even no legal advice. The result will be a system of rushed, poorly reasoned, identikit decisions, through no fault of the judges and administrators involved. The Home Office only has four days to consider a suspensive claim. It is unrealistic that a busy government department fighting to get the asylum backlog under control can make reasoned decisions in such a short period. The Home Office still regularly takes more than six months to reach asylum decisions. The right to appeal against these decisions is also very rushed, having to be exercised within seven days (Clause 48(1)(a)). The Upper Tribunal must then reach a judgment within twenty-three working days (Clause 48(1)(b)). These numbers appear to have been plucked from thin air. There is no evidence that they are achievable. The result will be a system of rushed, poorly reasoned, identikit decisions, through no fault of the judges and administrators involved. The Bill seriously undermines judicial independence and access to the courts. According to the Constitution Committee, the Bill contains five ouster clauses and thirteen additional clauses which restrict people’s access to independent judicial scrutiny of the serious decisions affecting their lives. These include: Clause 12: Decisions to detain people – including children – cannot be challenged by judicial review for twenty-eight days, except in limited circumstances which are very unlikely to arise. People can also invoke habeas corpus but because the Bill itself authorises detention, this provides only modest, if any, protection against lengthy internment. Clause 47: The Upper Tribunal may not consider any new matter without the consent of the Home Secretary, unless there are compelling reasons. This is a serious encroachment on judicial independence and will normally lead to new matters being blocked if they do not benefit the Home Office. Clause 49: Decisions made by the Upper Tribunal cannot be appealed or reviewed, except in very limited circumstances unlikely to arise in practice. Clause 52: British courts are prohibited from granting temporary remedies where it prevents or delays removal. The Illegal Migration Bill radically undermines important constitutional principles. These are important defences against arbitrary, disproportionate, and harmful government power. Failure to respect them will put at risk the world’s most persecuted people, including refugees and victims of trafficking. The Government should abandon this Bill and work for a humane and constitutionally sound alternative.