The Illegal Migration Bill, the government’s answer to the ‘small boats crisis’, was proposed to Parliament on 7 March. Since then, it has faced fierce criticism from international organisations including the UN High Commission on Refugees (UNHCR), national refugee support organisations, those supporting victims of torture, children, trafficking victims and asylum lawyers. From 27 March the Bill has been debated by a Committee of the whole House, and today, it is facing its final stages in the House of Commons.

At this late stage, over the last few days Home Secretary Suella Braverman has tabled a series of new government amendments, which MPs have very little time to consider and even less time to debate. Some of these amount to a frontal attack on basic UK legal rights and legal processes. Five measures in particular go well beyond even what might be considered necessary for strict immigration control.

Serious harm suspensive claims interpretation

New clause 17 “Serious harm suspensive claims” interpretation seeks to impose a definition of “serious harm” so strict that many people facing inhuman and degrading treatment contrary to article 3 of the European Convention of Human Rights will be excluded from any right to resist removal. First, the harm must be “a real, imminent and foreseeable risk of serious and irreversible harm”.

Examples given include death, persecution as defined in the Nationality and Borders Act 2022, torture, inhuman or degrading treatment, and onward removal from a safe third country. Explicitly excluded are harms arising from inadequate healthcare in the safe third country “including, in particular, a less favourable medical prognosis” and “any pain or distress resulting from a medical treatment available… in the UK not being available in the [safe third country]”.  In other words, claims which might succeed in other contexts following Paposhvili and AM (Zimbabwe) are to be excluded from consideration despite the fact that the set up in the government’s first choice of third safe country, Rwanda, is described by the World Health Organisation as requiring nearly an hour’s walk to the nearest place providing basic primary healthcare, with limited referrals to hospitals carrying out basic diagnosis and procedures.

In any event, the burden of proof will lie heavily on anyone seeking to show harm, requiring detailed country and personal evidence unlikely to be available to individuals detained under this Bill. Legal aid is to be available for these kinds of challenges, but as we know, the difficulty will be finding legal practices with the capacity to take on such claims at short notice.

Decisions relating to age

New clause 24 “Decisions relating to a person’s age” seeks to exclude those wishing to challenge an age assessment from any appeal. Judicial proceedings are not to prevent arrangements being made for removal unless the decision was “wrong in law”, so as to exclude any reconsideration of the facts.

This is an extraordinary proposition. The relevant authorities charged with deciding a person’s age are not limited to local authorities or even to those “designated” under the Nationality and Borders Act 2020, but include “an immigration officer” and the Secretary of State. Imagine a young person coming off a small boat claiming that he is 17, but declared to be over 18 by the first immigration officer he meets. It will not avail him to inform them that his older brother is already a refugee in the UK, and that documents could be made available showing his name and age. By this clause he may not appeal, and it won’t be comforting for him to hope that a judge might find it “wrong in law” for the Home Office not to have allowed him time to obtain evidence of his age.

Scientific methods of age assessments

New clause 25 “Age assessments …refusal to consent to scientific methods” provides for the power to declare that refusal to consent to scientific methods of age assessment will simply lead to an applicant’s being treated as an adult. An explanatory note says that this won’t be used until the Secretary of State is “satisfied” that the scientific methods are sufficiently accurate to ensure that such an automatic assumption would not be incompatible with the European Convention on Human Rights. We may fear that the Secretary of State might be too easily satisfied. And in any event, there is no mention of the health concerns about such procedures. You can read more about previous recommendations on the use of scientific methods of age assessment presented to the government here.

Interim measures of the European Court of Human Rights

New clause 26 “Interim measures of the European Court of Human Rights” 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. This effectively orders officials and judges to act incompatibly with the Convention as well as domestic law. 

It is another extraordinary proposition, from both a practical and legal perspective. First, the practicalities. The Institute of Government (and others) has already criticised the Home Office for being a department in which too much individual decision-making is taken by Ministers personally. There is both a poor workload management procedure and a culture of fear and over-strict decision-making amongst officials, especially in headline matters such as deportation cases – and probably, decisions to send people to Rwanda. With a forecast of 40-50,000 people arriving each year who fall to be considered under this Bill, even if only 1% manage to apply to the European Court, that would require Ministers to deal personally with four or five applications a week.

Legally, the proposition is objectionable. If no minister decides to intervene (even if happened by accident) this clause prohibits any person or body from having regard to the European Court’s injunction – even the Secretary of State or an immigration acting under provisions of this Bill, the Upper Tribunal (exercising its judicial review functions), or any other court or tribunal considering any appeal relating to a decision to remove a person under this Bill. The European Court has previously held that non-compliance with interim measures would amount to a violation of Article 34 of Convention rights, which requires that there be no hindrance to an individual’s ability to bring a claim. This may be an example of “negotiation by legislation”, which you can read more about here. 

A small sub-clause states that there is no requirement to remove a person pending a decision by a Minister, but this reduces a person’s rights to the slender legal thread of “awaiting a pending decision of a Minister” or even being able to ascertain the exact legal moment at which a Minister has become personally seized of the issue.

Interim remedies

Finally, new clause 22 “interim remedies” directly abolishes all interim remedies, in whatever court, whether on Convention grounds or otherwise. Here are the clauses, which are not capable of any other interpretation:

(1) This section applies to any court proceedings relating to a decision to remove a person from the United Kingdom under this Act (whether the proceedings involve consideration of Convention rights or otherwise).

(2) Any power of the court to grant an interim remedy (whether on the application of the person or otherwise), is restricted as follows.

(3) The court may not grant an interim remedy that prevents or delays, of that has the effect of preventing or delaying, the removal of the person from the United Kingdom in pursuance of the decision.

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 judicial review; that no domestic court may stand in the way of a decision to remove someone, regardless of the evidence that 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 individuals so comprehensively from any consideration by any court, even where circumstances are 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”, 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.