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High Court in Northern Ireland orders disapplication of certain sections of Illegal Migration Act

The High Court in Northern Ireland has held that the Illegal Migration Act 2023 breaches the Windsor Framework, put in place to prevent a hard border on the island of Ireland, and ordered the disapplication of provisions of the Act in Northern Ireland. The court also declared certain provisions of the Act to be incompatible with the European Convention on Human Rights. The case is In re NIRHC and JR 295 (Illegal Migration Act 2023).

The Illegal Migration Act provisions that were challenged are not in force yet and so it is important to remember that this decision has no impact on the current system for sending people to Rwanda.

From the summary:

The provisions of the IMA under challenge in the NIHRC proceedings were as follows:

  • Section 5(2) relating to admissibility of protection or human rights claims.
  • Section 5(2) and section 54 concerning effective remedy.
  • Sections 2(1), 5(1) and 6 which require removal from the UK in specified cases.
  • Sections 2(1), 5(1) and 6 in relation to the principle of non-refoulement.
  • Section 13(4) concerning the court’s ability to review detention.
  • Sections 22(2) and 22(3) which require the removal of victims of trafficking in certain
  • Sections 2(1), 5(1) and 6 insofar as they relate to the removal of children and children’s

For the reasons set out in the judgment, the court concluded that the relevant provisions of the IMA are disapplied in Northern Ireland.

Given the significant nature of the violations identified, and the Government’s avowed intention to proceed to bring the IMA into force, the court was satisfied that it would be appropriate to exercise its discretion and grant the section 4 HRA declarations of incompatibility sought in respect of:

  • Sections 2(1), 5(1), 6(3) and 6(7) insofar as they impose a duty to remove.
  • Sections 2(1), 5, 6 and 22 insofar as they relate to potential victims of modern slavery or
    human trafficking.
  • Sections 2(1), 5(1) and 6 relating to children.

The challenge was brought by the Northern Ireland Human Rights Commission who have produced a useful explainer of the case and they have also published a response to the judgment. There was also an individual claimant JR295 represented by Phoenix Law who have also responded to the decision.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Sonia Lenegan

Sonia Lenegan is an experienced immigration, asylum and public law solicitor. She has been practising for over ten years and was previously legal director at the Immigration Law Practitioners' Association and legal and policy director at Rainbow Migration. Sonia is the Editor of Free Movement.


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