Home secretary Suella Braverman’s Illegal Migration Bill, if enacted, could breach the European Convention on Human Rights (ECHR). This could make the proposed law unworkable. Consequently, some supporters of the bill see the convention and the European Court of Human Rights as a hindrance. In turn, this would explain why they want the UK’s membership of the ECHR terminated.
Meanwhile, a barrister has summarised the provisions in the bill, as well as its anomalies.
What does the Illegal Migration Bill propose?
Braverman’s bill, if enacted, would see huge changes in the way the UK handles refugees and asylum seekers. For example, anyone arriving in the UK via boat or on the back of a lorry will not be able to claim asylum. That stipulation applies even if they have come from a war-torn country, or faced repression.
Immigration and asylum barrister Colin Yeo explained further:
- Under the proposed legislation the government intends to transport migrants who enter the UK “unlawfully” to Rwanda or another “safe country”.
- The legislation also means that anyone entering the UK ‘irregularly’ will not be allowed to work in the UK. Nor will their families be allowed to join them.
- Although the legislation will not apply to children entering by irregular means, once they reach age 18 they can still be deported.
- Current asylum law practice and appeals will no longer apply.
- Other measures mean that the detention of families with children, as well as unaccompanied children, cannot be legally challenged.
Legal challenges
The proposed measures will also apply to victims of modern slavery, even though that would breach the European Convention on Action against Trafficking in Human Beings. Yeo pointed out that this could see a legal challenge raised under Article 4 of the ECHR. That article “protects your right not to be held in slavery or servitude, or made to do forced labour”.
Yeo also highlighted a number of anomalies in the proposed legislation. For example, it’s not clear if under the proposed arrangements a detention order can be challenged via a writ of habeus corpus, which specifies that no one can be detained illegally.
As for the Rwanda option, Yeo added:
Even if the courts give the go-ahead and the Rwandan government agreed to accept a LOT of transfers, no-one should underestimate quite how violent such removals will be. People will be genuinely desperate to avoid being removed there. Desperate people do desperate things. It will be grim.
There are a number of successful European Court of Human Rights cases that could be used to challenge the proposed legislation. Indeed, former parliamentary lawyer Alexander Horne believes the most likely cases brought to the court would be in regard to article 8 (respect for family life) of the convention. Cases could also apply to article 3 (freedom from torture and degrading and inhuman treatment). Horne further pointed out that should the European Court of Human Rights rule in favour of a claim by an asylum-seeker, financial compensation can also sought.
Yeo also highlighted that the UK could be forced to defend itself at the International Court of Justice, which is the principal judicial organ of the United Nations, based at the Hague.
Illegal Migration Bill may not be compatible with the ECHR
Meanwhile, Braverman admitted that she can’t confirm that the proposed legislation is compatible with the ECHR and therefore legal:
📑👀Cover of the Illegal Migration Bill says:
“I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights, but the Government nevertheless wishes the House to proceed with the Bill.” 👇 pic.twitter.com/jCSpj6vxsM
— Sophia Sleigh (@SophiaSleigh) March 7, 2023
That admission could lead to one of two outcomes. They are either the migration bill is dropped or significantly amended, or it’s enacted as-is. With the latter outcome, that would set the scene for legal confrontation and, ultimately, the possibility of the UK quitting the ECHR.
According to the United Nations Refugee Agency, the proposed legislation would also “be a clear breach of the Refugee Convention”.
Why we should care about the ECHR?
The ECHR and the European Court of Human Rights are entirely separate entities from the European Union (EU). The UK’s withdrawal from the EU did not affect its membership of the ECHR or its participation in the European Court of Human Rights. The UK is a signatory to the convention since its founding in 1951. Indeed, British lawyers helped draft it. The European Court of Human Rights, created in 1959, enforces the convention. The court has jurisdiction in 47 countries.
The European Court of Human Rights has delivered more than 16,000 rulings covering a number of themes, including cases specific to the UK.
One notable UK case concerned the ‘McLibel’ trial. Helen Steel and David Morris, two environmental activists, handed out leaflets that accused McDonald’s of environmental destruction. McDonald’s sued for libel. Steel and Morris denied publishing the leaflets. The European Court of Human Rights examined the case and found it was unfair to deny the defendants legal aid. The court awarded £57,000 against the UK government.
In another case in May 2022, the UK government admitted liability for illegal surveillance conducted on Julian Assange’s lawyer Jennifer Robinson:
In 2016, I took legal action against the UK with @privacyint over surveillance & information sharing with the US – given my work as lawyer for #Assange & @wikileaks
UK admits violation of Art 8 & Art 10 (confidential journalistic material)
Robinson v UK https://t.co/UQdyAhWg2i pic.twitter.com/30mNlepFy9
— Jen Robinson (@suigenerisjen) June 9, 2022
This followed a ruling by the European Court of Human Rights that the surveillance violated article 8 (respect for family life) and article 10 (freedom of expression) of the ECHR. In other words, the surveillance breached “confidential journalistic material”.
According to a research paper by Dimitrios Giannoulopoulos, European Court of Human Rights‘ rulings have also:
led to a rights-focused inquest system, helping bring justice for the 96 innocent lives of Liverpool fans lost at Hillsborough. It has prohibited corporal punishment in schools; protected transsexuals from discrimination; found that there could be no blanket and indefinite retention of DNA profiles and fingerprints in cases where a defendant in criminal proceedings had been acquitted or discharged; led to changes to the law and regulations to restrict the disclosure of CCTV images to third parties and to set clear restrictions on monitoring and recording conversations in public spaces; enhanced press freedom by providing protection against the disclosure of journalistic sources; led to greater clarity on the display of religious and charity symbols; extended the right to privacy to the workplace, meaning that employers could not monitor an employee’s telephone calls, emails and personal email use at work, unless they had put in place a lawful policy of monitoring such activities and the employee had been made aware of its existence.
Some consequences
Meanwhile, 14 trade union heads have issued a statement. They said the government’s “rhetoric and demonisation” of refugees is all about “playing the mood music” for far-right mobs.
Should the UK quit the ECHR, the human rights organisation Liberty pointed out that this means the UK would:
also breach the Good Friday Agreement, which requires that the Convention be directly enforceable in Northern Ireland. This would threaten the peace settlement.
It’s noteworthy that there are only two European nations that are not currently signatories to the convention. The two are Russia – expelled after its invasion of Ukraine – and Belarus. Britain may well end up joining them, should the Tories’ discriminatory migration legislation come to clash with the ECHR.
Featured image via YouTube cropped 770×403 pixels
