The Constitution Committee has released its report on the Illegal Migration Bill 2022-23. The Committee raises a number of concerns, including its potential impact on the rule of law, human rights, devolution, delegated powers, and parliamentary scrutiny. We await the report of the Joint Committee on Human Rights which will most likely comment in more detail on the implications of the Bill for the United Kingdom’s international obligations.
Outline of the Bill
The purpose of the Illegal Migration Bill is to “create a scheme whereby anyone arriving illegally in the United Kingdom will be promptly removed to their home country or a safe third country to have any asylum claim processed”. It imposes a duty on the Home Secretary to remove from the United Kingdom individuals who satisfy four criteria set out in clause 2 of the Bill and creates powers to detain these individuals pending their removal from the United Kingdom. The removal duty does not extend to unaccompanied children, although the Home Secretary has a power to arrange for the removal of unaccompanied children. The Bill also changes current law relating to victims of human trafficking and modern slavery. It disapplies the ‘recovery period’ set out in the Nationality and Borders Act 2022 (clauses 21 to 28) (a period generally of 30 days during which potential victims of slavery or modern trafficking cannot be removed) from those caught by the removal duty. It also restricts the circumstances under which these individuals may remain in the country. This limited protection only applies to those assisting authorities prosecuting offences when the Minister considers that it is necessary for this individual to remain in the country to provide this assistance and considers that any risk posed to the public by an individual remaining in the country is outweighed by public interest in the cooperation of the individual. The Bill’s modern slavery provisions are subject to a sunset clause, lapsing after two years, which may be extended by delegated legislation (clause 25). The Bill also provides for a broad power to search individuals and seize electronic devices (clause 14 and Schedule 2), as well as setting a cap for legal migration (clause 58).
Rule of law
The Bill contains a number of provisions which restrict or limit judicial review, including through the use of ouster clauses. The duty to remove an individual from the United Kingdom applies “regardless of whether” an individual “makes a protection claim” (a claim that removal would breach the 1951 Convention Relating to the Status of Refugees), makes a “human rights claim” or “makes an application for judicial review” (clause 4(1)). If an individual makes a human rights claim or a protection claim, the Secretary of State “must declare the claim inadmissible” (clause 4(2)). Once declared inadmissible, the claim “cannot be considered under the immigration rules” (clause 4(3)). The Bill also restricts interim measures, both of the domestic courts and the European Court of Human Rights. The court “may not grant an interim remedy that prevents or delays, or that has the effect of preventing or delaying, the removal of the person from the United Kingdom” (clause 52(3)). The Secretary of State, an immigration officer or a relevant court or tribunal “may not have regard” to interim measures of the Strasbourg Court, unless a Minister of the Crown exercises their discretionary power to issue a determination that, in the light of the interim measure, the duty to make arrangements to remove an individual from the country “is not to apply in relation to the person” (clause 53).
The Committee concludes that these clauses “do not completely restrict access to judicial review, but they reduce both access to it and its ultimate utility and ensure that a claimant would have to continue their claim from the country to which they are removed.” [para 9]
The only means through which an individual may prevent their removal from the UK is through a suspensive claim: either a serious harm suspensive claim or a factual suspensive claim (suspensive claims are a new and limited remedy introduced by the Bill). An individual wishing to make a suspensive claim has 8 days in which to provide compelling evidence either that the individual will face “a real, imminent and foreseeable risk of serious and irreversible harm if removed from the United Kingdom…to the country or territory specified in the third country removal notice” (clause 38(3)), or that “a mistake of fact” was made when deciding that the individual met the conditions for removal (clause 42). Suspensive claims can be appealed, within seven working days, before the Upper Tribunal or the Special Immigration Appeals Commission. However, if the Secretary of State certifies that a suspensive claim is “clearly unfounded” there is no right of appeal. Instead, an applicant must first obtain permission to appeal the decision from either the Upper Tribunal or SIAC. The Bill also contains partial ouster clauses restricting judicial review over certain decisions of SIAC and the Upper Tribunal – in relation to a refusal to grant permission to appeal, an extension of the time limit for bringing a claim, or refusals to admit new evidence in an appeal (clause 49).
The Committee concludes that: “Viewed in isolation the ouster provisions in relation to suspensive claims are narrower in scope than other ouster provisions in the Bill. Their impact will largely depend on how they operate in practice. We invite the House to satisfy itself that these clauses, individually or in their cumulative effect, will not preclude access to justice or endanger the rights and protection of vulnerable applicants, particularly victims of slavery and human trafficking. The House may wish to consider how to ensure that time limits are in practice extended where required to enable individuals to provide compelling evidence to support a suspensive claim.” [para 26]
Of even greater concern to the Committee are the provisions of the Bill which restrict judicial review over detention of individuals pending their removal from the country. The Bill prevents judicial review and immigration bail claims during the first 28 days of detention (clause 12). It preserves actions for habeas corpus (suspension and liberation in Scotland). However, as argued by Finnian Clarke, these claims are narrower than actions for judicial review. The Bill also modifies the Hardial Singh principles, enabling detention beyond that which is reasonably necessary to make arrangements for an individual’s removal from the United Kingdom, and sets out that it is for the Minister, and not the courts, to determine the length of a reasonable period (clause 11). The Committee concludes that “Clauses 11 and 12 are partial ouster clauses of great constitutional concern” that have “serious implications for the liberty of an individual” [para 16]. Overall, the Committee’s conclusion in relation to the rule of law is that “The cumulative impact of the ouster and partial ouster provisions in the Bill gives rise to very considerable constitutional implications.” [para 27]
The Constitution Committee’s report focuses on the general constitutional issues arising from the Bill’s treatment of the Human Rights Act 1998. The Bill includes a section 19(1)(b) statement which is made when, although unable to make a statement of compatibility, the minister still wishes the House to proceed with the Bill. The Home Secretary stated in a letter to MPs: “Our approach is robust and novel, which is why we can’t make a definitive statement of compatibility under section 19(1)(a) of the Human Rights Act.” The Bill also includes two novel provisions which operate together to restrict the application of the HRA to its interpretation. Clause 1(5) appears to expressly disapply section 3 of the Human Rights Act 1998, while clause 1(3) states that “so far as it is possible to do so, provision made by or by virtue of this Act must be read and given effect so as to achieve the purpose” of the Bill, as set out in clause 1, to “prevent and deter unlawful migration”.
However, the Government’s ECHR memorandum accompanying the Bill states that the clauses it identifies as engaging Convention rights are compatible with, or capable of being applied compatibly with, the relevant ECHR articles. The Committee notes that this statement “appears more sanguine than the Home Secretary’s assessment seems to imply.” [para 34]. In particular, the Committee notes that the ECHR memorandum’s only consideration of clause 1(5) is to set out that the clause “does not affect the Government’s assessment of compatibility of the Bill with Conventions rights” [ECHR memorandum para 5]. The Committee concludes that “It appears that the Government’s ECHR memorandum is more optimistic about the likelihood of the Bill’s compatibility with Convention rights than the ministerial section 19(1)(b) statement would suggest. This requires further explanation. In particular, the potential impact of clause 1(5) on compatibility has not been adequately explained. We recommend that the Bill is amended to provide for guidance, subject to parliamentary scrutiny, on how the Bill is to be implemented compatibly with Convention rights.” [paras 37 to 38]
Immigration (including asylum) is a reserved matter in Scotland and Wales and an excepted matter in Northern Ireland, but clause 19(1) allows the Secretary of State to make regulations enabling clauses 15 to 18 (concerning unaccompanied children) to apply in relation to Wales, Scotland, or Northern Ireland. These regulations can amend, repeal or revoke legislation passed or made by the devolved institutions. Although the Sewel convention does not apply to secondary legislation, the Committee states that “it would be constitutionally inappropriate for Parliament to circumvent the Sewel convention by allowing for delegated legislation to alter devolved legislation in areas of devolved competence.” And that clause 19(1) and related provision in clauses 23–24 should be amended “so that the power to amend devolved legislation may not be exercised without first seeking the consent of the relevant devolved legislature.” [para 47]
The Committee also notes how the clause 19(1) power relates to, and to some extent overlaps with, devolved matters; in particular the responsibility for unaccompanied or otherwise vulnerable children. The Government states that clause 19(1) regulations “will require detailed input from the devolved administrations” but does not clarify the position beyond this. The Committee recommends “that the House seek further information from the Government on the steps it has taken to agree an appropriate approach to the treatment of unaccompanied children across the United Kingdom.” [para 49]
The Bill is replete with delegated powers. In addition to those noted above the Committee draws particular attention to the power in clause 39(2) which empowers the Secretary of State to amend the definition of “serious and irreversible harm” in clause 38 and therefore the grounds on which a person may or may not be removed from the United Kingdom. This could result in the definition being amended such that a “real, imminent and foreseeable risk” (clause 38(3)) “of death or torture, which are examples of serious and irreversible harm set out in clause 38(4), are no longer grounds to halt a removal”. [para 51] The Committee states: “We consider that the implications of this definition are so significant that it should be amended only by primary legislation unless any delegated power to do so is limited to prevent fundamental risks of harm being removed from the definition. Clause 39 should be removed from the Bill or heavily circumscribed.” [para 52]
The Bill was not subjected to pre-legislative scrutiny, despite the fact that it modifies some recently enacted legislative provisions, found in the Nationality and Borders Act 2022, which did receive pre-legislative scrutiny. The Bill also contains placeholder clauses which were replaced by governmental amendments at the report stage as opposed to the committee stage where they could have been better analysed by MPs. Other constitutionally important provisions were also only introduced at report. The Committee concludes that “The use of placeholder clauses for constitutionally significant provisions is unacceptable and reduces the opportunity for the finalised policy to be considered.” [para 60]
The Bill’s committee stage is scheduled to begin in the Lords on Wednesday 24 May. The speed with which the Bill passed through the Commons has put pressure on committees to report ahead of this. The Delegated Powers and Regulatory Reform Committee reported on 18 May but the JCHR is yet to do so. It is unsatisfactory that Parliament is having to digest a constitutionally significant measure so quickly and that important committee deliberations require to be so truncated. It is hoped that the Constitution Committee’s report will assist both houses in assessing the Bill’s potentially significant constitutional implications.
Stephen Tierney is Professor of Constitutional Theory, University of Edinburgh
Alison L. Young is the Sir David Williams Professor of Public Law at the University of Cambridge
They serve as Legal Advisers to the House of Lords Constitution Committee. This blog post is written in a personal capacity.
(Suggested citation: S. Tierney and A. L. Young, ‘The House of Lords Constitution Committee Reports on the Illegal Migration Bill’, U.K. Const. L. Blog (23rd May 2023) (available at https://ukconstitutionallaw.org/))