The TCA, the ECHR and the Illegal Migration Act

While the Illegal Migration Act 2023 received royal assent on 20 July, it was not accompanied by a declaration under the Human Rights Act 2003 that its provisions are compatible with the European Convention on Human Rights (‘the ECHR’), but with an “ECHR memorandum” stating that the government was of the view that Convention rights were not infringed. Nonetheless, the Prime Minister has acknowledged that the provisions “[push] the boundaries of what is legally possible while staying within the ECHR” and that the government would be “willing to reconsider whether being part of the ECHR is in the UK’s long-term interests”.

European bodies have already raised issues over the provisions of the Act its failure to comply with international law: in June 2023, the Council of Europe adopted a resolution expressing concern over the fact that it would  “increase legal uncertainty and conflicts between UK domestic law and the requirements of the European Convention on Human rights – as well as a number of other international conventions.” In March 2023, the EU home affairs commissioner said that she’d spoken to the Home Secretary to tell her that the Illegal Migration Bill violated international law.

Whilst such headlines may be politically welcome for the government, the reality is that there may well be unintended consequences for the UK in the event of a failure to heed these voices, which have their own ramifications of the most serious kind, specifically, the impact on the ability of the UK to deal with cross border crime.

Yesterday, the Lords Justice and Home Affairs Committee wrote to the Home Secretary, upon the conclusion of its inquiry on post-Brexit UK-EU security co-operation. The Committee drew attention to the potential negative impact that deficiencies in the protection of ECHR rights would have on international cooperation in criminal matters. In particular, it considered the impact of a termination or suspension of Part Three of the TCA if the UK were to either leave the ECHR or exhibit “serious and systemic” deficiency in its protection of human rights and the principle of the rule of law. It concludes that:

Termination or suspension of Part Three of the TCA would have extremely serious consequences for UK-EU security cooperation, curtailing our ability to combat cross-border criminal activity. Leaving the European Convention on Human Rights would, in all probability, end the UK’s membership of the Council of Europe. This, in turn, would cease the UK’s participation in the 1957 European Convention on Extradition, making any extraditions between the UK and the 45 other members of the Council of Europe virtually impossible, resulting in the impunity of criminals.

The letter asks the Home Secretary what consequences the Home Office anticipates should Part Three of the TCA be terminated or suspended, and asks how this has informed their approach to the ECHR and Channel crossings. With the Illegal Migration Act now in force, and challenges to its provisions inevitable, those on the sidelines will be watching to see whether the government has indeed made allowance for any of these obvious beartraps.

The Illegal Migration Act has been criticised by numerous organisations, for instance: joint briefing by the Bonavero Institute of Human Rights, Oxford University, Public Law Project (PLP), Amnesty International, Liberty, and the Immigration Law Practitioners’ Association (ILPA)). It has also attracted the (very negative) attention of UN High Commissioner for Refugees, the UN High Commissioner for Human Rights and three UN Special Rapporteurs (against trafficking in human beings, for the rights of children and for the human rights of migrants), amongst others, all of whom have criticised various provisions as incompatible with a wide range of Treaty obligations binding on the UK (beyond the ECHR). One of the areas singled out for criticism is the differential treatment of asylum seekers based on their means of arrival in the UK. Anyone arriving irregularly in the UK will be deprived of an asylum determination procedure, detained and removed either to their country of origin or a safe third country, such as Rwanda, irrespective whether they have any link with that country. Only those persons arriving through what the Government describes as safe and legal routes will be entitled to a full determination procedure. This is of course a problem for the UK commitments in the Refugee Convention where Article 31(1) requires that states not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened or enter or are present in their territory without authorization. The question whether those arriving in small boats to seek asylum could be prosecuted for illegal entry came before the courts in 2021 where they found that on a strict interpretation of national law the answer was no. So, the Government changed the law in section 40 Nationality and Borders Act 2022 specifically to criminalising arriving in the UK with prior authorisation. Following the amendment, in 2023 the Court of Appeal held that asylum seekers so arriving could be prosecuted on the basis of domestic law notwithstanding the UK’s obligations under the Refugee Convention. This leaves open the problem of compatibility of UK domestic law with the Refugee Convention. In the meantime, EU law specifically requires compliance with the Refugee Convention. Criticism has also been levelled at the provisions on detention for reasons of the means of arrival which is not consistent with Article 5 ECHR. The ECtHR has also held that any person facing expulsion is entitled to a determination of his or her claim to international protection while within the state including a right of appeal with suspensive effect which has also been confirmed by the CJEU as part of EU law.

The possibility for the authorities to remove an asylum seeker arriving irregularly in the UK to a country where he or she may have no link whatsoever, such as Rwanda has incurred very substantial international criticism. A challenge to the first attempt to remove such persons to Rwanda is still before the domestic courts (the Government has appealed a decision of the Court of Appeal that Rwanda is not a safe country), but it is also before the ECtHR as regards some of the proposed deportees whose removal was stopped by that court (4.6.2022). Another issue which is of substantial concern is the Act’s ouster of the jurisdiction of the domestic courts regarding review of removal of persons arriving irregularly in the UK seeking asylum.

These are only some of the most egregious examples of human rights deficiencies which the Illegal Migration Act has made law in the UK. It will be difficult for the EU institutions not to notice that the UK has recently passed legislation which may constitute serious and systemic deficiency in human rights protection. The deficiency may be considered serious not least because the responsible international bodies have set out in depth their reasoning for urging the UK Government not to adopt the legislation. It may be considered systemic as the deficiency is not the result of a random decision by an administrator, but is codified in law. This surely must give it the character of systemic. Bearing in mind the level of criticism of the Act both within the UK, at the Council of Europe and by UN agencies it seems unlikely that the EU will not find itself called upon to use its powers under the TCA to suspend security cooperation in light of this new development.