On 29 June the Court of Appeal found that the Government’s Rwanda policy to send some people seeking asylum in the UK to Rwanda for the processing of their claims to be unlawful. The reason for this decision was that the Court was not satisfied that asylum procedures in Rwanda are sufficiently robust for it to be considered a safe country to which to send asylum seekers. The Government has until 6 July to decide whether to appeal against the decision to the Supreme Court. In the meantime, the Illegal Migration Bill, which has been designed, among other purposes, to limit or prevent access to justice for asylum seekers on a fast track to Rwanda is nearing the end of its Parliamentary journey. With four ouster clauses in the Bill which seek to prevent judicial consideration of these kinds of asylum cases, questions still remain about access to justice more generally beyond the lawfulness of the Rwanda policy.

The Illegal Migration Bill was published on 24 April 2023 and is currently in its reporting stage before the House of Lords. There has been a substantial amount of criticism of the Bill on a wide range of issues including: a failure to respect the principle of Parliamentary Sovereignty (in the manner of the Bill passing), a failure to respect Rule of Law by seeking to oust the jurisdiction of the courts in a variety of ways, its acknowledged[1] incompatibility with the Human Rights Act 1998 (and by extension the European Convention on Human Rights), its undermining of devolution arrangements with the regions and its failure to respect the separation of powers, a principle of liberal democracy expounded by Thomas Paine and Montesquieu and widely embraced as the underpinning of British democracy[2]. 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 the Bill as incompatible with a wide range of UK Treaty obligations.

So why is the Government so determined to pass this legislation? In this blog I will examine why this Bill is so critical to the policy of the Government on immigration and more particularly asylum policy that is it willing to pursue it irrespective of the concerns which have been expressed both nationally and internationally about its contents.

The Bill’s objectives, according to the Government, are to:

  • put a stop to illegal migration into the UK by removing the incentive to make dangerous small boat crossings;
  • speed up the removal of those with no right to be here - in turn this will free up capacity so that the UK can better support those in genuine need of asylum through safe and legal routes;
  • prevent people who come to the UK through illegal and dangerous journeys from misusing modern slavery safeguards to block their removal
  • ensure that the UK continues to support those in genuine need by committing to resettle a specific number of the most vulnerable refugees in the UK every year.

Since the UK left the EU (31 January 2020), it has no longer been part of an EU wide system of allocating responsibility for asylum seekers. This means that any asylum seeker arriving in the UK must be granted a consideration of his or her claim and cannot simply be sent to another EU state for processing. The consequence has been a steady increase in the arrival of asylum seekers to the UK across the Channel. This has been a matter of intense irritation to successive Home Secretaries (and Prime Ministers). Numerous commitments have been made to ‘stop the boats’, but achieving this has proven elusive.

One big policy effort to find a way to stem the arrivals has been to increase cooperation with the authorities of the main state of departure: France, in particular through payment to French authorities (the UK pledged to pay £120m in 2023-24) for this purpose. So far this is not producing the desired results. Another policy effort, also very expensive, was when, on 14 April 2022, the then prime minister, Boris Johnson, announced that the UK had signed a migration and economic development partnership with Rwanda in the form of a Memorandum of Understanding (MOU). This form of informal agreement was in itself a matter of constitutional concern expressed by the House of Lords. The memorandum allows the UK to send (by air) people trying to seek asylum in the UK to Rwanda where the Rwanda authorities undertake to provide them with good reception conditions and that their asylum applications would be assessed. Whatever the outcome of that assessment, the applicants’ further treatment would be the responsibility of Rwanda not the UK. The UK sought to square this approach to its asylum obligations in international law on the basis that Rwanda is a safe country where asylum seekers will be treated in accordance with international standards relevant for asylum seekers (UNHCR was singularly unimpressed). This is costing the UK another £120m.

Two weeks after the signing of the MOU, Parliament passed the Nationality and Borders Act 2022 which provided a legislative basis of the arrangements now covered by para 345A-F Immigration Rules. In May and early June 2022, the Home Secretary took 47 decisions declaring asylum claims made in the UK to be inadmissible and deciding that the claimants should be removed to Rwanda. She chartered a flight to carry this out on 14 June 2022. The decisions prompted more than 20 claims before the High Court, filed between 8 and 14 June 2022 and three others before the European Court of Human Rights. All the courts gave interim relief, stopping the expulsions until such time as the courts had a chance to consider the merits. On 19 December 2022, the High Court found the scheme lawful but that the individual circumstances of each individual need to be considered. The cases are still pending before the UK courts and the European Court of Human Rights. Thus the removal of these persons is still blocked.

It seems that the Government is particularly unhappy about the long delays which judicial consideration is taking in respect of its Rwanda expulsion programme. Even if the Government succeeds on the current pending cases, it is likely that it will have to consider the facts and circumstances of each person to be sent to Rwanda to ensure that there would be no breach of the duty to ensure that they are indeed being sent to a country where they will be safe. Further, these assessments will be subject to judicial review. So, the Illegal Migration Bill seeks to cut through all this judicial red tape and simply exclude the courts from consideration of these types of cases. This effort is formally known as ‘ouster clauses’, provisions which prevent judicial review of designated administrative actions. There are four of them in the Bill all designed to enable the Home Secretary to detain people seeking asylum in the UK without judicial oversight, expel them without judicial oversight and prevent any interference in the form of suspensive effect of appeal rights, all well set out in the joint briefing referred to above.

It is worth remembering that when a different Government sought to introduce ouster clauses of this kind in 2003, the then Lord Chief Justice Woolf stated: “It also surprises me that the Government does not see it as inconsistent to promote a clause designed to exclude the courts from performing their basic role of protecting the rule of law at the same time that it is introducing the present constitutional reforms...I am not over-dramatising the position if I indicate that, if this clause were to become law, it would be so inconsistent with the spirit of mutual respect between the different arms of government that it could be the catalyst for a campaign for a written constitution.” At that time the ouster clause was rejected. As the Illegal Migration Bill reaches its final stages in the House of Lords now, it can only be hoped that the House will remember these words of a former Lord Chief Justice and reject the ousters.