Contingent Legality in Post-Brexit Britain: A Comment on the Illegal Migration Bill

Earlier this month, the UK Government published its Illegal Migration Bill. Its main provisions are intended to apply to all persons, except in some cases unaccompanied children [section 3], who enter the UK on or after 7 March 2023 in the various ways which the Bill construes as 'illegal' [section 2].

In respect to those individuals journeying to the UK in search of asylum or protection from human trafficking or other serious human rights violations, the Bill seeks to eliminate from consideration factors that would normally prompt a substantive examination of their claims [section 4 (1) a-c)]. They will be removed 'as soon as reasonably practicable' [section 5 (1) a] to a country with which they have some connection - ranging from the strong to the extremely tenuous [section 5 (3) a-d]. Their removal cannot be halted, even temporarily, to enable a humanitarian claim to be pursued through the ordinary courts [section 4 (2)-(7)]. Only where they can establish that they ‘face a real risk of serious and irreversible harm if removed’ [section 37 (3)], or that the manner of their entry to the UK was wrongly construed as 'illegal’ due to a factual error [section 37 (4)], will their removal be stayed for long enough for what the Bill refers to as ‘suspensive claims’ to be considered by the Secretary of State for the Home Department (SSHD) [sections 40 & 41], or by the Upper Tribunal in the event of an appeal against the SSHD’s decision [section 42].

Should the Bill become law, the rights of migrants which are contained in existing legislation - already thin and fragile - will be dramatically reduced. The legislative framework which the Bill seeks to amend includes the Immigration Act, 1971, the British Nationality Act 1981, the Asylum and Immigration [Treatment of Claimants etc.] Act 2004 and the Modern Slavery Act 2015.

As several commentators have remarked, the Bill represents a fierce assault on vulnerable migrants. However, it is important to highlight that the Bill’s destructive force essentially rests on the willingness of the UK Government to depart from accepted conventions and practices concerning the conditions of legality and, indeed, the very nature of law. Specifically, the Bill evidences a nascent culture or practice whereby the question of whether a given situation or scheme is legal is no longer considered to be essential to its implementation. Even more worryingly, the Bill seems to challenge the idea of law as a violent force that nevertheless has legitimacy precisely because it sheaths or mutes its lethal potential.

In her introduction to the first iteration of the Bill, the SSHD stated that she was not in a position to assert that the Bill was compatible with obligations imposed on the UK by virtue of the European Convention on Human Right and Fundamental Freedoms, 1951 (European Convention), but intended to proceed with its passage through Parliament notwithstanding. This somewhat cavalier approach to international obligations was also at play in the post-Brexit legislative phase. It is at least arguable that, whatever its ostensible design, one objective of the Illegal Migration Bill - and an objective of other legislative measures that similarly seek to circumvent long-established international obligations - is to encourage widespread acceptance among politicians, media and the public that, within the UK, international legal obligations are contingent and not constitutive. Where a culture of what I will refer to here as ‘contingent legality’ exists, an assertion from a Government Minister to the effect that a Bill should be passed into UK law irrespective of whether or not it is compatible with obligations which would ordinarily supersede conflicting domestic laws will become routine and unremarkable.

It will come as no surprise to the reader to learn that the number of provisions in the Bill which are incompatible with obligations established under the European Convention and/or the Convention Relating to the Status of Refugees, 1951 (Refugee Convention) are too numerous to mention in a short commentary post. Suffice to say that the very idea that a maximum number can be set on those entering the UK - even when doing so in search of humanitarian protection [Section 53] - is contrary to the requirement under the Refugee Convention for an individual assessment of the grounds on which an asylum claim is based.

The Illegal Migration Bill is not the first official document through which the Government has acted out its desire to realign itself with the regime of rights established under the framework of instruments like the European Convention and the Refugee Convention. Indeed it comes swiftly upon the publication of the highly controversial Bill of Rights Bill which, intended as it is to replace the Human Rights Act 1998, threatens sweeping inroads into the rights and civil liberties of both migrant and settled populations in the UK. However, what is remarkable about the Illegal Migration Bill is the terms in which it purports to take away the rights of so-called ‘illegal migrants’, which are as comprehensive as they are uncompromising. Given that for many asylum-seekers, the factor that will render them ‘illegal’ under the Bill is having arrived in the UK having first 'passed through or stopped in another country outside the UK' [section 2 (5)], the consequences to them are severe. These consequences include being prevented at any time in future from claiming British citizenship or any of its associated statuses [sections 30-34]. In short, the punishments which the Bill metes out to those it deems ‘illegal’ are sufficiently extreme as to entirely evade capture in the concept of proportionality - the term which is usually deployed where a legal restriction in an otherwise temperate set of legislative measures goes beyond that necessary to attain the stated goal of the legislation.

The obligation that the legislative arm of Government holds in respect to the law extends beyond compliance with existing national and international regulatory frameworks. Also expected is fidelity to an idea of the law as a force that whilst inescapably violent - law has the capacity to punish in numerous ways - is never needlessly or unrestrainedly so. In ways that directly challenge this basic idea of law, the Illegal Migration Bill seems positively to revel in its capacity to inflict or allow almost any degree of degradation, pain and suffering - as long as the claimant's death does not render these conditions ‘irreversible’.