Human Rights Commission succeeds in claim to disapply Illegal Migration Act 2023

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In a judgment handed down this morning, the High Court has upheld the NI Human Rights Commission’s widescale challenge to the Illegal Migration Act 2023 (the “IMA 2023”). It has disapplied 10 provisions in the IMA 2023, pursuant to s.7A of the EU (Withdrawal) Act 2018, and made multiple declarations of incompatibility, pursuant to s.4 of the Human Rights Act 1998.

The IMA 2023 was summarised by the UNHCR as “extinguish[ing] access to asylum in the UK for anyone who arrives irregularly, having passed through a country – however briefly – where they did not face persecution. It bars them from presenting refugee protection or other human rights claims, no matter how compelling their claim may be. In addition, it requires their removal to another country, with no guarantee that they will necessarily be able to access protection there. It creates sweeping new detention powers, with limited judicial oversight.”

The Human Rights Commission challenged the following aspects of the IMA 2023 as being in breach of Article 2 of the Windsor Framework (formerly the NI Protocol) and the ECHR:

  • Its removal of the right to an effective examination of a claim for asylum and a grant of international protection for eligible applicants.
  • Its removal of the right to an effective remedy for asylum applicants.
  • Its removal of asylum applicants to third-countries, such as Rwanda, before their claims are determined.
  • Its breach of the principle of non-refoulement, prohibiting states from returning refugees to dangerous territories.
  • Its provisions empowering the state to detain asylum seekers for 28 days without the possibility of review and without the prospect of bail.
  • Its removal of victims of trafficking even where a positive reasonable grounds decision has been made.
  • Its effect which prevents decision-makers from considering the best interests of children.

In a landmark judgment, Humphreys J found for the Human Rights Commission on all grounds.

In relation to the ground of challenge based on Article 2 of the Windsor Framework, he found that the IMA 2023 led to a diminution of multiple rights, as set out in the Belfast/Good Friday Agreement, resulting from withdrawal from the EU. As a result, he disapplied the following provisions of the IMA 2023: sections 2(1), 5(1), 5(2), 6, 13(4), 22(2), 22(3), 25(2), 54 and 57.

In relation to the ground of challenge based on the European Convention on Human Rights, he found that the IMA 2023 breached Articles 3, 4 and 8 ECHR. Declarations of incompatibility were made in relation to sections 2(1), 5, 6 and 22 IMA 2023.

A summary of the judgment can be found here.

Yaaser Vanderman is acting for the Northern Ireland Human Rights Commission, instructed by Htaik Win and Rhyannon Blythe, and led by Adam Straw KC.

The case has been reported on the BBC, Sky, the Guardian and ITV.

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