Professor Richard Ekins KC (Hon) is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.
The Illegal Migration Bill is set to change. Ahead of the Report Stage on Wednesday, the Government has tabled amendments, three of which will help minimise the risk that the Bill’s policy will be frustrated by litigation in the courts.
The amendments have been introduced in response to backbench pressure, with the Government seeming to accept the argument, made by Policy Exchange in particular, that the Bill as introduced was vulnerable to litigation. Parliament should accept the amendments, but should be aware that some risks remain.
The first amendment, NC22, applies when a person has brought legal proceedings, including under the Human Rights Act 1998, to challenge their removal from the UK. The new clause makes clear that a court cannot grant an interim remedy that would delay or prevent the person’s removal from the UK.
The only ground for delaying a person’s removal would be a “suspensive claim”, which is a claim that there has been a mistake of fact or that a person would face a real risk of serious and irreversible harm if removed from the UK to the proposed destination. These claims can be appealed to the Upper Tribunal, but no further.
This is a welcome clause, which helps avoid circumvention of the Bill’s provisions. But note that the Bill still only regulates interim relief and presupposes that substantive challenges may continue to be made, including under the Human Rights Act.
The Bill as introduced did not set out what counted as “serious and irreversible harm” for the purposes of suspensive claims. The second amendment, NC17 provides a non-exhaustive list of examples, including death, persecution (as defined by the Nationality and Borders Act 2022, elaborating the Refugee Convention 1951), torture, inhuman treatment, and onward removal to a country where he would be at risk of enduring such harms.
However, the clause also says that “serious harm” would not include persecution that does not meet the statutory test, or persecution where the person is able to seek state protection, or harms arising because the person is removed to a country with a lower standard of healthcare than in the UK. If some medical treatment is available to a person in the UK, but not in the country to which he is removed, the clause says that pain and distress resulting from its unavailability would be unlikely to count as “serious harm”.
It is odd to see a statute predict rather than prescribe in this way. Still, on balance these are intelligent changes, which minimise the risk that removals will be delayed on spurious grounds.
That said, while it is right that a person should only be removed from the UK when he is fit to fly, no one who enters unlawfully should be entitled to rely on a need for NHS treatment to remain in the UK.
The third amendment, NC26, is the most controversial and the most important, for it addresses the question of what is to be done if or when the European Court of Human Rights indicates “interim measures”, under Rule 39 of the Rules of Court, in relation to an intended removal.
In an earlier Policy Exchange paper, Sir Stephen Laws and I argued that legislation should spell out that “interim measures” simply have no effect on the Home Secretary’s duty to remove persons who enter the UK unlawfully from a safe country. This would have clarified the legal status quo, under which Rule 39 measures were not agreed as part of the European Convention on Human Rights (on the contrary, proposals to empower the Court to grant interim relief were rejected) and the Human Rights Act does not give effect in our law to Article 34 of the Convention, on which the Strasbourg Court has been relying since it first began to say that Rule 39 is obligatory, which was only in 2006.
The new clause does not go nearly as far as we recommended, probably because of a worry that it would breach the UK’s international obligations for legislation to require some course of action even if the Strasbourg Court temporarily forbids it by making a Rule 39 ruling.
It would not. Statutory duties have never hitherto been drafted to cease to have effect if or when the Strasbourg Court says that their application places the UK in breach of the Convention – Section 4 of the Human Rights Act is drafted on the opposite premise – let alone when the alleged breach turns on a single anonymous judge acting under Rule 39, perhaps without even hearing argument from the UK. It would be perfectly reasonable for the Illegal Migration Bill to work like every other Bill before it and to impose duties that are not overridden whenever some emanation of the Strasbourg Court objects.
However, unless the Bill expressly addresses Rule 39 measures, there is a strong risk that the Home Secretary’s performance of her duty, which requires support from civil servants and government contractors, will be frustrated. The new clause works by providing that when a Rule 39 ruling has been made a Minister may (but need not) decide that the statutory duty to remove is not to apply to the relevant person.
This is a decision for the Minister alone to make – civil servants cannot make it on her behalf and, unless the Minister decides to cancel the duty, neither civil servants nor the courts are otherwise entitled to have regard to an interim measure. That said, it would be better if the clause required a decision to be made within a certain time and if it were even clearer that where a Minister has not made a decision the statutory duty to remove continues to apply.
The clause says that in making her decision the Minister may have regard to whatever she thinks is relevant, including the procedure that the Strasbourg Court followed in making the ruling. This includes whether the Court heard argument from the UK before it made its ruling, whether it gave reasons for its ruling, whether it is open to reconsider its ruling, and how long its ruling is likely to last and how long it is likely to be until the Strasbourg Court makes a substantive decision. The list helps make clear the sharp difference between (final) judgments of the Court and Rule 39 rulings ,and may perhaps help encourage the Court to reform its procedures. The point of enunciating the list may be to help strengthen the UK’s arm in negotiating with the Court about reform.
In one way, the effect of this clause is to introduce a new ministerial power to cancel (or modify) the duty of removal in the Bill, and so to qualify a duty that is a fundamental part of the architecture of the Bill. But the amendment is useful insofar as it represents express parliamentary authorisation for ministers to remove relevant persons from the UK even when the Strasbourg Court attempts to intervene to frustrate their removal pending a full determination.
Enacting this clause is not a repudiation of the UK’s international obligations. The UK has an obligation, under Article 46 of the Convention, to comply with a final judgment of the Court. It has no obligation to comply with an interim ruling, which is made by a single (anonymous) judge rather than the Court as such.
Government lawyers may take a different view, but may comfort themselves that the clause does not require the minister to act incompatibly with a Rule 39 ruling. It is true that this clause may result in Ministers choosing to comply with Rule 39 rulings and not removing some unlawful migrants to whom the legislation otherwise applies. However, the clause expressly empowers Ministers to remove them. And the framing of the clause minimises the risk that an interim measure made in one case might be relied upon to undermine the whole policy.
If or when a Minister is minded to decide not to cancel the duty to remove, and thus to press ahead with removal, civil servants and Government lawyers may mistakenly imagine that they have a duty to advise that this would be a breach of the principle of the rule of law or the Ministerial Code. Such advice would be clearly misconceived in the context of an express statutory authorisation for Ministers to act in exactly this way. Ministers should be firm in rejecting it.
A decision to press ahead with removal might well be challenged in the courts, with claimants arguing that the Minister has misused her discretion and should have decided to cancel the duty to remove. However, all this lies in the future. The immediate question is whether Parliament, and especially the House of Lords, is willing to support these amendments, which do promise to help make the Bill a more effective means of restoring the integrity of the UK’s borders.
Professor Richard Ekins KC (Hon) is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.
The Illegal Migration Bill is set to change. Ahead of the Report Stage on Wednesday, the Government has tabled amendments, three of which will help minimise the risk that the Bill’s policy will be frustrated by litigation in the courts.
The amendments have been introduced in response to backbench pressure, with the Government seeming to accept the argument, made by Policy Exchange in particular, that the Bill as introduced was vulnerable to litigation. Parliament should accept the amendments, but should be aware that some risks remain.
The first amendment, NC22, applies when a person has brought legal proceedings, including under the Human Rights Act 1998, to challenge their removal from the UK. The new clause makes clear that a court cannot grant an interim remedy that would delay or prevent the person’s removal from the UK.
The only ground for delaying a person’s removal would be a “suspensive claim”, which is a claim that there has been a mistake of fact or that a person would face a real risk of serious and irreversible harm if removed from the UK to the proposed destination. These claims can be appealed to the Upper Tribunal, but no further.
This is a welcome clause, which helps avoid circumvention of the Bill’s provisions. But note that the Bill still only regulates interim relief and presupposes that substantive challenges may continue to be made, including under the Human Rights Act.
The Bill as introduced did not set out what counted as “serious and irreversible harm” for the purposes of suspensive claims. The second amendment, NC17 provides a non-exhaustive list of examples, including death, persecution (as defined by the Nationality and Borders Act 2022, elaborating the Refugee Convention 1951), torture, inhuman treatment, and onward removal to a country where he would be at risk of enduring such harms.
However, the clause also says that “serious harm” would not include persecution that does not meet the statutory test, or persecution where the person is able to seek state protection, or harms arising because the person is removed to a country with a lower standard of healthcare than in the UK. If some medical treatment is available to a person in the UK, but not in the country to which he is removed, the clause says that pain and distress resulting from its unavailability would be unlikely to count as “serious harm”.
It is odd to see a statute predict rather than prescribe in this way. Still, on balance these are intelligent changes, which minimise the risk that removals will be delayed on spurious grounds.
That said, while it is right that a person should only be removed from the UK when he is fit to fly, no one who enters unlawfully should be entitled to rely on a need for NHS treatment to remain in the UK.
The third amendment, NC26, is the most controversial and the most important, for it addresses the question of what is to be done if or when the European Court of Human Rights indicates “interim measures”, under Rule 39 of the Rules of Court, in relation to an intended removal.
In an earlier Policy Exchange paper, Sir Stephen Laws and I argued that legislation should spell out that “interim measures” simply have no effect on the Home Secretary’s duty to remove persons who enter the UK unlawfully from a safe country. This would have clarified the legal status quo, under which Rule 39 measures were not agreed as part of the European Convention on Human Rights (on the contrary, proposals to empower the Court to grant interim relief were rejected) and the Human Rights Act does not give effect in our law to Article 34 of the Convention, on which the Strasbourg Court has been relying since it first began to say that Rule 39 is obligatory, which was only in 2006.
The new clause does not go nearly as far as we recommended, probably because of a worry that it would breach the UK’s international obligations for legislation to require some course of action even if the Strasbourg Court temporarily forbids it by making a Rule 39 ruling.
It would not. Statutory duties have never hitherto been drafted to cease to have effect if or when the Strasbourg Court says that their application places the UK in breach of the Convention – Section 4 of the Human Rights Act is drafted on the opposite premise – let alone when the alleged breach turns on a single anonymous judge acting under Rule 39, perhaps without even hearing argument from the UK. It would be perfectly reasonable for the Illegal Migration Bill to work like every other Bill before it and to impose duties that are not overridden whenever some emanation of the Strasbourg Court objects.
However, unless the Bill expressly addresses Rule 39 measures, there is a strong risk that the Home Secretary’s performance of her duty, which requires support from civil servants and government contractors, will be frustrated. The new clause works by providing that when a Rule 39 ruling has been made a Minister may (but need not) decide that the statutory duty to remove is not to apply to the relevant person.
This is a decision for the Minister alone to make – civil servants cannot make it on her behalf and, unless the Minister decides to cancel the duty, neither civil servants nor the courts are otherwise entitled to have regard to an interim measure. That said, it would be better if the clause required a decision to be made within a certain time and if it were even clearer that where a Minister has not made a decision the statutory duty to remove continues to apply.
The clause says that in making her decision the Minister may have regard to whatever she thinks is relevant, including the procedure that the Strasbourg Court followed in making the ruling. This includes whether the Court heard argument from the UK before it made its ruling, whether it gave reasons for its ruling, whether it is open to reconsider its ruling, and how long its ruling is likely to last and how long it is likely to be until the Strasbourg Court makes a substantive decision. The list helps make clear the sharp difference between (final) judgments of the Court and Rule 39 rulings ,and may perhaps help encourage the Court to reform its procedures. The point of enunciating the list may be to help strengthen the UK’s arm in negotiating with the Court about reform.
In one way, the effect of this clause is to introduce a new ministerial power to cancel (or modify) the duty of removal in the Bill, and so to qualify a duty that is a fundamental part of the architecture of the Bill. But the amendment is useful insofar as it represents express parliamentary authorisation for ministers to remove relevant persons from the UK even when the Strasbourg Court attempts to intervene to frustrate their removal pending a full determination.
Enacting this clause is not a repudiation of the UK’s international obligations. The UK has an obligation, under Article 46 of the Convention, to comply with a final judgment of the Court. It has no obligation to comply with an interim ruling, which is made by a single (anonymous) judge rather than the Court as such.
Government lawyers may take a different view, but may comfort themselves that the clause does not require the minister to act incompatibly with a Rule 39 ruling. It is true that this clause may result in Ministers choosing to comply with Rule 39 rulings and not removing some unlawful migrants to whom the legislation otherwise applies. However, the clause expressly empowers Ministers to remove them. And the framing of the clause minimises the risk that an interim measure made in one case might be relied upon to undermine the whole policy.
If or when a Minister is minded to decide not to cancel the duty to remove, and thus to press ahead with removal, civil servants and Government lawyers may mistakenly imagine that they have a duty to advise that this would be a breach of the principle of the rule of law or the Ministerial Code. Such advice would be clearly misconceived in the context of an express statutory authorisation for Ministers to act in exactly this way. Ministers should be firm in rejecting it.
A decision to press ahead with removal might well be challenged in the courts, with claimants arguing that the Minister has misused her discretion and should have decided to cancel the duty to remove. However, all this lies in the future. The immediate question is whether Parliament, and especially the House of Lords, is willing to support these amendments, which do promise to help make the Bill a more effective means of restoring the integrity of the UK’s borders.