Rushed migration Bill runs counter to the rule of law, says the Bar Council

The Illegal Migration Bill is unlikely to be compliant with the UK’s obligations under the European Convention of Human Rights (ECHR) and runs counter to the rule of law, according to the Bar Council of England and Wales.

Ahead of today’s second reading debate, the Bar Council has issued a briefing to MPs setting out serious concerns with the Bill.

Chair of the Bar, Nick Vineall KC, said: “This Bill has been introduced on an extraordinarily truncated timescale with no prior consultation. There is no justification for such exceptional haste which will impact the level of scrutiny and debate and ultimately makes for bad law.

“The Bar Council is concerned that some features of the Bill, if enacted, would run counter to normal conceptions of the rule of law, including curtailing the court’s supervisory jurisdiction in the early stages of detention.

“We also remain deeply concerned by the tone of the debate on the issues of asylum and immigration, including the denigrating of lawyers who work in this area which further undermines confidence in the legal system and profession. We call on all MPs to refrain from bringing attacks on lawyers into today’s debate on the Bill.

“In light of the serious concerns we have raised, we ask the Government to look again at these important issues instead of moving forward with a rushed Bill that may undermine the rule of law.”

In summary, the Bar Council’s key concerns include:

Efficacy, enforceability and consequential risks - There is an obvious risk that removing existing protections for asylum seekers and victims of modern slavery will give rise to the incentive, on those who travel, to evade detection rather than to seek to regularise their status. This could therefore lead to a greater use of unsafe routes rather than reduce them.

The right to seek asylum - Given that very few asylum claimants arrive in the UK directly from their country of alleged persecution, the impact of this provision will be to exclude the vast majority of potential applicants from the refugee determination process.

Detention - The significant limitations on the detention of certain vulnerable individuals that previously applied will not apply to the new power to detain; this is a retrograde step. The Bill also prevents those detained under the new powers seeking bail from the Tribunal for 28 days and bars judicial review challenges to detention for that period; there is no warrant for these drastic restrictions. Judicial oversight of administrative detention is critical to ensuring the lawful and proportionate exercise of detention powers.

Modern slavery protections - The proposal to exclude irregular migrants from the modern slavery protections is perverse. Victims of modern slavery are frequently transferred across borders by those who exploit them. The Bill, if enacted, would render a facet of the trafficking scenario a barrier to accessing trafficking protections and potentially increase risks to trafficking victims, in that it would strongly disincentivise seeking help from authorities.

ECHR compliance - The scheme of the Bill itself potentially undermines domestic and international human rights protections. Specific examples include the modern slavery provisions are likely to be in breach of Article 4; a number of provisions relating to unaccompanied children give risk to a serious risk of breaching Article 8; and the proposals on detention risk breaching Article 5.

The rule of law - All of the issues raised by the Bar Council represent threats to the rule of law. Whether those subject to the Bill will be able to access competent and timely legal advice is also a matter of grave concern.