Legal experts say the Government’s proposed small boats law breaches international law and key aspects of it will become a “battleground” in the courts.

The Illegal Migration Bill aims to ban those arriving across the Channel from claiming asylum in the UK completely, compelling the Government to detain them for 28 days and then deport them to their home country, or a safe third country.

The Government effectively admitted the law potentially breaches the Human Rights Act 1998 (HRA) when ministers issued a Section 19B statement as part of the bill.

The statement means the Government cannot guarantee the Illegal Migration Bill will comply with the European Convention on Human Rights (ECHR), which is enshrined in UK law by the HRA.

On Tuesday, Home Secretary Suella Braverman told parliament that the “robust and novel” plans may not comply with the HRA, but on Wednesday she said she is “very confident” the measures announced “are in compliance with our international law obligations”.

Lawyers told i they were still looking at the details of the bill and that it was likely to be challenged in the courts, but that some of its central aims were concerning and likely unlawful.

i takes a look at how the bill could be breaking the law, according to the experts.

Removing the right to an asylum claim

The Government says the law will mean that anyone who enters the UK illegally and who has passed through a safe country must be removed, and the Home Secretary will have the power to enforce this. Migrants may be detained for 28 days without access to bail or judicial review, and then deported or returned to a safe third country.

Muhunthan Paramesvaran, partner at Wilsons Solicitors firm and chair of the immigration law committee at the law society, told i that removing the right to an asylum claim was one of the most “concerning” and potentially “unlawful” parts of the bill.

He said it appeared to breach the UK’s obligation under the 1951 Refugee Convention, an international treaty that the UK is a party to.

Article 31 of the convention says that countries should not punish refugees who arrive there illegally. Article 33 of the convention states that refugees should not be returned to a country where their life or freedom would be threatened.

“On the face of it, whether or not the legislation is compliant with our obligations under the Refugee Convention will become a big battleground in the courts.”

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Mr Paramesvaran said it was not clear which “safe third countries” asylum seekers would be removed to as the option to deport to Rwanda is still tied up in the courts. He questioned how the Government could guarantee the person would be returned to a safe country if officials aren’t considering the claim before they are sent from the UK.

“There is a lack of clarity over where these return countries will be, there’s no indication that they will be safe, because they haven’t been specified.

“The other thing is, in the absence of asylum status determination, and full consideration of the facts of the case, the Government needs to demonstrate how it would be safe to return these people to the country of origin.”

Oliver Oldman, senior associate in immigration and international protection at Kingsley Napley, agreed, adding that banning these asylum claims would “shut out” tens of thousands of genuine refugees from having their claims considered.

A video grab from footage broadcast by the UK Parliament's Parliamentary Recording Unit (PRU) shows Britain's Home Secretary Suella Braverman (R) listening as Britain's Prime Minister Rishi Sunak speaks during the weekly session of Prime Minister's Questions (PMQs) in the House of Commons in London on March 8, 2023. (Photo by Handout / PRU / AFP) / RESTRICTED TO EDITORIAL USE - NO USE FOR ENTERTAINMENT, SATIRICAL, ADVERTISING PURPOSES - MANDATORY CREDIT " AFP PHOTO / PRU " (Photo by HANDOUT/PRU/AFP via Getty Images)
Rishi Sunak and Suella Braverman defend the small boats bill in the House of Commons on Tuesday. (Photo: Handout/PRU/AFP)

“The removal scheme introduced by the Bill is an extreme tightening of the inadmissibility procedure that already exists. Were it to become operational, it would preclude tens of thousands of genuine refugees from having their claims considered.

“Coupled with the 28 day period of detention that the Bill introduces, this means punishing refugees for entering the country illegally, which is expressly prohibited by Article 31 of the Refugee Convention.”

Mr Oldman said that the Home Secretaries insistence that refugees can come through safe and legal routes into the UK is already limited.

“Outside of the very few schemes in operation – with varying degrees of success – for nationals of few specific countries, there are no safe and legal routes. It is very important to understand that the current law simply does not permit entry by legal means for the vast majority of the world’s refugees. This Bill will close the only door that is left to them.”

Migrants detained for 28 days without right for bail or judicial review

Under the law, Border Force officers will have a new power to detain almost everyone who crosses the English Channel for at least 28 days while preparations are made for their deportation or flight to the third country.

Mr Oldman said the change in detention, as well as removing a right to an asylum claim, could infringe on various articles in the ECHR guaranteed by the Human Rights Act.

These includes article 3 – the right not to be treated in an inhuman or degrading way, and article 5, which guarantees the right to liberty and security. Mr Oldman also mentioned right to be free from discrimination in article 14, and article 8, which protects private and family life.

Mr Paramesvan said this element was “concerning” in terms of access to justice and the rule of law.

“If someone is detained they would be entitled to be advised on their legal remedy to challenge that detention and if there are none available because of this Bill, and if the government is seeking to restrict access to the courts in restricting access to judicial review, that is something we would be extremely concerned about.”

What has the Government said about legality?

On Tuesday, Suella Braverman admitted in Parliament that the law might be compatible with the Human Rights Act.

On Wednesday, she told Sky News that she was confident the Bill met international law obligations.

In a press conference yesterday, Prime Minister Rishi Sunak said he was confident the Government would win any legal battle, and that it was meeting international obligations.

He said issuing a Section 19 (1)(b) statement in the Bill – where the government cannot guarantee the Bill meets the Human Rights Act – was not “improper or unprecedented”.

“It’s really important for everyone to recognise there’s absolutely nothing improper or unprecedented about pursuing Bills with a Section 19 (1)(b) statement. It absolutely does not mean that the Bill is unlawful.”

Mr Oldman said issuing a Section 19B statement was unusual and it undermined the Government’s assurances about international law.

“It means that the government considers there to be a substantial risk that the Bill will breach the UK’s obligations under the European Convention on Human Rights.

“Should the Bill become law, the act will inevitably be met with legal challenge – funded by the taxpayer at great expense – that in the government’s own view by virtue of its statement under section 19(1)(b), it is more likely than not to lose.

“Issuing the 19(1)(b) statement completely undermines any assurances the Government has issued that the Bill meets the UK’s international obligations.”

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