The Illegal Migration Bill passed its second reading in the House of Lords on Wednesday 10 May. The bill will automatically deem any asylum claim from a person arriving into the UK on a small boat or lorry as “inadmissible”. It also legalises sending people back to their country of origin or to a “safe third country” such as Rwanda. Further, it will block them from future attempts to re-enter the UK legally.
At the same time, the bill places a cap on the number of places available through legal routes. This will further limit the options available to people seeking asylum.
If passed, the bill will put the UK in direct breach of international law. Home secretary Suella Braverman has admitted there is a more than a 50% chance that the bill violates the European Convention on Human Rights (ECHR). It’s likely the legislation will be challenged at the European Court of Human Rights (ECHR) in Strasbourg, France. The resulting legal clash will provide the government with another reason to withdraw from the ECHR. This is something that Conservative MPs have long pushed for, including Braverman herself.
In a speech setting out his priorities for 2023, prime minister Rishi Sunak said that:
strong, supportive families make for more stable communities and happier individuals.
I wouldn’t be where I am today without the love of my family, the kindness they gave me, the sacrifices they made for me, and the values they taught me.
Of course, this doesn’t match up with the experiences of those families who the government’s hardline immigration policies have impacted. In fact, there are countless stories of the UK’s hostile environment separating families, deporting them, or pushing them to financial and emotional turmoil.
Article 8 of the Humans Rights Act says that the government can’t interfere in your family life without good reason. But, it’s not an absolute right. That means the government can breach this right in certain circumstances that it deems lawful. There have been many cases where family visa applicants were rejected, but then appealed and had the decision overturned on the grounds that the initial rejection breached article 8. If the government succeeds in its plans to leave the ECHR, it will close off an important legal avenue and is likely to lead to even more separation of families.
The ECHR in practice
The ECHR is functionally a court of last resort. That means families can only bring cases to the court when they have exhausted all options in national law. The court has found in a number of cases that a member state’s government interfered with the right to respect for family life in a way that is not justified.
For example, the case of Chahal vs. United Kingdom is related to an Indian citizen who the UK granted leave to remain despite entering the country illegally. Karamjit Chahal claimed asylum after a visit to India where his political associations meant Indian police subjected him to detainment and torture. Singh and his wife Darshan, as well as their two children, had already lived in the UK for 20 years at the time of his detainment. As a result, the ECHR found that refusing his asylum claim was a breach of his rights under Article 8
In the case of Dobrowolski v District Court, a court initially ordered the extradition of a fugitive living in the UK back to Poland to serve the remainder of his prison sentence. However, he lodged an appeal in 2022. This led to the judge reversing the decision on the basis of Article 8. The presiding judge said it was:
a model example of why Article 8 operates as a ‘balancing’ and ‘balance sheet’ exercise.
If I were to weigh each of the four features which I have emphasised, individually, against the public interest considerations in favour of extradition, this appeal would fail. But what matters is putting all four features onto the scales, so that they can weigh collectively and cumulatively in the balance.
Legal experts have made the observation that UK courts are likely to show “deference” to immigration authorities in these cases. This is particularly true when the courts are refusing permission to remain on the basis of another country’s “national security.”
Separation of families
The new bill is best understood in the context of the hostile environment. This term refers to a series of immigration measures introduced by successive Conservative governments, dating back to 2012. Then-home secretary Theresa May implemented a series of measures that she said were intended to create a “hostile environment for illegal immigration”.
A 2023 report published by the Justice and Home Affairs Committee found that the 2012 reforms separated many families. In 2015, England’s Children’s Commissioner estimated that the reform’s financial requirement had separated up to 15,000 children from one parent. And in December 2022, the Times reported that Braverman had drafted plans to increase the minimum income requirement. Activists and charities that work with immigrants heavily criticised the proposal. Reunite Families UK called it “beyond devastating”. However, the government didn’t include these plans in March’s announcement of changes to the immigration rules.
The 2023 report examined the social, economic and personal impact of the UK’s immigration policies on families that are subject to them. It contained numerous mentions of the “distress” of separated families:
We were told that the experience of the family reunion application process was “often a lengthy and traumatising process in itself” and that it involved “stress, depression, other diagnoses and worsening of existing conditions … and impacts on physical health and wellbeing including insomnia, panic attacks, alcohol misuse, hair loss, and weight issues.” Several witnesses also mentioned the “crippling financial costs” that threaten to push families into destitution and force some to alter their career and other life plans.
The hostile environment means families are stuck in legal limbo for longer as they wait for authorities to process their applications. It has limited their ability to work and build a home as a unit. For families with children, this has created additional pressure on parents. They have fewer resources and support available to raise their child in a stable home environment.
Moreover, application fees are prohibitively expensive for many families. The government also doesn’t refund fees if it refuses the application. And even if the government approves their application, the process will put families through significant emotional and financial stress.
The future for family migration
A broad coalition of human rights advocates has criticised the Illegal Migration Bill. A letter co-signed by 176 organisations described it as a “dangerous piece of legislation”.
The Council of Europe’s commissioner for human rights, Dunja Mijatović, said the bill was “incompatible” with the UK’s human rights obligations under international law. In her letter to parliament, she warned that:
the Bill’s provisions create clear and direct tension with well-established and fundamental human rights standards.
If the bill passes in the House of Lords, it will extend the Home Office’s powers to detain people and take away options to appeal deportation decisions. As a result, it will further weaken families’ rights in an already hostile immigration environment. It will also force more people to take their cases to the ECHR.
Despite the government’s claims of support for families, its migration policies have the opposite effect. Separating individuals from their families affects their ability to fully participate in society. The new bill is a direct result of the hostile environment that exists for refugees and immigrants in Britain. The government’s belligerence and willingness to split up families is a testament to their lack of respect for the dignity of Black and Brown refugees.
Featured image via YouTube screenshot/Sky News