By Soh Yi Fei Titus
I. Introduction
Since becoming Prime Minister, Rishi Sunak has been grappling with the issue of unauthorised channel crossings. Earlier this year, he made a promise to “stop the boats” from “illegally” carrying people across the English Channel and confirmed that he would pass new laws to ensure that any unauthorised arrivals of asylum seekers in the United Kingdom would result in their swift detention and deportation [1].
II. Reviving the Bill of Rights
It is possible that part of Rishi Sunak’s endeavour to facilitate passing such legislation would include his recent attempts to revive Liz Truss’s proposal of a bill of rights. Had the bill of rights been passed, it would have replaced the Human Rights Act of 1998, which enshrines the European Convention on Human Rights (“ECHR”) in UK’s domestic law [2]. Contrary to its name, the bill is likely to reduce human rights as it seems to narrow the scope of rights and allow actions that will undermine current rights. Consequently, it may be easier for the government to propose legislations that potentially contravene the existing rights of asylum seekers in the United Kingdom. This theory became more evident when the illegal migration bill was recently introduced in Parliament.
Illegal Immigration Bill & Human Rights Act
Upon introducing the illegal immigration bill, government officials issued a statement, under Section 19 of the Human Rights Act 1998, that there was a risk of the bill being incompatible with the ECHR [3][4].
Pursuant to Section 19 of the Human Rights Act 1998, when ministers introduce a bill, they must state whether they believe the bill to be compatible with the ECHR. This is to ensure that Parliament did not unknowingly pass a bill that is incompatible with Convention's rights. If a minister states that they do not believe the bill to be compatible with human rights, but still nevertheless insists that Parliament should pass it, attention from both inside and beyond Parliament will be directed towards the bill. There will be heightened scrutiny as to whether there are compelling justifications for passing the bill despite the human rights implications.
Had the Human Rights Act been replaced by the bill of rights as intended by Rishi Sunak’s attempted revival of the bill, the government may not have been mandated to issue such a statement. If this mechanism were not in place, the current government would likely be emboldened to include legislations that contravene human rights more blatantly.
Illegal Immigration Bill & Refugee Convention 1951
The illegal immigration bill would impose a duty on the home secretary to remove nearly all migrants who arrive in the United Kingdom without permission, overriding the asylum seekers’ right to claim asylum, except for the sick and those under the age of 18 [5]. This would also violate the 1951 Refugee Convention as the bill would render asylum claims to be inadmissible should seekers travel to the United Kingdom on small boats across the channel.
Pursuant to Article 31(1) of the Refugee Convention, State Parties cannot punish asylum seekers entering a state by way of unauthorized routes [6]. The arbitrary removal of these people from the United Kingdom may be perceived as a form of “punishment” as asylum seekers may not be removed to a safe location. Currently, the British Government operates on a “safe third country” principle that reallocates asylum seekers to a third country that the government considers “safe” [7]. However, in reality, such countries may not be safe for different demographics of people (i.e. those who face oppression or persecution for being a minority). For instance, Turkey was declared a safe third country for refugees in 2016. However, since then, there have been reports of inhumane treatment of asylum seekers from Syria. Furthermore, in 2022, the Human Rights Watch reported that Turkey had arbitrarily arrested many Syrian nationals and deported them back to Syria [8]. Deporting asylum seekers back to their country of origin may sometimes doom them to certain death.
Given the bill’s conflict with the United Kingdom’s obligations under the European Convention of Human Rights and the 1951 Refugee Convention, it will likely attract many political and legal challenges. Even home secretary Suella Braverman, who is strongly supportive of detaining and deporting unauthorised immigrants, acknowledged that the bill will push the boundaries of international law and that it will likely be tested in Courts [9]. However, her statement should not be taken as a recognition of the bill’s problems or flaws but rather a vow to test the limits of international law and a bold declaration that human rights are a trade-off that she is willing to make. This would be consistent with her political career and standing. Among other things, she has previously suggested that the United Kingdom should leave the European Convention on Human Rights, labelled unauthorised asylum seekers as criminals and declared that asylum seekers who take unauthorised routes are subjected to different rights [10][11]. Given her position on human rights and asylum seekers, it comes as no surprise that the bill has her unwavering support.
Conclusion
The unauthorised channel crossings present a diversity of challenges to the British government. In the face of such adversities, it is understandable that certain difficult decisions need to be made. However, to have people in significant positions of power, such as Rishi Sunak and Suella Braverman, shamelessly oppose human rights and champion that position, both at an international stage and within the domain of their domestic law is worrying. It portends a future where the United Kingdom becomes more willing to trade human rights for other policy goals.
References
[1] George Parker, Jim Pickard and Chris Giles “Rishi Sunak promises action on UK growth and NHS waiting lists” (Financial Times, 4 Jan 2023) https://www.ft.com/content/a9e78359-1be0-40c5-822f-86b73c485376 (Accessed 8 Mar 2023)
[2] Caroline Davies, “Rishi Sunak told to ditch plans to overhaul human rights laws”, (The Guardian, 25 Jan 2023)
https://www.theguardian.com/law/2023/jan/25/rishi-sunak-told-to-ditch-plans-to-overhaul-human-rights-laws (Accessed: 7 Mar 2023)
[3] Human Rights Act 1998
[4] William Wallis, Jasmine Cameron-Chileshe and George Parker “Rishi Sunak to reveal plan to remove small boat migrants” (Financial Times, 7 Mar 2023) https://www.ft.com/content/41e25fcc-256e-4a6a-a813-91037f581174 (Accessed: 7 Mar 2023)
[5] William Wallis, Jasmine Cameron-Chileshe and George Parker “Rishi Sunak to reveal plan to remove small boat migrants” (Financial Times, 7 Mar 2023) https://www.ft.com/content/41e25fcc-256e-4a6a-a813-91037f581174 (Accessed: 7 Mar 2023)
[6] The 1951 Refugee Convention
[7] United Kingdom Government https://www.gov.uk/government/publications/nationality-and-borders-bill-removal-to-a-safe-third-country-factsheet/nationality-and-borders-bill-removal-to-a-safe-third-country-factsheet (Accessed: 7 Mar 2023)
[8] Human Rights Watch (24 October 2022) https://www.hrw.org/news/2022/10/24/turkey-hundreds-refugees-deported-syria (Accessed: 7 Mar 2023)
[9] William Wallis, Jasmine Cameron-Chileshe and George Parker “Rishi Sunak to reveal plan to remove small boat migrants” (Financial Times, 7 Mar 2023) https://www.ft.com/content/41e25fcc-256e-4a6a-a813-91037f581174 (Accessed: 7 Mar 2023)
[10] PA News Agency “Braverman says UK should leave European Convention on Human Rights” (Echo News, 4 Oct 2022) https://www.echo-news.co.uk/news/national/23020319.braverman-says-uk-leave-european-convention-human-rights/ (Accessed: 8 Mar 2023)
[11] Amelia Susserott, “The Myth of the “Illegal” Asylum Seeker” (Lancaster University Law School, 27 April 2021) https://www.lancaster.ac.uk/law/blog/the-myth-of-the-illegal-asylum-seeker (Accessed: 8 Mar 2023)