Yesterday, the High Court in Belfast dealt a blow to the government when it struck down several provisions in the Illegal Migration Act 2023, and declared that parts of the legislation were incompatible with the European Convention on Human Rights.
The Illegal Migration Act is a key piece of legislation for the government’s Rwanda scheme. It obliges the Home Secretary to detain and remove individuals arriving in the UK without permission and prevents them from claiming asylum. The Act also allows the government to deport illegal migrants to a safe third country. While yesterday’s ruling only applies to individuals in Northern Ireland, there are concerns that it could affect the viability of the government’s Rwanda scheme as a whole.
The ruling came after applications by the Northern Ireland Human Rights Commission and a 16-year-old asylum seeker from Iran, who had arrived in the UK after travelling from France in a small boat. The applicants argued that the provisions of the Act were both incompatible with Article 2 of the Ireland/Northern Ireland Protocol to the Withdrawal Agreement (commonly referred to as the Windsor Framework) and various provisions of the European Convention on Human Rights. Article 2 ensures that in Northern Ireland there should be no ‘diminution in rights safeguards or equality of opportunity’ set out in the Good Friday Agreement as a result of Brexit.
Mr Justice Humphreys concluded that the rights of asylum seekers were protected by Article 2 and that several elements of the Illegal Migration Act caused ‘a diminution in the rights enjoyed by asylum seekers in a variety of significant ways.’ He therefore disapplied a number of provisions of the Act in Northern Ireland. He also determined that, given the ‘significant nature of the violations identified’, that the Act is incompatible with the European Convention on Human Rights.
The declaration of incompatibility will be a setback. It does not, however, affect the continuing validity of the Illegal Migration Act. Rishi Sunak has already indicated that the decision will not change the government’s plan to send migrants to Rwanda.
Article 2 of the Windsor Framework, which was implemented in domestic law by the European Union (Withdrawal) Act 2018, is a different matter. The way that the obligations contained in the Withdrawal Agreement have been implemented in domestic law means they takes precedence over other statutes. The rights and obligations under the Withdrawal Agreement therefore prevail over any inconsistent domestic law. This allows the UK courts to disapply inconsistent measures.
This means that, unless the judgment is successfully appealed by the government, these provisions of the Illegal Migration Act will not apply in Northern Ireland.
The practical effect of this ruling is not yet entirely clear. The judgment is unlikely to have a significant impact on the ability of the government to make removals from Great Britain (since the remedy granted by the Belfast court, under Article 2, is clearly restricted to Northern Ireland).
Nonetheless, the DUP’s leader, Gavin Robinson, has already highlighted the fact that the judgment demonstrates that the UK now has a two-tier asylum system. Robinson has argued that this could make Northern Ireland ‘a magnet for asylum seekers seeking to escape enforcement’. It has been reported that the government’s Rwanda removals scheme had already encouraged asylum seekers to relocate to the Republic of Ireland. We may now see the entire island of Ireland becoming a sanctuary.
Given that the Rwanda scheme has always been seen as more of a deterrent than a practical way of removing large numbers of asylum seekers arriving on small boats, it is hard to judge the political impact of the ruling. Clearly it is a legal headache that the government doesn’t need. But history shows that the average British voter may not take that much notice of what happens in Belfast.
Still, it would be foolish for politicians in Westminster to ignore the judgment and the underlying issues created by the Windsor Framework. This is not the first time that Article 2 has caused controversy. In a ruling in February, the High Court in Belfast disapplied provisions of the Northern Ireland Troubles (Legacy and Reconciliation) Act, which sought to bring an end to new criminal investigations, legal proceedings and inquests based on acts which had occurred before 1998. But I suspect that this is the first time Westminster has seriously thought about the impact of Article 2 on the UK as a whole.
In that context the judgment is constitutionally important. It exposes the fact that, in certain circumstances, the government’s writ may no longer run in Northern Ireland. Effectively, this means that unless the government is willing to legislate in compliance with Article 2, it may well not be able to take decisions which apply to the whole of the UK. This may come as an unpleasant surprise to some ministers who do not appear to have appreciated all the consequences of the commitments made in the Withdrawal Agreement.
Article 2 of the Windsor Framework may have once been seen as a minor matter which only affected Northern Ireland. This judgment is a wake-up call for the government and Westminster alike.
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