Why the Illegal Migration Act is illegal

On June 29 the Court of Appeal ruled that Rwanda was not a “safe third country” and deporting asylum seekers there was consequently unlawful. Given this judgement, the drafters of the

Illegal Migration Act might be complimented on their foresight in the wording of the Bill’s title. This legislation has been called unworkable, cruel and “amounting to an asylum ban” (the

UNHCR).  In its lack of human empathy, its content could have been generated by AI.

Prime Minister Rishi Sunak has declared he will achieve what he calls his five “people’s priorities”.  The fifth reads: “We will pass new laws to stop small boats, making sure that if you

come to this country illegally, you are detained and swiftly removed.”

Last year some 90% of the boat people who reached the UK sought asylum.    By the beginning of this year only 3% of them had received an initial decision from the Home Office.   More than

135,000 asylum applicants were awaiting a decision, many of them in hotels paid for out of the UK aid budget; 89,000 of them had been waiting for more than six months.  This is the context

within which the Prime Minister has chosen to back this bad Bill.  Is he serious?

Sunak excuses the draconian contents of the Illegal Migration Act on grounds of compassion.  56 people, 11 of them children, are known to have drowned trying to cross the Channel since 2018.

  He argues that the people smugglers’ business model will collapse if would-be migrants believe they will be sent to Rwanda.  If there were a well-funded special unit in the National

Criminal Agency (NCA) dedicated to the arrest of these criminal gangs, if there were adequate accessible, safe and legal routes for asylum seekers to get here, his compassion argument might

carry conviction.  But if migration policy is driven by compassion, why has the Conservative Party in the Commons voted down Lords amendments to the Bill containing just such provisions?

The Conservatives believe that their Bill is a direct response to the democratic will, or, at least, the will of voters in the Red Wall constituencies who want to see an end to small boat

crossings.  And Kent County Council as well as Dover genuinely are overwhelmed, because so few councils around the country are willing to “burden-share” — and most of these are Labour

Councils. This is a microcosm of the European Union’s predicament.  But just how popular is the Illegal Migration Act?  How many people are thinking this harsh action is not our idea of

British values?

In the House of Lords we were hearing voices speaking for another, kinder Britain: Lord Dubs, who before the Second World War was brought to Britain on the kindertransport, concerned for the

needs and protection of unaccompanied children. Then there was Baroness Mobarik, who aged six accompanied her family from Pakistan to Glasgow, speaking alongside David Walker, the Anglican

Bishop of Manchester, against Government attempts to weaken limits on the detention of immigrant children and pregnant women. Isn’t the welcoming of Ukrainian refugees, in which we take

pride, more in keeping with what we want Britain to be?

The under-appreciated Upper House of Parliament — without veto power — is doing its job, holding the Government to account, scrutinising its legislation and trying to make this Bill less

bad.   Between 27 April and 10 July, peers worked on 20 pertinent, important and compassionate amendments.  A large cross-Party group outvoted the Conservative peers on each of the

amendments and sent the Bill back to the Commons. There had also been 16 Conservatives in the Commons who denounced various aspects of the Bill and abstained during its initial readings,

including the former Home Secretary and Prime Minister, Theresa May.

In the Commons, the Government rejected the Lords’ amendments, but did make small concessions. It agreed not to weaken limits on the length of detention and removed retrospective provisions

which would have made the Bill operative from its introduction by the Home Secretary, Suella Braverman, on 7 March 2023.

The Bill was then sent back to the House of Lords, and on July 12 they accepted the rejection of their amendments.  After further deliberations, the Lords returned the Bill to the Commons

with nine revised amendments — including two proposed by Tory peers.  These sophisticated strokes in the Palace of Westminster “ping-pong” were immediately and casually dismissed by the

Immigration Minister, Robert Jenrick, who said the Government did not plan to make any further concessions.

The Government, with only a few days left, badly wants to get its legislation through Parliament before the summer recess.  For this reason, the House of Lords has a small amount of

leverage, though it is improbable that the Government will change the Act in any meaningful way.  The Parliament Acts of 1911 and 1949, together with unwritten constitutional convention,

dictate that the unelected House of Lords should not block legislation by the elected House of Commons – especially measures promised in an election manifesto.  No such pledge on migration

was contained in the 2019 Tory manifesto.   Sunak persists in alleging that he is fulfilling a “people’s pledge” and responding to public opinion. The peers have done their best to stop him.

The Conservative majority in the Commons means we will be saddled with this deeply unpleasant legislation.  The Act will enable the Government to interpret international human rights

treaties and refugee conventions in ways that are not consistent with the UK’s obligations.  The Government’s excuse for this shabby populism is a variation on Margaret Thatcher’s “there is

no alternative”, alleging that the Act’s many critics do not offer any other policy to deal with migration.  Consistent with our current politics of empty promises and brazen untruths, this

is a lie.

There is a broad consensus amongst Churches and religious communities, NGOs, refugee organisations, and the House of Lords on what needs to be done, starting with the creation of new safe

and legal routes and serious investment in putting the criminal gangs behind bars.  One of the Lords’ amendments — proposed by the Archbishop of Canterbury and garnering not a single Tory

vote — was a call for a UK-led strategic ten-year multilateral plan for handling immigration compassionately, whilst countering the impact of conflict and climate change on sender countries.

  The Labour Party, acting as a government-in-waiting, has produced a strategic package of proposals consonant with the Archbishop’s call.  His amendment was amongst those voted down in the

Commons.

The boat people who pay the people smugglers are desperate and aware of the risks.  Nothing is quickly going to stop the small boats.  Nor will the Rwanda threat, least of all if the Supreme

Court agrees with the Court of Appeal’s judgement.  Opinion polls suggest many voters now believe only a new Government, a new and more competent Home Secretary and a reformed Home Office

can reduce the number of small boats and deal humanely with refugees, who are entitled to this country’s protection.

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