The Titanic Struggle over the Illegal Migration Act

By: Stuart Wallace

In 1912, the shipyard of Harland and Wolff in East Belfast produced a ship that was state of the art, a marvel of engineering, “designed to be unsinkable”. As it traversed the iceberg-laden waters of the North Atlantic on its maiden voyage at high speed, no one expected it to hit an iceberg and sink to the bottom of the Atlantic Ocean. And yet, that is precisely what the Titanic did.  

The Illegal Migration Act 2023 has a lot in common with the Titanic. It is a legislative marvel, fitted out with the latest ouster clause technology to stop the courts meddling with the Government’s plans to remove immigrants and a state-of-the-art section disapplying the Human Rights Act 1998 to stop the lefty lawyers from scuppering government plans to stop the small boats. It was compartmentalised, locked down and designed to be legally unsinkable. And yet, on its maiden voyage through the Royal Courts of Justice, just across the river from Harland and Wolff’s great shipyard in Belfast, it began taking on water. In Re Northern Ireland Human Rights Commission, the High Court of Northern Ireland blew a hole in the Illegal Migration Act, disapplying huge swathes of it in Northern Ireland. It did so because the Northern Ireland Human Rights Commission, a child of the Good Friday Agreement (GFA), successfully challenged the legislation on the grounds that it led to a reduction in rights protection compared to the position before Brexit. This, it claimed, was not permitted under Article 2 of what is now called the Windsor Framework:

The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the [European Union]

The court needed to establish whether there had been a reduction in rights protection when compared to the situation before Brexit. In previous litigation, Re SPUC Pro Life Limited’s Application, a test had been established by the court for determining this – 

  1. A right included in the GFA is engaged.
  2. That right was given effect in Northern Ireland, on or before 31 December 2020;
  3. That Northern Ireland law was underpinned by EU law
  4. That underpinning has been removed, in whole or in part, following withdrawal from the EU
  5. This has resulted in a diminution in enjoyment of this right;
  6. This diminution would not have occurred had the UK remained in the EU

If that test was met, several consequences followed. EU law has taken precedence over the domestic law of member states since the seminal decision of Costa v ENEL at the European Court of Justice. The House of Lords followed this ruling in Factortame and disapplied an Act of Parliament (The Merchant Shipping Act 1988) because it was inconsistent with EU law. In this case, the court observed that because of Article 4 of the Withdrawal Agreement with the EU, EU law applicable in Northern Ireland would produce the same legal effects as those which it produces in EU Member States, i.e. supremacy over domestic law. The court held that “Factortame is still in play since the rights and obligations under the [Withdrawal Agreement] must prevail over any inconsistent domestic law”. The judge observed that “A piece of national law found to be inconsistent with directly enforceable EU law would therefore be ‘disapplied’ in the sense that it would remain on the statute book but have no legal effect”. To summate then, the Windsor Framework guarantees there will be no reduction in the rights protected under the GFA in Northern Ireland post-Brexit. When the test outlined in SPUC is satisfied, the supremacy of EU law is engaged and a piece of domestic legislation reducing rights protection (e.g. Illegal Migration Act) can be disapplied.   

And boy was the Illegal Migration Act 2023 found to reduce rights protection compared to the pre-Brexit situation. The High Court eviscerated the Illegal Migration Act, finding that it did not provide for the effective examination of asylum claims, did not provide effective remedies before courts or tribunals for decisions on asylum applications to be challenged, did not provide adequate protection against removals which would violate the non-refoulement provisions of the Refugee Convention and would lead to unlawful detention of migrants. It was all inconsistent with EU law. An array of EU Directives, Regulations and Treaties were virtually queuing up to put the boot in to this odious legislation. The Illegal Migration Act was found to be incompatible with Procedures Directive (2005/85/EC), the Qualification Directive (2004/83/EC), the Trafficking Directive (2011/36/EU), the Dublin III Regulation (604/2013) and the Charter of Fundamental Rights. The court disapplied section 2(1), 5(1), 5(2), 6, 13(4), 22(2), 22(3) and Section 57 of the Act, gutting its main operative provisions. A parallel challenge brought under the Human Rights Act and the ECHR was almost an afterthought in the judgment with the court also issuing declarations of incompatibility for sections 2(1), 5(1), 6(3) and 6(7) and 22, setting fire to a coffin it had already nailed shut and buried.

This is far from the end of the dispute though. The Government will appeal the judgment and it seems destined ultimately for the Supreme Court. In the meantime, the State will have to come up with much better arguments if it is to have any chance of success in the appeals. It argued, for example, that the provisions of the Good Friday Agreement which referred to “the civil rights and the religious liberties of everyone in the community” were limited “to healing of sectarian division in Northern Ireland”, in essence that asylum seekers should not be considered part of “Northern Ireland’s community”. This argument was echoed by Rishi Sunak, responding to the judgment, when he said “the commitments in the Belfast/Good Friday Agreement should be interpreted as they were always intended, and not expanded to cover issues like illegal migration”. The judge’s clear response was that there is no basis to exclude such individuals from the wide compass of the term “everyone in the community” in the GFA. In a surprise to no one, except apparently Rishi Sunak and the Treasury counsel appointed to this case, the court held the word everyone means everyone.  

In another instance, when confronted with Article 18 of the Procedures Directive which states: 

Where an applicant for asylum is held in detention, Member States shall ensure that there is a possibility of speedy judicial review.

The State tried to argue that there was no reduction to this right in the Illegal Migration Act because it only applied to “applicants for asylum”. Under the Illegal Migration Act, they claimed, these people would not be “applicants for asylum” because their claims would be inadmissible. The judge rightly responded 

This simply cannot be correct. Where a person who would have been categorised an applicant for asylum under the law as it stood on 31 December 2020 is deprived of the right to make such an application by the IMA, that must entail a diminution in right. 

One could see a case built around parliamentary sovereignty, that the more recent expression of Parliament [Illegal Migration Act 2023] takes precedence over the earlier expression [Withdrawal Act 2018] potentially having more legs in the appeal, but we will have to wait and see. 

The judgment presents a massive headache for the Government. The Rwanda plan, on which they have placed so much stock, is contingent on the Illegal Migration Act to properly function. As mentioned in a previous post, the prospect of the Act not applying in Northern Ireland and of asylum seekers being able to bring claims in Northern Ireland that they can’t in the rest of Great Britain creates at least some risk of forum shopping, undermining the entire scheme. There is a deep irony here that one of Rishi Sunak’s headline achievements in office, the Windsor Framework, could scupper his current main policy objective, implementing the Rwanda plan. The UK’s attempts to sail past an array of international legal obligations in both the Illegal Migration Act and Rwanda Acts through sophistry and sheer executive chutzpah have struck several icebergs: The Good Friday Agreement is still in place, EU rights are still guaranteed by Northern Irish courts, asylum seekers are part of Northern Ireland’s community and the Illegal Migration Act looks like it’s sinking. 

Stuart Wallace.

Stuart Wallace is an Associate Professor at the University of Leeds where he teaches constitutional law and international human rights law. He is a contributing writer for the Constitution Society.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.