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Illegal Migration Act provisions found unlawful

Mr Justice Humphreys has found today at the Belfast High Court that provisions of the Illegal Migration Act are incompatible with the Northern Ireland Protocol and the Windsor Framework and should be disapplied.

The court also found that certain provisions of the act are incompatible with the European Convention on Human Rights (ECHR). 

Diminution of right

The post-Brexit Windsor Framework. jointly agreed by Britain and the EU, stipulates no diminution of the rights under the 1998 Good Friday Agreement (GFA).

The Illegal Migration Act permits the government to detain and remove asylum seekers it believes have arrived illegally in Britain.

"I have found that there is a relevant diminution of rights in each of the areas relied upon by the applicants," the judge said.

"The applicants' primary submission therefore succeeds. Each of the statutory provisions under consideration infringes the protection afforded to RSE (Rights, safeguards and equality of opportunity) in the Good Friday Agreement."

He said that aspects of the act are also incompatible with the ECHR.

The Northern Ireland Human Rights Commission took one case and the other was taken by Phoenix Law on behalf of a 16-year-old asylum seeker from Iran who arrived from France on a small boat in July 2023.

He was transferred by the British Home Office to the North under the National Transfer Scheme. 

The judge placed a temporary stay on the disapplication ruling until another hearing at the end of May, when the applicants will respond to the judgment.

Appeal

Dr Tony McGleenan KC, representing the British Government, said an appeal may be considered.

"We'll be taking our instructions on the judgment and the position in terms of any further litigation will become clear, my Lord," he said.

Phoenix Law head of immigration Sinead Marmion, for the teen, said the decision was hugely significant, since it suggested if asylum seekers made their way to the North from Britain, they could not be sent to Rwanda.

Marmion said she expected an appeal.

"This is a huge thorn in the government's side and it has completely put a spanner in the works," she told the PA news agency.

"There's a huge obstacle in the way of them being able to actually implement that in Northern Ireland now, as it's been found to be incompatible with the Windsor Framework," she added.

Phoenix Law said in a statement: “The Illegal Migration Act prevents individuals who arrive in a dangerous manner … from ever being able to advance a claim for international protection.  It was this act that was the target of the instant challenge. 

“Mr Justice Humphreys was clear: 'This does not represent the will of the courts, but this represents the will of Parliament.’”

'Rhetoric'

Sinead Marmion said that the court had ruled that GFA rights apply to the whole community – including asylum seekers. 

“This runs contrary to the negative and toxic rhetoric peddled by the government against those seeking international protection.

“This judgment sends a clear message to the government.  Not only will asylum seekers be welcome in Northern Ireland, but they will also be legally protected.

“Today, marks the beginning of the end of the British Government’s flagship campaign to enact illegal and immoral laws with the sole purpose of frustrating and demolishing international human-rights protections,” the solicitor stated.