Illegal Migration Act: Parts should not apply in NI, judge rules

The judge at NI’s High Court said the law breaches the Windsor Framework.

It is the revised post-Brexit deal agreed between the UK and EU last year.

The ruling raises significant questions about the long-term viability of the plan to refuse some asylum seekers a hearing and send them to Rwanda.

In his ruling, Mr Justice Humphreys also declared parts of the act to be incompatible with the European Convention on Human Rights – an ultimate sanction from a UK court which sends unworkable legislation back to UK Parliament to be rethought.

The 2023 Illegal Migration Act (IMA) is a key part of the UK government’s plan to stop English Channel crossings by people seeking asylum without prior permission to arrive.

It created laws that mean the Home Secretary must detain and remove anyone who arrives by that route and the plan had been to send them to Rwanda. That was until the Supreme Court ruled last year that the country was unsafe.

Parliament has since passed a law designating Rwanda as a safe country.

This key part of the IMA has been in limbo since then but is widely expected to come into action because it would make it easier to transfer people to the African nation.

Prime Minister Rishi Sunak said the NI court decision would not change the government’s plan to send illegal migrants to Rwanda.

The Windsor Framework deals mostly with trade issues but also includes a human rights element.It commits the UK not to water down the human rights provisions that flow from the Good Friday Agreement, the 1998 deal which brought an end to 30 years of conflict in Northern Ireland, known as the Troubles.

The judge found that several elements of the act do cause a “significant” diminution of the rights enjoyed by asylum seekers residing in Northern Ireland under the terms of the Good Friday Agreement.

“I have found that there is a relevant diminution of right in each of the areas relied upon by the applicants,” he said.

Dr Tony McGleenan KC, representing the government, indicated that 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,” he said.

The legal challenge was brought by the Northern Ireland Human Rights Commission and a 16-year-old asylum seeker from Iran who is residing in Northern Ireland.

The commission has welcomed the judgement.

It said it issued the legal challenge in “its own name due to the significant concerns it has with the Illegal Migration Act and the effect on asylum seekers in Northern Ireland”.

It said it would now be “considering the judgment in full and its implications”.

Mr Sunak said the court decision changes nothing about the government’s plan to send illegal migrants to Rwanda.

He said the government is working to get flights off the ground to Rwanda soon and “nothing will distract us from that or delivering to the timetable I set out”.

He added: “We must start the flights to stop the boats.”

Mr Sunak also said the government has been clear that its commitment to the Good Friday Agreement should not be interpreted as expanding to cover issues such as illegal migration.

“We will take all steps to defend that position, including through appeal,” he said.

Democratic Unionist Party (DUP) leader Gavin Robinson said that the judgement “does not come as a surprise” but does “blow the government’s irrational claims that the Rwanda scheme could extend equally to Northern Ireland completely out of the water”.

He said that the government must “prevent a fracture in immigration policy” between different regions of the United Kingdom.

Mr Robinson said the UK Parliament should have the ability to make decisions on immigration that are “applicable on a national basis”.

“If that were not the case, it would not only be a constitutional affront but would make Northern Ireland a magnet for asylum seekers seeking to escape enforcement,” he said.

The teenage asylum seeker was represented by Phoenix Law.

Its head of immigration and asylum, Sinead Marmion, welcomed Monday’s ruling.

“The Good Friday Agreement has always been a beacon of human rights protections and hope,” she said.

“Today, the court, through the Northern Ireland Protocol, has ensured those rights apply to the whole community – including asylum seekers.”

While the judgement covers specific issues in NI, it raises questions about how the courts will deal with what are likely to be a major assault on the wider Rwanda plan in the coming months.

It is likely to form part of a wider attack from critics who say ministers have created a series of laws as part of the Rwanda strategy that breach basic safeguards for all refugees in the UK.

The First Division Association, the union representing senior officials in government, is already asking judges to rule whether the Rwanda plan forces officials to break the law.

Dozens of individual asylum seekers who have been told they may be sent to Rwanda are also being advised by lawyers whether they can bring cases.