Illegal Migration Bill Would Lead to UK Violating its Obligations Under the UN Convention Against Torture
A new briefing by REDRESS warns that, if passed, the Illegal Migration Bill would result in the UK breaching its obligations under international law against torture, in particular, the UN Convention against Torture and the International Covenant on Civil and Political Rights.
The Illegal Migration Bill is intended to ‘prevent and deter unlawful migration’ (Clause 1(1)). It requires that the Secretary of State remove any adults from the UK who arrived without legal documentation after 7 March 2023, and prevents anyone in this category from claiming asylum if they did not come ‘directly’ to the UK (i.e. if they passed through a safe third country) (Clause 2).
Individuals targeted for removal by this Bill are either deported to their country of origin, their country of embarkation for the UK, or a country where they will be admitted (e.g. a country with which the UK has a transfer agreement) (Clause 5). Prior to deportation, individuals can be detained for any period of time deemed ‘reasonably necessary’ by the Secretary of State (Clause 12). The ability of asylum-seekers to challenge decisions is severely curtailed.
REDRESS stresses that, in 2021, around 85% of asylum applications were granted (some after successful appeals) and that a significant proportion of asylum-seekers in the UK are survivors of torture. While research suggests that at least 27% of refugees and asylum-seekers in high-income countries are likely to have experienced torture, this proportion is likely to be higher in the UK, as the primary countries of origin of asylum-seekers are overwhelmingly places where torture is particularly prevalent. Therefore, the Bill will disproportionately impact survivors of torture.
The briefing makes two key arguments:
- Firstly, the Bill violates the principle of non-refoulement to torture (the prohibition on deporting people to another State where there are substantial grounds for believing that they would be in danger of being subjected to torture). This is because the scheme provided for in the Bill, and the speed of its intended operation, is not likely to allow a survivor of torture to demonstrate that they have suffered torture, or that they are vulnerable as a result, nor does it enable the UK adequately to assess their risk of torture in a new country.
- Secondly, the Bill subjects survivors of torture to detention, and prevents them from realising their right to redress. The Bill would make detention inevitable and lengthy detention very likely for survivors of torture. It is well-established that detaining survivors of torture risks their re-traumatisation, and could itself amount to cruel, inhuman or degrading treatment. Survivors of torture in detention often develop depression, anxiety and PSTD.
Despite the fact that the use of immigration detention under the Bill would become routine, the Bill contains no reference to any safeguarding for survivors of torture.
Under the Bill, there is no procedure for identifying survivors of torture before they are detained, and the right to redress and rehabilitation is fundamentally undermined by their inability to file a protection claim.
Therefore, whilst many commentators have correctly stated that the Bill (if passed) would violate the UK’s obligations under international refugee law, REDRESS’s briefing focuses on how the Bill would also violate the UK’s obligations under the international law against torture.
The briefing complements the joint letter from a number of UN Special Procedures’ mandate holders from 4 May 2023, which urged the UK Government “to halt the legislative passage and implementation of the Bill and to bring UK domestic law in line with international human rights standards”. The letter was signed by the Special Rapporteur on the human rights of migrants; the Working Group on Arbitrary Detention; the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; the Special Rapporteur on contemporary forms of slavery; the Special Rapporteur on torture; the Special Rapporteur on trafficking in persons, and the Special Rapporteur on violence against women and girls.
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