Submission to Parliamentary Committee Stresses that Illegal Migration Bill will Lead to UK Violating its Obligations Under the UN Convention Against Torture
On 5 April 2023, REDRESS made a submission to the UK Parliament’s Joint Human Rights Committee (JCHR) on the Illegal Migration Bill.
The contribution focuses on the way in which the Bill, if passed, would result in the UK breaching its obligations under international law against torture, in particular, the UN Convention against Torture (UNCAT) and the International Covenant on Civil and Political Rights, both of which the UK has ratified.
The Illegal Migration Bill is intended to ‘prevent and deter unlawful migration’ (Clause 1(1)). The Bill 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.
It is important to stress that, in 2021, around 85% of asylum applications were granted (some after successful appeals).
A significant proportion of asylum-seekers in the UK are survivors of torture. Research suggests that at least 27% of refugees and asylum-seekers in high-income countries are likely to have experienced torture. In the UK, this proportion is likely to be higher, 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 submission 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.
The absolute prohibition of refoulement to torture is even stronger in UNCAT than that provided for in the Refugee Convention, as it means that individuals cannot be returned or expelled to torture even when they might not otherwise qualify for refugee status under the Refugee Convention.
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 PTSD.
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 submission to the JCHR focuses on how the Bill would also violate the UK’s obligations under the international law against torture.
The Joint Committee on Human Rights consists of twelve members, appointed from both the House of Commons and the House of Lords, to examine matters relating to human rights within the United Kingdom, as well as scrutinising every Government Bill for its compatibility with human rights.
Photo by Phil Dolby (CC BY 2.0)