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Rishi Sunak’s Illegal Migration Bill: What Happens When Violating International Law is the Point?

04 Apr 2023
By Dr Rowan Nicholson
The Prime Minister, Rishi Sunak Holds a Press Conference on the Small Boats bill at No.9 Downing Street. Source: Rory Arnold / No 10 Downing /

Violating international law might be the point of the Illegal Migration Bill, because it enables the British government to pick a politically useful fight in Europe. That means that merely complaining about illegality might not be an effective response.

The Illegal Migration Bill 2023. Whoever gave it that grammatically ambiguous title must, surely, have chuckled to themself. Is it the migration that is illegal? Or the Bill?

It might be the Bill. And that might be the point. When the Bill was introduced into the British parliament by the home secretary, Suella Braverman, she was unable to confirm that it was compatible with the European Convention on Human Rights 1950 (ECHR). She told fellow Conservatives that this means “a more than 50% chance” that it “may not be” compatible. And though she added that the government, led by Rishi Sunak, is “confident” of its compatibility, she did not explain how both those views can be held at once.

There are two treaties that raise issues of illegality here: the Refugee Convention and the ECHR. Politically, what matters is any illegality under ECHR. It sets up a fight in Europe with the court in Strasbourg—which is exactly what Sunak’s government might want.

And if violating the law is the point, complaining that the Bill is illegal is not an effective response to it. An effective response requires a defence of the entire legal regime.

Illegality under the Refugee Convention

The Refugee Convention 1951 is a clunky thing designed for the aftermath of the Second World War and later expanded with a protocol. But like other treaties from that period of hope and change, it retains enormous moral authority. It legally obliges states to respect the rights of someone who seeks asylum and turns out to qualify as a refugee.

The Bill says instead that if someone arrives in Britain in certain conditions—drafted to target people who cross the Channel irregularly on boats—then any claim to asylum will be “inadmissible.” The United Nations High Commissioner for Refugees (UNHCR) calls this an asylum ban—extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how genuine and compelling their claim may be, and with no consideration of their individual circumstances.

This, the UNHCR concludes, is “a clear breach of the Refugee Convention.”

The Convention also includes a rule known as non-refoulement (article 33): a state may not remove a refugee to a territory where their life or freedom would be threatened on account of their race or political opinion or another legally protected characteristic.

Sunak’s government hopes to sidestep this by sending people to another safe country. Before Britain exited the European Union, it could do that under the Dublin Regulation. Now it has an arrangement with Rwanda. But partly because of ongoing legal challenges, Britain has struggled to actually send anyone to Rwanda. That might raise eyebrows about whether the Bill can be made to work consistently with non-refoulement.

If the Bill does breach the Refugee Convention, so what?

That will shape conversations at the United Nations, diminish Britain’s reputation, and undermine its ability to criticise other states for breaching international law. But a hardhearted Conservative government might shrug—just as its Australian counterparts have sometimes shrugged when accused of breaching the Refugee Convention.

That is because, despite its moral and legal force, the Convention does not contain a robust mechanism to ensure compliance. This is where the ECHR is different.

Illegality under the European Convention on Human Rights

The human rights memorandum accompanying the Bill acknowledges—though tries to downplay—concerns about several ECHR rights. Observers point to these rights too. One is the right not to “be subjected to torture or to inhuman or degrading treatment or punishment” (article 3), which prohibits non-refoulement. Another is the right “to respect for private and family life” (article 8). The human rights memorandum notes that this right might be engaged when unaccompanied children are removed from Britain.

Also relevant is the right to “an effective remedy before a national authority” for breach of an ECHR right (article 13). The issue here is that, under the Bill, a person—perhaps an asylum seeker—may be detained for 28 days without access to bail or judicial review.

ECHR rights have force not only on the lofty plane of international law but also in British domestic law under the Human Rights Act 1998. British courts try to interpret legislation in ways that are compatible with the ECHR. If a court cannot interpret primary legislation compatibly, then it will issue a “declaration of incompatibility” (section 4).

That exhausts domestic remedies within Britain. And that is an invitation to another court to seize jurisdiction: the European Court of Human Rights in Strasbourg. The court is a creature of the ECHR, not of the European Union, so it is unaffected by Brexit.

Picking a fight with Strasbourg

When the home secretary declines to confirm that the Illegal Migration Bill is compatible with the ECHR, she is daring British courts to issue that invitation, daring the judges in Strasbourg to poke their noses into the policies of Sunak’s government.

Why? If the Bill passes and the Strasbourg court strikes it down, what then? Sunak’s government might never have to actually implement the policy with all its complications, such as those with the Rwanda arrangement. But to voters who worry about irregular boat arrivals, it will look like the government has tried. And the government will have someone to blame who it can associate with shadowy figures in Europe and with its political rivals, including the Labour leader Keir Starmer, a former lawyer.

The episode is a lesson about the politics of international law.

When an observer or a body like the UNHCR issues a fiery complaint about violations of human rights or the Refugee Convention, they may imagine that their audience accepts a basic premise: that compliance with the law as it currently stands is a good thing.

But maybe the violator wants to be told they are acting illegally. Maybe they want to build pressure to change or reinterpret the law or, failing that, to normalise violations of it.

If critics focus only on the violations, they fail to respond to this larger—and more dangerous—project. An effective response to something like this Bill requires a defence of the entire legal regime: of the moral authority of the Refugee Convention, clunky as it may be; of the ECHR; and of the underlying idea that policy options should be limited by general rules about human rights, even if those rules are sometimes inconvenient.

Dr Rowan Nicholson teaches and researches at Flinders University, Australia, mainly in international law with a focus on sovereignty, self-determination, and interstate disputes. He has worked on cases in the International Court of Justice on issues such as genocide and territory. His doctoral thesis from Cambridge was adapted into a book with Oxford University Press. He speaks and writes in the media and for The Conversation.

This article is published under a Creative Commons Licence and may be republished with attribution.