This briefing has been prepared to support MPs debating the Illegal Migration Bill in the House of Commons.
The UK Government’s Illegal Migration Bill represents a direct assault on the concept of universality of human rights and the rule of law. It is a clear breach of the UK’s obligations under a broad range of human rights treaties, including the European Convention on Human Rights (ECHR), the UN Convention on the Rights of the Child (UNCRC), the Refugee Convention 1951, and the Council of Europe’s Convention on Action against Trafficking in Human Beings. We have been concerned by the restricted timescales for effective Parliamentary scrutiny of this Bill, and the limited time available to consider and analyse amendments. We have therefore set out only the key amendments we consider would go some way to mitigating the worst impacts on children and young people.
The UK Government’s Bill is based on assertions about “abuse” of the refugee and asylum system that the Home Secretary has repeatedly failed to evidence, and which are directly contradicted by the Home Office’s own data and research. It indulges and legitimises false and dangerous rhetoric about refugees and asylum seekers, emboldening far right extremist groups and placing children and families at risk of harm.
It fails to address genuine issues within the asylum system including the ever-growing asylum backlog and increasing use of long-term hotel accommodation. The lack of safe and legal routes has resulted in refugees and asylum-seekers being forced into dangerous crossings and into the hands of criminal gangs. These issues have largely been created by the UK Government itself, and now the Home Secretary seeks to blame and punish children and families in vulnerable circumstances.
Children seeking refugee status must receive appropriate protection and humanitarian assistance, under Article 22 of the UNCRC. The UNCRC also requires the UK to ensure that children are protected from exploitation and abuse, and afforded support for recovery. Instead, the Bill effectively extinguishes the right to claim asylum for those who have arrived in the UK irregularly, without any consideration of their individual circumstances. Children and their families will exposed to the threat of or actual removal to their home country or to a ‘safe’ third country, thereby exposing them to further risk of harm or persecution. In the Council of Europe’s Commissioner for Human Rights view, this would “[…] add to the already significant regression of the protection of the human rights of refugees, asylum seekers and migrants […] and in the process, it would also provide an incentive to other states, in Europe and beyond, to follow the UK’s lead in evading and abdicating its responsibilities to people in need of protection”.
We therefore support amendment 47, which would create exemptions on the Home Secretary’s duty to remove under Clause 2 for, among others, children, refugees, and victims of modern slavery or trafficking. We also support amendment 5 and amendment 17 which would also create exemptions for children and young people who were previously unaccompanied children. We also agree that amendments 44 and 45 are necessary to ensure that the Bill or any other legislation made under it are interpreted by courts in line with international human rights obligations, including the UNCRC.
The Home Office’s history of neglect renders it an unfit parent for vulnerable children. Nevertheless, the Bill grants the Home Secretary sweeping powers to accommodate unaccompanied asylum-seeking children. We are concerned that the Bill gives the Home Secretary the power to disapply existing statutory duties in Scotland owed to unaccompanied asylum-seeking children under the Children (Scotland) Act 1995. These include local authority duties to provide children in need with support and accommodation, irrespective of their immigration status. We therefore support amendment 54 which would limit the Home Secretary’s power to extend Clauses 15 to 18 to Scotland.
The Bill excludes people arriving irregularly from modern slavery and trafficking protections and support. It gives the Home Secretary the power to extend these provisions to Scotland, thereby disapplying duties created by Scottish Parliament legislation to provide support and assistance by way of accommodation, medical treatment, legal advice and counselling to victims of trafficking. This would put Scottish public authorities in an impossible situation where the Bill would compel them to act incompatibly with Article 4 of the ECHR, which places a positive obligation on States to establish mechanisms to identify and protect victims of trafficking. We therefore support amendment 73 which would require Scottish Parliament consent before any regulations are made under the Bill to disapply existing Scottish statutory protections and support for victims of trafficking.
There is absolutely no evidence to support the UK Government’s justification that these provisions are necessary to stop the so-called “abuse” of the modern slavery system. Instead, removing those who arrive in the UK through irregular means from the scope of trafficking protections will condemn thousands of children to criminal exploitation and abuse. It will undermine the work of national and transnational law enforcement agencies, and play directly into the hands of serious organised crime gangs.
The Bill will also reverse the years of progress in reducing the number of children in immigration detention in Scotland, undermining the work by civil society organisations and previous Children’s Commissioners in Scotland. Deprivation of liberty can have a life-long negative impact on children’s physical and mental health, and on their development, even when they are detained for a short period of time or with their families. The UN Committee on the Rights of the Child has made it very clear that the detention of children because of their or their parents’ immigration status constitutes a violation of children’s rights. We therefore support amendment 2, which would prevent the detention of unaccompanied children, and families with dependant children, or pregnant women.
We are concerned that the UK Government seeks to insert regressive clauses in the Bill relating to age assessments, including Government amendment NC24 which would severely limit avenues of appeal against age assessment decisions, and Government amendment NC25, which gives the Home Secretary the power to make regulations about the effect of any age-disputed young person’s refusal to consent to a medical age assessment. Our office has strongly condemned proposals to introduce any ‘scientific methods’ to assess the age of child refugees. All children have the right to privacy and bodily integrity and should not be subjected to invasive medical procedures, including x-rays, where there is no medical reason to do so, and especially where free and full consent is not given. The UN Committee on the Rights of the Child continues to be clear that the least invasive method of assessment should be used, and where it is inconclusive, the child should be given the benefit of the doubt. We call on the UK Government’s amendments to be resisted.
Finally, the UK Government’s amendment NC26 seeks to disapply any interim measure granted by the European Court of Human Rights (ECtHR) in relation to the removal of a person, including children, from the UK under Clause 2 of the Bill. This amendment must be resisted. While interim measures are not expressly provided for in the text of the ECHR, States Parties are obliged to comply with them. The ECtHR has made clear that a failure to comply with a Rule 39 direction risks undermining the right of individual application guaranteed by Article 34 ECHR. Failure to comply with an interim measure would set a dangerous precedent in Europe and would undermine the collective enforcement of human rights.
We call on UK Parliamentarians, as human rights guarantors, to reject the UK Government’s Bill, which would strip rights away from vulnerable children and families, and place the UK in breach of its international obligations.
We have called on the Scottish Parliament, Scottish Government and public authorities to act in compliance with existing Scottish human rights duties to mitigate wherever possible the harms caused by this Bill. We have sought a firm commitment from the Scottish Government that it will do so to the maximum extent permitted by devolved powers. This includes, among other recommendations, to urgently bring back the UNCRC (Incorporation) Bill to Parliament for reconsideration; and to expedite the consultation for their forthcoming Human Rights Bill and ensure that it addresses the question of how, in light of the UK Government’s Bill, protections for civil and political rights in Scotland can be strengthened within devolved competence.
 Clause 2
 Clauses 15 to 18
 Clause 19
 Sections 22, 23A and 25 of the Children (Scotland) Act 1995
 Clause 21
 Clause 23. See Human Trafficking and Exploitation (Scotland) Act 2015
 The Court found a breach of Article 34 ECHR in Mamatkulov and Askarov v. Turkey, application no. 46827/99, and Kondrulin v. Russia, application no. 12987/15
 Briefing for MSPs ahead of debate in the Scottish Parliament on the Illegal Migration Bill (Motion S6M-08680) https://www.cypcs.org.uk/resources/illegal-migration-bill/