The UK Illegal Migration Act – which breaches the UN Refugee Convention signed and ratified by the UK seven decades ago – includes measures for detaining people, denying them access to asylum processes, forcibly removing them from the UK and barring them any future entry or path to UK citizenship.  Several elements are now subject to legal challenges – amongst others, by the NI Human Rights Commission  as mentioned above – and a number have yet to be implemented.

As the bill was making its way through Parliament, PPR wrote to a range of UK and NI authorities under Freedom of Information to ascertain the state of any plans for implementing it here, with very little substantive response.  In early summer Claire Hanna MP used a written parliamentary question to enquire about Home Office contact with Departments in Northern Ireland around eventual implementation of the bill should it became law, and on 12 June Minister for Immigration, Robert Jenrick responded as follows:

“I have corresponded with the Permanent Secretaries of the Northern Ireland Department of Justice and The Executive Office on a number of occasions since the introduction of the Illegal Migration Bill. Home Office officials have also engaged regularly with their counterparts in the Department and Justice and The Executive Office about the Bill, including one meeting with officials in The Executive Office. We will continue to engage, as appropriate, with relevant Northern Ireland departments on the implementation of the Bill in Northern Ireland.”

On 11 July the Home Office held a meeting of the ‘Interministerial Group for Safety, Security and Migration’. It reported that the Ministers for Social Justice from Wales and Scotland attended but that given “the absence of ministers in the Northern Ireland Executive, senior officials from the Northern Ireland Civil Service attended the meeting in an observational capacity”. It did not provide any information on the substance of the meeting; however shortly before, Wales’ Senedd had voted to withhold legislative consent with regard to specific provisions of the Bill, particularly around the devolved matter of social care of children. (For its part the Scottish government had prepared, but had not been permitted to lodge, a legislative consent memorandum. The UK government had asserted that consent was not required).

“Devolution settlement relies on an atmosphere of trust, co-operation, sharing of information and respect between the four administrations, the release of this information would impact on good relations between the different administrations”

The approach in Northern Ireland, absent Stormont, has been far less proactive and far less critical. In fact, in response to FOI request, the NI Executive Office explained that it had refrained from disclosing information in its possession on the grounds that:

“after weighing the various factors in favour of disclosing and withholding the information requested of us, we believe that it is not in the public interest to disclose such information as it would skew public perception, cause confusion and impact on relations between NI officials and UK Government officials. Devolution settlement relies on an atmosphere of trust, co-operation, sharing of information and respect between the four administrations, the release of this information would impact on good relations between the different administrations.”

Excerpts from minutes of a meeting of the Strategic Planning Group (Refugees and Asylum Seekers) held in late May, which the Executive Office did choose to provide, gave an indication of the extent to which earlier concerns emanating from NI about the impact of implementation of the proposals here – such as those raised by CAJ in March, and by the NI Human Rights Commission in April (to the Joint Committee on Human Rights) and May (to the House of Lords)  – had (or rather, had not) been taken into account:

“as regards Article 2 of the NI Protocol / Windsor Framework, [redacted] advised there was no evidence in the Bill or Explanatory Notes that this had been considered, or that there had been consideration of people arriving from Ireland into NI; consideration only seemed to be of those arriving via small boats across the English Channel.”

A number of these concerns were reiterated eloquently by NI MPs at Westminster during the Commons debate on 17 July. The Alliance and SDLP members voted against the government’s proposed Act throughout; the DUP did likewise on some measures, though it supported the government on others.

As for NI officials here, the Department of Justice had already told PPR by its own FOI response 23/42 that it had met the Home Office four times between April and June to discuss elements of the bill. It, along with the Department for Communities, took part in meetings of the aforementioned Strategic Planning Group (Refugees and Asylum seekers) as the bill progressed. More recently, the Executive Office set up a ‘Task and Finish’ group “to continue to facilitate work around implementation and development of regulations re: Illegal Migration Act once passed”, according to the excerpts from minutes provided.  Participants included the departments already mentioned as well as the Housing Executive, the Police Service of Northern Ireland and presumably others.

The redacted minutes also included some substantive information on matters discussed, including

• Detention: The TEO minutes state, “the detention centre at Larne House is a temporary holding facility and can only accommodate up to 19 detainees at any one time”. (Both the PSNI and the Ministry of Defence declined to provide any information on any plans for the new detentions that would result from full implementation of the Act. Separately, on 13 December the Home Office published information about conversion of three sites in England – Portland port (where the Bibby Stockholm is docked) as well as former MOD properties in Scampton and Wethersfield – to asylum accommodation; and the potential conversion of a former prison and military training centre at Bexhill to an asylum detention facility.)
• Unaccompanied children: the Department of Health itself declined to provide any information, on the argument, similar to the TEO’s, that “any disclosure is likely to prejudice relations between administrations in the UK” (FOI DOH/2023-0208)). However other FOI responses indicate that the Department of Health do have responsibility for this area under the new legal framework. The minutes provided by TEO indicated that DOH informed the group that they had corresponded and met with the UK government about matters including new ‘scientific methods’ for age assessment. (It must be highlighted here that the Royal College of Paediatrics and Child Health (RCPCH), the British Dental Association (BDA) and the British Association of Social Workers (BASW) have all roundly condemned government plans to use ‘scientific’ methods such as x rays and MRI scans to assess the ages of children, “due to their unethical and inaccurate nature”. In fact in recent correspondence with the Home Office the three bodies pointed out that even the government’s “own Scientific Advisory Committee has advised against these proposals”. Any changes to practice around age assessment here will need to be followed closely.)
• Proposed cap on future arrivals: Following exchanges with the Home Office, “TEO has been named as the statutory consultee for the cap on arrivals by safe and legal routes”. Given that barriers to access to asylum procedures including to appeal and to judicial review of decisions form the basis of challenges brought by the NI Human Rights Commission and others, this will bear scrutiny going forward (in the event that the UK government establishes such routes beyond the extremely minimal ones in existence currently).

What next?

As the government prepares to try to push through a bill declaring Rwanda to be a safe destination for the UK’s asylum seekers – despite a Supreme Court ruling to the contrary – what can we expect in terms of implementation of the Illegal Migration Act here?

The UN High Commissioner for Refugees have made a series of concrete recommendations for how to implement the Illegal Migration Act in a way that brings it “closer to conformity with the UK’s international obligations” – but there is no indication that the government have taken them on board. Bodies like the Institute for Public Policy Research continue to propose concrete alternatives to the current government’s punitive approach to asylum seekers, based for instance on genuinely safe and accessible routes, increased cooperation with other countries and changes to the UK’s asylum system – the initial groundwork has been laid out, if any policy makers were to display an interest.

The NI Human Rights Commission’s legal challenge to the Act, which it says will unlawfully threaten the life, liberty and dignity “of thousands, if not tens of thousands, of individuals each year”, is a welcome development. Meanwhile, scrutiny is due to the NI authorities charged with “implementation and development of regulations” to actively put the provisions of the contested Act into practice; not least because they appear to go in such trepidation of jeopardising “good relations” with the same Westminster which first ignored Northern Ireland’s circumstances when drafting the legislation, and then brushed aside its concerns when pushing the same through Parliament.