The Illegal Migration Act and its inevitable fate in Northern Ireland: Re NIHRC & JR295’s applications for judicial review

Let us turn to NIHRC and JR295’s applications for judicial review [2024] NIKB 35, in which the High Court disapplied sections of the Illegal Migration Act 2023 (IMA) – the Government’s flagship statute to tackle illegal migration – in Northern Ireland. It is important to understand why, despite some alarming reactions to the judgment, it was both foreseen and avoidable – and why the alarm should be sounded in the Houses of Parliament instead.

The facts of the challenges

The Northern Ireland Human Rights Commission (NIHRC) challenged the IMA by statutory right. The NIHRC, along with the Equality Commission for Northern Ireland are effectively the sentinels of the human rights guarantees under Article 2 of the Windsor Framework (WF). JR295 challenged the statute as an individual who was or would be at risk of deportation under some of its key provisions (when brought into force). JR295 is a minor asylum-seeker who fled Iran and arrived in the UK as an unaccompanied child on a small boat. Both challenges confronted a vast array of provisions in the IMA – 15 in total, of which 5 (relating to accommodation and support for unaccompanied children) were stayed pending a decision by the Government around those provisions. Returning to Iran – JR295 averred – would place him at risk of being imprisoned or killed.

The determination of the Article 2 WF claim

Article 2 WF is a complex provision to unpack. As Prof Murray and I have set out elsewhere, the main purpose of the provision is to act as a safeguard against a diminution of rights – set out in the Belfast (Good Friday) Agreement (BGFA) and underpinned by EU law prior to Brexit – following Brexit. The key issue of whether or not there has been any diminution is set out in the Northern Ireland Court of Appeal’s six-stage test in SPUC’s application for judicial review.

In NIHRC & JR295, Humphreys J was tasked with ascertaining whether the IMA diminished rights in 9 specific contexts: (1) effective examination and grant of asylum status, (2) the lack of an effective remedy, (3) the removal of asylum seekers from the UK, (4) non-refoulement, (5) detention of asylum seekers, (6) trafficking, (7) the rights of asylum seekers who are children, (8) the rights of unaccompanied children specifically and (9) the age-assessment of children. This accounts for the majority of the judgment’s length, but, in light of the fact that the Judge found that the IMA indeed diminished rights in all 9 contexts, it also demonstrates the scale of the IMA’s impact.

Following the SPUC test, Humphreys J determined that relevant rights in the BGFA were applicable to asylum seekers. This might sound obvious, given how the BGFA talks of the rights ‘of everyone in the community‘, but the BGFA’s status as the foundational element of Northern Ireland’s transition to a post-conflict society means that it is often argued (stridently so by the Government in this case) that its rights should apply only in a Troubles-related context. The Court rejected this argument, finding no reason in the relevant text for such a narrow reading ([70]).

The Judge next examined whether any of these rights were underpinned by EU law before Brexit and whether the IMA diminished any of them. This part of the judgment ([76] – [172]) marks one of the most clearly structured and comprehensively explored examples of Art 2 WF diminution claims. Humphreys J follows the SPUC test – element by element – for each of the heads of claim and comes to the conclusion that the IMA diminishes rights under each claim. This model of clarity should be among the first sources for anyone who is interested in or faced with Art 2 issues.

The detail of the diminution assessment under each head of claim is beyond the scope of a blogpost, but it is useful to highlight some examples. Relevant EU law which had effect in Northern Ireland before Brexit – and which the IMA diminishes – include the Dublin III Regulation (examination of applications for asylum, including those brought by children), the Procedures Directive (for granting and withdrawing refugee status), the Qualification Directive (for third-country nationals and stateless persons to qualify for refugee status) and the Trafficking Directive (preventing and combatting trafficking and protecting its victims). One of the key ways in which the IMA diminishes the rights and protections contained in each of these is by the statute’s sweeping duty to disregard any claim of human rights breaches, refugee status, victimisation through human trafficking or judicial review from any person who enters the UK without compliance with the requirements of immigration law. This disregard renders much of the substance of the relevant EU law otiose. Humphreys J’s finding of diminution in this context was therefore all but guaranteed.

The character of law under Art 2 WF

One threshold objection of the Government concerned a difference in the wording of certain provisions in the UK-EU Withdrawal Agreement (WA) and the WF. In the first subparagraph of Article 4(1) of the WA, the treaty makes a distinction between those provisions of EU law which are ‘made applicable‘ via the WA (including the WF) and those which are ‘referred to‘ in the body of either text. The Government argued that only the former should come with the bells and whistles of EU law – primacy, direct effect and disapplication of inconsistent domestic law – to name a few. The Court did not agree, finding that both kinds of provisions were caught within the second subparagraph of Article 4(1), so that any provision of the WA/WF which met the conditions of direct effect in EU law, had that effect in domestic law. These provisions were in any event were given effect domestically via the section 7A of the European Union (Withdrawal) Act 2018 (EUWA).

This sort of semantic distinction drawn by the Government may seem abstract, but it has important consequences for the interpretation and enforcement of rights under Article 2 WF. A provision of the WF which does not have the consequences of EU law attached to it is largely a dead-letter from a litigant’s perspective, useful only for the Government to inform itself as to any future policy or legislative proposal it brings to Parliament. In that respect, it would arguably be as potent as Ministerial statements of Convention compliance required of Bills in the UK Parliament under the Human Rights Act 1998 – which is to say, legally, impotent. But the semantic distinction drawn here is an indication of the Government’s case in respect of Art 2 WF: that it ought not have any enforceable consequences in domestic law. That this argument has been rejected not once but twice signals how driven the Government is that it should succeed. We are likely to see its resurgence as NIHRC & JR295 travels up the appellate hierarchy – following in the wake of Dillon.

The effect of the Charter in Northern Ireland

In what should not be a surprise to anyone, the EU Charter of Fundamental Rights was found to apply – with direct effect – in Northern Ireland, in the same terms as it once did before Brexit. The reasons for this are written in the text of the WA, and required no interpretive creativity from the Court. As Prof Murray and I had set out in our post on the Illegal Migration Bill as it was amid its passage through Parliament, the WA defines EU law to include the Charter (Art 2(a)(i)), and, as above, applies direct effect to all EU law.

Consequently, the Court had no hesitation in blunting the edge of section 5(4) of the EUWA, which declares the Charter not to be a part of domestic law after Brexit (NIHRC & JR295, [64]). This interpretation is neither unsurprising nor unique to Northern Ireland, for that matter. In Work and Pensions Secretary v AT [2023] EWCA Civ 1307, the issue was whether a destitute Romanian national with a right of residence in the UK (under the EU Settlement Scheme) was eligible for Universal Credit following the end of the Brexit transition period. The First-tier Tribunal, Upper Tribunal and Court of Appeal all found for the Romanian national, inter alia, because the Charter continued to apply in the UK even after the transition period (AT, [82]). In that sense, the Charter’s application under Art 2 WF is hardly a stretch. The only qualitative difference between the Charter’s application in Great Britain and its application in Northern Ireland is this: the latter being subject to a suite of EU laws which no longer apply in Great Britain, the Charter has broader application in Northern Ireland. But the Charter’s application per se ought, at this point at least, to be incontestable.

It is therefore worth repeating that the Charter does not simply exert itself within the four walls of a relevantly applicable EU law. The Charter’s reach goes to anything which falls within the ‘material scope’ of EU law – a point made by the UK Supreme Court before being confirmed 3 months later by the Court of Justice of the EU. This means, for example, that any action which is taken strictly pursuant to a domestic law which is used to meet an obligation under EU law will attract the Charter’s application.

Disapplication

Perhaps the biggest outcry against NIHRC & JR295 has been about the remedy ordered in both cases: that the offending statutory provisions be disapplied in Northern Ireland. This has been variously and erroneously labelled a ‘strike down‘ or a finding that the IMA was ‘invalid‘, when the primacy of EU law has never required anything of the sort. The primacy of EU law goes to legal effect, rather than legal validity; in other words, laws remain valid but devoid of legal effect to the extent that they are inconsistent with applicable EU law. The alternative interpretation – that the High Court struck down or invalidated the offending provisions of the IMA – an Act of the UK Parliament – would call into question the UK’s rule of recognition itself. Since at least the days of Factortame (No. 2), the courts have been clear that disapplication does not offend the sovereignty of the Crown in Parliament.

Moreover, if one wanted an explicit authority for disapplication, then one need look no further than the text of the WA – Art 4(2) of which requires disapplication of inconsistent national law – and to which Parliament, through the EUWA, gave domestic legal effect. In this, Humphreys J could not have expressed the matter more clearly: disapplication is domestically available – indeed mandatory for inconsistent national law – because Parliament has so willed (NIHRC & JR295, [53], [57]).

A matter – as always – for Parliament

The stormy passage of the Illegal Migration Bill through Parliament was accompanied by not insubstantial evidence of its likely inconsistency with EU law under the WF – notably from the NIHRC. Some attempts to address this likely inconsistency came in the form of rejected amendments designed to ‘exclude the [WF] from interfering with deportations to Rwanda‘. Quite apart from the (as yet unanswered) question whether a legislative carve-out from the EUWA would nevertheless be subject to its overriding effect, this demonstrates that Parliament enacted a statute with at least some indication that it would be liable to be disapplied in Northern Ireland.

The scale of the inconsistency contained in the IMA, however, is enough to leave one wondering whether the aphoristic start of the principle of legality – ‘Parliament does not legislate in a vacuum‘ – applies in fact to the present Parliament. But Parliament, in a system which still bears many of the hallmarks of the constitutional fusion which Walter Bagehot regarded as the efficient part of the UK constitution, cannot be singled out in this context. The statute it enacted resulted from a Bill brought before it by the Government. Consequently, the concern around statutes like the IMA extends to the Government, too.

Nevertheless, it is Parliament which retains the function of scrutinising Bills brought before it. It is telling that the Committee Stage of the Illegal Migration Bill in the House of Commons – having taken place on the floor of the House – contained only one reference to the Bill’s potential inconsistencies with EU law under the WF (from Northern Ireland MP Stephen Farry). Equally telling, the report of the Joint Committee on Human Rights on the Bill contained no references to the WF at all. Perhaps, as with much of the discourse around the WF, it is considered a document aimed only at trade and the inclusion of Northern Ireland in parts of the EU single market. But this would be a myopic view of the WF – as the Northern Ireland High Court has now demonstrated for the second time in less than 6 months.

Article 2 of the WF has now been established as a powerful element – if not the most powerful element – in the legal framework around human rights which applies in Northern Ireland. It is in the interests of ensuring that Parliament’s statutes are given full effect that Prof Murray and I referred to Article 2 a wake-up call. That plea remains as valid following NIHRC & JR295 as it did following Dillon. Parliament needs to respect the agreement it fully endorsed in order to take the UK out of the EU while accounting for Northern Ireland’s unique circumstances. Northern Ireland deserves no less.

Anurag Deb is a PhD candidate at Queen’s University Belfast and a paralegal at KRW LAW LLP.

Colin Murray is professor of Law and Democracy at Newcastle University

The post The Illegal Migration Act and its inevitable fate in Northern Ireland: <i>Re NIHRC & JR295’s applications for judicial review</i> appeared first on UK Human Rights Blog.