NI High Court: Certain provisions of Illegal Migration Act 2023 disapplied in Northern Ireland and declared incompatible with ECHR rights

Delivering judgment for the High Court, Mr Justice Michael Humphreys determined that, “given the significant nature of the violations identified, and the government’s avowed intention to proceed to bring the IMA into force”, it was appropriate to grant declarations of incompatibility and to find that certain provisions of the Illegal Migration Act 2023 were disapplied in Northern Ireland.

Background

The Northern Ireland Human Rights Commission (NIHRC), along with a 16-year old unaccompanied Iranian asylum seeker who arrived in the UK by boat from France, brought applications challenging the Illegal Migration Act 2023 (IMA) which seeks to prevent unlawful migration by requiring the removal of illegal immigrants from the UK, on grounds that certain of its provisions are incompatible with article 2 of the Windsor Framework (WF) as implemented by s.7A of the European Union (Withdrawal) Act 2018 and with Articles 3, 4, 5, 6 and/or 8 ECHR and s.4 of the Human Rights Act 1998 (HRA).

The High Court

Mr Justice Humphreys considered the legal instruments engaged, noting that the rights protected by article 2(1) of the WF, which safeguards inter alia the diminution of rights, are those set out in the Belfast/Good Friday Agreement (BGFA) which itself comprises six equality Directives. The court also had regard to the EU Withdrawal Agreement (WA), the 2018 Act and the IMA.

Mr Justice Humphreys noted that by virtue of s.7A of the 2018 Act, article 4 of the WA has the effect that its provisions and provisions of EU law made applicable by it shall have the same effect as those which they produce in EU member states, with legal and natural persons able to directly rely on the provisions contained in and referred to in the WA meeting the conditions for direct effect under EU law.

The court also considered the obligation on the UK to ensure compliance with Article 4(1) pursuant to Article 4(2) of the WA, concluding that the rights and obligations under the WA prevail over inconsistent domestic legislation.

Moving to the doctrine of direct effect, the judge opined that the rights relied upon by the applicants arose from EU Directives and were sufficiently clear and precise to have direct effect on 31 December 2020. Although s.5(4) of the 2018 Act provided that the Charter of Fundamental Rights of the European Union (CFREU) was no longer part of domestic law after 31 December 2020, the CFREU was brought into the WA by definition of “Union law” and as such, it continues to have effect in the UK where “Union law” is still implemented.

Mr Justice Humphreys agreed with the applicants’ submission that the rights, safeguards and equality (RSE) provisions of the BGFA committing to “the civil rights… of everyone in the community” apply to asylum seekers as well as UK and Irish citizens, highlighting that the concept of “civil rights” as considered in Re Dillon and others [2024] NIKB 11 supported that contention.

Analysing the rights created by and enjoyed under the relevant EU law and the statutory provisions of the IMA, the court considered that s.5(2) of the IMA diminished rights by mandating that any international protection or human rights claim falling within s.5(5) of the IMA must be declared inadmissible without any assessment being carried out, as inter alia there would not be an “appropriate examination” of the substance of an asylum application, and the UK would not grant refugee status or subsidiary protection to a person who would qualify for it.

The court also focused on s.5(4) of the IMA, finding that as a declaration of inadmissibility under the IMA is not a decision to refuse a claim and so no appeal lies therefrom, there was a diminution of rights due to the lack of an effective remedy.

Turning to s.2(1) of the IMA, which requires that except in the case of an unaccompanied child there is a duty to remove a person where certain conditions are met, the court again found that rights were diminished as inter alia people could be removed to their country of origin or a “safe state” without their protection claim being determined. Mr Justice Humphreys also found a diminution of the right of “non-refoulement” by virtue of ss.2, 5 and 6 of the IMA, and found that the empowerment of immigration officers to detain “inadmissible” applicants for 28 days with limited available remedies was also a diminution.

The court also determined that the effective disapplication of the “modern slavery” provisions of the Nationality and Borders Act 2022 and of the duty to provide assistance and support to trafficking victims pursuant to the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 by the IMA also represented a diminution of rights and ran contrary to the Trafficking Directive (Council Directive 2011/36/EU).

Mr Justice Humphreys opined that the rights of children to have their best interests considered as set out in the Qualification Directive (Council Directive 2004/83/EC) and the right to an in-country assessment pursuant to the Dublin III Regulation (Regulation (EU) 604/2013) were diminished by inter alia the blanket application of the duty to declare protection and human rights claims inadmissible and the duty to remove.

Having also considered the limitation on appeal from an “age assessment” by persons meeting the criteria in s.2 of the IMA, and the contention of the respondents that the court ought not to grant any relief in respect of provisions which have not yet been commenced, Mr Justice Humphreys determined:

Accordingly, the judge determined that each provision of the IMA challenged infringed the protection of the BGFA and so s.7A of the 2018 Act mandated the disapplication of those provisions.

The judge also considered the separate claim by the applicants that certain provisions of the IMA were incompatible with rights under Article 3 (the prohibition on torture and degrading treatment), Article 4 (prohibiting slavery), Article 5(4) (the right to liberty and security), Article 8 (the protection of private and family life) and Article 6 ECHR (the right to an effective judicial remedy) and so the relevant provisions should be declared incompatible pursuant to s.4 of the HRA.

Declining to make a declaration of incompatibility in respect of the “age assessment” provisions as JR295’s age assessment had been determined in his favour and he had not been deprived of a judicial remedy, Mr Justice Humphreys decided: “Given the significant nature of the violations identified, and the Government’s avowed intention to proceed to bring the IMA into force, I am satisfied, in the instant cases, that it would be appropriate to exercise my discretion and grant the section 4 declarations of incompatibility sought in respect of: (1) Sections 2(1), 5(1), 6(3) and 6(7) insofar as they impose a duty to remove; (2) Sections 2(1), 5, 6 and 22 insofar as they relate to potential victims of modern slavery or human trafficking; and (3) Sections 2(1), 5(1) and 6 relating to children.”

Conclusion

Accordingly, the High Court determined that the provisions of the IMA listed at paragraph 178 of the judgment were are disapplied in Northern Ireland and made declarations of incompatibility in respect of each of the sections of the IMA set out at paragraph 255.

Re NIHRC and JR295 (Illegal Migration Act 2023) [2024] NIKB 35