The Illegal Migration Bill and the Ireland/Northern Ireland Protocol: The return of the Charter of Fundamental Rights

31 March 2023 by Anurag Deb

Anurag Deb and Colin Murray

This is not a post about the conflict between the provisions of the Illegal Migration Bill and the European Convention on Human Rights (an issue which has already attracted a considerable amount of critical academic commentary – see here and here). Instead, it is a post about the Bill’s potential conflict with the EU Charter of Fundamental Rights (‘CFR’) and the UK’s commitments under the EU-UK Withdrawal Agreement, whether (and why) such a conflict matters in domestic law and how (if at all) that conflict could be resolved.

This might appear to be a quixotic line of discussion. We have been told, after all, that Brexit is done and that the CFR has been excised from the UK’s domestic legal systems (section 5(4) of the European Union (Withdrawal) Act 2018) and that other aspects of EU rights and equality law can be overwritten at will by Westminster. But, as we explore, this is not necessarily the case. Article 2 of the Northern Ireland Protocol (or Windsor Framework under the recent rebrand), the measure’s rights and equality provision, moreover, has important implications for legislative developments that the UK is seeking to pursue on a UK-wide basis.

The legal backdrop

The backdrop to any exploration of a conflict between the CFR and the Bill rests on the threshold question: whether the CFR applies in domestic law at all. This is because of the clear wording to the contrary in the EU Withdrawal Act 2018. Nevertheless, we argue that the CFR does, in fact apply in the UK domestic legal order. This is because of a number of interrelated provisions of the Withdrawal Agreement (‘WA’) and the recent judgment of the UK Supreme Court in Allister and Peeples’ applications for judicial review (a case testing the legality of the Protocol under UK constitutional law).

First, Article 2(a)(i) of the WA defines ‘Union law’ (EU law) to include the CFR. Second, Article 4(1) and (2) of the WA respectively mandate that EU legal effects including direct effect and disapplication of contrary national law be available domestically in the UK. Third, Article 4(3) of the WA directs that any provisions of the WA referring to EU law ‘or to concepts or provisions thereof’ be interpreted and applied domestically ‘in accordance with the methods and general principles of [EU law]’. Fourth, in EU law, the CFR has the same legal status as the Treaties, and anyway applies when someone is acting ‘within the scope’ of EU law. Fifth, and most importantly, all of these WA provisions were incorporated domestically by section 7A of the EU Withdrawal Act 2018. This is important as the UK constitution is dualist: unincorporated international law has little to no relevance domestically, and reliance on international law must be grounded on a statute. Here, that statute is the EU Withdrawal Act 2018. Sixth and finally, the Supreme Court in Allister and Peeples (para 108) said that the effect of section 7A was to modify the Northern Ireland Act 1998 in such a way as to make it lawful to disapply a key provision in that Act. By analogy, section 7A modifies the bar on domestic CFR applicability (or, at least, the application of ‘general principles’ which align with it) in such a way as to give effect to the WA’s provisions. Although this bar is contained in the EU Withdrawal Act 2018, that Act is itself subject to modification by section 7A.

The net effect, in our view, is that the CFR has domestic effect in the UK legal order. Next, we explore its specific application to the Bill.

Article 2 of the Protocol

The Protocol has been in the news for its effects on trade between Great Britain and Northern Ireland, and more recently for the proposed revisions to it under the Windsor Framework. But the Protocol covers much more than trade. Article 2 of the Protocol covers a potentially vast and powerful guarantee against any diminution in rights, safeguards and equality of opportunity grounded in both pre-Brexit EU law and the Belfast (Good Friday) Agreement (GFA), in case any such diminution occurs as a result of Brexit.

The way that the non-diminution guarantee works is somewhat complex. There are three interrelated elements to this guarantee. First, a claim of diminution must state that the right, safeguard or equality provision allegedly diminished is covered by the Rights, Safeguards and Equality of Opportunity (‘RSEO’) section of the GFA. Second, such a right must be underpinned by an element of EU law which applied to the UK prior to the end of the transition period (31 December 2020). Third, the right must be diminished as a result of Brexit. The detail of this guarantee was explored in two decisions by the Northern Ireland High Court – Ní Chuinneagain’s application for judicial review and The Society for the Protection of Unborn Children’s application for judicial review (the latter is presently under appeal) (cases and application of the law discussed here).

The conflict

There are a number of problematic clauses in the Illegal Migration Bill for the purposes of human rights law, but we focus on one for illustrative purposes. Under clause 4 of the Bill, the Secretary of State has a duty to disregard human rights claims made by individuals who satisfy the conditions in clause 2, which generally speak to illegal entry to the UK after passing through one or more countries where the person’s life or liberty was not threatened by reason of certain listed characteristics. Clause 4(5) defines a human rights claim as one where the person claims that removing them to a country of which they are a national or citizen, or one in which that person has obtained a travel document, would be unlawful under section 6 of the Human Rights Act 1998 (the duty on public authorities not to act contrary to the European Convention on Human Rights). For completeness, the Bill also disapplies (clause 1(5)) the interpretive obligation under section 3 of the Human Rights Act to interpret all statutes compatibly with the European Convention on Human Rights, as far as it is possible to do so.

The effect of the above is that, if a person enters the UK in breach of the requirements of immigration law (leave to enter, electronic travel authorisation, and so on) and arrives from a country deemed safe to that person, they will be unable to make a claim that their deportation to the country they fled in the first place would be a breach of their human rights.

Now, the RSEO section of the 1998 Agreement contains (as the name suggests) provisions outlining rights, safeguards and equality of opportunity. By itself this section is not incorporated into domestic law but needs to be availed of together with an underlying pre-Brexit EU law in order to invoke the guarantee in Article 2. As it happens, the RSEO contains a very clear safeguard of mandating ‘remedies for breach of the [European] Convention [on Human Rights]’. Prior to Brexit, when the UK was bound (domestically as well as internationally) by the Treaty on the Functioning of the European Union, its provisions, including compliance with non-refoulement (Article 78(1) TFEU), as well as the Dublin III Regulation which concerned the processing of applications for asylum throughout the EU, and Article 18 of the CFR (right to asylum) applied in full force. Both the Dublin III Regulation and the CFR directly cross-reference the European Convention on Human Rights (ECHR).

Given the pre-Brexit legal landscape, as well as the relevant safeguard of mandating remedies for breaches of the European Convention on Human Rights in the GFA, the fact that the Bill not only empowers but obliges the Secretary of State to disregard human rights claims is, in our view, a clear diminution of safeguards. This diminution is also clearly as a result of Brexit: if the UK remained a Member State of the EU, the entire gamut of EU law, including most relevantly, the Dublin III Regulation would apply, making a statute which obliges the disregard of the human rights claims of asylum seekers subject to disapplication for being inconsistent with EU law.

Beyond the Illegal Migration Bill

The new Illegal Migration Bill is not the only prominent area in which the UK Government has given little direct consideration to the implications of Article 2 of the Protocol. Victims’ rights are prominent within the RSEO section of the GFA which the UK Government, under the Protocol, promises to protect against diminution. And the UK Government, in responding to concerns over how previous immigration, attempted (to our mind, not convincingly) to restrict the concept of victims’ rights to those related to the Northern Ireland conflict.

In so doing, it opens itself up to challenge on legislation such as the Northern Ireland Troubles (Legacy and Reconciliation) Bill, which directly engages this issue. Under the Bill the provision of what in practice will be an amnesty relating to the conflict potentially cuts across victims’ rights contained within the Victims’ Rights Directive and the right to an effective remedy under the CFR. In other words, the UK Government is legislating to diminish a right which existed in Northern Ireland law by virtue of EU law prior to Brexit, and one which the UK Government has, of its own account, recognised as being linked to the GFA.

Challenging such legislation on the basis of the ECHR has been said to be a trap for “lefty lawyers”, putting them on what (the Government hopes) is the wrong side of public sentiment, and thereby putting the incorporation of the ECHR into UK law in the firing line. Much as the trap flags the baleful state of rights discourse in the UK, there are, as we have shown, potential legal avenues to cut holes in these policies, or flag up their inadequacies, which do not spring it. This is, especially, the case when Article 2 has been flagged by the UK Government as being uncontroversial and not touched by the recent Protocol renegotiation.

Possible remedies

This controversial Bill, of course, is not yet law. It may yet be amended to remove or remedy any or all problematic clauses. However, if the Bill is enacted as it stands, the non-diminution guarantee operative within Northern Ireland law under Article 2 of the Protocol may have a relevance that has hitherto escaped parliamentary attention. In the event that the Article 2 obligation bites, the effect of EU law, as defined in the WA and domestically incorporated by section 7A of the EU Withdrawal Act 2018, is powerful. And, in terms of litigation, Northern Ireland’s statutory human rights and equality bodies have broad powers to challenge such measures in the courts (if not necessarily commensurate budgets).

As the UK courts were once obliged to do under EU law, the WA requires that they disapply ‘inconsistent or incompatible’ domestic legislation insofar as it conflicts with Article 2 with regard to the law of Northern Ireland and potentially even more broad implications regarding the CFR and general principles of EU law. As such, it is not inconceivable, and certainly arguable (in our view, strongly so) that a claim invoking the non-diminution guarantee under Article 2 of the Ireland/Northern Ireland Protocol can be used to disapply at least certain provisions of the Bill, if they are enacted as they currently stand, at least to the extent that they would apply in Northern Ireland law. As such, for all of the talk of a border in the Irish Sea for goods has dominated post Brexit debates, there is considerable scope for the division in rights and equality protections between Northern Ireland and Great Britain to come to the fore, and for the UK Government’s specific commitments to constrain some of these controversial policies.

Anurag Deb is an aspiring barrister, a PhD candidate at the School of Law, Queen’s University Belfast and a paralegal at KRW LAW LLP.

Colin Murray is Professor of Law and Democracy at Newcastle University.