A striking aspect of the Migration Bill is how far it places vast power in the hands of the Home Secretary over migrants deemed to have arrived “unlawfully”, and prevents them bringing challenges in the courts.

It’s extraordinarily authoritarian.

Of course this is all of a piece with an undemocratic government intent on restricting rights to protest, or even to vote, but it also reflects the Tories’ frustration with the Rwanda litigation which has prevented their pet project getting off the ground 2/
h/t to a v distinguished colleague for pointing out this troubling aspect of the Bill.
I should say much of the intended effect of the Bill is still unclear & I don’t claim to have understood everything. Colleagues (or anyone else) please correct me if I’m wrong 3/
Also these are ofc tweets & not a learned article or legal advice. Some details in the Bill are omitted.
By the way there are useful Explanatory Notes on the Parliament website which are (slightly) less impenetrable than the Bill itself 4/
NB I’m going to talk about “unlawful” arrivals as a shorthand, as that’s the language the Home Secretary, and the Bill itself, use.

It doesn’t imply a value judgment on my part and ofc I’m well aware that people have an absolute right to seek asylum. 5/
First up, clause 1(5) disapplies section 3 of the Human Rights Act – the section which requires courts to read legislation compatibly with human rights provisions.

So straight away we see “unlawful” migrants placed into a separate & worse legal regime to everyone else. 6/
Clause 2 & cl.4 give the Home Secretary a duty to remove a person arriving unlawfully, regardless of whether they have sought asylum, claimed to be a victim of trafficking, or even sought judicial review (basically a request to the courts to control the actions of the govt) 7/
What if they do bring a claim for judicial review and, as part of that, the court orders the HO not to remove them for the time being? The Bill doesn’t go as far as saying the Home Secretary can ignore orders of a court. But it seems the courts are expected not to intervene 8/
cl.4 together with cl.29 stop anyone arriving unlawfully from EVER having their asylum claim, or any other claim to stay, considered. Yes, it seems they can remain in limbo literally for their entire life. No appeal. No scope for a court to intervene 9/
It’s almost impossible to overstate how draconian and over the top this is. Those arriving “unlawfully” are placed outside the usual immigration system – permanently – simply because of the mode of their arrival, however justified it may have been. Just extraordinary 10/
There’s a limited proviso for this limbo to end if the ECHR or international law requires it or in ‘compelling circumstances’ but so far it’s very unclear in what circumstances the govt envisages this would apply 11/
cl.30-31 prevents people who arrived “unlawfully”, even if allowed to stay in the UK, from EVER getting citizenship, & in a particularly startling twist, prevents their children from doing so either – yes, it seems “unlawful” status is hereditary 12/
cl.13(4) gives the HO power to detain for 28 days: that can’t be challenged in court save for ‘bad faith’ or ‘fundamental breach of natural justice’ – whatever that means.
The ancient right of habeas corpus does remain, as @JoshuaRozenberg points out 13/
People can’t be detained by the HO if there’s no reasonable prospect of removal from 🇬🇧 in a reasonable period, but cl.12 replaces the principle that it’s for a court to decide that Q for itself by saying it’s for the Home Secretary to decide: yet more power to the minister 14/
cl.37 onwards contains a complex series of measures in which very limited rights of appeal are given to people faced with removal to a third country (such as Rwanda) 15/
These are evidently intended to prevent people doing what has happened in the Rwanda cases, i.e. challenging removal in the High Court (or sometimes the Upper Tribunal) and preventing the scheme from proceeding for months or years 16/
Instead (brief summary), people can challenge removal to a "safe" country by applying to the Upper Tribunal (basically a specialist immigration court), but only on the basis of ‘compelling evidence’, and cl.48 says most such UT decisions can’t be challenged in any other court 17/
cl.49 gives power to the Home Secretary to make regulations in respect of interim decisions of the European Court of Human Rights – because the govt is still smarting over being prevented from starting its Rwanda scheme by an interim measure from that Court 18/
Exactly what these powers will be isn’t made clear, but evidently the Home Secretary is to be empowered to trample all over judicial decisions if she sees fit, and to make her own regulations deciding when she is to be allowed to do so 19/
Obviously there’s a separate Q of whether the Bill will “work” in its own terms – legislating isn’t going to magically create arrangements with “safe” countries where people can be sent – but imho it’s important to appreciate that it isn’t really mean to “work” in that sense 20/
What it is intended to do is create a battleground on which the Tories can fight their enemies – lawyers, lefties, foreigners, etc. 21/
But what it does seem poised to do is potentially create a permanent underclass of people who can’t be removed from the UK (because there’s nowhere safe for them to go) but who don’t have full rights and can never be permitted to integrate. 22/
If that doesn’t motivate you to oppose it with all your heart, well…

Finally, see here for the legendary Zoe’s useful suggestions of what you can do. /end

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More from @AlasdairMack66

Mar 7
While we're waiting for the text of this much-trumpeted Bill let's amuse ourselves by demolishing their silly press release about it 1/
So here's the 1st thing the Bill is to include - but they already do remove those here without permission, if they find them & if it's consistent w asylum & human rights law. Are they seriously saying the problem in the past has been ministers not understanding what to do? 2/
This doesn't look like the trumpeted "indefinite detention", tho obviously any increase in the use of detention, a horrible, dehumanising & overused power, is appalling enough 3/
Read 11 tweets
Dec 13, 2022
Sunak’s statement on asylum:

tl;dr: long on rhetoric and grandstanding, long on cruelty, short on honesty, short on substance.

In other words, Tory party asylum policy. 1/🧵
He was doing so well up to this point 2/
Refugees arriving “illegally” is “unfair” on people who travel legally?

I’m going to have to tap this thread again, am I

Read 20 tweets
Nov 14, 2022
As I’ve said before, the Home Office has a recurrent problem with telling the truth, and its tendency to mislead courts, applicants, the public and even its own lawyers has now come under fire from the High Court.

Let’s explore this a little. 1/thread
This is the latest judgment in a long-running challenge to the HO’s policy of seizing the mobile phones of asylum-seekers, downloading personal info from them & refusing to return them for long periods. That’s already been accepted to be unlawful. 2/
The latest reproach was given by Lord Justice Edis & Mr Justice Lane in October, but the transcript of their comments has only just been published.

It’s pretty stinging, tho you must bear in mind that judges are usually subtle & restrained in their criticisms, esp of the govt 3/
Read 21 tweets
Nov 1, 2022
My Albanian client is the sort of person Suella Braverman thinks is “abusing modern slavery legislation” & shd be sent straight back to Albania.

In fact the Home Office rejected her account of trafficking into sexual slavery & tried *twice* to expel her w no right of appeal. 1/
Those attempts were challenged in the courts & eventually she was able to appeal.

Cutting a long story short, this week a Judge allowed her appeal. He said the HO’s basis for questioning her account was “odd” and “unusual”. He dismissed its claims that she’d be safe in Albania.
In fact the immigration tribunal has consistently found that Albania is far from the safe place the govt would like you to believe. It’s said it’s “clear that trafficking is a serious problem”, with “a high level of corruption” & traffickers “appear to operate with impunity”. 3/
Read 7 tweets
Jun 17, 2022
Finally, actual good news from the Home Office - they've at last published guidance on waiving fees for people applying for visas on family grounds.

This shld genuinely help many people on low incomes join their families here.

(Short explainer follows, link to policy below.)
This isn't before time: the HO accepted 15 months ago that they needed to change their policy as it was wrongly keeping families apart, and in fact it's the culmination of a battle over fees going back at least 11 years.
At present fees to come to the UK run into thousands of pounds, well outside many people's capacity to pay. The HO has now accepted that they simply need to analyse whether people can't afford that rather than insisting on showing "exceptional circumstances", as in the past.
Read 6 tweets
Jun 17, 2022
I see we're still doing "the Rwanda flight was never intended to happen" so let me explain again why I think that's wrong.

First, how seriously do we take govt sources claiming that an action which was thwarted was never intended to go ahead? Come on.

Second, this is just the latest in a string of anti-refugee measures, dating back decades: housing people on ferries, "dispersal" to grim accommodation round the country, mass detention, deliberate desitution: these things actually happened, and some continue to do so.
Third, all those were aimed, like this one, at political advantage for the govt: Tory, coalition or Labour. So whether they "succeed" in narrow terms or not isn't the only issue - what's key is to identify an "enemy" & fight it - but that doesn't mean they're not meant to happen.
Read 8 tweets

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