Thread by @AlasdairMack66

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.

1/🧵

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/
publications.parliament.uk/pa/bills/cbill…

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/

https://twitter.com/jonfeatonby/status/1633230531025584128?s=20

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/

https://twitter.com/JoshuaRozenberg/status/1633347455679856642?s=20

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/

https://twitter.com/ta_mills/status/1633362576938508289?s=20

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

https://twitter.com/ZoeJardiniere/status/1633369202626052096?s=20