These proposals would fundamentally undermine judicial independence and the rule of law.
An independent legal profession and an independent judiciary are fundamental to our
democracy, including through providing access to justice to people in some of the most
marginalised conditions in our society and upholding human rights and fundamental
freedoms. We are therefore extremely concerned that, once again, senior politicians appear
to be fostering a climate of hostility towards immigration practitioners and judges.
Dismantling immigration tribunals in favour of an executive-controlled body would weaken
the separation of powers and undermine the rule of law. The Constitutional Reform Act 2005
and the Tribunals, Courts and Enforcement Act 2007 were deliberate constitutional choices
by Parliament to strengthen the separation of powers and public confidence in the appeals
system. They established the First-tier and Upper Tribunals, created the Senior President of
Tribunals, and gave independent rule-making powers to the Tribunal Procedure Committee.
Judicial recruitment is overseen by the independent Judicial Appointments Commission.
The appeals process is available only to those with protection or human rights claims,
people whose removal could mean return to persecution, torture, or the permanent
separation of families. The consequences of error are irreversible. This is why independent
judicial oversight must be respected, as it is not an obstacle to an effective immigration
system, but rather what makes the system safe and legitimate.
ILPA is also concerned about proposals to leave the European Convention of Human Rights,
which has protected human rights, democracy and the rule of law for over 75 years.
On the ECHR specifically, we highlight that the Convention was created in the aftermath of
the Second World War to ensure that the abuses committed could never happen again. In
the UK, it is given domestic effect by the Human Rights Act, which ensures that public
authorities act compatibly with Convention rights. This protection operates long before any
case reaches a court.
The claim that leaving or weakening the ECHR would reduce dangerous small boat
crossings or enable mass deportations is not accurate. In the past 45 years, the European
Court of Human Rights has found against the UK in just 13 removal cases, highlighting that
successful human rights-based appeals against deportation are incredibly rare. Since 1980,
the Court has ruled only three times that the UK’s immigration policies violate the ECHR. Of
over 400,000 applications the Court has received in the past ten years, migration cases
represented less than 2%.
Moreover, even outside the ECHR, the UK would remain bound by international law,
including the 1951 Refugee Convention, which prohibits returning people seeking asylum to
harm. Withdrawal would not remove those obligations.
We continue to see anti-migrant violence and intimidation spreading across the UK. We
reiterate our asks for all public figures to end the use of divisive rhetoric, to put an end to
policies that label people seeking refuge as ‘illegal’, to respect human rights, democracy and
the rule of law.