Statement of Consensus, February 2024

Key document | Refugee

We collectively acknowledge the following concerns with the current United Kingdom’s asylum system and propose the following changes be made to return the UK to a state of compliance with its international law obligations and with its domestic constitutional norms as well as values of justice, decency, and fairness.

The purpose of this statement of consensus is to highlight our collective concerns posed by the Illegal Migration Act 2023 and similar legislation, such as the Safety of Rwanda (Asylum and Immigration) Bill targeted at limiting the rights of migrants, and to reassert fundamental norms of international and domestic law.

  1. The Illegal Migration Act is an alarming piece of legislation that falls short of the standards expected from a liberal democratic country. It is legally and economically unworkable and undermines the UK’s standing as a state that operates on the basis of humanitarian principles.
  2. The Illegal Migration Act performs fundamental changes to the United Kingdom’s immigration and asylum system which will have significant effects on the United Kingdom’s compliance with international obligations.
  3. The language and terminology of ‘illegal migration’ is not only dehumanising but is legally imprecise. ‘Illegal migration’ fails to recognise that those fleeing a fear of persecution cannot be penalised for attempting to enter a Refugee Convention signatory state, including through irregular means, and seek protection there.
  4. The Illegal Migration Act and other legislation such as the Safety of Rwanda (Asylum and Immigration) Bill send a harmful message to migrants and those seeking protection. They undermine the ability for these individuals to form relationships and build their lives in the United Kingdom, and risk leaving vulnerable people in a state of limbo and protracted displacement.
  5. The Illegal Migration Act and other recent asylum focused legislation are not compatible with the United Kingdom’s international law obligations. The latter include the 1951 Refugee Convention (Articles 31 and 33); 1954 Convention relating to the Status of Stateless Persons; 1979 Convention on the Elimination of Discrimination Against Women; 1965 Convention on the Elimination of all Forms of Racial Discrimination; 1953 European Convention on Human Rights (Articles 2, 3, 4, 5, 8, 13, 14, 34); 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; 1989 Convention on the Rights of the Child; as well as customary international law. As this list shows, the obligations that bind the UK stem from a diverse range of sources. As such, neither leaving nor seeking to disapply the European Convention on Human Rights are answers to escaping these obligations.
  6. The Illegal Migration Act circumvents obligations under the Refugee Convention, namely the principle of non-refoulement (Article 33) and the prohibition on penalisation for illegal entry or presence (Article 31).
  7. We note with concern the risk that the United Kingdom’s approach will legitimise other States’ failures to act in a manner consistent with their international obligations to respect, protect and fulfil rights of migrants.
  8. The changes brought by the Illegal Migration Act and the Nationality and Borders Act 2022 have fundamentally altered the operation of the United Kingdom’s asylum system in an illogical manner and away from the protection of individuals fleeing persecution towards a focus on bespoke forms of protection for those fleeing in a normatively accepted manner and from particular sites of crisis.
  9. The expansion of the concept of inadmissibility fundamentally undermines the ability of those fleeing persecution to rely on their entitlement to protection under the Refugee Convention in the United Kingdom. Rather than addressing the ongoing backlog of asylum claims, these actions will instead exacerbate it by leaving large numbers of people in a state of limbo and protracted displacement.
  10. The Illegal Migration Act’s eight-day limit on suspensive claims is a breach of human rights norms. Eight days is not sufficient for an individual to prepare a suspensive claim as recognised by the European Court of Human Rights.
  11. The Illegal Migration Act drastically extends the scope and use of administrative detention to an unacceptable degree. We collectively agree that the use of detention, including for children and pregnant people, without a reasonable prospect of removal is a violation of obligations under the European Convention on Human Rights and poses significant threats to the health and wellbeing of vulnerable claimants, without taking into account individuals’ experiences of trauma.
  12. We agree that the Illegal Migration Act and associated legislation has profound constitutional implications for the United Kingdom. This includes undermining the rule of law, as outlined below, and violations of the principle of separation of powers. In particular, we note that it is not the proper place for Parliament to be finder of fact as it purports to be in the Safety of Rwanda (Asylum and Immigration) Bill, particularly following a clear determination to the contrary by the courts. We also note that such violations of norms of constitutional order degrade the health of the United Kingdom’s liberal democracy and undermine public confidence in State institutions and the government’s adherence to the rule of law.
  13. We are collectively concerned by the compliance of the Illegal Migration Act and other similar legislation with the rule of law as well as the speed in which legislation has entered into force. Such legislation is incompatible with the United Kingdom’s international obligations and seeks to undermine the role of the courts in a manner that violates widely accepted fundamental conceptions of the rule of law. We are also concerned that the actions of the United Kingdom do not accord with the common law duty of fairness.
  14. The Illegal Migration Act places unreasonable expectations on individuals within a short timeframe in terms of evidence being produced without taking into consideration access to justice, a lack of legal aid in the broad sense and the difficulty of finding legal assistance to cope within these accelerated processes.
  15. We collectively urge the introduction of safe legal routes to the United Kingdom for the purposes of seeking asylum to avoid preventable further tragedies. This, rather than policies premised on long disproven deterrence theories, is the only way to stop dangerous journeys to seek sanctuary.
  16. We collectively urge the government to comply with international legal obligations and a return to a focus on the definition of a refugee as per the Refugee Convention.

Dr Alex Powell, Senior Lecturer in Law, Oxford Brookes University
Dr Raawiyah Rifath, Lecturer in Law, University of Exeter
Dr Nuno Ferreira, Professor of Law, University of Sussex
Dr Ruvi Ziegler, Associate Professor in International Refugee Law, University of Reading
Dr Senthorun Raj, Reader in Human Rights Law, Manchester Metropolitan University
Zoe Bantleman, Legal Director, Immigration Law Practitioners’ Association
Professor David Cantor, Refugee Law Initiative, School of Advanced Study, University of London
Dr Rossella Pulvirenti, Senior Lecturer in Law, Manchester Metropolitan University
Dr Ben Hudson, Senior Lecturer in Law, University of Exeter
Ms Sarah Atkins, Senior Lecturer in Law, University of Portsmouth
Dr Emma Marshall, Lecturer in Law, University of Exeter
Refugee Council
Dr Kay Lalor, Reader in Human Rights Law, Manchester Metropolitan University
Dr Jo Wilding, Lecturer in Law, University of Sussex
Professor Helena Wray, Professor of Migration Law, University of Exeter
Laura Smith Co Legal Director, Joint Council for the Welfare of Immigrants
Alison Pickup, Director, Asylum Aid
Dr Emilie McDonnell, Adjunct Researcher at the University of Tasmania

Document Date
Monday February 26, 2024