Provisions of the UK’s Illegal Migration Act should be disapplied in Northern Ireland, judge rules

The UK Government's controversial immigration law - which allows the deportation of asylum seekers to Rwanda - has been deemed unlawful and should be disapplied in Northern Ireland.

A judge sitting in Belfast found the law to undermine human rights protections guaranteed in NI under post-Brexit arrangements.

Mr Justice Humphreys also said aspects of the Act were incompatible with the European Convention on Human Rights (ECHR).

The ruling could create an immigration border in the Irish Sea if the government ignores the ruling, unionists have warned.

Prime Minister Rishi Sunak has said the government will challenge the judgment, and it won't stop illegal migrants being sent to Rwanda this summer.

The Windsor Framework jointly agreed by the UK and EU includes a stipulation that there can be no diminution of the rights provisions contained within Northern Ireland’s Good Friday peace agreement of 1998.

The Illegal Migration Act provides new powers for the Government to detain and remove asylum seekers it deems to have arrived illegally in the UK.

Central to the new laws is the scheme to send asylum seekers to Rwanda.

Mr Justice Humphreys delivered judgment at Belfast High Court on Monday in two challenges against the Act that focused on the peace process human rights protections guaranteed by the Windsor Framework.

The judge found that several elements of the Act do cause a “significant” diminution of the rights enjoyed by asylum seekers residing in Northern Ireland under the terms of the Good Friday Agreement.

“I have found that there is a relevant diminution of right in each of the areas relied upon by the applicants,” he said.

He added: “The applicants’ primary submission therefore succeeds. Each of the statutory provisions under consideration infringes the protection afforded to RSE (Rights, Safeguards and Equality of Opportunity) in the Belfast/Good Friday Agreement.”

The judge ruled that the sections of the Act that were the subject of the legal challenges should be “disapplied” in Northern Ireland.

He also declared aspects of the Act incompatible with the ECHR.

One of the cases was taken by the Northern Ireland Human Rights Commission and the other by a 16-year-old asylum seeker from Iran who is living in Northern Ireland having arrived in the UK as an unaccompanied child.

The boy, who travelled from France by small boat and claimed asylum in July 2023, has said he would be killed or sent to prison if he returned to Iran.

The judge agreed to place a temporary stay on the disapplication ruling until another hearing at the end of May, when the applicants will have an opportunity to respond to the judgment.

Dr Tony McGleenan KC, representing the Government, indicated that an appeal may be considered.

“We’ll be taking our instructions on the judgment and the position in terms of any further litigation will become clear, my Lord,” he said.

Outside court, solicitor Sinead Marmion, who represented the teenage Iranian asylum seeker applicant, said the judgment was “hugely significant”.

Ms Marmion said the judgment would prevent the Rwanda scheme applying in Northern Ireland.

“This is a huge thorn in the Government’s side and it has completely put a spanner in the works,” she said.

“There’s a huge obstacle in the way of them being able to actually implement that in Northern Ireland now, as it’s been found to be incompatible with the Windsor Framework.”

The Democratic Unionist Party interim leader Gavin Robinson urged the government that it must not facilitate the creation of an “immigration border” in the Irish Sea, with different rules applying in Northern Ireland to the rest of the UK. Mr Robinson insisted that his party had repeatedly warned that the new immigrations laws were incompatible with the Northern Ireland Protocol/Windsor Framework. “Whilst today’s judgment does not come as a surprise, it does blow the government’s irrational claims that the Rwanda scheme could extend equally to Northern Ireland completely out of the water,” he said. “We presented the government with an opportunity during the passage of the Safety of Rwanda Bill in the House of Commons and the Lords to accept an amendment which would have put beyond doubt what it claims to be the case around the operation of the scheme. “It is telling that it chose not to do so. “This ruling must also mark a watershed moment in the Government’s approach. “For ministers to ignore what the courts have said would not be merely a case of sleepwalking into the creation of immigration border in the Irish Sea but rather embarking on such a path with eyes wide open. “It is imperative that immigration policy applies equally across every part of the United Kingdom. “As unionists, we are clear that our national parliament should have the ability to make decisions on immigration that are applicable on a national basis. “If that were not the case, it would not only be a constitutional affront but would make Northern Ireland a magnet for asylum seekers seeking to escape enforcement.” Traditional Unionist Voice leader Jim Allister criticised the DUP for agreeing to return to devolution at Stormont earlier this year on the basis of the Government’s Safeguarding the Union command paper – a document that insisted that the application of UK immigration policy in Northern Ireland would not be affected by post-Brexit arrangements agreed with Brussels. “Yet another humiliation and savaging of UK sovereignty as NI is again found to be an EU colony where the writ of Brussels, not London, runs,” said Mr Allister.

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