Blog post by Professor Elspeth Guild, Queen Mary University of London, and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
On 24 March 2021, the UK Home Office launched a consultation process to receive input from stakeholders and the public on its proposed New Plan for Immigration. The stated objective of the New Plan is three-fold:
- To increase the fairness and efficacy of the UK system so that it can better protect and support those in genuine need of asylum;
- To deter illegal entry into the UK, thereby breaking the business model of criminal trafficking networks and protecting the lives of those they endanger;
- To remove more easily from the UK those with no right to be present.
This blog series is designed to provide an opportunity for academics who are working specifically on issues of UK immigration and asylum law to share their knowledge and expertise on the subjects raised in the Plan for the purpose of informing the consultation process. In the blogs which follow, we seek to provide academic knowledge relevant to informing public policy and decision making as regards what kind of immigration and asylum system the UK should adopt, now that it is no longer participating in the EU’s systems.
It is important to place the Plan in the context of the UK Government’s legal obligations and commitments as regards immigration and asylum/refugee protection. Coherent policy-making depends on consistency between state obligations and commitments (internal and international) and proposed and adopted legal measures. These duties and stated objectives of the Government need to be incorporated into all relevant proposals for legislation. While the UK is no longer bound by EU law in respect of post December 2020 immigration and asylum law, it is still bound by international law which it has ratified, including the Refugee Convention and UN human rights conventions. It is also still bound by European law: the Council of Europe conventions which it has signed and ratified, including the European Convention on Human Rights. National law and policy should be consistent with these commitments. These obligations and commitments have all been voluntarily entered into by the UK.
The UK has been a strong supporter of the principle, recently affirmed by the international community, that borders and migration management are areas of shared responsibility internationally. In this context, where a commitment to the international community has been the subject of a UK Ministerial Statement to Parliament confirming the intention of the Government, that stated intention needs to be reflected in all policy proposed thereafter.
In this context, the UN Global Compacts for Safe, Orderly and Regular Migration (Marrakesh Compact) and Refugees (Refugee Compact), adopted by the UN General Assembly in December 2018, are critical to the development of the UK’s New Plan for Immigration. The Compacts are the product of a state-led negotiation process. They have been endorsed by the UK at the UN General Assembly and were the subject of a Ministerial Statement in Parliament:
“The [Marrakesh Compact] emphasises that migrants are entitled to the same universal human rights as any human being and does not create any new ‘rights’ for migrants. As a result, the UK does not interpret the Compact as being in conflict with its current domestic policies. At the same time, the Compact will help us take important steps to keep migrants around the world safe and to protect the most vulnerable, domestically and overseas, who can become victims of modern slavery.”[1]
This provides clear British political intent and approval for the Compacts. While the Compacts do not legally bind the UK in international law, they indicate its political will for the purposes of adopting domestic law (including rules and guidance). The endorsement of the Marrakesh Compact by a Minister in his capacity as such to Parliament is evidence that the UK commits to implement the Compact objectives and accepts the application of universal human rights obligations to migrants.[2]
The UK, by adopting both Compacts, agreed to implement the objectives contained in paragraph 41 of the Marrakesh Compact:
“We commit to fulfil the objectives and commitments outlined in the Global Compact, in line with our vision and guiding principles, by taking effective steps at all levels to facilitate safe, orderly and regular migration at all stages…”
The Marrakesh Compact is based on three guiding principles: a common understanding of migration, shared responsibilities of states regarding migration and borders, and unity of purpose. Under these overarching principles, there are ten cross-cutting and interdependent principles for states to implement, including rule of law and human rights. Under the rubric of the human rights principle the Compact states: “[t]he Global Compact is based on international human rights law and upholds the principles of non-regression and non-discrimination” [emphasis provided]. Further, in implementing the Compact, states are to ensure “effective respect for and protection and fulfilment of the human rights of all migrants, regardless of their migration status, across all stages of the migration cycle. [States] also reaffirm the commitment to eliminate all forms of discrimination, including racism, xenophobia and intolerance, against migrants and their families…” (para 15(f)).
The Refugee Compact is grounded on the international refugee protection regime, the cornerstone of which is the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. This convention sets out the principle of non-refoulement (no state can lawfully send a person to a country in respect of which he or she has a well-founded fear of persecution on the basis of race, religion, nationality, membership of a particular social group or political opinion), which has been incorporated into a number of international human rights conventions, most importantly the Convention against Torture, Inhuman or Degrading Treatment or Punishment 1984. The objectives of the Refugee Compact are to reduce pressures on host countries, enhance refugee self-reliance, expand access to third country solutions, and support conditions in countries of origin for safe return. The Compact sets out the commitment of states to provide immediate reception arrangements for asylum seekers arriving on their territory. Further it catalogues states’ commitments to ensure and provide for asylum seekers: safety and security; registration and documentation; mechanisms to address specific needs, including vulnerabilities; mechanisms for fair and effective determination of individual international protection claims; assistance to host communities; access to education, employment, health care, accommodation, and food security; and access to documentation such as civil registries.
In this series of blogs on the New Plan for Immigration, we pay particular attention to the UK’s refugee and human rights commitments, both international and regional, and how they can best be implemented in the New Plan. This includes the Refugee Convention and the commitments under the two Compacts. Many of the proposals in the New Plan raise questions about the implementation of the UK’s commitment to the Refugee Convention. Indeed, the treatment of asylum seekers (who, as a result of their status as persons with applications yet to be determined, may or may not be refugees or otherwise entitled to international protection) is among the most prominent subjects in the Plan.
The UK Supreme Court held in 2021 that while the Refugee Convention has not been incorporated into domestic law, is the starting point of international protection in the UK. In addition, the Court has previously noted that, “[it] is plain … that the British regime for handling applications for asylum has been closely assimilated to the [1951 Geneva] Convention model”). Section 2 of the Asylum and Immigration Appeals Act 1993, headed “Primacy of Convention”, provides that nothing in the Immigration Rules (which transpose much of the Refugee Convention into domestic law) shall lay down any practice which would be contrary to the Convention.” By virtue of this provision, the UK is precluded from adopting an administrative practice or procedure which would be contrary to the Refugee Convention. So, while the Refugee Convention is not fully incorporated into domestic law, it is the foundation of UK refugee law. Further, in 2018, the UK participated fully in the development of the Refugee Compact and voted for it in the UN General Assembly. A year later it confirmed its commitment to the Refugee Compact at the Global Refugee Forum on 18 December 2019: “The UK will continue to play its part in delivering on the transformational promise of the Global Compact on Refugees.”
Both for asylum seekers and migrants, the Marrakesh Compact provides a new tool regarding the adoption of law and policy: non-regression. This principle has primarily been used in the field of environmental law, though it is also used in EU employment law. The non-regression principle means that states must not, on the basis of an international law, reduce existing standards of protection for the object at issue (for instance the environment or workers’ rights) as a result of adopting the international measure. It acts as a form of ‘standstill clause’ which obliges states to maintain higher national standards of treatment when they adopt international commitments which might be lower. Such clauses have the objective of protecting the position of their object in national law wherever that standard or provision provides more extensive rights. These are not harmonisation provisions – they do not seek to create a common set of rules. Rather they freeze rights as at the time when the commitment is entered into to prevent any erosion of those rights in the future.
The relevance of the principle of non-regression in the context of the UK’s New Plan for Immigration is that it obliges the UK to ensure that any new plan does not diminish the existing rights of migrants, asylum seekers, refugees or other aliens. When consulting on a new immigration system, the UK should take care that it respects the obligation of non-regression which it voluntarily accepted in 2018. New approaches to asylum procedures, policies regarding search and rescue at sea and disembarkation, family reunification for those recognised as refugees or beneficiaries of international protection or access to citizenship, all of these areas under discussion in the Plan, need to be reviewed carefully by the Home Office in light of its commitment to non-regression.
Best practice would dictate that the Home Office, in presenting new proposals, should provide a statement of compatibility of the proposed legislative change with the Compacts. Such a statement regarding human rights compatibility is required before the second reading of any Bill by virtue of s19 of the Human Rights Act 1998. This requirement has proven useful in focusing the attention of public officials on the human rights implications of proposed primary legislation. A similar requirement in respect of legislative proposals, both primary and secondary, which affect migration, asylum and citizenship, that the changes are compatible with the Compacts and do not offend against the non-regression rule, would be an excellent way for the UK to keep up-to-date the Minister’s promise made to Parliament that, “the UK does not interpret the Compact as being in conflict with its current domestic policies”.
[1] Alistair Burt, Minister for the Middle East, Global Compact for Migration: Written statement – HCWS1163 (DFID) 10 December 2018, available here: https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2018-12-10/HCWS1163/
[2] See Global Compact on Migration, para 15: Guiding Principle – Human Rights ‘The Global Compact is based on international human rights law and upholds the principles of non-regression and non-discrimination. By implementing the Global Compact, we ensure effective respect, protection and fulfilment of the human rights of all migrants, regardless of their migration status, across all stages of the migration cycle.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.
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