Belfast High Court Rules Illegal Migration Act 2023 Incompatible with Windsor Framework and European Convention on Human Rights

On 13 May, a High Court Judge in Belfast ruled sections of the Illegal Migration Act 2023 (IMA) are incompatible with Article 2 of the Windsor Framework and the European Convention on Human Rights (ECHR). The effect of the ruling is that the IMA should not be applicable in Northern Ireland. The IMA's main purpose is to allow for the removal of all who arrive in the UK illegally, either to their country of origin or to a safe third country (Rwanda). The Act was challenged by the Northern Ireland Human Rights Commission (NIHRC) and a sixteen-year-old Iranian asylum seeker who illegally arrived via boat from France in July 2023. 

The applicants claimed that sections of the IMA violate section 2 of the Windsor Framework, a post-Brexit legal agreement between the UK and the European Union. It obliges the UK to ensure that the people of Northern Ireland do not suffer a “diminution of rights, safeguards, or equality of opportunity…from its withdrawal from the EU, including in the area of protection against discrimination” as provided for in the Belfast Good Friday Agreement (BGF-A). The Framework also allows for specific EU law provisions that were agreed upon in the UK and EU’s Withdrawal Agreement to continue to have the same effect in Northern Ireland post-Brexit. The applicants contend that because the BGF-A requires the UK to uphold the “civil rights … of everyone in the community” it applies to Asylum seekers as well as UK and Irish citizens. Because of this requirement, the applicants allege that the IMA’s various provisions which require the Secretary of State to remove any asylum seeker who arrives from a third country via illegal means violates the Windsor Framework as there is explicitly no ability to challenge the decision. Additionally, the IMA has no provision for exceptions, including for victims of human trafficking or slavery. The applicants also objected to the IMA’s provision that when it comes to children the primary deciding factor is not what is in the child’s best interest. This is an EU law requirement that was carried over from the Withdrawal Agreement. In the case of the teenage applicant, he applied for asylum seven days after the cutoff date, and thus under the IMA will be removed before 5 July 2025 and his application will be moot. The court found the provisions related to children to be a diminution of rights under the Windsor Framework. 

The applicants also claimed that certain sections of the IMA violate articles of the ECHR which became a part of UK law through the Human Rights Act 1998. The court concurred with this assessment and held that Articles 3 (prohibition of torture), 4 (prohibition of slavery and forced labour), and 8 (right to respect for private and family life) are being violated. The applicants argued that Rwanda’s designation as a safe third country violates Article 3 and that the IMA provision for deporting trafficking victims violates Article 4. Although the applicants did not argue that the removal of children violated Article 8 the court found that a failure to consider a child’s best interest when making a determination was a violation. 

The High Court Ruling is yet another obstacle to the total implementation of the Rwanda policy. The policy, which has already gone through different forms due to a UK Supreme Court ruling striking it down, is a key aspect of Prime Minister Rishi Sunak’s promise to “stop the boats”. When asked what the ruling means for the future of the Rwanda Policy he said, “Nothing will distract us from that or delivering to the timetable I set out". He also indicated that the Good Friday Agreement should not be interpreted to cover migration issues and that they will be arguing against this interpretation in an appeal. If this ruling is upheld it could create a system where not every location has the same immigration policy. 


Click here for Summary of judgment - In re NIHRC and JR 295 (Illegal Migration Act 2023)



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