Legal opinion: the legal implications of the [Illegal] Migration Bill in Scotland

Holding a sign re Refugee Ban Bill

 

by Sabrina Galella 

Together with the Scottish Refugee Council (SRC) and the Children and Young People’s Commissioner Scotland (CYPCS), we commissioned a legal opinion from Kay Springham KC, to better understand the impact of the [Illegal] Migration Bill on Scottish Ministers, public authorities, and their responsibilities in devolved areas.  

 

Where does this legal opinion take us?  

The legal opinion confirms the following key points: 

  • Immigration is a matter reserved to the Westminster Parliament. However, the Bill makes direct and serious intrusions into devolved powers exercised by Scottish Ministers and Scottish public authorities. These are so serious that the Scottish Parliament should have been asked to consider passing a legislative consent motion. Even though the validity of the Bill is unaffected by the failure to seek legislative consent, we are disappointed to see the Scottish Parliament was not given an opportunity to debate legislative consent.
  • It ends Scottish Ministers’ powers to support survivors of trafficking in Scotland. This is a violation of Article 4 ECHR (European Convention of Human Rights) and Article 12 of the European Convention Against Trafficking. 

The Bill will remove powers devolved to Scotland, which are contained in Scottish Parliament’s legislation to support survivors of trafficking. Scottish Ministers have a duty under the Human Trafficking & Exploitation (Scotland) Act 2015 to provide support and assistance to adult victims of trafficking. Clause 23 of the Bill would disapply such duties for anyone arriving after 7th March who meets the removal criteria in Clause 2 of the Bill – with only one very limited exception. 

 

  • It creates new powers for the Home Office to accommodate children in Scotland. But local authority obligations around child protection must continue. This raises huge questions about how local authorities, and the Scottish courts, can safeguard vulnerable children when the Home Office are demanding control of their care. 

Clause 19 of the Bill gives the Secretary of State the power to remove unaccompanied children from the supervision of local authority and put them directly into the care of the UK Home Office. 

There is no precedent for this, and it signals a profound and worrying shift of power to the Home Office to direct the accommodation of children in Scotland.  

 

  • These provisions on supporting trafficking victims and unaccompanied children are segregating our protection systems in Scotland. Child protection and stopping victims of exploitation from being harmed should not depend on immigration status.  

 

Why are we so concerned?  

The Bill removes the right to seek asylum for people arriving in the UK ‘irregularly’, rendering them permanently inadmissible for any protection status. This affects nearly all seeking asylum, as there are no ‘regular’ or safe routes to access the UK’s asylum system. It also ends legal recognition for trafficking survivors, if arriving ‘irregularly’, and it gives sweeping new powers to the Secretary of State in relation to removal, detention, and corporate parenting. 

The UN High Commission on Refugees has stated that the Bill would breach UK’s obligations under the Refugee Convention, the 1954 Convention relating to the Status of Stateless Persons, the 1961 Convention for the Reduction of Statelessness and international human rights law. The Bill would abolish the rights of almost all refugees to be protected in the UK, and it would seriously compromise the international refugee protection system. 

The human consequences of this Bill are devastating, as highlighted in our case studies, and we oppose it in its entirety.  

 

What must happen now? 

The [Illegal] Migration Bill creates serious and direct challenges to Scottish Ministers and other Scottish public authorities.  

The Bill, if enacted, will cut across our current adult protection and child protection frameworks, which means Scottish Ministers and Scottish public authorities risk breaching international human rights obligations and engaging in unlawful discrimination under domestic law.  

That is why we urge Scottish Ministers and Scottish public authorities to take action to challenge and mitigate the impact of the Bill.   

  • We ask the First Minister to lead from the front in Scotland and act to protect some of the most vulnerable people in the world by harnessing devolved law, policy, and practice.  
  • We ask for the introduction of a Scottish Government-led prevention and mitigation plan against the Bill, which uses legal, policy, and practice changes and encompasses the public and charity sectors working together. 
  • We ask the Scottish Ministers to use all powers at their disposal to strengthen and protect the rights of survivors of trafficking and unaccompanied migrant children. 
  • We ask the Presiding Officer to reconsider her decision and grant the Scottish Parliament the opportunity to vote on a legislative consent motion for this Bill.  
  • We urge Scottish Public Authorities, including COSLA (Convention of Scottish Local Authorities), Police Scotland, the Crown Office and Procurator Fiscal Service, and the justice system to recognise the impact of this Bill and to set out how they are going to carry out their duties to prevent harm, and protect and support individuals and families within their statutory areas of responsibility. 
  • We continue to call on our civil society and public authority partners across the UK to work with us to identify and recommend steps that can be taken in mitigation against the significant harm that will result from the implementation of this cruel, unnecessary, and unlawful Bill. 

 

 

>>> Access the legal opinion here.

>>> Access the cover note to the opinion here  

>>> Access the case studies here 

JustRight Scotland is a Scottish Charitable Incorporated Organisation (SC047818) which provides legal services through its limited liability partnership, JustRight Scotland LLP which trades as JustRight Scotland (SO305962). This firm has been authorised to act as solicitors by the Law Society of Scotland (Registered No 53703).

Our Registered Office is:
Room 1, 1st Floor, Libertas House
39 St Vincent Place
Glasgow, G1 2ER

Designed by The Port Creative

All rights reserved 2024