Wednesday 15 May 2024

We’re all trying to find the Guy who did this … The Disapplication of the Illegal Migration Act in Northern Ireland


Professor Colin Murray, Newcastle Law School

Photo credit: Wknight94, via Wikimedia Commons



The courtroom was anything but packed on a grey Monday morning in Belfast. There were no camera crews outside. And yet, for a small band of cognoscenti who gathered to hear Humphreys J’s decision, something significant was about to happen. The UK Government’s keystone migration legislation, the Illegal Migration Act 2023 (providing for the “outsourcing” of asylum claims to third countries), was about to be confronted with the fact that it had made extensive rights commitments specific to Northern Ireland within the UK-EU Withdrawal Agreement. Either these immigration measures were going to be found not to apply to Northern Ireland, or some violence was going to be inflicted upon the rights commitments made to Northern Ireland.

The momentousness of this moment should not have come as a surprise; the workings of Article 2 of the Windsor Framework were settled as far back as 2018, whereas other special post-Brexit provisions for Northern Ireland have been repeatedly redrawn. In 2021, its operation was described by the UK Government as “not controversial”, at a time when they were eager to see significant changes to other parts of the then Protocol. The significance of Article 2 has been highlighted many, many, many times on this blog. So how did the judgment in Re NIHRC’s Application sneak up on the UK Government?

Article 2

Article 2 of the Northern Ireland Protocol (as was) was a vital provision for the UK’s Brexit policy. It provides:

1. The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

2. The United Kingdom shall continue to facilitate the related work of the institutions and bodies set up pursuant to the 1998 Agreement, including the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland, in upholding human rights and equality standards.

Whereas trade elements related to Northern Ireland could be connected to the 1998 Agreement (better known as the Belfast or Good Friday Agreement) through the operation of cross-border bodies, the connection with regard to rights and equality law was direct. The 1998 Agreement set out a new basis for a post-conflict governance order in Northern Ireland based on the rights of everyone in the community, and in the years since the Agreement, extensive elements of those rights protections were grounded in EU law. The UK Government would have faced an uphill struggle to maintain that Brexit did not impact its commitment to the “letter and spirit” of the 1998 Agreement without providing specific rights and equality assurances in the Northern Ireland context.

In the SPUC case of 2023 the Northern Ireland Court of Appeal refined this commitment into a six stage test (para 54):

A right (or equality of opportunity protection) included in the relevant part of the Belfast/Good Friday 1998 Agreement is engaged.

That right was given effect (in whole or in part) in Northern Ireland, on or before 31 December 2020.

That Northern Ireland law was underpinned by EU law.

That underpinning has been removed, in whole or in part, following withdrawal from the EU.

This has resulted in a diminution in enjoyment of this right; and

This diminution would not have occurred had the UK remained in the EU.

Every element of this test must be fulfilled if a case based around non-diminution is to succeed.

The non-diminution commitment is not simply an international law obligation upon the UK; under section 7A of the European Union (Withdrawal) Act 2018, Article 2 appears to operate within the UK’s domestic jurisdictions with the same effect as EU law had prior to Brexit. In other words, reflecting the commitment in Article 4 of the Withdrawal Agreement to retaining the legal effect of EU law as regards the withdrawal agreement, this provision enables the courts to disapply statutes which conflict with its terms. And yet, in a bizarre hostage to fortune, when it was aware that legal challenges to the Illegal Migration Act under Article 2 were already underway, the UK Government issued assurances as part of the Safeguarding the Union Command Paper in January 2024 that ‘the Windsor Framework applies only in respect of the trade in goods’ (para 46). The new judgment undermines this claim (which, even at first glance, was always inaccurate).

The Illegal Migration Act

Section 2 of the Illegal Migration Act 2023 imposes a duty on the Home Secretary to make arrangements for the removal of the vast majority of asylum seekers who entered the UK after the Act was passed, including the sending of such individuals to Rwanda. Section 5 makes this duty applicable implicitly notwithstanding a range of international law, from the terms of the Refugee Convention to those of the European Convention on Human Rights (ECHR), which might ordinarily be asserted by the individual in question.

The 2023 Act is thus a difficult statute to effectively challenge on the basis of rights concerns. It excludes the use of the interpretive duty under section 3 of the Human Rights Act 1998 (ie the obligation to interpret domestic law compatibly with the ECHR ‘[s]o far as it is possible to do so’), leaving the domestic courts only able to declare the statute incompatible with the incorporated ECHR rights under section 4 of the Act (an outcome which does not impact the validity of the statute.) Although Humphreys J did find swathes of the Act incompatible with the ECHR rights as part of the Re NIHRC judgment, and therefore issued a declaration of incompatibility, this does not lead to any effective remedy.

The 2023 Act does not, however, negate the effect of claims made under Article 2 of the Windsor Framework insofar as it applies to Northern Ireland – a separate question from the compatibility of that Act with the Human Rights Act. And so the main arguments relating to the Act were thus channelled through the non-diminution commitment and into the way EU law still works in the Northern Ireland context, which held out the possibility of disapplication of the Illegal Migration Act.

The High Court Judgment


Disapplication of a statute is a significant outcome – as Humphreys J recognised in his decision “parliamentary sovereignty remains a fundamental tenet of our constitutional law” (para 37). But he also acknowledged that for as long as the UK was part of the EU, national law could not have legal effect insofar as it undermined EU law (the position reached in the Factortame case in the early 1990s). The issue was whether this approach continued to apply in the same way with regard to Article 2 of the Windsor Framework. For the UK Government Article 2 was simply an “an obligation of result”; it was not that the relevant elements of EU law continued to be “made applicable” in Northern Ireland law, but rather that Article 2 “set a benchmark by which rights can be measured and no diminution ensured” (para 49). The problem with this argument is that it flies in the face of the wording of Article 4 the Withdrawal Agreement and Parliament’s commitments under section 7A of the European Union (Withdrawal) Act; “its provisions … shall produce in the UK the same legal effects as those which they produce in EU Member States” (para 54). The Windsor Framework is an integral part of the Withdrawal Agreement and therefore “Factortame is still in play since the rights and obligations under the WA must prevail over any inconsistent domestic law” (para 57). There was nothing of legal significance to the UK Government’s supposed distinction between the provisions of the Agreement and EU law made applicable under it.  

The Government’s next ploy was to claim that the human rights obligations contained within the 1998 Agreement could not be applied to asylum seekers. In the Government’s view, that Agreement was all about “warring factions” in Northern Ireland, something that had no relevance to immigration policy. Remember that under the first limb of the SPUC test there must be a connection between the right being claimed and the 1998 Agreement (the whole point of the UK Government’s commitment was, after all, to insulate Brexit from claims that the 1998 Agreement was being undermined). Humprhreys J acknowledged that, in some cases, it will be a difficult task for the courts to establish the relevant connection:

Article 2 of the WF is an unusual provision in that it seeks to incorporate into law a chapter of the B-GFA which was never intended to create binding legal rights and obligations. It was the product of lengthy negotiations between political parties, the UK and Irish Governments, and contains statements of aspiration as well as legal right. A document renowned for its ‘constructive ambiguity’ does not lend itself easily to the tenets of statutory construction. (para 67)

This, however, is not one of those cases. The 1998 Agreement makes explicit commitments over the “civil rights … of everyone in the community”. A natural reading of these terms encompasses asylum seekers, and for Humphreys J, although the 1998 Agreement “did not expressly reference immigration or asylum, there is no basis to exclude such individuals from the wide compass of “everyone in the community” (para 69). The brilliance of this judgment is to directly face down the high-handed assumptions which underpinned the Government’s case. After decades of conflict, the 1998 Agreement made a commitment to ground the governance of Northern Ireland in the human rights of all; it did not treat human rights as being particularised to a sectarian context.

After these (always tenuous) arguments failed, the Government’s legal position collapsed. Most of the  public case around the Illegal Migration Act was that it was a great triumph of Brexit; the UK Government was able to put the Rwanda scheme in place because it could now depart from the requirements of the Qualification Directive, the Procedures Directive, the Dublin III Regulation and the Trafficking Directive. And so, time and again in the judgment, the Government accepted that the legislation involved a diminution of the protections mandated by these aspects of EU law; “the respondents accept that, in a category of case, the IMA, once in force, will result in a diminution of right” (para 116, see also para 133). For all the bluster that has accompanied the judgment, the UK Government knew (it did not need the court to rule) that it was acting to hollow out these EU law requirements. Indeed, it was able to do so, with regard to Great Britain, because of Brexit. It had not, however, given sufficient consideration to the implications of the specific commitments it had made in the Northern Ireland context.

It was thus straightforward for the Court to conclude that “there is a diminution of rights brought about by the enactment of the IMA” (para 117) and the remedy of disapplication of extensive provisions of the statute within the law of Northern Ireland flowed as a direct consequence of this. And who is responsible for this? Once again, Humphreys J is clear: “This outcome does not occur at the whim of the courts but represents the will of Parliament as articulated in the Withdrawal Act” (para 175).


The outcome in the High Court is therefore far from legally controversial. The UK Government’s efforts towards asserting that Article 2 was an obligation as to result, entirely within its keeping, was a desperate ploy, which would have denuded the entire provision of legal significance without any basis for doing so. Once this proposition was rejected, the Government’s case was lost, and it has found itself in a fluster ever since. Tom Pursglove went as far as to mislead Parliament in responding to an Urgent Question about the decision with an assertion that ‘our approach is compatible with international law’. It isn’t, and the UK Government accepted that it wasn’t when it enacted the legislation (it acknowledged, on introducing the legislation that, it could not issue a statement that the legislation was compatible with the ECHR). And yet it sticks doggedly to its claims that the court’s decision involved an unwarranted “expansion” of the 1998 Agreement.

The question remains, however, why this decision came as such a shock? Why were the media not primed and ready for a Northern-Ireland-shaped hole to be knocked in UK immigration policy? As so often in debates over Brexit, this surprise is largely the product of neglect of commitments made towards Northern Ireland. Article 2 was agreed as an essential part of closing off claims that Brexit undermined the rights elements of the 1998 Agreement, so many of which had come to be underpinned by EU law. But once this part of the deal was done, it quickly faded into the background.

The recurring crisis over trade policy consumed such attention that the UK Government lost sight of the fact that it had agreed to a higher baseline of rights commitments for Northern Ireland by comparison to the rest of the UK. When the law related to Northern Ireland is complex and unique it is all too easy for wishful thinking to become dominant in the corridors of Westminster and Whitehall. The Article 2 commitment doesn’t fit with the narrative of “take back control”, but the UK’s Conservative Government remains all too eager to present commitments it willingly made as hardships that have been inflicted upon it.       


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