To mark Human Rights Day 2022, FLEX along with our partners Liberty, Bail for Immigration Detainees (BID), Hope for Justice, and the Joint Council for the Welfare of Immigrants (JCWI), highlight the threat posed to the human rights of migrants and survivors of trafficking in the UK by the Government’s proposed Rights Removal Bill, and why the plans for the Bill must be scrapped.
Today, 10 December, is International Human Rights Day and the 75th Anniversary of the Universal Declaration of Human Rights. This milestone document ‘proclaims the inalienable rights that everyone is entitled to as a human being – regardless of race, colour, religion, sex, language, political or other opinion, national or social origin, property, birth or other status’. However, against this backdrop, the UK Government is seeking to strip back many of these vital protections through their heavily criticised Rights Removal Bill (officially termed the Bill of Rights Bill) which is due to re-enter parliament imminently. If this legislation goes ahead, it will repeal the centrepiece of human rights law in the UK, the Human Rights Act 1998 (HRA), on the basis of unevidenced and inflammatory claims which seek to scapegoat migrants and survivors of trafficking.
The power to interpret the law in line with international human rights obligations has been relied upon by migrants, and other marginalised communities, to access their rights, including the Windrush generation. The Rights Removal Bill will limit the obligation on UK courts to make decisions based on rights established by the European Court of Human Rights (ECtHR), which has been crucial to defending the human rights of all. This is especially vital for people who have set down roots in the UK, have family and community ties, and who have been subject to exploitation and modern slavery.
The Rights Removal Bill will leave these people without vital protections, entrench their vulnerability to abuse, and lead to a lack of legal certainty on rights and entitlements, meaning people will be less likely to come forward and seek assistance. Ultimately, someone wanting to assert their rights will instead need to take the costly trip to court in Strasbourg. The complexity, financial and human cost of navigating this onerous legal process will make it near impossible for many survivors of trafficking, who have already been left destitute and traumatised by their exploiters, or people who want to remain in the UK with their families and communities, to access their rights and justice in practice.
Positive obligations are actions that a state must take in order to safeguard and protect human rights. The entire anti-trafficking system in the UK is based on a number of positive obligations to protect human rights, including obligations to identify victims of trafficking, to investigate cases and to provide protection and support. The Rights Removal Bill will limit the positive obligations on public authorities (like the police and local authorities) to protect these rights and reduce people’s ability to hold them to account for violations of their rights. In relation to human trafficking, cases concerning positive obligations often involve very serious violations of important and even absolute rights, such as violations of the right to life, the right not to be tortured and the right not to be subjected to slavery, servitude or forced labour. Stripping back positive obligations opens the door to a litany of human rights violations which will affect migrants and non-migrants alike, particularly children.
The Bill will add a new permission stage for people who want to bring human rights claims that would place an additional burden on their ability to enforce their rights, increasing the risks of trauma and re-exploitation. Limited access to legal support already makes it difficult for survivors to seek justice and redress. Victims and survivors of trafficking face significant barriers when seeking to exercise their rights, including fear of engaging with or challenging authorities and disclosing what has happened to them due to trauma, being disbelieved, or being subject to immigration enforcement. They may have to demonstrate the merits of their claim before they have received full disclosure from the defendant public body. In cases where there is a parallel criminal investigation or an inquest, it may be years after the claim is issued that full disclosure is revealed. People who have experienced human rights abuses should not be required to prove ‘significant disadvantage’ before they can seek justice.
As the Government continues to strengthen its plans to forcibly remove migrants, including survivors of trafficking, from the UK, they have sought to protect themselves from legal challenges, pushing through draconian policies which are already recognised as breaching fundamental rights, such as the Rwanda deportation proposals. The Rights Removal Bill will impose restrictions on the right to family and private life that will leave people at risk of deportation, facilitate re-trafficking and breach the rights of their children. The Bill would also pave the way for further legislation that makes it virtually impossible for people to appeal their deportation apart from in very limited circumstances, such as on the grounds of having dependents, where individuals must prove “extreme harm” to those dependents.
This will only work to compound an unjust and racist system, in which Black, Brown and racialised migrants, who are already subject to disproportionate outcomes in the criminal justice system, then not only face double punishment as a result of deportations but are effectively barred from challenging the Home Office’s decision to rip their families apart, tear parents away from children and leave entire communities devastated.
In apparent retaliation against the ECtHR’s interim measure to halt the Rwanda deportation flights, the Bill would require courts to ignore ECtHR interim measures outright, removing a crucial avenue for individuals to protect their rights and halt policies that breach human rights (Clause 24). This will also inevitably put the UK on a collision course with the ECtHR and result in more decisions which deem the UK to be in violation of their human rights obligations.
The Rights Removal Bill will weaken the essential safety net of human rights protections for migrants, refugees and victims of trafficking in the UK. By limiting the avenues for domestic enforcement of human rights and reducing public bodies’ duties, the Bill will centralise power in the hands of the Government and remove a key avenue of scrutiny and accountability, while also severely limiting their ability to enforce their rights. The increased ability of the Government to forcibly remove migrants and survivors of trafficking will add to people’s fears of coming forward or seeking to exit their exploitation, and drive them further into exploitation and harm.
Human rights protections are only as strong as their weakest link. As the Government tries to demonise and target already marginalised groups, the universality of rights should be championed. By advocating for and with those who face the most barriers and risks in accessing their rights in our society, we can ensure protections for society more broadly. The Rights Removal Bill must be challenged collectively, across sectors and across communities, and we must reject the Government’s attempts to raid the individual rights and freedoms of each and everyone one of us, and particularly those of the most marginalised in our society.
See our joint briefing note for more information.