Court rules UK immigration law cannot apply in NI because of Windsor Framework - blowing apart claim in Safeguarding the Union deal

This morning’s development exposes a key pledge in the government’s deal with the DUP as false and raises further questions about NI’s increasing detachment from the rest of the UK on fundamental policy areas.

It comes despite repeated assurances from the government – including in its Safeguarding the Union deal with the DUP – that it had the power to legislate for all of the United Kingdom on such matters.

DUP MP Sammy Wilson had said the court judgement would test commitments made by the government. That test has now failed as it becomes clearer that the UK government’s hands are tied by sovereignty it has voluntarily handed over to Brussels on issues of trade, human rights and immigration policy.

The court found that the law unlawfully diminishes the rights of asylum seekers, trafficking victims and unaccompanied children – and that parts of it breach the framework and should therefore be disapplied in Northern Ireland.

The Government has vowed to appeal over the ruling and has insisted the court judgment will not derail or delay its contentious Rwanda scheme.

Challenges were mounted by the Northern Ireland Human Rights Commission and a 16-year-old boy from Iran who travelled to the UK alone to claim asylum.

The Illegal Migration Act was an attempt by the government to deter channel crossings by deporting migrants to Rwanda for processing, but will not now be applicable in Northern Ireland.

The increasing detachment of Northern Ireland from the rest of the UK on such key areas is causing grave concern among unionist politicians. TUV leader Jim Allister said it was yet another “savaging of UK sovereignty” – while the DUP peer Lord Nigel Dodds said it “confirms the detrimental anti Union constitutional ramifications” of the Windsor Framework.

It remains to be seen if the government will appeal the ruling, which could result in the Windsor Framework creating not just trade barriers with the rest of the UK – but effectively a separate immigration system in the province than operates in Great Britain.

It is now very clear that the framework affects much more than trade, through its guarantee of continuing EU rights here post-Brexit – upheld by the court. That is despite a claim in the ‘Safeguarding the Union’ deal struck with the DUP that the Windsor Framework applies only to trading goods.

The deal claims that “the Windsor Framework applies only in respect of the trade in goods - the vast majority of public policy is entirely untouched by it. This includes important areas like immigration, where the UK’s immigration policy and law applies uniformly across the United Kingdom, notwithstanding some recent incorrect assertions about the impact of the Windsor Framework on, for example, the Safety of Rwanda (Asylum and Immigration) Bill”.

That claim is now fundamentally undermined by the High Court judgement.

The concerns about the broad reach of the framework into areas beyond trade are not new.

They were publicly raised by DUP MPs including its now leader Gavin Robinson in the House of Commons before the Safeguarding the Union deal was signed.

In December, Sammy Wilson told parliament: “As it stands, article 2(1) of the charter of fundamental rights of the European Union applies in Northern Ireland, and the High Court has recently judged that that is grounds for people who wish to remain in the United Kingdom, having entered illegally, to bring a case. Certain aspects of European law are removed by the Bill, but not that one. Without a change to the charter of fundamental rights, Northern Ireland will be a gateway, because all the arguments that the Government are hoping to disapply will apply in Northern Ireland”.

The following month, Sir Jeffrey Donaldson secured support for the Safeguarding the Union deal at the DUP executive, saying it “safeguards Northern Ireland's place in the Union”.

Referring to his judgement, Mr Justice Humphreys said it “does not represent the will of the Courts, but… represents the will of Parliament.”

TUV leader Jim Allister responded to the judgement saying: “Once more our subservience to EU law, courtesy of the unaltered Protocol and despite the empty promises of HMG and the DUP, has been underscored by the High Court striking down key aspects of the Rwanda Bill - as it did with the Legacy Bill - because of its conflict with superior EU law and rights as embedded by Art 2 of the Protocol.

“Yet another humiliation and savaging of UK sovereignty as NI is again found to be an EU colony where the writ of Brussels, not London, runs. Here again the DUP’s ‘Safeguarding the Union’ document is exposed as a sham as its promises in paragraph 46 that the Rwanda Bill is untouched by the Protocol are shredded by the High Court.

“Now we not only have a trade partitioning Irish Sea border, but now an immigration border too, leaving NI wide open as a magnet for asylum seekers.

“It’s time the DUP disavowed its sell out document and got on the side of demanding, not diminishing, British sovereignty.”

Speaking ahead of the judgement, DUP Sammy Wilson MP said: “This will be a test as to the commitment made by the government” in a debate in parliament. He said the government assured MPs that “NI would not be treated any differently” and that EU rights obligations under the WF did not apply in this case because it is a national decision.

He said if the government’s position is rejected by the court and the WF does stop the immigration laws fully applying here, it will have “serious implications” for NI – including the possibility of the province becoming a magnet for immigration and controls on people travelling from NI into Great Britain.

Loyalist anti-protocol campaigner Jamie Bryson reacted to the judgement by saying the DUP need to disavow the deal they made with the government.

He said: “Today’s outcome confirms what I had pointed out from the very outset. Article 2 of the Protocol applies to a broad and non exhaustive range of areas, spreading the effect of EU law into every aspect of life .

“Now immigration law applies differently in GB than in NI, creating another layer to the Irish Sea border, this time in regards immigration. There is now a border in regards the movement of people with NI further cut off from the rest of the UK.

“There is no point the DUP pretending to be outraged now; they endorsed the Donaldson Deal which at paragraph 46 falsely claimed the Protocol only applied to trade and expressly claimed the EU Charter no longer applied and further claimed immigration was untouched by the Protocol. This was always plainly untrue.

“Those of us who told the truth deserve an apology from the Donaldson Dealers. It’s time for the DUP to accept they endorsed that which has been determined to be legally false, and disavow the Donaldson Deal.”

Downing Street said the Government would challenge the ruling, but insisted its overall plan for sending asylum seekers to Rwanda would not be affected.

It suggested the rights provisions of the Good Friday Agreement were never intended to cover issues such as “illegal migration”.

The Prime Minister’s official spokesman said: “This judgment doesn’t affect our operational plans to send illegal migrants to Rwanda or the lawfulness of our Safety of Rwanda Act.

“We continue to work on the timetable that the Prime Minister had previously set out.

“We’ve consistently been clear that the commitment to the Belfast/Good Friday Agreement should be interpreted as they were always intended and not expanded to cover issues like illegal migration.

“We will take all steps to defend that position including through appeal.”

The case which prompted the ruling was brought on behalf of a sixteen-year-old asylum seeker from Iran who arrived by small boat into Kent. He was transferred by the Home Office to Northern Ireland under the National Transfer Scheme, according to his legal team.

Sinead Marmion, Head of Immigration and Asylum at Phoenix Law and solicitor in the case said it was the “beginning of the end” of the government’s policy.

Speaking outside the court, she said: “The Good Friday Agreement has always been a beacon of human rights protections and hope. Today, the Court through the Northern Ireland Protocol, has ensured those rights apply to the whole community – including Asylum seekers. This runs contrary to the negative and toxic rhetoric peddled by the government against those seeking international protection.

“This Judgment sends a clear message to the Government. Not only will Asylum seekers be welcome in Northern Ireland, but they will also be legally protected.

“Today, marks the beginning of the end of the British Government’s flagship campaign to enact illegal and immoral laws with the sole purpose of frustrating and demolishing international human rights protections.”

The Northern Ireland Human Rights Commission welcomed the judgement. A spokesperson said: “The Windsor Framework guarantees that following Brexit there will be no diminution of rights protected by the Belfast (Good Friday) Agreement. The Court has disapplied in Northern Ireland those provisions of the Illegal Migration Act which breach the Windsor Framework. It has also declared a number of the provisions incompatible with the European Convention on Human Rights”.