04 Apr Paddington Bear and the Secretary of State
[David Matyas is a PhD Candidate and Gates Cambridge Scholar at the University of Cambridge, Lauterpacht Centre for International Law.]
On March 7, 2023, the United Kingdom Home Secretary Suella Braverman introduced legislation before the British House of Commons entitled the “Illegal Migration Bill”. The purpose of the Bill is to prevent and deter unlawful migration, with a particular focus on arrivals by small boat crossings of the English Channel. The Bill has sparked popular protests and raised questions about its compatibility with Human Rights Law and the Refugee Convention. At the time of writing, the Bill had completed its first and second reading before the House of Commons and was at the Report stage.
The following blog comments on this Bill by way of a fictitious judgment judicially reviewing a fictitious deportation order. It is set in the future, picturing a time when the Bill has been passed into law and imagines the children’s literature character Paddington Bear as having arrived following the release of this Act. This blog acknowledges the collected works of Michael Bond, creator of Paddington Bear.
The story of Paddington Bear has been the focus of legal and other scholarly analysis in several sources over the years. Colin Yeo’s blog at freemovement, for instance, (also featured in The New Statesman and Financial Times) reviews the 2014 film “Paddington”, considering how the story’s facts intersect with the Immigration Act 1971, Refugee Convention, and Human Rights Act 1998. More recently, Tess Lowry’s blog at Global Citizen explores the Paddington story in the context of the Nationality and Borders Bill. Prof. Angela Smith has further looked at the socio-cultural context of immigration in Britain at the time Bond first wrote Paddington, a history also written about on the website of the International Rescue Committee (IRC). This blog adds to this earlier analysis by reading Paddington against the Illegal Migration Bill.
 EWHC 605 (Admin)
In the High Court of Justice
King’s Bench Division
Upper Tribunal Judge Michael Bond, Sitting as a Deputy High Court Judge
The King on the application of Pastuso “Paddington” Bear (Claimant)
– And –
Secretary of State for Home Department (Defendant)
1. The Claimant is the subject of a deportation order made in 2023 pursuant to the Illegal Migration Act. In this application for judicial review he seeks a declaration that his deportation is unlawful, and an order for his leave to remain in the United Kingdom. The court is grateful to earlier legal analysis in the case of Pastuso (aka “Paddington”) Bear.
2. The Claimant is a bear. He was born in darkest Peru. His age is unknown. However, like other bears (and the British monarch), he celebrates two birthdays a year (on 25 June and 25 December). The Claimant and Defendant accept that Mr. P Bear was an unaccompanied cub (child) upon entry into the UK and has since reached the age of bear majority.
3. Mr. P Bear entered the UK on March 8, 2023. He entered the UK by sea as a stowaway in a small boat that for a time was aboard a maritime vessel.
4. Prior to arriving in the UK, Mr. P Bear disembarked temporarily in Panama (as was observed in a small canteen where he was seen purchasing 63 jars of marmalade).
5. Mr. P Bear, who arrived in the UK bearing a tag which read “please look after this bear”, did not travel for the purpose of tourism/visit, but rather with the intention to stay in the UK indefinitely. Prior to entry, however, no leave for such an indefinite stay was granted to Mr. P Bear. This unlawful entry of Mr. P Bear into the UK is not disputed.
6. Upon arrival, Mr. P Bear never made, nor attempted to make, an asylum application. Since unlawfully entering the UK, Mr. P Bear has not since applied for, nor been granted a visa for leave to stay in the UK.
7. Upon entry into the UK, Mr. P Bear was discovered at Paddington Station, London by Mr. and Mrs. Brown. Mr. and Mrs. Brown took Mr. P Bear home, where he has since been housed. At no time did Mr. or Mrs. Brown alert the authorities about the unlawful entry of Mr. P Bear into the UK. [The Court notes and reserves judgement on the parallel case of Crown Prosecution Service v. Mr. Brown and Mrs. Brown on charges of assisting illegal entry, and harbouring, in violation of S. 25 of the Immigration Act 1971].
8. Upon learning of the unlawful entry of Mr. P Bear, and that Mr. P Bear had since reached the age of bear majority, the Secretary of State issued a deportation order on the basis of the Illegal Migration Act, and her duty therein “to make arrangements for the removal of certain persons who enter or arrive in the United Kingdom in breach of immigration control” (S. 1(2)(a) Illegal Migration Act).
9. The deportation of the Claimant, Mr. P Bear, was issued on the basis of the Illegal Migration Act. The purpose of this Act is to prevent and deter unlawful migration, particularly by unsafe and illegal routes by requiring the removal from the UK of persons who enter or arrive in the UK in breach of immigration control (S. 1(1) Illegal Migration Act). As reported widely in the media and found in Parliamentary debates, the primary “unsafe and illegal routes” of concern, were maritime entries and arrival by small boat.
10. While the Act applies to persons, there is no indication that it does not apply mutatis mutandis to anthropomorphized bears.
11. The Act requires the Secretary of State to remove individuals from the UK where four conditions are met (S. 2(1) Illegal Migration Act):
a. The individual needs leave to come into the UK and has entered without that leave (S. 2(2)(a)).
b. The individual came into the UK on or after 7 March 2023 (S. 2(3)).
c. The individual stopped in another safe country en route to the UK, rather than coming directly to the UK from a country where their life and liberty was threatened (S. 2(4) – 2(5)).
d. The individual needs leave to enter or remain in the UK and does not have it (S. 2(6)).
12. The Act leaves the Secretary of State with the discretion as to whether or not to remove an unaccompanied child. The Secretary of State, in other words, is not required to remove a person from the UK at the time when they are an unaccompanied child (S. 3(1)) but may remove that individual (S. 3(2)).
13. Nonetheless, when an individual stops being an unaccompanied child (either due to no longer being unaccompanied or no longer being a child) the Secretary of State must make arrangements for the removal of that individual from the UK (S. 5(1)(b)).
14. Where a person meets the four conditions detailed above, any protection claim made by the individual must be declared inadmissible by the Secretary of State (S. 4(1)(a) / S. 4(2))
Application of the Law to the Facts
15. Mr. P Bear falls squarely within the purpose of the Illegal Migration Act. He was a stowaway on a small boat and arrived unlawfully in the UK by means of that small boat. His arrival represents precisely the type of unsafe and illegal arrival contemplated by the Act.
16. The four conditions required for removal outlined in the Act were met in the case of Mr. P Bear:
a. As a permanent resident of Peru, Mr. P Bear required leave to enter the UK for an indefinite stay. In entering the UK, however, Mr. P Bear did not have that leave.
b. Mr. P Bear entered the UK on March 8, 2023, following the initiation date for the application of the Act.
c. Mr. P Bear stopped in Panama en route to the UK. Panama is a safe country. Further, there is no indication that Mr. P Bear came to the UK from a country where his life and liberty were “threatened by reason of [his] race, religion, nationality, membership of a particular social group or political opinion” (S. 2(4)).
d. Mr. P Bear presently needs leave to remain in the UK, which he does not have.
17. While Mr. P Bear entered the UK as an unaccompanied minor — leaving his deportation at that time to the discretion of the Secretary of State — since entering the age of bear majority, the Secretary of State was under a statutory duty to deport Mr. P Bear given that he was no longer an unaccompanied child.
18. Were Mr. P Bear to attempt to make a protection claim — such as filing an asylum request — the Secretary of State would be under an obligation to deem it inadmissible (S. 4(1)(a) / S. 4(2)).
19. Mr. P Bear argued, first, that this deportation order violated his right to seek asylum under the Refugee Convention. He argued that his life was threatened by an earthquake in Peru which destroyed his home but that the Act amounts to an effective prohibition on asylum claims.
20. The Secretary of State contends that such a disaster is not covered as a ground for refugee status under The Refugee Convention.
21. The Claimant — Mr. P Bear — argues, next, that his removal from the UK and any subsequent transfer to a third country would violate several of his rights under the European Convention on Human Rights (EHCR) (1950).
22. More specifically, the Claimant submits that:
a. His deportation would constitute a violation of the principle of non-refoulement (ECHR, Art 3).
b. The restricted judicial oversight in the Act combined with the absence of a right to legal advice and representation in the Act (SS. 37 – 48), leave him with limited procedural rights and represent a violation of his right to an effective remedy (ECHR, Art 13).
23. The Defendant — the Secretary of State for Home Department — argues that her application of the Illegal Migration Act is compatible with the European Convention on Human Rights since Mr. P Bear entered the territory of the UK illegally.
24. As an illegal immigrant, the Secretary of State asserts that Mr. P Bear is unlawfully present on the territory of the UK. And, given that he has filed no ‘serious harm suspensive claim’ (S. 37(3) of the Act), his removal is entirely justified.
25. Finally, Mr. P Bear argued for a revocation of his deportation order on the basis of community interests and compassionate circumstances. Mr. P Bear points to his positive contributions to British society, as evidenced by awards, invitations to dine at Buckingham Palace, and friendship with the Monarch.
26. The Secretary of State has replied that neither invitations to royal luncheons, nor his shared affinity with the Monarch for stashing marmalade sandwiches in inconspicuous locations have bearing on her solemn duty to deport Mr. P Bear under the Act.
27. On the basis of the Government’s recent Illegal Migration Act, it is determined that the Secretary of State was within her right, and fulfilled her duty, in issuing the deportation order against Mr. P Bear.
28. As such, it is appropriate to uphold the Secretary of State’s order and deport Mr. Pastuso “Paddington” Bear.