What Is the New Illegal Migration Bill 2023?
On 08 March 2023, the government proposed the new Illegal Migration Bill in an attempt to stop people coming to the UK ‘unlawfully’ by ‘unsafe and illegal routes’ such as on small boats crossing the channel. This article will provide an overview of the Illegal Migration Bill’s purpose, its main provisions and its legality.
What Is the Purpose of the Illegal Migration Bill?
The Illegal Migration Bill, or the ‘Stop the Boats Bill’, is one of the government’s latest measures to reduce ‘unlawful migration’ to the UK, following the introduction of the Rwanda policy, the Nationality and Borders Act 2022, the prime minister’s statement on illegal migration and the recent introduction of the Streamlined Asylum Questionnaire.
The Illegal Migration Bill is a proposal for a new law which aims to deter ‘unlawful migration’ by ‘irregular’ or ‘unsafe and illegal routes’: the bill aims to prevent people coming to the UK for example in the back of lorries or on small boats without having leave to enter the UK before or upon arrival.
This bill proposes to prevent those entering the UK in this way from being able to claim asylum or other forms of leave in the UK. Instead, the Secretary of State would have a duty to remove such people to their home country or a safe third country, such as Rwanda, and could detain them in the process. The bill would ban such people from having permission to enter or remain in the UK or obtaining British citizenship in the future.
The bill is currently at the report stage in the House of Commons and is not yet law. It may still be amended before being enacted. If enacted, it will apply retrospectively. As will be addressed below, much like the Rwanda policy, the legality of the Illegal Migration Bill is likely to be challenged in the courts.
What Are the Illegal Migration Bill’s Main Provisions?
The current version of the Illegal Migration Bill makes provision for and/or about:
- The removal from the UK of persons who have entered or arrived in breach of immigration control;
- Detention for immigration purposes;
- Unaccompanied children;
- Victims of slavery or human trafficking;
- Leave to enter or remain, settlement and citizenship;
- The inadmissibility of certain asylum or protection and human rights claims relating to immigration;
- The maximum number of persons entering the UK annually using safe and legal routes.
Each of these will be dealt with in turn below.
Removal of Persons who Have Entered or Arrived in Breach of Immigration Control
The Illegal Migration Bill imposes a duty on the Secretary of State to make arrangements for the removal of people who enter the UK in breach of immigration control as soon as is reasonably practicable after their entry, subject to limited exceptions.
This duty automatically applies where a person meets the following four conditions:
- They have entered the UK in breach of normal immigration laws;
- They have entered or arrived in the UK on or after 07 March 2023;
- They have travelled through a safe third country; and,
- They require leave to enter and/or remain in the UK but do not have it.
This duty does not automatically apply to unaccompanied children, some victims of slavery and human trafficking or where other exceptions apply. See below.
A person may be removed to a country and/or territory:
- Of nationality and/or citizenship;
- In which they have obtained a passport or other ID document;
- In which they embarked for the UK; or,
- Where there is reason to believe they would be admitted.
A national from a country defined by the bill as a safe third country cannot be removed to that country where they have made an asylum and/or human rights claim in relation to that country under exceptional circumstances. Nationals from other countries cannot be removed to their home countries; they can only be removed to safe third countries.
A person will be given notice of their removal and of the country to which they will be removed, prior to their removal. They can only be removed after their time to challenge their removal has expired.
This removal duty could also apply to their dependent family members who do not have leave to enter or remain in the UK, are not a British or Irish citizen and do not have the right of abode in the UK.
Detention for Immigration Purposes
A person may be detained where:
- An immigration officer suspects that they meet the four conditions for the Secretary of State’s removal duty to apply;
- An immigration officer suspects that the Secretary of State has the removal duty;
- Where such a duty applies but pending removal; or,
- In some circumstances, where the four conditions are met but no duty applies.
A person of any age could be detained anywhere as considered appropriate by the Secretary of State, for a period which the Secretary of State deems reasonably necessary to enable a decision to be made on their case or their removal to be carried out. Family members subject to the removal duty may also be detained. There are limitations on the detention of children and pregnant women.
The bill allows applications for immigration bail after 28 days.
Unaccompanied Children
Although the removal duty does not automatically apply to unaccompanied children, the Secretary of State may make arrangements for their removal. The removal duty applies as soon as a person ceases to be an unaccompanied child, for example when they turn 18.
Victims of Slavery or Human Trafficking
This bill proposes to disapply protections and entitlements to assistance and support which are available to victims of modern slavery or human trafficking. This includes the prohibition on removing or requiring such people to leave the UK.
Leave to Enter or Remain, Settlement and Citizenship
The Illegal Migration Bill effectively bans people who have ever met the four conditions for removal, and in some cases their family members, from ever being granted entry clearance, leave to enter, leave to remain or indefinite leave to remain in the UK.
People who have met these conditions may only be granted such leave if necessary to comply with the Secretary of State’s obligations under the European Convention on Human Rights or other international treaty to which the UK is a party, or in compelling circumstances, if appropriate.
Similarly, people who have ever met the four conditions for removal are not entitled to British citizenship. No exceptions apply. Their children could also be prevented from obtaining British citizenship if born in the UK on or after 07 March 2023.
Inadmissibility of Certain Protection and Human Rights Claims
The removal duty applies regardless of whether a person has made an asylum or protection, human rights, victim of slavery or human trafficking claim or an application for judicial review in relation to their removal from the UK under this act. In such circumstances, their asylum or protection and/or human rights claim would be deemed inadmissible and could not be considered under the immigration rules. No right of appeal would arise from an inadmissibility decision.
Maximum Number of Persons Entering the UK Annually Using Safe and Legal Routes
The Illegal Migration Bills provides for the introduction of a cap on the number of persons who may enter the UK annually using ‘safe and legal’ routes. These would be the only routes open to those seeking asylum in the UK.
Challenges to Decisions Made Pursuant to the Illegal Migration Bill
Removal can be challenged on the basis of exceptional circumstances, as addressed above. Refusals of challenges made on this basis cannot be appealed but could be challenged by judicial review. The removal duty continues to apply throughout such challenges.
Alternatively, removal can be challenged on the basis of serious irreversible harm, within 7 days of being given notice of removal. A decision will need to be made on such a challenge within 3 days. The duty to remove is suspended during this process. If successful, the duty will resume but removal will not be carried out. A change in circumstances may restart this process. An unsuccessful decision could be challenged, however the bill restricts the ways in which this could be done. Removal can also be challenged on the grounds of a factual mistake.
The Illegal Migration Bill severely limits challenges to detention, including by way of judicial review.
Is the Illegal Migration Bill Legal?
Pursuant to the Human Rights Act 1998, all legislation in the UK must be compatible with the European Convention on Human Rights. However, the Illegal Migration Bill contains a clause which disapplies section 3 of the Human Rights Act 1998 and indicates that the bill may not be compatible with this convention.
Further, the bill creates challenges such as the fact that people will need to claim asylum from outside the UK, many people to whom the removal duty will apply will not be able to be removed due to a lack of safe third countries willing to receive them and through the introduction of a cap on such migration. Much like the Rwanda policy, it is likely that this bill will be challenged in the courts.
Contact our Immigration Barristers
For expert advice and assistance regarding an application for a protection or human rights application, or for updates and or advice on the Illegal Migration Bill, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.
