Joelle Grogan and Alice Donald explain what the Illegal Migration Act sets out to do, which parts have been brought into force, the practical challenges in implementing it, and whether it is likely to impact on the UK-EU relationship and comply with the UK’s obligations under the European Convention on Human Rights and international law.
Why was the Illegal Migration Act introduced?
The stated purpose of the Act is to ‘prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by requiring the removal from the United Kingdom of certain persons who enter or arrive in the United Kingdom in breach of immigration control’.
What are the main provisions of the Act?
The main provisions of the Act relate to the removal of people who have entered in breach of immigration law. The Act imposes a duty on the Home Secretary to make arrangements for the removal of people if they have travelled through a safe third country en route to the UK, and if they require leave to enter or remain, but do not have it.
‘Leave to enter’ is the legal permission given by the UK immigration authorities for people who are not British, Irish, or Commonwealth citizens with right of abode, to enter the UK. It can typically be in the form of a visa. ‘Leave to remain’ allows a person to stay in the UK as long as their permit allows.
The Home Secretary’s duty to remove applies to anyone who entered the UK on, or after, the day that the Act was passed, on 20 July 2023. However, (s)he has the power to change this date.
People can be removed, if it is considered safe, either to the country of their nationality or where they hold an ID card or passport. The Act lists 57 countries (including 8 for men only) to which people can also be removed under one of two conditions: either it is the safe third country they left to get to the UK, or there is ‘reason to believe they will be admitted’ to the country (e.g. through an asylum transfer agreement).
People who meet the conditions for removal must be removed ‘as soon as is reasonably practicable’ unless the Home Secretary considers that there are ‘exceptional circumstances’ preventing their removal.
The Home Secretary is not required to remove unaccompanied children, but has the power to make arrangements for their removal as soon as they turn 18.
The Act provides for the detention of people meeting the conditions for removal. It introduces a new power for the Home Office to detain people for up to 28 days without access to immigration bail or judicial review. There are certain conditions and exceptions for unaccompanied children and pregnant women.
The Act prevents people who meet the conditions for removal from ever being given legal permission to enter, stay or settle in the UK, or to become a British citizen. Unlike the Home Secretary’s duty to remove which is currently from 20 July 2023, this rule applies to anyone who arrived on or after 7 March 2023.
The Act creates a ‘duty to disregard’ claims for protection as a refugee, on human rights grounds, or if a person makes an application for judicial review against their removal. The Act also excludes claims based on being a victim of modern slavery or human trafficking unless there are ‘compelling circumstances’ for needing the individual to assist an investigation or prosecution in the UK.
Asylum or human rights claims by nationals of countries considered ‘safe’ under the Act are also made inadmissible (not accepted as valid). However, the Home Secretary also has discretion to give a person legal permission to stay if s(he) believes it would otherwise breach the European Convention on Human Rights (ECHR), or there are other ‘exceptional circumstances’.
When a person is given notice of removal to a third country, they will have eight days to make a claim that their removal would result in a ‘real, imminent and foreseeable risk of serious and irreversible harm’ or that a factual mistake has been made in determining that they were an illegal entrant subject to the duty to remove.
Late claims will only be accepted where there are compelling reasons. All other legal challenges to removal, whether on human rights or other grounds, will not prevent or delay a person’s removal and will be considered by UK courts only after a person’s removal.
The Act also gives ministers discretion to disregard ‘interim measures’ issued by the European Court of Human Rights (ECtHR) in proceedings relating to the removal of a person from the UK. The ECtHR issues interim measures exceptionally when there is an ‘imminent risk of irreparable harm’. An interim measure of the ECtHR blocked the first deportation flight to Rwanda in June 2022.
Following an interim measure, a minister may decide against removing a person, but would not be required to do so. If the minister decides to continue with the removal, UK courts and immigration officers must disregard the interim measure.
Has the Illegal Migration Act come into force?
Only a few provisions of the Illegal Migration Act have come into force, i.e. started to operate in practice. Its main provisions will be brought into force via regulations (or rules made by a minister) at a date (or dates) to be determined by the Home Secretary.
The main provision which is now in force relates to the entry, settlement and citizenship of people who have met the conditions under the Act and entered the UK on or after 7 March 2023.
Under the Act, this person cannot obtain leave to enter or remain unless they fall under certain limited exceptions for unaccompanied children and victims of slavery or human trafficking.
The permanent bar on naturalisation as a British citizen is also in force: if a person has ever met the conditions under the Act for removal on or after 7 March 2023, then they are not permitted to naturalise as British citizens.
Another provision that has come into force is the Home Secretary’s power to make regulations under the Act, including for example to bring the duty to remove into force, or to change the date after which the duty applies.
What provisions of the Act have not yet come into force?
Most of the Act’s provisions have not yet come into force. Notably, these include the duty of the Home Secretary to remove people who come to the UK illegally and have passed through a safe country, as well as the duty to disregard claims and the new powers to detain people pending their removal.
The government has indicated that it will not bring the Act fully into force until after the Supreme Court ruling on the lawfulness of the policy to send people seeking asylum to Rwanda, which is expected in Autumn 2023.
How has asylum law in the UK changed in recent years?
The UK announced plans in 2021 to overhaul its immigration system, following withdrawal from the European Union.
From 31 December 2020, the UK ceased to be part of the Dublin Regulation (also known as Dublin III), the EU law which sets out which member state is responsible for the examination of an asylum application. This is usually the country where the person seeking asylum first arrives. No agreement was reached on asylum policy in the Trade and Cooperation Agreement (TCA) between the UK and EU.
While the UK expressed the intention to agree bilateral arrangements with EU member states for the return of asylum seekers, no agreements have been reached. This means that there is no legal arrangement to return people who arrive in the UK from, for example, France, even if France is listed under the Illegal Migration Act 2023 as a country for removal.
In 2022, the government introduced the Nationality and Borders Act. Its aim was to ‘discourage asylum-seekers from travelling to the UK other than via safe and legal routes’. Among other provisions, it introduced a ‘two-tier’ system allowing for differential treatment between asylum seekers entering the UK by regular and irregular routes, reducing the rights of the latter. However, the government paused this differentiation policy from July 2023, stating that the Illegal Migration Bill tackled the same issue.
The government claims that the Illegal Migration Act goes considerably further than the Nationality and Borders Act and any other previous immigration law. For example, it imposes a legal duty on the Home Secretary to remove people who have arrived by illegal routes, rather than giving her discretionary power to do so as under the Nationality and Borders Act. The Illegal Migration Act also goes further than any prior law in making people who arrive illegally inadmissible for asylum altogether.
How many people come to the UK on small boats or via other irregular routes?
The phenomenon of people arriving by small boats across the Channel began in 2018 and increased markedly from 2021. In 2021, 28,526 people were detected arriving by small boats and 8,266 were detected at ports (in lorries or shipping containers), airports or elsewhere in the UK. By comparison, in 2022, the figure for small boat arrivals increased to 45,755, while the figure for people being detected in other locations was little changed at 8,808.
The government’s latest projection for people expected to arrive by small boats in 2023 is 56,000.
Various reasons have been suggested for the increase in small boat arrivals, including the effects of enhanced security (and the COVID-19 pandemic in 2020-21) in cutting off road, rail and air routes, as well as the expansion of people smuggling operations.
There are certain safe and legal humanitarian routes to obtain refugee or other legal status in the UK. In the seven years from 2015 to March 2023, almost 250,000 visas were issued under schemes for Ukrainians, while more than 166,000 visas were issued under a scheme for Hong Kong nationals. In the same period, almost 50,000 people were resettled or relocated, of whom around 21,000 were through two schemes for Afghan nationals. Around 46,000 family reunion visas were granted to family members of refugees in the UK.
Nationals of seven countries – Iran, Albania, Iraq, Afghanistan, Syria, Eritrea and Sudan – made up 83% of those crossing the Channel in small boats between 2018 and March 2023. Five of these have very high ‘grant rates’ (the proportion of initial asylum decisions which result in a grant of refugee status or other form of protection) – Afghanistan (98%), Iran (80%), Syria (99%), Eritrea (98%) and Sudan (84%). The grant rate for Iraqi asylum applicants was 56%, while that for Albanian applicants was 49%.
Around 90% of people who arrive in the UK on small boats claim asylum. However, small boat arrivals accounted for less than half (44%) of the total number of asylum applications in the UK in the year ending March 2023, the rest arriving by other regular or irregular routes. These figures do not include people arriving through safe and legal humanitarian routes.
The nationalities of people arriving by small boats mirror the nationalities applying for asylum overall, including many Albanians, Afghans, Iranians, Iraqis and Syrians.
Most asylum claims from small boat arrivals are still awaiting a decision (78% of all such claims since 2018). Of those that have received a decision since 2018, 64% were granted refugee status or other leave to remain in the UK.
Asylum seekers make up only a small percentage of the total annual immigration figures for the UK: in 2022, there were 76,000 asylum applicants in the UK, accounting for just over 6% of total long-term immigration of 1.2 million (i.e. the number of people who have moved to the UK for a period of at least a year).
What are the practical challenges to the operation of the Illegal Migration Act?
The government says that the Act will operate by detaining people and then ‘promptly’ removing them either to their home country or a safe third country. This raises practical questions about the UK’s capacity to process the numbers of asylum seekers, to detain or otherwise accommodate people subject to the duty to remove, and to remove them from the UK in practice.
If the trend of increasing irregular migration continues, the number of people potentially subject to the duty to remove and the power to detain if or when the Illegal Migration Act is fully in force would be likely to be in the tens of thousands.
What is the current backlog of asylum claims?
As of 30 July 2023, the total backlog of asylum claims was 136,779. For the sake of efficiency, the Home Office divides the backlog into two sets of claims relating to separate time periods with different asylum rules. One is the ‘legacy’ backlog of more than 62,000 claims made before 28 June 2022, when much of the Nationality and Borders Act 2022 came into force. The second is the ‘flow’ backlog of almost 75,000, involving newer applications made since 28 June 2022.
In December 2022, Prime Minister Rishi Sunak pledged to clear the legacy backlog by the end of 2023. The National Audit Office (NAO) reported in June 2023 that, while the legacy backlog was reduced from more than 100,000 at the beginning of July 2022, the Home Office is not yet making enough decisions on legacy claims to clear the backlog by December 2023.
In addition, part of the reduction seems to have been achieved through an unusually high number of asylum applications being treated by the Home Office as having been withdrawn. This might be because the person has failed to attend an interview or complete a questionnaire. However, the claims in question (numbering more than 6,000 in the first quarter of 2023) may still require consideration.
Further, in order to achieve the goal of reducing the legacy backlog, the NAO reports that the government has abandoned its ambition to make decisions on newer (flow) claims within six months, meaning that the backlog of newer claims is growing. The Home Office estimates that the number of newer claims awaiting a decision will increase from almost 61,000 in April 2023 to around 84,000 by the end of 2023.
The Explanatory Notes to the Illegal Migration Bill stated that the high number of people arriving in small boats has ‘contributed to an unsustainable backlog’ of asylum applications. However, it should be noted that the rise in the backlog predates the increase in small boat arrivals, and has been attributed by the Home Affairs Select Committee to the fall in the rate at which applications are processed by the Home Office.
The NAO notes that one reason for the backlog is that, while the Home Office is increasing the number of asylum caseworkers, only around one-fifth of those deciding claims are fully trained and working independently.
Where can asylum seekers be removed to?
The Act places a legal duty on the Home Secretary to remove any person who has arrived through irregular routes, if it is considered safe, to their home country or where they hold a passport. The UK has agreements with several countries to return nationals of those states who have no right to remain in the UK. These include Albania, Ghana, India, Nigeria, Pakistan and Serbia.
People can also be removed to one of 57 countries listed in the Act if this would return them to a country they left to get to the UK, or if there is ‘reason to believe they will be admitted’ to the country (e.g. through a transfer agreement).
The 57 countries listed in the Act include all EU states and Albania. Eight countries in Africa are identified as safe ‘in respect of men’ only. However, the UK has no arrangements in place that would enable the transfer of asylum seekers to the listed countries in practice.
There are currently no agreements with EU countries enabling the return of irregular migrants or asylum seekers who have passed through them on their way to the UK.
Rwanda is the only country with which an agreement has been reached. The UK intends to send some asylum seekers to Rwanda to have their claims processed there under Rwandan law, without the possibility of return to the UK. However, on 29 June 2023, by a majority of two to one, the Court of Appeal ruled that the Rwanda policy was unlawful. This was because Rwanda is not deemed a safe third country due to defects in its asylum processes which create the risk that people could be wrongly returned to countries where they face persecution. This decision is now on appeal to the Supreme Court.
Various estimates have been given as to how many asylum seekers Rwanda could receive. The UK government says that Rwanda ‘has the capacity to resettle many thousands of people’, and that the scheme is uncapped.
A ministerial statement in November 2022 said Rwanda had made initial provision to receive 200 people and planned to increase that capacity once flights began. This corresponds with reports from the Rwandan government that it could process 1,000 people over an initial five-year period. As an indication of its capacity in recent years, UN data compiled by the Home Office shows that Rwanda processed on average 200 asylum claims per year between 2017 and 2020.
Does the UK have adequate detention and accommodation capacity to implement the Act?
The Act creates new powers to detain people who arrive in breach of UK immigration law until their removal (with some exceptions for pregnant women and unaccompanied children) for at least 28 days. These new powers have not yet come into force.
As of December 2022, the capacity of the UK’s immigration detention facilities was 2,192 at any one time. As noted above, 54,563 people entered the UK by irregular means in 2022, more than 80% of them by small boats across the Channel. More than half of people arriving on small boats were from six countries – Afghanistan, Iran, Iraq, Syria, Eritrea and Sudan – who could not be removed to their countries of origin as they are unsafe. There is also currently no safe third country to which such people could be removed.
The government has not said how many people it expects to detain under the new powers once they are in force – or for how long. Asked by the Chair of the Home Affairs Select Committee, Diana Johnson, on 14 June 2023 about the numbers of people that would be detained, Home Secretary Suella Braverman replied that this was ‘an unknown’, which could only be assessed once the Act comes fully into force. The government’s impact assessment assumes that, on average, an individual would remain in detention for 40 days.
The impact assessment states that various options exist for acquiring additional detention capacity, including building new detention centres, repurposing current detention capacity, procuring novel forms of detention such as barges, or repurposing alternative government-owned accommodation such as prison space. Plans are in place to reopen two immigration removal centres in Oxfordshire and Hampshire, with a combined capacity of 1,000.
People who are not granted legal status or removed, and whom the government does not detain, must be given accommodation.
As of March 2023, there were more than 108,000 people in various forms of asylum accommodation provided by the Home Office, of whom some 45,000 were in hotels. In an effort to end reliance on hotels, the government has procured three accommodation vessels (including the Bibby Stockholm moored at Portland Port) under a contract worth almost £1.6 billion.
It has also identified four land-based sites for possible use as asylum accommodation. Collectively, these could provide some 6,400 extra bedspaces; however, several legal challenges have been mounted which could delay these facilities being brought into use.
What is the projected cost of implementing the Act?
Many of the costs of implementing the Act have not been estimated within the government’s impact assessment. However, it estimates the cost of removing an individual from the UK to be £169,000. It states that at least £106,000 would be saved for every person deterred from entering the UK by irregular means.
The impact assessment explains that, at current spending levels, the Bill would need to deter 37% of projected arrivals to enable cost savings for the taxpayer.
Have UK laws and policies aimed at deterring irregular migration had a deterrent effect in practice?
The government says the Illegal Migration Act’s main objective is to ‘deter illegal entry into the UK by making it clear that illegal entry will result in detention and swift removal to a safe third or home country’.
It acknowledges that the Act is a ‘novel and untested scheme, and it is therefore uncertain what level of deterrence impact it will have’. It refers to ‘academic consensus’ that there is ‘little to no evidence’ suggesting that changes in a destination country’s policies have an impact on deterring people from seeking to enter it.
A 2020 Home Office report on the drivers of asylum migration found that, in practice, ‘many asylum seekers have little to no understanding of current asylum policies and the economic conditions of a destination country’, and that social networks, shared languages and the presence of diaspora communities are more likely to motivate their choice of destination. It adds that many asylum seekers are effectively unable to ‘choose’ a destination country due to human trafficking and the influence of organised crime networks.
Questions about evidence of the deterrent effect of asylum policies have also surfaced in relation to the policy to send asylum seekers to Rwanda. The most senior civil servant in the Home Office stated that evidence of a deterrent effect is ‘highly uncertain’ and cannot be quantified with sufficient certainty to provide the necessary level of assurance over the policy’s value for money.
Experts say that the effects of the Illegal Migration Act and other deterrence policies on the decisions of prospective asylum seekers will be hard to measure in practice, since all forms of immigration fluctuate over time for reasons unrelated to policy, including weather in the case of small boat crossings.
Is the Act compatible with the UK’s human rights obligations?
When the Illegal Migration Bill was before Parliament, Suella Braverman was unable to make a declaration under the Human Rights Act that all its provisions were compatible with the UK’s human rights commitments as a signatory to the European Convention on Human Rights. Instead, she took the unusual step of declaring that she was unable to make a statement of compatibility in relation to three provisions, but that the government nevertheless wished Parliament to proceed with the Bill.
The ECHR memorandum attached to the Bill on its introduction identified one reason why the Home Secretary could not make a statement of compatibility with the ECHR – the fact that the duty to remove, the power to detain and the permanent ban on being granted citizenship status apply to victims of modern slavery. The memorandum justified this approach by saying that ‘radical solutions’ are required to put a stop to the small boats crossing the Channel.
Two further provisions were later identified as potentially incompatible with the ECHR. The first makes it harder to challenge an assessment about whether a person is over the age of 18. The other gives immigration officers new powers to search for, seize and retain electronic devices, such as mobile phones, from individuals who are liable to be detained, and to access, copy and use any information on such devices.
With regards to the suspension of modern slavery protection, the parliamentary Joint Committee on Human Rights (JCHR) says it is ‘overwhelmingly clear’ that this would breach Article 4 of the ECHR, which prohibits slavery, as well as several of the UK’s obligations under the Council of Europe Convention Against Trafficking.
The JCHR also raised concern about giving ministers the power to decide whether or not to follow interim measures of the European Court of Human Rights. The JCHR said this power – which has not yet come into force – permits deliberate breaches of the UK’s binding obligations under the ECHR.
Could the UK leave the European Convention on Human Rights as a result of the Act?
The Prime Minister said in February 2023 that the UK will remain a member of the ECHR. However, on 9 August 2023, Immigration Minister Robert Jenrick, did not rule out UK withdrawal from the ECHR, saying the government would do ‘whatever is necessary ultimately to defend our borders’.
Some Conservative MPs have argued that the UK should withdraw from the Convention if the ECtHR ‘frustrates’ the operation of the new law. Suella Braverman has previously expressed her personal view that the UK should leave the ECHR.
To leave the ECHR, a state must give six months’ notice to the Council of Europe of its intention to leave (a procedure known as ‘denunciation’ of the Convention). The Council of Europe is the 46-member international organisation founded following World War II to uphold human rights, democracy and the rule of law in Europe, of which the UK was a founding member.
At a domestic level, the UK would have to repeal the Human Rights Act 1998 through an Act of Parliament. Many Acts, including devolution legislation concerning Scotland, Northern Ireland and Wales, refer to the ECHR and would need to also be amended.
Could the Act have implications for the UK’s relationship with the EU?
EU officials expressed concern over the Illegal Migration Act as it passed through Parliament. Some members of the House of Lords voiced concern that the Act could breach the ECHR and ultimately lead to the suspension of parts of the Trade and Cooperation Agreement between the UK and EU.
The TCA contains an obligation for both the UK and EU to maintain their commitment to human rights. This shared commitment is an ‘essential element’ of the TCA. In general, a ‘serious and substantial’ failure to fulfil this obligation which ‘threatens peace and security or that has international repercussions’ could lead to the suspension or termination of the Agreement by the other party.
Higher thresholds for human rights protection exist in Part Three of the TCA concerning law enforcement and judicial cooperation in criminal matters (for example, the process which enables the extradition of criminal suspects). In this area, both the UK and EU have committed to ‘giving effect to the rights and freedoms in that Convention domestically’. The EU has stated that it would terminate cooperation on criminal matters if the UK were to leave the ECHR.
Beyond this, the Good Friday/Belfast Agreement, an international agreement between the UK and Ireland, requires the ECHR to be part of the law in Northern Ireland. The Northern Ireland Protocol affirmed the UK’s commitment to maintain the ECHR, and this did not change with the Windsor Framework. If the UK withdrew from the ECHR without provision for Northern Ireland, it would violate both international agreements.
What has been the international response to the Act?
The UN High Commissioner for Human Rights and High Commissioner for Refugees issued an unusual joint statement saying that the Act ‘is at variance with the [UK’s] obligations under international human rights and refugee law and will have profound consequences for people in need of international protection’. They say that the Bill ‘extinguishes access to asylum in the UK for anyone who arrives irregularly’, barring them from presenting claims for protection ‘no matter how compelling their circumstances’.
The UN High Commissioner for Refugees adds that the Act ‘sets a worrying precedent for dismantling asylum-related obligations that other countries, including in Europe, may be tempted to follow, with a potentially adverse effect on the international refugee and human rights protection system as a whole’.