The Secretary of State will reduce judicial oversight of detention and increase her detention powers when more of the Illegal Migration Act 2023 comes into force on 28 September 2023. Those and other changes set out in the Illegal Migration Act 2023 (Commencement No. 1) Regulations 2023, published last night, are explained further below.

Detention

Section 12 of the Illegal Migration Act 2023 amends the detention powers set out in various legislation. This applies to everyone and is not reliant on the duty to remove, which is not yet in force, applying. As set out in the explanatory notes, the change replaces the second and third of the Hardial Singh principles. The second principle is that detention may only be for a period that is reasonable in all the circumstances. The third principle is that if it becomes apparent that removal will not take place within a reasonable period then the detention power should not be exercised.

From 28 September 2023, the decision on what is a reasonable period of detention will sit with the Secretary of State. Detention can take place for examination, decision, removal or directions to be carried out, made or given for as long as deemed necessary by the Secretary of State. If release is deemed appropriate, a person can be detained for as long as the Secretary of State deems reasonably necessary while arrangements for release are made. This presumably means that more people will be left in detention for longer while bail accommodation is arranged.

Section 13 is not being brought into force at this time, this is the provision that would prevent a person from applying to the Tribunal for bail in their first 28 days of detention. Even without this provision, the replacement of independent judicial oversight of the reasonableness of immigration detention is likely to mean that both bail applications and unlawful detention claims will become more difficult.

More importantly, immigration detention is actively harmful to people, many of whom are ultimately released back into the community. These changes will increase those harms.

Electronic devices

Section 15 along with paragraphs 8, 10 and 11 of schedule 2 are being brought into force for the purpose of making regulations. This means that we can expect some regulations to be made, presumably soon, in relation to the search, seizure and retention of electronic devices, and to access, copy and use information stored on them.

The explanatory notes indicate that regulations concerning paragraph 8(2) will set out circumstances where a device does not need to be returned. For paragraph 10 the notes indicate that regulations may provide for devices containing legally privileged information to be seized. Regulations made in relation to paragraph 11 are expected to extend these powers beyond immigration officers, to external contractors such as Serco and Mitie.

Section 62 provides for damage to a person’s credibility where a device has been found on them, or appears to have been in their possession and they do not provide access (i.e. log in details) when asked to do so by an immigration officer. This is done by amending section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. This means that a person who does not provide access to a mobile phone found on them or assumed to be theirs will be less likely to be believed in their asylum claim.

Safe countries

Section 59 of the Act relates to the inadmissibility of certain asylum and human rights claims. It amends part 4A of the Nationality, Immigration and Asylum Act 2002 to add a list of countries whose nationals will have their asylum claims deemed inadmissible, and extends this to human rights claims. Part 4A initially related to the inadmissibility of asylum claims from EU nationals. This was later extended by the Nationality and Borders Act 2022 to people with a ‘connection’ to a ‘safe third country’.

The new regulations say that section 59 is being brought into force “for the purpose of making regulations”. I understand this to mean that only the parts of section 59 that relate to the making of regulations are to be brought into force. The regulation making power in section 59 is to add countries to the ‘safe’ list. So as of 28 September 2023, regulations can be made to add countries to the list of countries which is not yet in force.

I am baffled as to why this is being done now, instead of at the same time as bringing the rest of the section into force. After consulting people who are far better at this stuff than I am, it appears that the reason may be because the regulations to add a country to the list need to be laid and approved by both Houses of Parliament (new section 80AA(6)). This process is not necessary when laying regulations to bring the rest of the section into force.

So it may be that the government wants to add a country or countries to the list before commencing the substantive provisions of section 59. Otherwise they could commence the whole section using the existing list of countries. Doing it in this order indicates there may be a specific country or countries that they want added to the list before bringing the rest of the section into force. Stay tuned, I suppose.

Safe and legal routes

Sections 60 and 61 both relate to safe and legal routes. Section 60 states that the Secretary of State must carry out a consultation with local authorities and anyone else considered appropriate on the maximum number of people who may enter the UK each year via these routes. This consultation must start by 20 October 2023.

Section 61 requires the Secretary of State to publish a report on what safe and legal routes are available to enter the UK. The report must be published by 20 January 2024 and should also contain details of any proposed additional safe and legal routes. I am not expecting much out of this to be honest, but we shall see.

Conclusion

We are still lacking a lot of detail given much of these changes are about regulations that we have not seen yet. However the expanded use of detention powers is of great concern and it is likely that we will see an increase in the length of time that people are detained, as well as more people detained unnecessarily. I suspect that ultimately, as with the Nationality and Borders Act 2022, the real danger with this Act will lie in these smaller, achievable changes rather than the headline grabbing proposals which seem completely unrealistic and unworkable.

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