The Illegal Migration Act 2023: what has changed?

The Illegal Migration Act 2023 has now been published, after receiving Royal Assent on 20 July 2023. Previously, we have covered the provisions of what was then the Illegal Migration Bill in detail, so for the purposes of this article we look at what substantive changes have been made during the passage of the Bill.

What is in force now?

The commencement provisions are set out at section 68, and it is important to bear in mind that much of the Act is not yet in force. If and when further provisions are brought into force, this will be done via regulations at a later date. The main provisions that came into force with Royal Assent are:

• Sections 30 to 37: Entry, settlement and citizenship
• Section 52: Judges of the First-tier Tribunal and Upper Tribunal

Section 30 prohibits a grant of entry clearance, an Electronic Travel Authority or leave to enter or remain to anyone who has arrived in the UK on or after 7 March 2023, and who meets the other three conditions set out in section 2. This is subject to certain exceptions, including for certain unaccompanied children and survivors of trafficking and where there would otherwise be a breach of human rights. As will be discussed further below, the date in section 2 has been changed in relation to the duty to remove, but the 7 March 2023 date has been retained for these sections that are now in force.

It is difficult to understand the process envisaged by bringing these sections into force now. Anyone arriving since 7 March who meets the relevant conditions cannot be granted refugee leave under new section 8AA(2) of the Immigration Act 1971 (introduced by section 30(3)), but their claim can still be considered (as the duty to disregard claims in section 5 is not in force). Section 8AA(4) provides for a grant of leave where a failure to do so would breach the person’s human rights, and so presumably leave would be granted under this provision, either under the discretionary leave guidance, or new guidance to follow.

Anyone in this situation will have been issued with a Notice of Intent, and will currently be in the inadmissibility process, so we will not know for a while how this will work in practice. It is unclear how long the Home Office will leave this group of people in the inadmissibility process without considering their claims, but their claims will need to be considered at some point, and some form of leave granted where necessary to avoid a breach of ECHR.  

Section 31 defines an “ineligible person” as someone who has arrived since 7 March 2023 and has previously met the section 2 conditions. This person is prohibited from registering or naturalising as a British Citizen under sections 32 to 37. 

An important change since the Bill was published is that all of these provisions are no longer extended to the family members of the affected people. Indeed, we have gone from 39 mentions of “family” in the Bill, to only three in the Act, as many of the provisions of the Bill are no longer to be extended to the family members of people who meet the four conditions in section 2.

The only other substantive provision that came into force with Royal Assent is section 52, which amends section 5(1) of the Tribunals, Courts and Enforcement Act 2007, which means that First-tier Tribunal judges can also sit as Upper Tribunal judges.

What else has changed since the Bill was published?

The duty to remove in section 2 of the Act has not yet been brought into force. This is sensible, as the Secretary of State is entirely incapable of complying with this duty, as she has nowhere to send most people. The first condition has been amended to include people who entered or arrived in the UK at a time when they were an excluded person under the Immigration Act 1971. More importantly, the second condition at s.2(3) has also been amended so that it will apply where a person has entered or arrived in the UK on or after the day on which the Act was passed i.e. 20 July 2023, instead of 7 March 2023.

Section 3 provides for this date to be amended again by regulations. Unless the government wants a built-in backlog if and when they get around to bringing these sections into force, we can expect that when regulations are made to bring section 2 into force, that date will be changed again. 

Section 3(1) also provides for regulations to be made to change dates in other sections, including what is stated to be section 5(8)(a), but this does not exist. That is presumably a typo and the correct reference is to section 5(7)(a) which relates to the date for deeming asylum and human rights claims inadmissible, which currently will apply to all claims made on or after the date the Act was passed.

At section 4, some limitations on the power to remove unaccompanied children have been set, and specific circumstances have been set out. Those are where removal is to reunite the child with their parent, or to a country listed in section 80AA(1) of the Nationality, Immigration and Asylum Act 2002 (to be inserted by section 59 of this Act) where the child is a national of that country or holds a passport from there. The power can also be exercised where the child has not made an asylum or human rights claim and is being removed to a country of which they are a national, or hold a passport, or were in prior to the UK.

Section 4(7) specifies that regulations may be made by the Secretary of State to exempt other people from the duty to remove in section 2(1). Section 4(9) states that any provision of the Act may be disapplied under the regulations. The suggestion that this duty will not apply in a blanket way is obviously a positive change, however it remains to be seen how these powers will be used. This power was mentioned by the Immigration Minister in response to a written question about Afghans in June, which may indicate the sort of groups being considered for exemption.

Section 4(12) specifies that the process to be used when laying such regulations is the made affirmative resolution procedure. This means that if the regulations are not approved by both Houses of Parliament within 28 days then they will cease to have effect.

A few more details about the proposed removal process have been provided at section 8. Previously removal could not take place until the claim period for a suspensive claim (i.e. serious harm or factual error) had passed. This has now been amended so that removal can happen earlier where a person has notified the Secretary of State that they do not intend to make such a claim (s.8(3)(b)).

This is hugely concerning as these processes are complex, and people will have difficulty in accessing legal advice and understanding their rights. There is also the potential for abuse, as we have recently seen evidence of unscrupulous behaviour by the Home Office in relation to encouraging the withdrawal of asylum claims. Section 8(4) does provide for such a person to subsequently make a suspensive claim prior to their removal, but not after it (s.8(5)).

In section 10, new offences under the Immigration Act 1971 have been created. The first is where a person disembarks a ship, aircraft, train or vehicle after being put there with a view to their removal under the Illegal Migration Act 2023, they will be guilty of an offence under section 24(1) of the Immigration Act 1971. Offences have also been introduced for the captain etc of the relevant mode of transport where they knowingly allow a person to disembark in the UK. Owners or agents of the various modes of transport will also commit an offence where they fail to make arrangements for removal when required to do so under the Illegal Migration Act 2023 (s.10(3)).

At section 11 the provisions around detention of pregnant women have been amended so that they should not be detained more than 72 hours, or seven days where authorised by a Minister. That time period will start running once the immigration officer is satisfied that the woman is pregnant, or from when detention started, whichever is later.

Section 11 has another new addition, which is that unaccompanied children can only be detained in certain circumstances, to be specified in regulations and which may include a time limit. The Act does still mean that children can be detained for 28 days without bail, but section 13 now provides for unaccompanied children to be granted bail after 8 days in limited circumstances (where a decision to remove or removal itself is pending, you will need to cross refer to section 11(2) for the relevant new detention powers).

Section 15 is new, as is Schedule 2, which both relate to the seizure and retention of electronic devices.

In relation to modern slavery, section 22(5) now specifies that “compelling circumstances” will be required to establish that a person needs to stay in the UK to cooperate with an investigation or criminal proceedings in relation to their trafficking. Compelling circumstances will be set out in the guidance (section 22(6)). The same changes are made in section 24 relating to Scotland and section 25 for Northern Ireland, both relating to the provision of support. In relation to the provisions affecting Scotland, JustRight Scotland have commissioned and published an interesting legal opinion, so litigation on this point seems fairly likely. 

Section 29 also relates to modern slavery and has been expanded from the version in the Bill. This amends section 63 of the Nationality and Borders Act 2022 to remove discretion in relation to a prohibition on removal and a grant of leave for people who have received a positive reasonable grounds decision, but are deemed to be a threat to public order or have made a trafficking claim “in bad faith”.

“Threat to public order” has been extended to include any criminal conviction with a sentence of a period of imprisonment (excluding a suspended sentence or detention in an institution other than a prison). If the “compelling circumstances” test can be met, then a grant of leave and prevention of removal will still be possible. In practice this means that protections for people who have survived modern slavery will be minimal, and extremely difficult to access. 

At section 38 we learn that “factual suspensive claims” are now “removal conditions suspensive claims” and can be made where a person has been issued with a removal notice but does not actually meet the relevant conditions.

Section 39 was a placeholder clause and now sets out in detail what is meant by “serious harm”, which includes death, as well as the Nationality and Borders Act 2022 definition of persecution, and torture and inhuman and degrading treatment. Pain or distress resulting from unavailability of medical treatment in the country of return is explicitly excluded (s.39(7)).

At section 48, the Upper Tribunal is now allowed to consider a new matter not only where the Secretary of State has provided consent, but also where consent has not been given within three days and the Upper Tribunal determines that there were compelling reasons for the new matter not being provided within the specified timescales. This simplifies the process somewhat from the original version.

Section 50 provides for the Lord Chancellor to make Tribunal Procedure Rules instead of the Tribunal Procedure Committee. This applies to sections 44 to 49 which relate to appeals in relation to suspensive claims, and only applies to the first time the Rules are made. No consultation is required beyond senior members of the judiciary as listed at section 50(2), and the Act indicates that this consultation may have already taken place.

New provisions in relation to the Special Immigration Appeals Commission have been inserted at section 53.

Section 54 is a new clause on interim remedies, stating that courts and tribunals may not grant interim relief preventing or delaying removal. In section 55, where the European Court of Human Rights grants interim relief then a Minister may make a decision that the duty to remove no longer applies to that person. If the Minister does not disapply the duty to remove, then the decision by the ECtHR may be disregarded by immigration officers, or the courts and tribunals, when taking certain decisions (s.55(7) and see explanation here).

Section 56 makes various amendments in relation to legal aid. This includes amending Schedule 1 of LASPO to provide for legal aid for judicial review in relation to removal following refusal of a human rights claim where Articles 2 or 3 ECHR are in issue. It also sets out legal aid provision in relation to removal notices and suspensive claims.

Section 57 sets out changes to age assessment processes, including removal of the right to appeal a decision, and allows the removal of a person (very possibly a child) while any judicial review challenge is ongoing. Courts and tribunals are told that they may only decide that the decision was wrong in law and not that it was wrong as a matter of fact. Section 58 threatens regulations to set out the consequences of people withholding consent for scientific age tests, which may include treating the person as though they are over 18.

Conclusion

The most important thing to remember at this point is that the vast majority of this is not yet in force, and the government has indicated that they will not bring it in until the conclusion of the Rwanda litigation, which they are presumably assuming will go their way. If it does, then Freedom from Torture’s legal opinion on the Bill will be worth revisiting, and as with the Nationality and Borders Act 2022 we are likely to see successful challenges, and changes to impractical proposals.

If the Supreme Court does not conclude that Rwanda is a safe country to send people who have come to the UK seeking safety, then it is very difficult to see where the government goes next with this Act.