UNHCR has published their recommendations on how the Illegal Migration Act 2023 should be implemented in order to bring it “closer to conformity with the UK’s international obligations”. UNHCR is explicit that its position remains that the core provisions of the Act are inconsistent with those obligations, however notes that the government took the contrary view during the passage of the Bill, making reference to a statement given by the immigration minister on 11 July 2023.

The report focuses on the following areas:

(i) The Secretary of State’s discretionary power to grant leave to remain in the UK to people who are normally ineligible for any leave because they are subject to the “duty to remove” established by Section 2 of the IMA 2023. This discretion may be exercised under two circumstances: where required by international law; and with regard to those who enter the UK between 7 March 2023 and the date when the duty to remove is brought into effect;
(ii) The definition of “come directly” for the purposes of defining who is subject to the duty to remove;
(iii) The definition of “exceptional circumstances” in which an asylum or human rights claim is admissible even though a person comes from a safe State, as defined in Section 80AA of the Nationality, Immigration and Asylum Act 2002 (as introduced by Section 59 of the IMA 2023); and
(iv) The UK’s duty to carry out an individualized assessment of the safety of removal prior to removing an asylum-seeker to a third country.

On the first point, UNHCR has urged the Home Secretary to set out in the immigration rules that the discretionary powers under the Act (at section 30) will be used to grant a form of leave to remain to refugees and stateless people in the UK. This has always seemed to me the only way that the duty to remove could potentially be used lawfully, particularly given the lack of ability to remove all those who will be subject to the duty. People simply cannot be left here with no leave to remain.

This report really highlights the mess created by the Act. It is useful for UNHCR to publish this now, before the government takes any further concrete steps to operationalise the main parts of the Act. A recent report puts the intended start date for the duty to remove as anywhere between January 2024 and “might well not materialise”. We continue to wait to find out which of those it will be.

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