- BY Colin Yeo
What is in the Illegal Migration Bill?
The Illegal Migration Bill was published yesterday. You can access the Bill here and the Explanatory Notes here. While it remains a Bill, the individual provisions are referred to as clauses and once it becomes an Act — as it surely will — they are referred to as sections.
The problem the government faces with this legislation is that an Act of Parliament cannot by itself prevent unlawful migration. Deterrence may or may not be possible. But the decision-making of refugees remains a mystery. Whether the legislation will really deter people from coming to the UK is unclear. Prime Minister Rishi Sunak is staking a lot on the decision-making of tens of thousands of individuals of whom he knows basically nothing.
There are two main ways in which the Bill seeks to deter people from coming to the UK unlawfully.
One is by threatening them with removal, either to their own country or some other safe country, like Rwanda. As with preventing arrivals, passing a law at Westminster removes no-one. There are practical barriers, one of which is that the receiving country has to agree to receive the person in question.
The other intended means of deterrence is by denying access to the asylum system or lawful immigration status to anyone who enters outside normal immigration laws. No asylum seeker entering unlawfully will ever in future be given permission to stay or permission to work and their families, if they have one, will never be allowed to join them lawfully. It does not matter if they are a genuine refugee or not.
What follows in this blog post is a slightly haphazard mix of legal analysis, detail and commentary. At the time of initial publication, it is work in progress and I will be adding to it later, particularly on trafficking and modern slavery. I have not followed the precise sequence of the legislation because I thought the structure I’ve adopted was a better way of explaining the legislation.
Purpose of the Illegal Migration Bill
The purpose of the Bill is to “prevent and deter unlawful migration”, especially by “unsafe and illegal routes”. I know this because it says so at clause 1, which is another of these rather un-English mission statements in legislative form. Clause 1 is, as Joshua Rosenberg has rightly pointed out, not entirely pointless. Having set out what is basically a press statement summary at clause 1(2), clause 1(3) then encourages the courts to interpret the legislation to achieve the law’s stated purpose. Ironically, the only equivalent I can think of (although my field of legal knowledge is rather narrow, admittedly), is the Human Rights Act. If you can’t beat ’em, join ’em, I guess.
On that subject, the equivalent interpretation section of the Human Rights Act, section 3, is disapplied from the Illegal Migration Bill by clause 1(5). Given this section to some extent just codified an existing common law principle of statutory interpretation, it is not clear that disapplying it now really has more than symbolic impact. If it does have an impact, it is it to make declarations of incompatibility more likely, leading to more challenges in the European Court of Human Rights. That is probably something the government would welcome, because it would offer a distraction from the reality that the Illegal Migration Bill is very, very unlikely to work even if the government won all of the inevitable legal challenges that will follow.
Duty to remove asylum seekers and others
Clause 2 imposes duty on the Home Secretary to remove asylum seekers and others who enter the UK in breach of normal immigration laws. The fundamental problem with the legislation is that it does nothing to assist the Home Secretary in actually implementing that duty. It is wishful thinking in legislative form. Unless the government reaches deals with safe third countries to receive considerable numbers of refugees from the UK, the Home Secretary is very rapidly going to find herself in breach of a duty she imposed on herself. If this legislation does not deter arrivals — and it won’t — then there will very quickly be tens of thousands of asylum seekers in the UK the Home Secretary is obliged to remove but cannot.
I’m a lawyer, not a politician. But I’d have thought that failing to implement a duty that you voluntarily imposed on yourself is not a good look. No doubt Braverman and the government will blame the lawyers and the judges. But the obstacles to removing ten of thousands of refugees to safe third countries aren’t really legal ones. They are practical, real world obstacles. There is currently nowhere to remove them to.
The duty to remove is engaged where four conditions are all met. These are that the person concerned:
- Entered in breach of normal immigration laws;
- Entered or arrived in the UK on or after 7 March 2023;
- Travelled through a safe third country; and
- Requires leave to enter or remain but does not have it.
Such a person must be removed “as soon as is reasonably practicable after the person’s entry or arrival in the United Kingdom” (clause 5(1)).
There is a temporary exception for children at clause 2(7), explained further in clause 3. The duty does not apply to children while they remain children. As soon as they turn 18, the duty does apply, though, at which point they must be removed as soon as reasonably practicable. There is also a limited carve out for other individuals to be defined later by regulations and some victims of modern slavery.
Duty to ignore asylum and human rights claims
Where the duty to remove applies to a person, clause 4 also imposes a duty on the Home Secretary to ignore certain asylum or human rights claims made by the person. The type of claim to be ignored is one relating to the person’s country of origin or citizenship.
Formally, such a claim is declared “inadmissible” and then “cannot be considered under the immigration rules” (clause 4(3)). There is no right of appeal to the immigration tribunal against such a decision (clause 4(4)).
On the face of it, this means the end of conventional asylum law practice and appeals in the UK, exactly 30 years after they were first introduced by a Conservative government in the form of the Asylum and Immigration Appeals Act 1993. That Act was passed because appeals were a more efficient means of deciding asylum cases than applications for judicial review. I imagine we’ll end up going full circle on that.
It will be possible to bring a form of challenge to removal to a safe third country. We’ll come to that later.
Removal destinations
Where a person is subject to the duty to remove, they may in theory be removed to their country of nationality, their country of embarkation for the UK or “a country or territory to which there is reason to believe [they] will be admitted”. This looks alarming but it merely echoes the long-standing existing removal powers in the Immigration Act 1971. There are broadly two sets of exceptions to removal, although these are narrower than previously.
The first exception applies to nationals of countries listed in a new section 80AA to the 2002 Act inserted by clause 50(3). This is basically EEA countries plus Albania. If a national of one of these countries claims asylum, they can be removed to their own country or a third country, but not to their own country if the Home Secretary considers there are “exceptional circumstances” which prevent removal. These circumstances are not defined; some examples unlikely to arise in practice are set out at clause 5(5) but these are not exhaustive. The Home Secretary’s view of whether circumstances are exceptional is likely to be the subject of litigation.
Nevertheless, a person from one of these section 80AA countries can still be removed to a third country, if the third country appears on a second list of countries set out in the Schedule to the Bill and that country will accept them. Rwanda is included in this second list, which I’ve added as a drop down here for convenience.
This raises the possibility of Albanians being removed to Rwanda. I’m not sure what the Albanian government would think of that. It seems unlikely to happen in practice.
The second set of exceptions to the removal power, at clause 5(4), apply where a person is from a country not on the list at section 80AA (EEA countries plus Albania). Where a person comes from any other country, basically, they cannot be removed to their home country if they make a claim for asylum. This prevents accidental return of genuine refugees to their own country. They can, in theory, be removed to any other country on the list though. If that country will accept them.
There’s the rub. Is there a country that will accept them?
Challenging removal to your own country
Firstly, we do not need to worry about Syrians being removed to Syria or Afghans to Afghanistan, for example, because neither Syria nor Afghanistan is on the list of countries at section 80AA. They therefore cannot be removed to their home country, only to a safe third country listed in the Schedule (as above).
But Albania IS on the list at section 80AA. They can be removed to Albania. At the moment, around half of Albanian asylum claims are actually allowed. Because of the huge delays in the asylum system, the group of Albanians who have been receiving decisions must have arrived quite some time ago, perhaps years ago. If or when decisions are made on the asylum claims of Albanians who arrived more recently, in 2022, they may not be so lucky. The profile of person arriving in the UK may well have changed; it was claims by women that were mainly succeeding before, whereas many of those who entered more recently are men.
But, what about an Albanian who has a well founded fear of being persecuted? There may not be many but there will be some. Can they be removed to Albania? To do so would breach Article 33 of the Refugee Convention, and Braverman has claimed that the Bill will not breach Article 33. Without access to the asylum system, how can it be established whether or not a person is at risk of being persecuted?
There are two ways a challenge might be brought, both of which would end up being an asylum claim by proxy. One is to challenge the “exceptional circumstances” judgment of the Home Secretary at clause 5(4)(b) and argue that being a refugee is an exceptional circumstance. The other is to lodge a “serious irreversible harm” challenge with the Home Office, which can be challenged in the Upper Tribunal if necessary.
With no Home Office asylum interview, very little time and with the person concerned being detained, the practicalities of bring a case will be extremely challenging. We may need to draw on the experience of practitioners sufficiently long in the tooth to remember how things were before the Asylum and Immigration Appeals Act 1993 came into force.
Challenging removal to a safe country
Removal can only occur after notice has been given to the person concerned (clause 7).
It remains possible for a person to claim that removal to one of the safe third countries would breach their human rights. There will be no formalised process for this as far as I can see, but such a claim is still made to the Home Office. Refusal of a claim cannot be appealed to the immigration tribunal, but it remains possible to apply for judicial review of the refusal, as is made clear by clause 39.
However, the clause 2 duty on the Home Secretary to remove the person will continue to apply. This leads to a pretty messy situation. The Home Office can remove someone to a safe third country even before deciding whether such removal would breach the person’s human rights. If a decision is made and it is a refusal, removal can take place despite an application for judicial review being brought.
To understand how it can be permitted that a person be removed even though it may turn out later to be a breach of their human rights, you have to consider the type of human rights claim people might put forward.
If a person claims that removal from the UK will breach their private and family life — they have a partner and children in the UK, for example — then the Home Office will say that the person will be allowed back into the UK if they win their case, but that removal for the (perhaps) short time that it takes to decide this is not a breach of human rights because a temporary separation is not disproportionate.
If a person says their removal will kill them because they have a serious medical condition and there will be no medical treatment available to them in the country concerned, bringing them back weeks, months or years later is not going to be feasible because they will be dead. This leads us to a new procedure for determining whether a person should be allowed to remain in the UK while their human rights claim is decided.
Serious irreversible harm challenges
Clause 40 creates a new, statutory means of challenging removal on the basis that being outside the UK for the duration of the person’s human rights claim or judicial review of that decision would cause serious irreversible harm. The duty to remove is suspended for the duration of this process (clause 45).
The term ‘serious irreversible harm’ is derived from the caselaw of the European Court of Human Rights and is already in use thanks to the Immigration Act 2014, albeit as an example of when removal might be unlawful rather than the test itself in section 94B of 2002 Act as amended. The Supreme Court considered this predecessor section in the case of Kiarie and Byndloss [2017] UKSC 42 but never had to decide what serious an irreversible harm actually meant. Moving it from an example of unlawful removal to the test itself will inevitably re-open litigation on how it should be interpreted.
The Bill provides, at clause 38, for the Home Secretary to define the term with further regulations. This is described as a ‘placeholder’ provision in the explanatory notes. It’s hard to see how further definition could be provided without making the UK interpretation incompatible with the ECHR interpretation.
Once a person receives a notice that they are to be removed, the person then has seven days to object on the basis that removal would cause serious irreversible harm during the period it takes for their human rights claim to be finally decided (including time for the judicial review to be concluded). Compelling evidence must be provided. These objections look like they will have to be made in a formal, prescribed way. The Home Office must then make a decision within three days of receipt of the challenge.
Clause 41 enables a similar challenge on the basis that the Home Office has made a factual mistake about whether the removal duty applies at all to the person concerned. This one is unlikely to arise much in practice. It is for situation where, for example, the Home Office mistakenly concluded the person concerned entered the UK without leave but actually they can show that they did have leave.
If the challenge succeeds, the person may not be removed (clause 45(2)). But the duty to remove remains in place. Oddly, they are not admitted to the asylum process and if there is a change of circumstances the Home Office can revise or make a new decision and re-start the process.
Serious irreversible harm appeals
Where the Home Office decides that removal will not cause serious irreversible harm (or that a factual error has not been made) the person may be able to bring an appeal. This is not a normal appeal, however. It is drastically curtailed.
Firstly, the Home Office can make it more difficult to bring an appeal by certifying that the claim is clearly unfounded under clause 40(3) or 41(3). Where this occurs, clause 43 provides that permission must first be sought from the Upper Tribunal for permission to bring an appeal. Permission hearings will be on the papers unless an oral hearing is necessary for justice to be done in a particular case.
Permission can only be granted if the Upper Tribunal takes the view there is “an obvious and real risk” that there would be serious and irreversible harm. Quite how this differs from the normal “real risk” test is not clear to me; frankly this would be quite funny were it not for the appalling context. It is yet another point the courts will now have to decide. There is no appeal of refusal of permission and challenges are subject to an ouster clause (see below).
If the claim is not certified as clearly unfounded, the appeal lies directly to the Upper Tribunal. An appeal must be brought within six days (clause 47(1)). A decision must be made by the Upper Tribunal within 22 days (clause 47(1)(b)). Time limits can be extended by the tribunal, though, and out of time claims can be brought in some circumstances.
The only ground is whether the person would face serious irreversible harm in the safe third country (or that a mistake of fact occurred). Compelling evidence must be provided with the notice of appeal. The Upper Tribunal can take into account any matter it considers relevant to the substance of the decision (clause 46(2)) but is prevented from considering new matters without the permission of the Home Office (clause 46(3)).
There is no normal right of appeal to the Court of Appeal from a decision of the Upper Tribunal. An amended Cart style ouster clause limits the grounds for challenge of permission or final decisions to situations where the Upper Tribunal has acted in bad faith or “in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice”.
First-tier Tribunal judges will need to find a new line of work. Or a ticket to sit in the Upper Tribunal.
It does not appear to be a precondition to one of these challenges that the person concerned has actually made a human rights claim. It is kind of implicit, though.
Power to detain
A wide new power to detain people is included in the Bill at clause 11 if the person is or seems to be subject to the duty to remove. Clause 12 states that this may be:
“for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the decision to be made, the removal or examination to be carried out, or the directions to be given.”
The detention power applies universally to anyone subject to the duty to remove, including to families with children and unaccompanied children. Existing safeguards introduced to protect families and children are disapplied.
Existing powers of detention are stated in objective language which can therefore be reviewed by a court. This new power is based on the the opinion of the Home Secretary, which reduces the scope for a legal challenge. Worse, the new power is also subject to a form of ouster of judicial review by clause 13(4), adding a new paragraph 3A to Schedule 10 of the Immigration Act 2016:
“In relation to detention during the relevant period, the decision is final and is not liable to be questioned or set aside in any court.”
Just to make it crystal clear what this means, the provision goes on:
“In particular—
(a) the powers of the immigration officer or the Secretary of State (as the case may be) are not to be regarded as having been exceeded by reason of any error made in reaching the decision;
(b) the supervisory jurisdiction does not extend to, and no application or petition for judicial review may be made or brought in relation to, the decision.”
Almost all modern challenges to unlawful detention are today brought in the form of judicial review proceedings, which will apparently become impossible in future. However, the right to apply for habeas corpus is explicitly preserved. Habeas corpus is about whether there is a power to detain. On the face of it, there will be such a power and it is founded on the opinion of the Home Secretary (see above). But the original, leading immigration detention case that first conceived that the apparently unlimited powers of detention in the Immigration Act 1971 might be subject to some form of constraint was a habeas corpus case: Hardial Singh [1983] EWHC 1 (QB). A court might conceivably be willing, even on a habeas corpus application, to allow review of whether the Home Secretary’s opinion is a rational one.
There is a power for an immigration judge to grant bail once 28 days have elapsed, if there are any immigration judges left to do so by then given that there will be no appeals and therefore no work for them. This 28 day period is not to be read as some sort of minimum or maximum, as was suggested in some of the prior press coverage. The power to detain may be exercised for less than or more than 28 days. Bail applications become possible after 28 days, but it does not mean that bail will be granted.
The Home Office seems to think that 28 days is enough time to bundle most people out of the country. If a person really is on the verge of being removed to their own or a safe country and applies for bail after the end of the 28 day period, judges are not likely to grant bail in my view. If removal is not a realistic prospect, they are likely to grant bail.
Access to a lawyer
The Bill provides no explicit right to legal advice when attempting to put forward a legal challenge to a decision to remove or an appeal, nor is any active provision made for such advice to be available to those in detention. There is a common law right of access to legal advice, but a right to have a lawyer in theory is definitely not the same as an ability to find one or pay for one.
No explicit provision is made for legal aid to be provided, although this could potentially be made by way of statutory instruments later.
Even if legal aid is available, it may prove to be very difficult or impossible for those who are detained to access legal advice within the very short timeframes that will be necessary. There are very few large legal aid providers still in existence for asylum work and their staff might baulk at getting involved with a process that really only adds a veneer of legality to a fundamentally immoral scheme.
The combination of a potentially prolonged initial detention period and the likely problems with accessing legal advice might potentially mean the process falls foul of the minimum standards for this sort of operation established by the European Court of Human Rights in the case of Saadi v UK (Application no. 13229/03).
What happens to people whose cases are inadmissible but who cannot be removed?
Obviously, the idea behind the Bill is that a person whose case is declared inadmissible — which is virtually all asylum seekers — will be removed either to their own country if their country is listed in new section 88AA or otherwise to some other safe country if not. There are severe practical challenges to accomplishing the latter.
The Times reported recently that even if the government win the Rwanda case, the first flight might not take off until March 2024, or December 2023 at the earliest. Even if the courts give the go-ahead and the Rwandan government agreed to accept a LOT of transfers, no-one should underestimate quite how violent such removals will be. People will be genuinely desperate to avoid being removed there. Desperate people do desperate things. It will be grim. Suicides before and after removal seem likely.
In the meantime, I very much doubt that any of this is going to have a significant deterrent effect. Apart from anything else, the government has already introduced an inadmissibility process, toughened it up and has put tens of thousands of asylum claims on ice for years. That has not deterred people coming so far, so it is hard to see how more of the same might change that.
Around 89,000 people arrived in the UK to claim asylum in the last year, including 12,000 Albanians. Apparently the numbers of Albanians arriving is now very small, but it still seems likely we will see at least comparable overall numbers arriving this year compared to last year.
If so, what will happen to these tens of thousands of people, none of whom can be removed to their own country because of clause 5(4)? They will be subject to a power to detain. If they are released or granted bail, they will be entitled to state support. They will not be allowed to work and will have no route to obtaining refugee status. Clauses 29 to 36 prevent a person who was ever subject to the duty to remove from ever being granted entry clearance, leave to enter, leave to remain or citizenship.
Remarkably, clause 30(4) prevents even the children of asylum seekers from ever becoming a British citizen. This measure in particular is incapable of moral justification.
There is a limited exception to all this. Clause 35 provides that a person may be granted status or citizenship if necessary to comply with obligations under the European Convention on Human Rights or some other international agreement or if there are “compelling circumstances” which make it appropriate to do so.
There is some human rights case law to the effect that really protracted limbo or even repeated grants of temporary status can eventually breach a person’s human rights: see for example B.A.C. v Greece App. No. 11981/15, Mendizabal v France App. No. 51431/99 and Hoti v Croatia App. No. 63311/ 14. But, on the existing case law, it is very hard to succeed. If leave is granted, the condition 4 of the clause 2 duty to remove lapses.
Article 34 of the Refugee Convention commits state parties to “as far as possible facilitate the assimilation and naturalization of refugees”, which includes in particular making “every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings”. This is loose language and there is no interpretation or enforcement court for the Refugee Convention. A state party that decides to disregard one of its treaty obligations, as the UK clearly intends here, can generally get away with it. It may be that clause 35 offers a way to litigate the issue, though.
Suspension of modern slavery protection
The duty to remove, power to detain and ban on ever being granted status all applies to a victim of modern slavery who is identified as such by the Home Office. The protections were originally put in place for two reasons. One is because senior government ministers considered that protecting victims of modern slavery and trafficking was the right thing to do. The other was in order to comply with the UK’s international law obligations under the European Convention Against Trafficking (ECAT), which the UK has ratified.
The Nationality and Borders Act 2022 put parts of ECAT into domestic law. At the time there was a lot of criticism of this because it represented a downgrading in practice of the enhanced protection that was previously voluntarily granted to victims above and beyond the requirements of ECAT. The Illegal Migration Bill will now suspend those bits of domestic law.
The changes look to be fairly obviously in breach of the UK’s obligations under ECAT. Article 13 of the convention requires state parties to provide a “recovery and reflection period” of at least 30 days. Under the new Bill, that will not happen. There is a potential exception to the ECAT duty at Article 13(3):
The Parties are not bound to observe this period if grounds of public order prevent it or if it is found that victim status is being claimed improperly.
The government claims that suspension of protection for victims of protection is justified on the basis that
it is in the interests of the protection of public order in the UK including to prevent persons from evading immigration controls in this country, to reduce or remove incentives for unsafe practices or irregular entry, and to reduce the pressure on public services caused in particular by illegal entry into the UK
Explanatory Notes, paragraph 135
There are relatively small numbers of refugees arriving in the United Kingdom compared to other state parties to this convention. It is clearly nonsense to suggest this justifies a blanket exemption from the duty imposed by the convention, particularly given this part of the convention is predicated on people having no immigration status. Certainly, no other country thinks the same. On top of that — although I should say I’m not really a specialist in international law — the public order exemption almost certainly applies on the basis of an individual assessment of risk from the person concerned, not as a matter of blanket policy for all victims of trafficking.
There is an exception where the victim of trafficking is “cooperating with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation” (clause 24(3)). The victim has no control over whether the police or some other authority decides to investigate or pursue criminal proceedings.
Perhaps recognising how dodgy the government’s position is on public order, clause 25 operates to suspend these provisions after a period of two years. Presumably this is after the current “emergency” has passed.
There’s no enforcement mechanism for ECAT, I think, but this may well lead to litigation under Article 4 of the European Convention on Human Rights instead, which is considered to kind of run in parallel with ECAT.
Will it work?
The Bill is very obviously entirely incompatible with a good faith application and interpretation of the Refugee Convention “in the light of its object and purpose” as required by the Vienna Convention on the Law of Treaties. Entirely refusing to assess a person against the criteria for refugee status, for example, can in no conceivable way be thought to implement the obligations the UK signed up to when ratifying that treaty. But I can see no way for the issue to be litigated unless another state party takes the UK to the International Court of Justice (see Article 39 of the Refugee Convention).
For refugees, it is disastrous. It either means removal to Rwanda, where they will have no real future, or perpetual limbo in the United Kingdom.
For the government, it also looks disastrous. It is a disaster if removals to a safe third country like Rwanda do become possible. It is also a disaster if they don’t become possible.
Enforced removals are really hard to do even where the person has had their asylum claim exhaustively considered and faces removal to a country with which they are familiar. The government was nevertheless, for a time in the 2000s, quite good at carrying these out. Many were to European countries at that time, I think. In recent years, enforced removals of failed asylum seekers have virtually ceased. Just 489 failed asylum seekers were forcibly removed in the year ended September 2022. If the government finds itself having to forcibly remove tens of thousands of asylum seekers, it is just not going to be able to do so without there being casualties. The likes of Suella Braverman and Nick Timothy may enjoy their dark fantasies about forcing refugees onto planes but it will be a grim business.
If we imagine how the asylum system might look at the start of 2024, it is hard to see how it will look good for the government. Even if Rwanda or other safe country flights begin some time around then, there will already be a huge backlog of tens of thousands of people to remove, many of whom will have disappeared into the community.
At the moment, asylum seekers have an incentive to stay in touch with the Home Office because they will eventually get refugee status if they do. That will change when this Bill becomes law. The social consequences could be horrendous. Homelessness may well increase and there may well be a substantial growth in the exploitation economy. After all, if the Home Office cannot remove anyone, and therefore cannot realistically detain them either, what disincentive is there to working illegally?
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.
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