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Where are we now and what is the future of the Illegal Migration Act?

Shortly after it received Royal Assent last year, the Illegal Migration Act 2023 was described as “utterly unworkable and extortionately expensive”, “deeply unethical” and “a traffickers’ charter”. Despite those comments by the shadow Immigration Minister, Labour has not committed to repealing the Illegal Migration Act.

However I am hopefully not being too optimistic in assuming that Labour will not bring more of the Act into force, particularly since they have previously said that they would scrap the duty to remove (which has not been brought into force). In light of that, I thought it would be helpful to assess where we are with the Illegal Migration Act 2023, looking at which parts are in force and what damage is being caused by them.

Since the Illegal Migration Act 2023 received Royal Assent and certain provisions were brought into force, there have been two commencement regulations bringing further sections into force at later dates.

In force since 20 July 2023

On 20 July 2023 the Act received Royal Assent and several sections came into force on that day. Section 52 allows First-tier Tribunal judges to sit as Upper Tribunal judges and I don’t think much turns on that being in force. Slightly more concerningly (if in the wrong hands) regulation making powers in relation to several sections of the Act were also brought into force.

The most significant change on this date was the bringing of section 30 into force. My write up at the time went into some detail about the problems this would cause, but I have explained this again below.

Prohibition on granting leave to certain people

Section 30 inserted a new section 8AA to the Immigration Act 1971. This prohibits a grant of leave where the person has arrived on or after 7 March 2023 and meets the conditions at section 2 of the Act (as a very brief reminder, this is essentially where a person has passed through a “safe” country on the way to the UK and has entered without permission). There are exceptions provided for where the person is an unaccompanied child, a victim of trafficking, where there would be a breach of human rights, or there are exceptional circumstances.

However section 30(4) says that until the duty to remove at section 2 comes into force, limited leave can actually be granted under section 8AA “in any other circumstances”. As the duty to remove is not in force, this provision could be used to grant people leave. The Home Office has not done this to date, choosing instead to leave tens of thousands of people in limbo.

It seems likely that this stasis is the result of the need of the Home Office for a Ministerial decision that has not been forthcoming due to the political difficulty the current Home Secretary would no doubt find himself in by accepting the inevitable and allowing these people to be granted leave. The next Home Secretary will need to take this inevitable decision very quickly in order to get the asylum system moving again and even then it will take a while to work through this new backlog.

Prohibition on indefinite leave

Section 8AA(5) also prohibits a grant of indefinite leave to remain unless there is a human rights breach and the exception set out at section 30(4) allowing leave to be granted “in any other circumstances” does not apply here. This requirement seems likely to be more difficult for people to meet, and so if this section is left in force there may be tens of thousands of people who will be prohibited from settlement in the UK, assuming they are able to obtain a grant of limited leave in the first place under the limited exceptions available.

The alternative would be for the government to grant them all indefinite leave to remain on the grounds that it would breach human rights to refuse to do so. It is difficult to see how it would be to the government’s advantage to say that a failure to grant indefinite leave would be a breach of human rights for an extremely wide group of people, where that is not currently the case.

They would also presumably need to put in place some sort of length of residence requirement and part of that would necessarily involve a decision on what period of time a person should hold limited leave to remain without it being a breach of human rights, at which point they would need to be granted indefinite leave to remain. This has the potential to get very messy.

It seems far more sensible to repeal at least this section (obviously the entire Act should go rather than leave it there at risk of a future Conservative government) and restore the asylum system to a situation where asylum claims are properly considered and decided. Allowing people to settle in the UK will result in them feeling more secure and able to integrate fully.

Prohibition on British citizenship

The same issues as for grants of indefinite leave to remain arise for British citizenship, as sections 31 to 35 prevent people who arrived on or after 7 March 2023 and who have met the four conditions in section 2 of the Act from becoming British citizens.

As with the ban on grants of indefinite leave, this is subject to an exception set out at section 36(2) which provides for citizenship to be granted where failure to do so would breach human rights. Again, this exception may be difficult to apply broadly and so the law as it currently stands will prevent tens of thousands of refugees from becoming British citizens. This will affect their ability to integrate, among other issues.

In force since 28 September 2023

The Illegal Migration Act 2023 (Commencement No. 1) Regulations 2023 (written up by me previously) brought sections 60 and 61 of the Act into force. These are of very little practical consequence, to do with consulting on a cap on arrivals via “safe and legal” routes and also the production of this report by the government on those routes.

Section 59 is more concerning, this was brought into force only for the purpose of making regulations, which were then used to add India and Georgia to the list of safe countries that is not yet in effect. The intention with the list of countries in section 59 is for not only asylum claims but also human rights claims for people from those countries to be deemed inadmissible. To expand the use of the dysfunctional inadmissibility process in this way would be an act of enormous self-harm by the Home Office.

Similarly, section 15 and schedule 2 have been brought into force only for the purpose of making regulations. These sections are to do with the seizure and search of electronic devices, including where information is legally privileged, and also allows for these powers to be extended to external contractors such as Serco and Mitie.

Section 62 of the Act is in force and this amended section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, inserting 8(3)(da) which provides that a failure to facilitate access to an electronic device will be considered damaging to the person’s credibility.

Detention

The main changes that came into effect in September were those relating to detention. The decision on what is a reasonable period of detention is now for the Home Secretary to determine. 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 Home Secretary.

The High Court has said that the Home Secretary must still comply with his own policies when deciding on detention. Perhaps as a result of this, changes were made to the Adults at Risk policy in May 2024 allowing more vulnerable people to be detained. Far more litigation in this area is to be expected should these changes remain in place.

Expanding the use of detention in circumstances where people are still not being removed is going to result in damages claims for unlawful detention. Rather than locking people up which is inhumane, ineffective and costly, the focus needs to be on processing cases and granting leave.

In force since 1 May 2024

The Illegal Migration Act 2023 (Commencement No. 2) Regulations 2024 brought section 50 into force on 1 May 2024. Section 50 provided for The Tribunal Procedure (Upper Tribunal) (Immigration and Asylum Chamber) (Amendment) Rules 2024 (also see my write up of the new rules) to come into force immediately after the section 2 duty to make arrangements for removal.

The processes envisaged in the draft rules are unworkable and would cause total chaos in a tribunal system that is already under strain, not least because the Home Office is not sufficiently resourced to comply with the given deadlines. The lack of legal aid lawyers means that many people would need to navigate this system alone which would raise access to justice issues in cases which often involve a matter of life or death.

As it appears that section 2 is unlikely to be brought into force, those rules seem unlikely to come into force. As with the Illegal Migration Act, leaving all of this on the statute books, even if not in force, seems messy and risky.

Northern Ireland

The fact that much of the Illegal Migration Act has been disapplied in Northern Ireland after the High Court held that it breaches the Windsor Framework is another factor in favour of repealing the Act. This decision dealt with provisions that are not yet in force and also made a declaration that certain provisions are incompatible with the European Convention on Human Rights.  Those provisions are sections 2(1), 5(1), 6(3) and 6(7) in relation to the imposition of a duty to remove, sections 2(1), 5, 6, 22 and 25 in relation to potential victims of modern slavery or human trafficking and sections 2(1), 5(1) and 6 as they relate to children.

Conclusion

I have focussed on the practical implications above in explaining why at least part of the Act needs to be repealed if Labour is to meet its commitment to “deliver a properly managed and controlled asylum system”. Given the acknowledged issues with the other parts of the Act that are not yet in force, it is difficult to see the advantage in repealing only some of the Act instead of the entirety of it (and at least the Safety of Rwanda Act along with it, although I would also like to see almost the entirety of the Nationality and Borders Act 2022 confined to history).

The moral arguments in favour of repealing are obviously just as strong, if not stronger. However if it is politically easier for easier for Labour to focus on the practicalities then frankly so be it if it means that we could be rid of this legislation. If Labour fail to repeal, they will simply be storing up more problems for the future and the Home Office already has more than enough of those that will need to be dealt with very urgently.


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Sonia Lenegan

Sonia Lenegan is an experienced immigration, asylum and public law solicitor. She has been practising for over ten years and was previously legal director at the Immigration Law Practitioners' Association and legal and policy director at Rainbow Migration. Sonia is the Editor of Free Movement.

Comments

3 Responses

  1. Dear Sonia, thank you for a very helpful article. Can I please check confirmation as to whether India and Georgia are part of the list of safe countries and already into effect? I understand from your article issued on 5 June 24, that these countries are not effectively into the list. However, unless I m misunderstanding the reading ( which I probably do…), the footnotes in sect 80AA!) of NIAA 2002 , appears to suggest that they are since 17.4.2024: https://www.legislation.gov.uk/ukpga/2002/41/section/80AA
    Could you please kindly clarify your views on this? Thank you very much in advance! Marta

    1. Hi Marta, the legislation website is misleading, my article explains and reflects the correct position (you can double check by going to the regulations referred to which make it clear that only part of section 59 was brought into force)

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