Illegal Migration Bill 2022-23

The Illegal Migration Bill was introduced in the Commons on 7 March 2023 and is due to have second reading on 13 March. Its purpose is to “prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by requiring the removal from the United Kingdom of certain persons who enter or arrive in the United Kingdom in breach of immigration control”.

New duties to arrange removal and declare asylum claims automatically void

The Bill would create two new legal duties for the Secretary of State for the Home Department. The first is to make arrangements for the removal of people who enter the UK illegally after 7 March 2023, have no permission to be in the UK and did not come directly from a place where they fear persecution. The duty would apply regardless of whether the person has submitted a legal claim challenging their removal, including an application for judicial review.

If someone meets those conditions, the Secretary of State has a second duty: to refuse to process any asylum claim they make, along with any claim that removal to their country of origin would be a breach of their human rights.

Much of the rest of the Bill deals with the consequences of being subject to the arrangements for removal duty.

Migrants can be detained under new powers and removed to countries considered safe

The Bill would provide new powers to detain people who are covered, or potentially covered, by the arrangements for removal duty and their relevant family members. Detention could be in any place the Secretary of State considers appropriate. Existing statutory limitations on the duration of detention of families with children and pregnant women would not apply where they are detained under these new powers.

During the first 28 days of detention, people detained under these bespoke powers would not be able to apply to the Immigration Tribunal for immigration bail or apply for judicial review.

There would be some restrictions on removal if people have claimed asylum or made a human rights claim. This is despite the automatic inadmissibility duty stopping these claims being processed.

Asylum seekers would normally be removed to their home country if that country is listed as safe. The list of safe countries would consist of the 27 EU countries plus Albania, Iceland, Norway, Liechtenstein and Switzerland. Asylum seekers from other countries would not be removed to their home country. They could only be removed to certain ‘third countries’, ones they are not a citizen of. There is a separate list of third countries considered safe, including Rwanda.

The Bill would create new rights of legal challenge. While such challenges are ongoing, a person subject to the arrangements for removal duty cannot be removed from the UK. The intention is that these legal challenges are the only ones that can suspend the person’s removal. The Bill accordingly refers to them as ‘suspensive’ claims.

People with modern slavery cases would be disqualified from protections against removal

Modern slavery legislation would be amended so that potential or confirmed victims of trafficking or modern slavery who are subject to the arrangements for removal duty would be disqualified from certain provisions. These include the existing provision of a recovery period, during which removal is prohibited, along with support and temporary leave to remain. This would be subject to an exception for individuals cooperating with an investigation or criminal proceedings.

The Government wishes to proceed despite doubts about human rights compatibility

Section 19 of the Human Rights Act 1998 requires the minister in charge of a Bill to make a statement before second reading to say the Bill is compatible with the rights contained in the European Convention on Human Rights (s19(1)(a)), or that they are unable to make such a statement, but the Government wishes Parliament to proceed with the Bill nonetheless (s19(1)(b)).

The Secretary of State has made a statement under section 19(1)(b) with respect to the Bill.

The Bill’s explantory notes state that the Government is satisfied that the Bill’s provisions are capable of being applied compatibly with Convention rights. However the Government’s European Convention on Human Rights memorandum acknowledges that the approach taken in relation to modern slavery in particular is “radical” and “new and ambitious” (PDF), and that such an approach meant the Secretary of State was unable to make a section 19(1)(a) statement.

There has been some speculation that the Government may anticipate adverse legal judgments as a result of the Bill, and that this may have implications for the UK’s future membership of the European Convention. The Government has previously said that it would make a statement under section 19(1)(b) is if there is a more than 50% chance that the Bill may be found to be incompatible with Convention rights.

People who enter illegally would be unable to get citizenship for themselves or their children

The Bill would restrict people who have ever been subject to the arrangements for removal duty from being granted immigration status or British citizenship in future. This is unless the Secretary of State decides to exempt them to comply with the UK’s international treaty obligations or, sometimes, in “compelling circumstances”. The restrictions on obtaining citizenship extend to their UK-born children.

New powers to provide accommodation for unaccompanied children

The Home Office would be given powers to provide or arrange for the provision of accommodation and other support to unaccompanied children who are within the scope of the duty to remove, and to transfer a child from Home Office accommodation into local authority care (and vice versa). The provisions apply to England but there is a power to extended them to the other parts of the UK through regulations.

Annual limits for the number of places offered under safe and legal routes

The Secretary of State would be required to introduce an annual limit on the number of places to be provided under certain safe and legal routes of entry to the UK. The limit would be decided after consultations with local authorities and other relevant bodies.