Immigration: Legality and the Illegal Migration Bill

On its introduction to Parliament by the Secretary of State for the Home Department (“SSHD”) on 7 March 2023, the Illegal Migration Bill was met with a media furore. The bill demonstrates a continuation of the policy objectives demonstrated in the Nationality and Borders Act 2022, which legislated for the penalisation of those claiming asylum following “illegal” entry into the United Kingdom by granting a less favourable form of refugee status than those who had entered directly from an unsafe country.

The bill has been denounced by NGOs and third sector organisations as further advancing the UK Government’s anti-migration policy, the effects of which will plunge the most vulnerable asylum seekers into destitution and risk their further exploitation. Aside from these practical impacts, its provisions raise a number of issues in respect of its interaction with existing international and domestic law.

Provisions

The bill aims to achieve its stated objective of preventing and deterring unlawful migration through various amendments to existing immigration law. Perhaps most notably, it mandates the SSHD to make arrangements for the removal of persons who, inter alia, entered the UK without leave to enter or with leave attained by way of deception, passed through a country other than that in which they were threatened, and do not hold the required leave to enter or remain in the UK. These powers are granted in relation to persons entering the UK on or after 7 March 2023, resulting in retrospective application.

No right of appeal is set out against decisions taken pursuant to these powers, thus these decisions are only open to challenge by way of judicial review. The bill also weakens the barriers to removal.

Additionally, the SSHD is permitted to disqualify referrals made under the National Referral Mechanism where persons have entered the UK illegally, on the basis that such entry is contrary to public order. Potential victims of trafficking or modern slavery will therefore have no right to access specialist support services or obtain a conclusive grounds decision in relation to whether or not they are a recognised victim. Such persons will also lose the right to a recovery period during which they may not be removed from the UK.

Powers of detention are also extended: the SSHD is empowered to detain indefinitely those considered to have entered the UK illegally. The bill dispels safeguards which prevented the detention of pregnant women, victims of trafficking and modern slavery, and unaccompanied asylum-seeking children. An amendment passed in the House of Commons directs the SSHD to specify a time limit in relation to the detention of children; however it did not include any direction in relation to timescales.

The bill contains various ouster clauses, limiting the ability of those affected by its provisions to engage the assistance of the courts.

Potential incompatibility

The bill is notable for being one of a few where the sponsoring minister has been unable to include a declaration of its compatibility with the European Convention on Human Rights pursuant to s 19(1)(a) of the Human Rights Act 1998. Additionally, it disapplies s 3 of the Act, which requires legislation to be read and
given effect in a way compatible with the Convention rights.

Further, there is an apparent consensus among legal commentators that the bill is incompatible with the UK’s obligations under the 1951 Convention Relating to the Status of Refugees. Pursuant to this Convention, party states must guarantee that those who seek protection have their claims processed and considered. By deeming certain claims as inadmissible, the bill facilitates the shirking of this obligation and strips persons of their right under international law to claim asylum in the UK.

Commentators have also noted that key aspects of the bill are incompatible with the European Convention Against Trafficking, the Convention on the Rights of the Child and domestic law in relation to arbitrary detention.

Exactly how these issues will be dealt with through the judicial challenges that will likely arise as a result remains to be seen. However, the inclusion of an amendment which grants the SSHD the power to frustrate interim measures issued by the European Court of Human Rights in relation to persons issued with a notice of removal to a third country evidences the Government’s objective of blocking such challenges.

Potential devolution issues

Although the Government maintains the position that the bill does not require the legislative consent of devolved governments to pass, the bill apparently encroaches upon areas of devolved legislation. While immigration remains a reserved matter, the provision of support to survivors of human trafficking and modern slavery and to unaccompanied asylum-seeking children are matters devolved to the Scottish Government. The fact that the bill mandates Scottish ministers to engage with refugees in a manner likely contrary to domestic international law and to duties imposed by the devolution settlement, may therefore give rise to constitutional issues.

Progress

The bill is currently at report stage in the House of Lords and therefore subject to further scrutiny; however it is expected to pass without substantial further amendment. Many will be keen to garner information on its practical impact, not least refugees themselves.