Broken words: the Illegal Migration Act

On 20 July 2023, the UK’s commitment to the 1951 Refugee Convention came to an end. The Illegal Migration Act 2023 received Royal Assent. It abolishes the UK asylum system for almost all who need it. The UK Government admits it is likely not to comply with the European Convention on Human Rights. Indeed, the UN believes that it breaks most of the UK’s international legal obligations in this area. It will have a profound impact across our communities in Scotland, as well as on the Scottish legal profession.

How did we get here?

I wonder if you can recall the issue of small boat arrivals prior to 2020? Think hard. In the halcyon days of 2018, we had lower numbers of people arriving to claim asylum in the UK, and almost no small boats. So how did we get here?

Under the current UK system, a person seeking asylum must be actually inside the UK. Once they claim asylum, they go through two interviews interrogating their account of fleeing persecution. During this time, the person is not allowed to work, or access housing or benefits. They are provided accommodation by the Home Office. This was once in our communities but is now in hotels and, recently, offshore barges. If you are housed in a hotel that provides meals, you receive a stipend of £1.37 per day. No, not a typo. If you are housed in the community, you receive £6.77
per day.

This next part is important. In 2018, for reasons we can only speculate, the Home Office dramatically slowed down asylum decision-making. The backlog of asylum cases awaiting decision was then around 16,000. Four years later, that backlog had increased 900% to 160,000. People now spend between one and four years in the asylum process. Ministers tell us this is because of an increase in numbers arriving. That is not true. The number arriving to claim asylum in the UK has grown steadily from 29,504 in 2018 to 74,741 in 2022, but clearly this increase does not explain the now mammoth backlog. Something else is going on. Incidentally, the increase in UK numbers is matched and even outstripped by our European neighbours. Global strife, conflict and disaster impact us all.

Failure to make decisions on asylum claims means that people do not progress through to either obtaining refugee status (where they go on to work and contribute to our society) or being removed to their country of origin. Community accommodation filled up, so hotels were introduced. The hotels filled up, so offshore barges are now introduced. This is a self-made crisis.

Why is this happening?

The Act’s premise is that people crossing in small boats are coming from France, and they should stay there because it is a safe country. It is true that France is a safe country. It is also true that France sees around double the number of asylum claimants that the UK does. Most people crossing to the UK have family, community or linguistic ties here. The vast majority are recognised as genuine refugees, coming from countries with Home Office grant rates as high as 98%. If we stop and think, the idea that everyone should stay in France eliminates the foundation of the post-war international protection system. The UK says, “stay in France”. France says, “stay in Italy”. Italy says, “stay in Libya”. Libya says, “stay in Sudan”. And so forth.

The better alternative is to provide safe, legal routes to the UK for those most in need. No one is saying we must take everyone. We simply can do our bit. We used to do this, but then the Dublin III Regulation closed; the Dubs Scheme for unaccompanied children closed; and the Syrian scheme closed. We take few other resettled refugees. There is a connection between all these schemes closing in 2020-21 and the small boat crossings starting around the same time. The current schemes we have open are only for Afghans, Ukrainians and Hong Kongers. In 2022, the main Afghan scheme resettled just 22 Afghans. Afghans with family in the UK are, incredibly, getting on boats to reach safety here. Conversely, the UK Government has done a commendable job in its response to the war in Ukraine and dictatorship in Hong Kong. There are no Ukrainians or Hong Kongers on the boats.

What does the Act actually do?

I encourage you to read the helpful overview at Journal, July 2023, 31. In summary, the Act targets you if you arrive in the UK illegally, after 20 July 2023, and you came through another country before you arrived here. If you meet these criteria, you are barred from claiming asylum in the UK. The Home Secretary must remove you.

There are two vital things to remember. The first is that almost every person fleeing persecution will have transited through another country. This is as true of Ukrainians as it is of Afghans. The Refugee Convention does not require a person to seek asylum in the first country they reach, nor should it. The second, and most important thing, is that in order to claim asylum in the UK you need to be inside the UK. But here is the part the Government doesn’t say out loud – there is no way to enter the UK legally to claim asylum. There is no asylum visa to apply for. You cannot do it at an embassy. There is no safe and legal route. This is how the Act abolishes the asylum process for almost everyone: the UK Government has made it impossible to enter legally to claim asylum, and this Act has made it impossible to claim asylum if you enter illegally.

It goes further. The Act provides for indefinite detention of men, women and children. This deprivation of liberty is not based on any objective factors, but on the opinion of the Home Secretary. The Act states that “the decision is final and is not liable to be questioned or set aside in any court or tribunal”. No judicial oversight, no “anti-British lefty activist lawyers”. It’s all about the executive. The Act expressly targets victims of trafficking/modern slavery and strips them of support and assistance on the basis they are a threat to public order for entering irregularly. Even though they may have been forced to come here, they will be detained and removed. The Act gives the Home Office the power to remove unaccompanied children from local authority care and take them into Home Office accommodation. These are hotels and other facilities from which we know hundreds of children have been abducted and are missing. All will be removed without us even knowing why they fled persecution.

But where will we remove all these people to? Albania has been designated a “safe country” for Albanians to return to, despite the Home Office itself providing refugee status to 85% of Albanian women and 87% of Albanian children in 2022. If you come from Sudan, Afghanistan, Yemen, Iran or anywhere else, you shall be removed to Rwanda. Or more likely, you will not be removed anywhere. The lawfulness of the Rwanda scheme is before the Supreme Court after the Court of Appeal ruled it unlawful. But even if the Supreme Court finds it lawful, it is estimated only to allow for 1,000 removals or so. (Given that this is literally trading human beings for cash, this is still 1,000 too many.) Crucially, if you cannot be removed, the Act proposes a lifetime of limbo in the UK without immigration status. You cannot leave but cannot live. It’s civic death.

Is this lawful?

Unlikely. In June 2023, alongside the Scottish Refugee Council and the Children and Young People’s Commissioner Scotland, we instructed a legal opinion from Kay Springham KC on the devolved impacts of the Act in Scotland.

Despite the Act legislating directly in devolved areas – anti-trafficking and child law – the UK Government did not believe it triggered the Sewel convention. As the opinion noted, “it would be hard to think of a clearer example”. The Scottish Government funds the provision of support and assistance to victims of trafficking in Scotland through services like TARA for women survivors of sexual exploitation, and Migrant Help for other forms of exploitation. Support includes safe houses, advocacy, trauma therapy, legal advice, and other life-saving services. This is a positive obligation under both the ECHR and ECAT (Convention on Action Against Trafficking), and is set out in the Human Trafficking and Exploitation (Scotland) Act 2015. The Act abolishes this and prevents the Scottish Government from delivering on these obligations. We believe this is a violation of article 4 ECHR. If so, how does this interact with Scottish ministers’ obligations not to violate the ECHR, set out in the Scotland Act 1998? We aim to find out.

The Home Office’s power to remove migrant children from the care of Scottish local authorities is also deeply concerning. How does this interact with child protection orders issued by children’s hearings or the sheriff court? What about the Children (Scotland) 1995 with its associated best interests assessments and safeguarding? The Act is a “recipe for chaos”, as Springham puts it. We will also test its lawfulness.

These are just the devolved points of law. A legal opinion from Freedom From Torture and Leigh Day sets out various other potential unlawful elements of the Act.

What comes next?

When those fleeing persecution are met with the prospect of detention, removal, or indefinite limbo, it is foreseeable they will be forced underground to the shadow economy. They will be low hanging fruits for organised crime gangs to exploit.

If they do remain in touch with the state, they will likely be in institutional accommodation and detention facilities across Scotland. The legal routes to challenge removals demand a judicial review and an Upper Tribunal appeal for every single person. The time for challenge before removal is eight days. The Scottish immigration legal field is smart, dedicated and tough; but how will we access these vulnerable people, receive instructions, gather evidence, navigate complex legal aid, instruct counsel, within a few short days? This is a major access to justice barrier.

The future remains uncertain. When will it all be implemented? Will it happen at all? I have heard many people say, “I can’t see any of this happening”, and “Surely it’s unlawful”. The recent haunting images of the offshore barges arriving in England tell us that if we fail to prepare, we will prepare to fail. We must act.