The UK Illegal Migration Bill: what is it, and why has it caused a stir?

By Amer Zaman

on May 5, 2023

Read Time: 9 Minutes

Predictably, the UK Government’s treatment of migrants who arrive on the country’s shores through irregular means continues to be a fiercely contested and controversial topic. Much of the recent discussion on this front has centred on the Illegal Migration Bill, which Home Secretary Suella Braverman introduced in the House of Commons on 7th March 2023.

Prime Minister Rishi Sunak has made it a central priority of his Government to pass new laws that he has said would prevent small boat crossings to the UK, even going as far as stating it as one of his five priorities for 2023 in January. And on 26th April, the bill reached an important milestone when it cleared its final stages in the House of Commons, MPs approving it by 289 votes to 230. Even that feat, however, did not come without struggle for the Government, which was forced to engage in talks with disgruntled backbench MPs on both sides of the Conservative Party, in order to attract Parliamentary support.

What does the Illegal Migration Bill do?

The Home Office has said that the Illegal Migration Bill is aimed at changing the law in order to prevent migrants who arrive illegally in the country from staying there. The department has said that the Bill’s measures will allow for such migrants to be detained and then promptly removed, to either their home country or a safe “third country”.

According to the Government, the Bill’s objectives are to:

  • Stop illegal immigration to the UK by taking away the incentive to make dangerous small-boat crossings to the country.  
  • Accelerate the removal of migrants who do not have the right to be in the UK, thereby freeing up capacity to allow the UK to provide improved support to those in genuine need of asylum through “safe and legal routes”.
  • Crack down on what the department describes as “opportunities to abuse modern slavery protections”, by preventing people who use “illegal and dangerous routes” to come to the UK from using modern slavery safeguards to stop the Government removing them.
  • Ensure that the Government keeps on supporting migrants “in genuine need” by committing to resettling a specific number of the most vulnerable refugees in the UK every year.

The above is how the Government has sold the Bill to the public; in practice, the legislation would have the following effects: 

  • A legal duty would be placed on the Home Secretary to remove those entering the UK by irregular means – such as small-boat crossings – via a safe country. In practice, this would cover nearly everyone arriving by small boat from France, and nearly nine in 10 irregular arrivals in the UK. The only migrants exempted under this duty would be people at risk of “serious and irreversible harm”, and accompanied children until they turn 18.
  • All migrants who arrive irregularly in the UK – even those who are not covered in the aforementioned “duty to remove” – would be deemed permanently “inadmissible” to the asylum system in the UK, and would be unable to challenge their removal on the basis of modern slavery rules.
  • The Government would be entitled to detain migrants for 28 days without access to bail, and without a right of appeal. Following this, the Government would be able to keep someone in detention for as long as the Home Secretary regarded there to be a “reasonable prospect” of the given migrant being removed from the UK, although it would be possible for an immigration judge to grant the migrant bail.  
  • The Government would have the right to return migrants to the country from which they came to the UK, or to their home country as long as the Government deemed it to be “safe”. It would also be possible under this legislation for the migrant to be sent to a third country where the Home Secretary does not consider there to be any serious risk of persecution.  
  • There are also plans set out in the Bill for a new cap on the number of people who are able to arrive in the UK using safe and legal routes. Parliament would vote on this cap each year. However, this plan would only be put in place following a resolution of the small boats issue.

What are some aspects of the Bill that have been controversial?

With there being a noticeable discrepancy between how the Government has presented the Bill and the effects it would seem to have in practice, many questions have been raised about the consequences the legislation would have for the treatment of migrants in the UK.

Intense debate around the Bill has so far concentrated on such issues as:

  • Whether it would actually discourage people from crossing to the UK by small boat

 The Bill states that the requirement it puts in place to remove people who arrive in the UK by irregular means, is driven by an aim to deter illegal immigration, including by dangerous routes.

However, critics of the Bill have said there is a lack of evidence demonstrating that those willing to risk their lives by embarking on a cross-channel small-boat journey, would actually be discouraged to do so by changes to UK asylum policy.

  • The impact the Bill could have on victims of modern slavery

This was the subject of strong criticism of the legislation from two former Conservative Party leaders – Iain Duncan Smith and ex-Prime Minister Theresa May. The Bill, if it becomes law, would remove temporary protections against removal from the UK that are presently offered to those suspected to be victims of modern slavery or human rights trafficking while their case is considered.

Mrs May said that this provision would mean “more people will stay enslaved and in exploitation”, because traffickers would have “another weapon” to prevent victims from going to the police.

  • The change that the Bill will make – in practice – to Government policy on inadmissible claims

It is important to note that this legislation does not represent the Government’s first attempt to ban migrants arriving by small boat from claiming asylum in the UK. The Boris Johnson Government set out a rule, in January 2021, that anyone who travelled to the UK via a “safe” country, such as France, would be deemed inadmissible for asylum.

In practice, however, while the Government theoretically had the power to remove migrants from the UK who matched these criteria, it largely lacked places to actually send people. So, there is much doubt as to whether this latest legislation’s approach to inadmissibility will make a big difference to the Government’s ability to remove large groups of people to other countries.

  • The Government’s apparent lack of options for places it could send asylum seekers who have been deemed ‘inadmissible’

At first glance, the Illegal Migration Bill seems to give the Government a number of options for countries to which it could send migrants who have been classed as ‘inadmissible’ to the UK asylum system.

Provided that the Government deems the country from which the migrant has travelled to be “safe”, it could send them back there. It would be possible for certain European nationals to be removed to their home country, which would be relevant in the case of Albanian nationals.

Alternatively, the migrant could be sent to any other country, subject to there being reason to believe the migrant would be admitted to that country, and the Home Secretary not considering there to be a risk of persecution for the migrant.

In practice, however, the Government is very limited in its options for places to which to remove migrants. This is due to factors like the Government not having many removal agreements in place with other countries, and the high proportion of irregular arrivals from countries of origin that are not considered “safe”. Included in the latter category would be migrants from Afghanistan, Syria, Iran, Eritrea, and Sudan, which accounted for nearly half (46%) of irregular arrivals last year.

  • What will happen to people who the Government is unable to remove to another country

In light of the aforementioned practical circumstances that look likely to greatly constrain the Government’s ability to remove irregular arrivals to another country, it seems probable that under this legislation, tens of thousands of people would arrive in the UK by small boat, followed by detention and being deemed inadmissible for UK asylum, but also with little likelihood of being removed from the UK.

This has raised questions as to what the Government would do in such cases – including whether most such migrants would remain in detention, and if so, for how long. Even if some migrants were able to secure bail following the initial 28-day detention period, they would not have any prospect of admission to the UK asylum system, and no right to work in the UK. This would seem to heighten the chances of such migrants experiencing poverty and destitution.

What is the penalty for illegal immigration in the UK?

The UK Government has said that it is introducing new criminal offences and tougher penalties for people who arrive in the UK illegally. This will include it being a criminal offence to knowingly arrive in the UK without a valid entry clearance when one is required. Those arriving illegally in the UK could therefore face up to four years in jail, and removal to a “safe” country.

If you are in the UK illegally – whether due to having arrived in the country without permission, or previous permission to stay having expired – it is crucial that you urgently look at your options.

Staying in the UK illegally doesn’t merely mean you could be detained and removed from the country – it could also mean you being charged for some treatment on the National Health Service (NHS), struggling to find housing, and/or being exploited at work.

It is therefore of urgent importance that you talk to a specialist in UK immigration law who can help you explore the possibilities, including for making your stay legal. Our award-winning solicitors have an excellent track record in dealing with matters of asylum and complex cases, including overstaying, so please don’t hesitate to call 0208 215 0053 to learn more about how we can help.

What lies next for the Illegal Migration Bill?

The Government’s travails in getting the Bill through Parliament are far from over; the legislation having had its third reading in the Commons, it is now set to go to the House of Lords, where it is expected to face opposition. It is thought that this stage of the Bill could see it heavily amended.

In the meantime, if you are a current or would-be migrant affected by any of the issues raised in this article, and who would appreciate the advice and support of leading specialists in UK immigration law, please do not hesitate to enquire to Cranbrook Legal today.

You are welcome to call our central London-based team on 0208 215 0053, or to complete and submit our online contact form to request a free consultation.

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