Us Migration Law: When Will It Be Passed?

The UK government's Illegal Migration Bill became law on 20 July 2023, receiving Royal Assent to become the Illegal Migration Act 2023. The bill was central to Prime Minister Rishi Sunak's pledge to stop small boat crossings. It places a legal duty on the Home Secretary to remove anyone arriving in the UK irregularly, either to their home country or a safe third country. The Act also strengthens detention powers and removes the right to appeal removal.

The UK's Illegal Migration Act 2023

Overview

The Illegal Migration Act 2023 is a piece of legislation passed in the UK with the stated aim of preventing and deterring 'unlawful' migration into the country, particularly via unsafe routes such as small boat crossings of the English Channel. The Act places a legal duty on the Home Secretary to remove anyone arriving in the UK irregularly, either by returning them to their country of origin or by transferring them to a designated 'safe third country'. This legislation represents the latest development in the UK's ongoing efforts to address the issue of illegal migration and manage its asylum system.

Key Provisions

• Detention and Removal: The Act mandates the detention and prompt removal of individuals who enter the UK illegally. They will be returned to their home country or transferred to a designated 'safe third country'. The Home Secretary is legally obligated to arrange for the removal of these individuals.
• Strengthened Detention Powers: The Act strengthens the government's detention powers by allowing individuals to apply for bail only after 28 days in detention. This change aims to facilitate the removal process.
• Asylum Claims: Under the Act, individuals who enter the UK illegally will not have their asylum claims determined in the UK. Their claims will be considered by the designated 'safe third country' if they cannot be returned to their home country.
• Legal Challenges: The Act seeks to prevent last-minute legal challenges and appeals that delay the removal of individuals with no legal right to remain in the UK. While those affected can still challenge their removal decision, it will not prevent their removal, and legal challenges will be considered after they have been removed to another country.
• Modern Slavery Protections: The Act includes measures to tackle the perceived abuse of modern slavery protections by individuals seeking to avoid removal. Those subject to removal will not be able to access modern slavery protections in the UK. If someone is identified as a potential victim of modern slavery, they will be returned to their home country or another safe country.
• Safe Third Countries: The Act expands the list of countries designated as 'safe' in law, including EU member states, Albania, Iceland, Liechtenstein, Norway, and Switzerland. This expansion provides clarity on which countries do not require the UK's protection as there is no perceived risk of persecution.
• Annual Cap on Refugee Numbers: The government will commit to resettling a specific number of vulnerable refugees each year, in collaboration with local councils and following parliamentary approval.
• Safe and Legal Routes: While the Act focuses on deterring illegal migration, the government pledges to work with the United Nations High Commissioner for Refugees to create more safe and legal routes for asylum seekers.

Criticism and Controversy

The Illegal Migration Act has faced significant opposition and criticism from various quarters, including the House of Lords, Conservative backbenchers, refugee support organisations, and the United Nations. Critics argue that the Act could violate the UK's human rights obligations and international law. There are also concerns about the potential impact on vulnerable groups, such as victims of modern slavery and unaccompanied children. Additionally, the effectiveness of the Act in deterring illegal migration has been questioned, and the cost of implementing the new legislation has been a point of contention.

The bill's aim to stop small boat crossings

The Illegal Migration Bill, now the Illegal Migration Act 2023, received royal assent on 20 July 2023. The bill was central to Prime Minister Rishi Sunak's pledge to stop small boat crossings, one of his five promises when he took office.

The Act places a legal duty on the Home Secretary to remove anyone arriving irregularly in the UK, including by small boat, to their home country or a safe third country. This means that those who arrive in the UK illegally will not be able to remain in the country and will be detained and removed. The duty to remove does not apply to unaccompanied children, who the Home Secretary will only be required to remove when they turn 18.

The Act will also strengthen detention powers, making it easier to remove people. People who enter the UK illegally will not have their asylum claims considered in the UK and will not be able to make a life in the country. They will be able to challenge the decision to remove them, but this will not prevent their removal. If a person can demonstrate that they do not fall within the cohort subject to the duty to make arrangements for removal, they will not be removed.

The government has stated that the Act will put a stop to illegal migration into the UK by removing the incentive to make dangerous small boat crossings. It will also speed up the removal of those with no right to be in the country, freeing up capacity to better support those in genuine need of asylum through safe and legal routes.

The Rwanda migration partnership

The UK-Rwanda Migration and Economic Development Partnership, also known as the Rwanda asylum plan, was an immigration policy proposed by the governments of Boris Johnson, Liz Truss, and Rishi Sunak. The plan was for people identified by the United Kingdom as illegal immigrants or asylum seekers to be relocated to Rwanda for processing, asylum, and resettlement. The UK would invest in a development fund for Rwanda and financially support the relocation and accommodation costs of migrants. The UK would also accept an unspecified number of "the most vulnerable refugees" from Rwanda. The plan's stated aims were to decrease the number of migrant crossings in the English Channel, stop human smuggling, and boost Rwandan investment and development.

Upon their arrival in Rwanda, migrants would be temporarily accommodated in the capital Kigali while their asylum claims were processed. If their claims were successful, they would receive permanent residency in the country and be offered permanent accommodation. It was expected that all claims would take a maximum of three months to process. Once in Rwanda, migrants would not be allowed to return to the United Kingdom to seek asylum.

The first flight under this plan was scheduled for June 14, 2022, but it was cancelled due to legal challenges. The plan faced opposition from various groups, including the House of Lords, Conservative backbenchers in the House of Commons, activists, organisations supporting refugees in the UK, and the United Nations. The Court of Appeal ruled that Rwanda would not be able to fairly and accurately assess refugees' asylum claims, and therefore, the plan was unlawful. The UK government appealed this decision to the Supreme Court, which upheld the Court of Appeal's ruling, stating that Rwanda was not a safe country for asylum seekers.

The UK government responded to the Supreme Court's judgment by agreeing to a new treaty with Rwanda and introducing the Safety of Rwanda (Asylum and Immigration) Act 2024, which declared Rwanda a safe country for asylum seekers. The Act removed legal impediments to the scheme, and the Home Office launched raids to detain asylum seekers for deportation. However, the scheme faced further legal challenges, and after the Labour Party won the 2024 general election, the new government cancelled the Rwanda plan, replacing it with the Border Security Command.

The bill's incompatibility with international law

The Illegal Migration Bill, now the Illegal Migration Act 2023, has been criticised for its incompatibility with international law. The UN has stated that the bill breaks the UK's obligations, with the UN human rights chief Volker Turk and the UN refugees head Filippo Grandi claiming that the bill "will have profound consequences for people in need of international protection".

Secondly, the bill clashes with the UK's human rights obligations. The home secretary, Suella Braverman, admitted that the bill would "push the boundaries" of international law. Helen O'Nions, an expert in human rights law, writes that the bill is based on a "shaky interpretation" of the UN Refugee Convention of 1951, an international treaty that sets out the rights of refugees. The bill's provisions are likely to face prolonged legal battles due to their questionable compatibility with international refugee law.

Thirdly, the bill may violate international standards on the treatment of migrants. International human rights law requires states to respect, protect, and fulfil the human rights of all migrants, regardless of their status. This includes refraining from arbitrary detention, torture, or collective expulsion, and taking positive measures to ensure the realisation of rights, such as introducing alternatives to detention and guaranteeing access to healthcare and education. The Illegal Migration Act's focus on detention and removal may conflict with these standards.

Finally, the bill may discriminate against migrants in vulnerable situations. The principle of non-discrimination prohibits distinction, exclusion, restriction, or preference based on a range of grounds, including race, colour, sex, disability, religion, or migration status. By treating all illegal migrants the same, regardless of their individual circumstances, the bill may be seen as discriminatory and incompatible with international law.

The bill's impact on modern slavery protections

The Illegal Migration Act, which received Royal Assent on 20 July 2023, has serious implications for victims of modern slavery. The Act amends immigration, asylum, and modern slavery legislation, with the stated purpose of preventing and deterring unlawful migration, particularly via unsafe and illegal routes.

One of the most controversial aspects of the Act is its denial of modern slavery protections to anyone who enters the UK illegally. This means that thousands of potential victims of modern slavery will be denied support and protection, and may be detained and deported before their cases are properly considered and before the victim identification process is complete. This includes people whose entry to the UK was a direct result of the criminal offence of trafficking committed against them.

The UK government has justified these measures by claiming that people are 'abusing' the modern slavery system and that it incentivises illegal migration. However, evidence calls these assumptions into question. Furthermore, the Act's modern slavery provisions are incompatible with the UK's obligations under Article 4 of the European Convention on Human Rights (ECHR) and the European Convention Against Trafficking (ECAT).

The denial of protection and support for potential victims of modern slavery will likely impact their safety from traffickers and their recovery from exploitation. It may also reduce survivors' willingness and ability to cooperate with authorities in criminal proceedings, which is often crucial for successful prosecutions.

In addition, the Act's measures that are not specific to modern slavery may also directly harm victims of modern slavery who seek asylum or humanitarian protection. For example, they may be more susceptible to further exploitation and trafficking, and long-term psychological harm through detention.

The Act has faced opposition from various groups, including the House of Lords, Conservative backbenchers, activists, refugee support organisations, and the United Nations. Critics argue that it clashes with the UK's human rights obligations and is based on a shaky interpretation of the UN Refugee Convention of 1951.

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