Immigration Bill: When Will It Become Law?

The UK's Illegal Migration Act 2023, also known as the Illegal Migration Bill, received Royal Assent on 20 July 2023. The Act changes the law so that those who arrive in the UK illegally will be detained and removed to their home country or a safe third country. The Act aims to prevent illegal migration, speed up the removal of those with no right to be in the UK, and support those in genuine need of asylum through safe and legal routes. However, the Act has faced opposition from the House of Lords, Conservative backbenchers, activists, organisations supporting refugees, and the United Nations. Critics argue that it clashes with the UK's human rights obligations and may put more people at risk of modern slavery.

The UK's Illegal Migration Act 2023

Overview

The Illegal Migration Act 2023, passed on 20 July 2023, represents a significant shift in the UK's approach to immigration. The Act aims to curb illegal migration, expedite the removal of those without legal rights to remain in the country, and strengthen the government's ability to support legitimate refugees.

Key Provisions

• Detention and Removal: The Act mandates the detention and removal of individuals who arrive in the UK illegally, preventing them from remaining in the country. This provision applies to most asylum seekers, who will be subject to deportation before their cases can be considered.
• Safe Third Country: The legislation allows for the removal of individuals to their home country or a designated safe third country. This provision sets the stage for future migration partnerships, where asylum seekers may be sent to countries deemed safe by the UK government.
• Modern Slavery Safeguards: The Act denies modern slavery protections to those who enter the UK illegally. The government has argued that asylum seekers have abused these safeguards to avoid deportation.
• Speedy Removal: By promptly removing those without the right to be in the UK, the Act aims to free up resources to better support legitimate refugees and asylum seekers through safe and legal routes.
• Annual Refugee Resettlement: The UK reaffirms its commitment to resettling vulnerable refugees by pledging to welcome a specific number each year.

Analysis and Criticism

The Illegal Migration Act has faced opposition from various quarters, including the House of Lords, Conservative backbenchers, refugee support organisations, and the United Nations. Critics argue that the Act clashes with the UK's human rights obligations and international law, particularly the UN Refugee Convention of 1951. The Act's effectiveness in deterring small boat crossings has also been questioned, with limited evidence to support this approach. Furthermore, the Act's impact on long-term detention and the associated costs to taxpayers and affected individuals have been highlighted as potential areas of concern.

The US's Immigration Reform and Control Act 1986

The Immigration Reform and Control Act (IRCA) of 1986 was passed by the 99th United States Congress and signed into law by President Ronald Reagan on November 6, 1986. The Act legalized most illegal immigrants who had arrived in the country before January 1, 1984, and altered U.S. immigration law by making it illegal to knowingly hire illegal immigrants. It also established financial and other penalties for companies that employed undocumented migrants.

The IRCA introduced civil and criminal penalties for employers who knowingly hired undocumented immigrants or individuals unauthorized to work in the U.S. However, it also offered a path to legalization, lawful permanent residence, and prospective naturalization for undocumented migrants who entered the country before 1982. Farm workers who could validate at least ninety days of employment also qualified for lawful permanent residency.

The IRCA made it mandatory for employers to attest to their employees' immigration status and verify their work eligibility by filling out an I-9 form. It also required employees to submit certifications of citizenship or work authorization. The Act directed the Attorney General to establish complaint and investigation procedures, including provisions for individuals and entities to file written, signed complaints regarding potential hiring violations.

In addition to addressing employment practices, the IRCA provided amnesty to two groups of applicants: aliens who had unlawfully resided in the U.S. since before January 1, 1982, and aliens employed in seasonal agricultural work for a minimum of 90 days before May 1986. The IRCA also updated the registry date for permanent entry admissions records, allowing for the legalization of nearly 60,000 undocumented immigrants from 1986 to 1989.

The passing of the IRCA led to an increase in border security resources, including higher budgets for the Border Patrol and the Department of Labor, in an effort to curb unlawful crossings and unauthorized workers. However, despite the Act's efforts, the population of illegal immigrants rose from 5 million in 1986 to 11.1 million in 2013.

The US Citizenship Act of 2021

The bill would have made sweeping changes to the US immigration, visa, and border control system. It would have:

• Reversed and prohibited many of the immigration-related executive actions of former president Donald Trump
• Provided a path to legal residence and eventual citizenship for as many as 11 million illegal immigrants in the US, as well as current DACA and Temporary Protected Status beneficiaries, essential workers on a non-immigrant status, and agricultural labourers
• Recreated the V visa program to allow families to await immigrant visa approval together in the US
• Ended country-specific visa annual maximums
• Granted immediate relative status to spouses and children of green card holders
• Increased the number of immigration courts, judges, and USCIS adjudicators to reduce the backlog of immigration cases
• Provided funding for legal orientation programs and counselling on immigration-related matters
• Prohibited federal housing programs, including FHA mortgage insurance, the Rural Housing Service, and Freddie Mac/Fannie Mae, from discriminating against single-family homebuyers with DACA status
• Ensured state institutions of higher education would no longer be forced to deny resident tuition status to individuals not lawfully present in the US
• Prevented DACA recipients who received employment authorisation from being barred from federal employment on the basis of their non-citizenship
• Increased protections for U and T visa applicants, as well as VAWA applicants, and reduced administrative burdens for asylum seekers
• Focused on smart border screening technology and security between ports of entry, and enhanced penalties against criminal gangs and drug traffickers
• Increased CBP agent training and education to promote professionalism, and developed a unified standard of care for those in CBP custody
• Created a Border Community Stakeholder Advisory Committee to investigate misconduct by DHS agents
• Reduced the administrative burden for employment-based visas, especially for those with advanced STEM degrees from US universities
• Removed per-country limits in the US visa system
• Prevented children from aging out of the visa system
• Allowed the Department of Homeland Security to adjust the annual cap on employment-based visas based on macroeconomic conditions
• Raised the cap on diversity green cards from 55,000 to 80,000 per year
• Increased protections for LGBTQ+ families, and families of those who fought with the US military in World War II
• Reinstated the Central American Minors Program and created a new Central American Family Reunification program to allow quicker reunification for those with approved family petitions
• Incorporated the provisions of the National-Origin Based Anti Discrimination Act for Nonimmigrants (NO-BAN) Act, to prevent future administrations from imposing a similar ban to Executive Order 13769, popularly labelled the "Muslim Ban"
• Proposed changing all references to the word "alien" in US law with the word "noncitizen", addressing concerns that the term was dehumanising
• Provided a path to permanent residence and citizenship for Deferred Action for Childhood Arrivals beneficiaries and others who entered as children, who currently only hold protection from deportation and work privileges under executive order, not statute
• Provided up to $4 billion in aid to Guatemala, El Salvador, and Honduras, conditioned on their ability to reduce the endemic corruption, violence, and poverty that causes people to flee their home countries
• Created Designated Processing Centres throughout Central America, allowing displaced persons to apply for resettlement either to the US or to partner countries

The UK's Rwanda Migration Partnership

In April 2022, the UK and Rwanda signed the Migration and Economic Development Partnership (MEDP), also known as the Rwanda Plan, which would see the UK deport people seeking asylum to Rwanda. In November 2023, the UK Supreme Court ruled the plan to be unlawful as it would breach British and international human rights laws and agreements.

In response, the UK government agreed on a new treaty with Rwanda and introduced the Safety of Rwanda (Asylum and Immigration) Bill, which became law in April 2024. The bill builds on the objectives set out in the Illegal Migration Act 2023, the Nationality and Borders Act 2022, and the New Plan for Immigration, as part of a wider strategy to tackle illegal migration.

The bill enables the deportation of illegal migrants under the UK-Rwanda international treaty on asylum partnership. It officially declares Rwanda a "safe country" and confirms that it has agreed to fulfil its obligations under the UK-Rwanda treaty. It also makes clear the limited scope for individuals to challenge their removal to Rwanda and applies across the UK, including Northern Ireland.

The overarching purpose of the bill is to deter dangerous and illegal journeys to the UK, which put people's lives at risk, and to disrupt people-smuggling operations. In 2022, 45,700 illegal entrants entered the UK by crossing the English Channel in small boats; this fell to 29,090 in 2023, a drop of around a third.

The UK government has stated that the bill will:

• Prevent people from abusing the law by using false human rights claims to block removals.
• Make clear that UK parliament is sovereign and give the government the power to reject interim blocking measures imposed by European courts.
• Prevent UK courts and tribunals from delaying or preventing a person's removal to Rwanda on matters relating only to the general safety of Rwanda.
• Allow for an exceptionally narrow route to individual challenge to ensure that the courts will interpret the relevant provisions in accordance with the will of Parliament.
• Disapply relevant sections of the Human Rights Act 1998.
• Confirm that only a Minister of the Crown can decide whether to comply with an interim measure issued by the European Court of Human Rights.

The bill was criticised by human rights groups, MPs, charities, and lawyers, who said it was cruel, costly, and ineffective. The UN Committee on Human Rights also called on the UK to withdraw the act, stating that it was "deeply concerned" about potential discrimination against migrants and asylum seekers and breaches of UN Conventions on the treatment of refugees.

The first flights to Rwanda were expected to take off in July 2024, at a cost of £1.8 million per deportee.

The UK's Nationality and Borders Act

Objectives

The Nationality and Borders Act has three main objectives. Firstly, it seeks to create a fairer and more effective system that can better protect and support individuals with legitimate asylum claims. Secondly, it aims to deter illegal entry into the UK by disrupting human trafficking networks and saving lives. Lastly, it intends to expedite the removal of individuals who do not have the right to reside in the UK.

Provisions

The Act introduces a range of measures to achieve its objectives. It includes provisions to:

• Make it more difficult for those who arrive illegally in the UK and could have claimed asylum in another safe country to be considered for the UK asylum system.
• Increase the maximum penalty for illegally entering the UK or overstaying a visa to four years' imprisonment.
• Crack down on adults falsely claiming to be children by implementing scientific methods for age assessment.
• Implement a US-style Electronic Travel Authorisation scheme to identify and prevent the entry of criminals into the country.
• Impose tougher penalties on people smugglers, with a maximum sentence of life imprisonment.
• Streamline the removal of foreign criminals and speed up the process.
• Strengthen the Border Force's powers to stop and seize small boats used in illegal immigration attempts.
• Address the abuse of modern slavery protections by ensuring that those who arrive in the UK through illegal and dangerous journeys cannot misuse these safeguards to prevent their removal.
• Enable Tribunals to charge participants who waste the Tribunal's resources with fees.

Implementation

The measures outlined in the Nationality and Borders Act are expected to be implemented gradually, with officers, prosecutors, caseworkers, and judges able to utilise their new powers once new guidance and training are provided. The Act is a key component of the government's New Plan for Immigration, reflecting its commitment to a "fair but firm" immigration system.

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