Dr Ruth Brittle, Senior Lecturer NLS https://www.ntu.ac.uk/staff-profiles/law/ruth-brittle
On 20th July 2023, the Illegal Migration Act (IMA) became law. The central aim of the IMA is to ‘stop the boats’ crossing the Channel by removing people, who arrive in the UK ‘illegally’, to their country of origin or to a safe third country as soon as practicably possible. But the government has put forward little evidence that this Act will achieve its object and purpose and instead risks exacerbating the crisis at the heart of the government’s asylum policy.
This is a regressive, and unworkable piece of legislation, condemned by many on the left and right of the political spectrum, makes all forms of irregular migration illegal, and in effect introduces an asylum ban.
The duty to remove ‘illegal’ migrants
The right to seek and enjoy asylum from persecution underpins the Convention relating to the Status of Refugees 1951 (Refugee Convention). But under s1 of the Illegal Migration Act 2023 (IMA), an asylum claim by someone arriving in the UK via ‘unsafe and illegal routes’ (eg on a small boat) will be declared inadmissible and the Home Secretary has a duty to remove anyone coming to the UK ‘illegally’, provided 4 conditions are satisfied under s2:
a) the person has arrived ‘illegally’,
b) the person arrived after 20th July 2023,
c) the person did not come directly from the place where their life and liberty were at risk – if they pass through a safe country, they have not come ‘directly’, and
d) the person does not have permission to enter the UK.
The duty to remove applies to all adults, including adults travelling with children.
Unaccompanied children are not subject to the duty to remove, but under s4 IMA, the Home Secretary has the power to remove an unaccompanied child to reunite them with a parent, to remove the child to their country of nationality, to remove them to a safe third country (e.g. Albania or Rwanda), or to remove them to a country the child transited through to get to the UK.
The Act will not only create an asylum ban, but will also remove basic rights and essential support whilst in the UK. In addition, it puts the lives of people seeking sanctuary at even greater risk, either by returning the individual to persecution or inhuman treatment elsewhere or exposing them to the risk of exploitation and trafficking in the UK. Furthermore, the IMA rolls back the progress the UK has made on human rights protection since the introduction of the Human Rights Act 1998 (HRA) and undermines the UK’s reputation for humanitarianism, tolerance, and respect for human rights.
This legislation is unworkable because the Act places a duty (or power) to detain and remove everyone who arrives in the UK by small boat. Since 2018 over 100,000 people have arrived by small boat and the majority have received refugee status. The Home Office has not built sufficient new facilities to accommodate the numbers arriving in small boats and, apart from the Rwanda deal, the UK has not reached an agreement with any country to receive people with inadmissible claims. The asylum backlog has grown exponentially - 172,000 claims awaiting a decision in March 2023. The IMA will require the government to accommodate people arriving by boat at huge public expense – for the time being, they cannot be removed to a safe third country or their countries of origin but are not allowed to work or make a life for themselves in the UK.
The IMA marks a low point for the UK’s refugee protection and human rights record. During the passage of the Bill through Parliament, the Home Secretary made a rare declaration that she was unable to make a statement under s19 of the Human Rights Act 1998 (HRA) that the Bill is compatible with the European Convention on Human Rights. The UN Committee on the Rights of the Child (UNCRC) and the UNHCR have both urged the UK government to repeal the provisions which violate children’s rights.
How does the new Act affect children’s rights?
1. Detention: The government has overturned the decade long ban on detaining children. If children arrive with family, there is no time limit on the length of detention whilst awaiting removal. Time limits will be imposed on the detention of unaccompanied children, but these have yet to be published. Pregnant women can be detained for a maximum of 72 hours, but this can be extended to 7 days by the Home Secretary - the time limits for children are likely to be similar. Any detention is traumatic for children and should only be a last resort, if in their best interests. This regressive measure will only compound the trauma children have suffered trying to reach the UK.
2. Accommodation: the IMA gives the Home Office statutory authority to take responsibility for unaccompanied children and place them in Home Office accommodation, thus removing them from local authority care. The Home Office record on accommodating children is poor. Children have gone missing from hotels, and local authorities are repeatedly not notified when children were moved into an area. More recently the Immigration Minister ordered officials to paint over murals on the walls of a reception centre for children because it looked ‘too welcoming’. The Home Office practice of putting unaccompanied children in hotels creates a legal vacuum in which the children have no statutory parent and are not ‘looked after’ under the Children Act 1989. In Article 39 v the Home Department [2023] the charity applied to the High Court to exercise its inherent wardship jurisdiction to protect these children, but the High Court rejected the application, reminding local authorities of their duties under the Children Act 1989.
3. Right to Asylum: The Home Secretary confirmed that asylum claims by children will be inadmissible if they meet the 4 conditions in s2 IMA - this is to ‘avoid creating a perverse incentive for people smugglers to prioritise unaccompanied children and families with children for dangerous crossings’. The entire premise of the IMA undermines children’s rights to receive appropriate protection and humanitarian assistance under Article 22 CRC.
4. Age Assessment: The government wants to utilise ‘scientific’ methods of age assessment, which have been discredited by the British Medical Association and Royal College of Paediatrics as being inaccurate with a wide margin of error. Under the IMA, a child who refuses to consent to scientific tests will be presumed to be an adult. The government claims it needs to do this to stop adults pretending to be children and to safeguard children from harm. Recent research by the Helen Bamber Foundation and Humans for Rights Network reveals that in 2022, over 850 children were wrongly ‘assessed’ to be adults by border officials and sent to adult accommodation/detention without access to local authority care and support. The right to challenge age assessments has also been severely curtailed under the IMA, where a child is able to judicially review the decision, the Home Secretary has retained the power to remove the child whilst waiting for an outcome.
5. In Limbo: Children will be in legal limbo for years and they are highly likely to age-out before any decision is made on their case, thus leaving them vulnerable to the new duty to remove. In 2019, the UNHCR found that the stress of waiting for a decision, leads to a rise in dropout rates from school and disengagement with other social and recreational activities – this is likely to accelerate under this Act. Children nearing their 18th birthdays are more likely to go missing from care or Home Office accommodation to avoid detention and removal.
6. No route to settlement: Children arriving via irregular routes will be permanently ineligible for leave to remain or citizenship. Thus, when they turn 18, they will be denied access to higher education, vocational training, and work. It is highly likely that young people in this situation will be forced into destitution, exploitative and illegal work, or modern forms of slavery.
CONCLUSION
The key aim of this Act is the ‘stop the boats’, but people fleeing for their lives with no knowledge of the system in the UK will continue to seek sanctuary here (boats have continued arriving since). There are many reasons why people want to come to the UK to seek sanctuary (language, colonial links, family reunion, and respect for human rights). Instead of acting as a deterrent, this Act is going to provide a perverse incentive for child refugees in the UK to disappear into the shadow economy and into deeper and more dangerous forms illegality, rather than make themselves known to the authorities. Young people on the cusp of adulthood are more likely to drop out of education and disappear out of sight, leaving them exposed to exploitation and criminality. This Act makes no attempt to protect the rights of children seeking sanctuary in the UK and without safe, legal alternative routes to the UK, it will do little to deter people from making the dangerous journey.
Further Reading:
Alf Dubs ‘The UK’s illegal migration bill is a nasty piece of work. So is the cruelty inflicted on refugee children’ The Observer, 16th July 2023
Cantor, D (2023). ‘Illegal Migration Bill: helping force refugees into illegality and danger’ Free Movement Blog 14th April 2023
Refugee and Migrant Children’s Consortium Briefings on the Illegal Migration Bill (March and April 2023).
UK-Rwanda Migration and Economic Development Partnership (2022); Memorandum of Understanding and Note Verbale (Rwanda policy)
UNHCR (2019) Refugee and Then: Participatory Assessment of the Reception and Early Integration of Unaccompanied Refugee Children in the UK.
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