A detailed look at the Bill's contents ahead of its second reading in the Commons on Monday
With impressive and commendable speed, the House of Commons Library has today published a comprehensive briefing on the Illegal Migration Bill released on Tuesday.
You can download the 68-page briefing here or read a full copy online below.
It is essential reading for anyone wanting a detailed overview of the contents of the Bill and its aims.
The Illegal Migration Bill will have its second reading in the House of Commons on Monday, less than a week after its publication.
_________________________
Illegal Migration Bill 2022-23
Research Briefing
10 March 2023
By Melanie Gower, CJ McKinney, Joanna Dawson, David Foster
Summary
1 Background to the Bill
2 Overview of the Bill
3 Duty to arrange removal and refuse to process asylum claims
4 Detention and removal of migrants
5 Modern slavery cases
6 Limiting judicial review: 'Ouster clauses'
7 Compatibility with human rights law
8 Restrictions on future visas, settlement and citizenship
9 Unaccompanied children
10 Cap on 'safe and legal routes'
commonslibrary.parliament.uk
Number CBP-9747
Image Credits
Refugee boat by aalutcenko. Licensed by Adobe Stock # 102144823
Contributing Authors
Georgina Sturge
Disclaimer
The Commons Library does not intend the information in our research publications and briefings to address the specific circumstances of any particular individual. We have published it to support the work of MPs. You should not rely upon it as legal or professional advice, or as a substitute for it. We do not accept any liability whatsoever for any errors, omissions or misstatements contained herein. You should consult a suitably qualified professional if you require specific advice or information. Read our briefing 'Legal help: where to go and how to pay' for further information about sources of legal advice and help. This information is provided subject to the conditions of the Open Parliament Licence.
Sources and subscriptions for MPs and staff
We try to use sources in our research that everyone can access, but sometimes only information that exists behind a paywall or via a subscription is available. We provide access to many online subscriptions to MPs and parliamentary staff, please contact hoclibraryonline@parliament.uk or visit commonslibrary.parliament.uk/resources for more information.
Feedback
Every effort is made to ensure that the information contained in these publicly available briefings is correct at the time of publication. Readers should be aware however that briefings are not necessarily updated to reflect subsequent changes.
If you have any comments on our briefings please email papers@parliament.uk. Please note that authors are not always able to engage in discussions with members of the public who express opinions about the content of our research, although we will carefully consider and correct any factual errors.
You can read our feedback and complaints policy and our editorial policy at commonslibrary.parliament.uk. If you have general questions about the work of the House of Commons email hcenquiries@parliament.uk.
Contents
Summary
1 Background to the Bill
2 Overview of the Bill
3 Duty to arrange removal and refuse to process asylum claims
4 Detention and removal of migrants
5 Modern slavery cases
6 Limiting judicial review: 'Ouster clauses'
7 Compatibility with human rights law
8 Restrictions on future visas, settlement and citizenship
9 Unaccompanied children
10 Cap on 'safe and legal routes'
The Illegal Migration Bill was introduced in the Commons on 7 March 2023 and is due to have second reading on 13 March. Its purpose is to "prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by requiring the removal from the United Kingdom of certain persons who enter or arrive in the United Kingdom in breach of immigration control".
New duties to arrange removal and declare asylum claims automatically void
The Bill would create two new legal duties for the Secretary of State for the Home Department. The first is to make arrangements for the removal of people who enter the UK illegally after 7 March 2023, have no permission to be in the UK and did not come directly from a place where they fear persecution. The duty would apply regardless of whether the person has submitted a legal claim challenging their removal, including an application for judicial review.
If someone meets those conditions, the Secretary of State has a second duty: to refuse to process any asylum claim they make, along with any claim that removal to their country of origin would be a breach of their human rights.
Much of the rest of the Bill deals with the consequences of being subject to the arrangements for removal duty.
Migrants can be detained under new powers and removed to countries considered safe
The Bill would provide new powers to detain people who are covered, or potentially covered, by the arrangements for removal duty and their relevant family members. Detention could be in any place the Secretary of State considers appropriate. Existing statutory limitations on the duration of detention of families with children and pregnant women would not apply where they are detained under these new powers.
During the first 28 days of detention, people detained under these bespoke powers would not be able to apply to the Immigration Tribunal for immigration bail or apply for judicial review.
There would be some restrictions on removal if people have claimed asylum or made a human rights claim. This is despite the automatic inadmissibility duty stopping these claims being processed. Asylum seekers would normally be removed to their home country if that country is listed as safe. The list of safe countries would consist of the 27 EU countries plus Albania, Iceland, Norway, Liechtenstein and Switzerland. Asylum seekers from other countries would not be removed to their home country. They could only be removed to certain 'third countries', ones they are not a citizen of. There is a separate list of third countries considered safe, including Rwanda.
The Bill would create new rights of legal challenge. While such challenges are ongoing, a person subject to the arrangements for removal duty cannot be removed from the UK. The intention is that these legal challenges are the only ones that can suspend the person's removal. The Bill accordingly refers to them as 'suspensive' claims.
People with modern slavery cases would be disqualified from protections against removal
Modern slavery legislation would be amended so that potential or confirmed victims of trafficking or modern slavery who are subject to the arrangements for removal duty would be disqualified from certain provisions. These include the existing provision of a recovery period, during which removal is prohibited, along with support and temporary leave to remain. This would be subject to an exception for individuals cooperating with an investigation or criminal proceedings.
The Government wishes to proceed despite doubts about human rights compatibility
Section 19 of the Human Rights Act 1998 requires the minister in charge of a Bill to make a statement before second reading to say the Bill is compatible with the rights contained in the European Convention on Human Rights (s19(1)(a)), or that they are unable to make such a statement, but the Government wishes Parliament to proceed with the Bill nonetheless (s19(1)(b)).
The Secretary of State has made a statement under section 19(1)(b) with respect to the Bill.
The Bill's explantory notes state that the Government is satisfied that the Bill's provisions are capable of being applied compatibly with Convention rights. However the Government's European Convention on Human Rights memorandum acknowledges that the approach taken in relation to modern slavery in particular is "radical" and "new and ambitious" and that such an approach meant the Secretary of State was unable to make a section 19(1)(a) statement.
There has been some speculation that the Government may anticipate adverse legal judgments as a result of the Bill, and that this may have implications for the UK's future membership of the European Convention. The Government has previously said that it would make a statement under section 19(1)(a) if a Bill is more likely that not to be compatible with Convention rights.
People who enter illegally will be unable to get citizenship for themselves or their children
The Bill would restrict people who have ever been subject to the arrangements for removal duty from being granted immigration status or British citizenship in future. This is unless the Secretary of State decides to exempt them to comply with the UK's international treaty obligations or, sometimes, in "compelling circumstances". The restrictions on obtaining citizenship extend to their UK-born children.
New powers to provide accommodation for unaccompanied children
The Home Office would be given powers to provide or arrange for the provision of accommodation and other support to unaccompanied children who are within the scope of the duty to remove, and to transfer a child from Home Office accommodation into local authority care (and vice versa). The provisions apply to England but there is a power to extended them to the other parts of the UK through regulations.
Annual limits for the number of places offered under safe and legal routes
The Secretary of State would be required to introduce an annual limit on the number of places to be provided under certain safe and legal routes of entry to the UK. The limit would be decided after consultations with local authorities and other relevant bodies.
Preventing unauthorised migration by people seeking asylum in the UK is a priority for the Sunak Government.
In 2022, almost 45,000 migrants arrived in the UK after crossing the English Channel by boat. [1] Of those, 90% claimed asylum. [2]
The chart below shows the monthly number of people detected after having crossed in small boats, since the start of 2019. The number of people arriving by boat has risen each year since the phenomenon was first detected at a significant scale in 2018.
Source: Home Office, Irregular migration statistics quarterly (December 2022); Home Office and Border Force, Migrants detected crossing the English Channel in small boats, updated to 1 March. Notes: The January and February figures in 2023 are taken from the daily counts by the Home Office and Border Force and may be subject to revision.
The 40,300 asylum applicants who arrived in small boats in 2022 accounted for around 45% of all people who applied for asylum in that year. [3] This was a higher proportion than in previous years. As the chart below illustrates, small boat arrivals made up around 28% (just over a quarter) of asylum applicants in the years 2018 to 2022 combined. [4]
The Illegal Migration Bill also makes changes to the UK's system for identifying and protecting potential victims of modern slavery (the National Referral Mechanism, or NRM).
In 2022, people who arrived in small boats made up 11% (one in ten) of the possible victims of modern slavery identified via the NRM. [5] Home Office analysis suggests the large majority of people arriving by small boats referred to the NRM are also asylum claimants. [6]
Source: Home Office, Irregular migration to the UK, year ending December 2022, 23 February 2023, sections 4 and 5 of the main bulletin; Home Office, Modern Slavery: National Referral Mechanism and Duty to Notify statistics UK, October to December 2022, 2 March 2023, data table 1. Notes: Includes main applicants and dependents.
The annual increase in Channel crossings in small boats has been despite attempts by the May and Johnson Governments to prevent or reduce the number of crossings. These included:
• Several agreements with France aimed at preventing the departure of boats in the first place. [7]
• Attempts to develop 'pushback' tactics to safely intercept and turn boats around in the Channel, which were not implemented. [8]
• New 'inadmissibility' rules on refusing to process asylum claims from people who have passed through safe countries. [9]
• An agreement with Rwanda for asylum seekers who have arrived by boat to be removed to that country. [10]
In addition, then Home Secretary Priti Patel proposed changes to the "collapsing" asylum system in March 2021. [11] The New Plan for Immigration was designed to "deter illegal entry", as well as increase the fairness of the system and make it easier to remove people from the UK.
Legislation to implement the New Plan for Immigration was introduced, following consultation, in July 2021. [12] It passed into law as the Nationality and Borders Act 2022 on 28 April 2022. Provisions relevant to asylum seekers in small boats included:
• 'Differential treatment' of confirmed refugees who passed through another country on the way to the UK, allowing them to apply for permanent residence after ten years instead of the usual five. [13]
• Codifying the stricter inadmissibility regime for refusing to process asylum claims, which had been in the Immigration Rules rather than statute. [14]
• Changes to the rules on removing asylum seekers to a safe country, even if it is not one they passed through on the way to the UK, to support the Rwanda policy. [15]
• Abolishing the right of appeal outside the UK for asylum claims rejected as 'clearly unfounded'. [16]
• New and strengthened criminal offences on illegally entering the UK, including making it a crime to arrive in the UK without a visa if required. [17]
• Changes to the system for supporting modern slavery victims to address the perceived risk of people misusing it to delay immigration action. [18]
The rationale, as with the new Bill, was deterrence. The Government has explained that the "intended cumulative impact" of the changes in the 2022
Act is to reduce the incentive to travel to the UK illegally, thereby reducing the number of dangerous journeys. [19]
The policy of sending some asylum seekers to Rwanda was announced on 14 April 2022. It is being challenged in the UK courts and the first flight was halted following a controversial injunction from the European Court of Human Rights. [20] The High Court has held that the policy is lawful overall but found legal errors in the decisions to remove the individual claimants. The case goes to the Court of Appeal on 25 April 2023.
The Prime Minister has promised to "stop the boats" as one of his five pledges for 2023. [21] In a 13 December statement on illegal immigration, Rishi Sunak told the House of Commons that new legislation would be introduced to this end, making it
unambiguously clear that, if you enter the UK illegally, you should not be able to remain here. Instead, you will be detained and swiftly returned either to your home country or to a safe country where your asylum claim will be considered. [22]
As in other European countries, the number of asylum claims lodged in the UK has risen since 2020. [23] People arriving by boat have contributed to this increase, accounting for 45% of asylum claims in 2022. [24] The rise in claims has, in turn, contributed to a 'backlog' of over 130,000 pending cases. [25]
But the volume of new claims is not the only cause of the backlog. Cases are also being processed less efficiently. "A decline in the number of decisions per caseworker provides perhaps the single strongest explanation" for the backlog, according to the Migration Observatory at the University of Oxford. [26] This has fallen from 101 decisions per caseworker per year in 2015 to 24 decisions per caseworkers per year in 2021, the Observatory notes.
The Government accepts that the backlog is too high. [27] It plans to increase the productivity of caseworker staff, hire additional caseworkers, and streamline the process for certain older applications.
The Illegal Migration Bill was introduced in the Commons on 7 March 2023 and is due to have its second reading on 13 March. [28]
The Bill had not been foreshadowed in the Queen's speech for the 2022-23 parliamentary session, although "securing our borders and tackling illegal immigration" were identified as priorities in the accompanying background briefing notes. [29]
The long title of the Bill is
A Bill to Make provision for and in connection with the removal from the United Kingdom of persons who have entered or arrived in breach of immigration control; to make provision about detention for immigration purposes; to make provision about unaccompanied children; to make provision about victims of slavery or human trafficking; to make provision about leave to enter or remain in the United Kingdom; to make provision about citizenship; to make provision about the inadmissibility of certain protection and certain human rights claims relating to immigration; to make provision about the maximum number of persons entering the United Kingdom annually using safe and legal routes; and for connected purposes.
Explanatory notes, a delegated powers memorandum and a human rights memorandum were published alongside the Bill. These (and additional relevant material) are available on the Parliament website. At the time of writing, an impact assessment for the Bill had not been published.
The Illegal Migration Bill page on GOV.UK collates other Government documents related to the Bill.
2.1 Summary of the clauses
The Bill as introduced consists of 58 clauses and one schedule.
There are two "placeholder" clauses which the Government intends to replace with substantive wording at a later stage (clause 38: meaning of "serious and irreversible harm", and clause 49: interim measures by the European Court of Human Rights).
Clause 1 summarises the Bill's overarching purpose and provisions. The purpose, as set out in clause 1(1), is "…to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by requiring the removal from the United Kingdom of certain persons who enter or arrive in the United Kingdom in breach of immigration control". Clause 1(3) would tell judges that the Bill's provisions should be interpreted to achieve that purpose.
Clause 1(5) would exempt the Bill from section 3 of the Human Rights Act 1998 (requirement to give effect to legislation in a way compatible with the European Convention on Human Rights).
Clauses 2–10 and the Schedule would apply to people who come to the UK illegally on or after 7 March 2023 (and their family members). They would create a new legal duty on the Secretary of State to make arrangements for the person's removal from the UK. The removal arrangements duty would apply regardless of whether the person had claimed asylum, made a human rights claim, been assessed as a potential victim of human trafficking (subject to a limited exemption) or applied for judicial review to challenge their removal.
The arrangement duty would not apply in respect of unaccompanied children while they are under 18 but it would be possible for the Secretary of State to arrange for their removal anyway (clause 3).
The Secretary of State would also have a duty to declare inadmissible (refuse to process) an asylum or human rights claim against removal made by the person subject to the duty to remove.
Removal would either be to the person's country of origin (if considered safe) or to a safe third country. Safe third countries for removal are listed in the Schedule. Safe countries of origin are listed in clause 50.
Clauses 11–14 concern detention and bail. They would provide new powers to detain people who are covered, or potentially covered, by the removal arrangement duty in clause 2 and their relevant family members (clause 11), disapplying some existing restrictions on the detention of unaccompanied children, families and pregnant women. During the first 28 days of detention applications for immigration bail or for judicial review of decisions to detain would not be allowed (subject to limited exceptions).
Statutory provisions would replace elements of common law on determining what is a reasonable period of detention. These changes would apply to existing detention powers as well as the new proposed powers (clause 12).
Clauses 15–20 provide arrangements for accommodation of unaccompanied children within the scope of the duty to remove in clause 3. They would give a power to the Secretary of State to provide or arrange for the provision of accommodation and other support to a child in this cohort, and to transfer a child from Home Office accommodation into local authority care (and vice versa). The provisions apply to England but could be extended to the other parts of the UK through the regulation-making power in clause 19.
Clauses 21–28 would extend powers to disapply certain protections given to potential and confirmed victims of trafficking or modern slavery to people who are within the scope of the duty to remove. Among other things, this would enable a potential victim to be removed from the UK before a final decision had been made on their trafficking case. A sunset mechanism provides for the provisions to be automatically suspended two years after commencement. The provisions can also be suspended or revived by regulations.
Clauses 29–36 set out restrictions on future grants of immigration status and citizenship for people who have ever met the conditions for the removal duty provided for in clause 2. These would apply regardless of whether a person was removed from the UK. The person would be ineligible for a future grant of permission to remain or (if removed) permission to return to the UK. They would also be ineligible for naturalisation and several other routes to British citizenship (and other types of British nationality). The clauses provide some limited exceptions where necessary to comply with international obligations or where there are compelling circumstances.
Clauses 37–49 set out the rights of legal challenge available to people subject to the removal arrangements duty. A person would have eight days to lodge a 'suspensive claim' which would prevent removal until finally determined. Legal challenges made on other grounds would not delay removal. Grounds for making a suspensive claim would be that the person is not subject to the duty to arrange removal or would be at risk of "serious and irreversible harm" if removed to a specified third country.
Suspensive claims would be decided by the Secretary of State; appeals against refusal decisions would be heard by the Upper Tribunal. Time limits would apply to the Secretary of State and Tribunal decisions and certain decisions by the Upper Tribunal would not be subject to judicial review.
Clause 49 is a placeholder clause which confers powers to make regulations about interim measures from the European Court of Human Rights.
Clause 51 would give powers to make regulations identifying "safe and legal" routes of entry to the UK and specifying an annual limit on the number of places they would provide. The annual cap would be decided in consultation with local authorities and other relevant bodies.
Clause 55 contains defined expressions for various terms referred to in the Bill.
Henry VII powers
The Bill contains seven clauses which would enable ministers to amend or repeal provisions in primary legislation by secondary legislation (so-called 'Henry VIII clauses')
• Clause 6 (powers to amend the Schedule)
• Clause 19 (extension of clauses 15-18 to Wales, Scotland and Northern Ireland)
• Clause 23 (provisions relating to support: Scotland)
• Clause 28 (disapplication of modern slavery provisions: persons liable to deportation)
• Clause 37 (suspensive claims: interpretation)
• Clause 50 (inadmissibility of certain asylum and human rights claims)
• Clause 53 (consequential and minor provision)
The delegated powers memorandum outlines the Government's justifications for the powers (and the other regulation-making powers in the Bill), and the proposed approval mechanisms (as provided for in clause 54).
Territorial extent and application
Immigration is a reserved matter and most of the Bill's provisions apply across all four parts of the UK. Clause 56 details the extent of each clause; see also the table in Annex B in the explanatory notes.
Commencement
As detailed in clause 57, clauses 52-58 would come into force upon Royal Assent. Various other provisions would also come into effect on that date for the purpose of making regulations. Clause 57(6) provides that regulations bringing clause 2 (duty to make arrangements for removal) into effect cannot be made before regulations under clause 49 (interim measures of the European Court of Human Rights) are in force.
2.2 Opposition reaction
Labour, the Scottish National Party, the Liberal Democrats and a cross-party group have tabled reasoned amendments stating and explaining their opposition to the Bill. Criticisms include that the Bill breaches international obligations; would leave asylum seekers "in limbo"; lacks measures to target people smugglers; and fails to protect vulnerable people.
3 Duty to arrange removal and refuse to process asylum claims
The Bill would create two new legal duties for the Secretary of State. The first is to make arrangements to remove people who travel to the UK illegally and meet certain other conditions. The duty would apply regardless of whether the person has submitted a legal claim challenging their removal, including an application for judicial review.
If someone meets those conditions, the Secretary of State must also refuse to process any asylum claim they make, along with any claim that removal to their country of origin would be a breach of their human rights.
3.1 The removal arrangements duty
Clause 2 provides that the Secretary of State "must make arrangements for the removal of a person" from the UK if they meet four conditions. The conditions, in brief, are that the person entered the UK illegally after 7 March 2023, has no permission to be in the UK and did not come directly from a place where they fear persecution.
In more detail:
The first condition is that the person has come to the UK illegally. This covers entering without permission; entering in breach of a deportation order; arriving without permission; and arriving without an electronic travel authorisation. 'Entering' and 'arriving' are separate concepts under the Immigration Act 1971, which is why the clause covers both. [30]
The second condition is that the person entered or arrived "on or after 7 March 2023". This is the date the Bill was introduced. The arrangements for removal duty will therefore be retrospective: it will operate on conduct that took place before the Bill comes into force. [31]
The third condition is that the person "did not come directly to the United Kingdom from a country in which the person's life and liberty were threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion". This reflects Article 31 of the United Nations Refugee Convention, which protects refugees from being penalised for entering another country unlawfully. [32]
Clause 2(5) specifies that someone who "passed through or stopped" in a safe country en route to the UK did not "come directly".
The fourth condition is that the person requires leave to enter or remain in the UK but does not have it. This means that, in principle, someone who originally arrived unlawfully but later secures leave would no longer be subject to the arrangements for removal duty. Clause 29 contains limited provision for granting leave (see section 8 below). The duty does not otherwise lapse or expire.
Nor is the duty limited to people who have travelled to the UK by small boat. Other forms of unauthorised entry or arrival would be covered.
The specific formulation "make arrangements for removal" reflects the language of existing removal powers. [33] Clause 5(1), discussed further in section 4.5 below, requires that these arrangements be made "as soon as is reasonably practicable".
There are certain exceptions to the arrangements for removal duty, in particular for unaccompanied children. The explanatory notes state that the duty is otherwise intended to be "absolute". [34]
Clause 2 cannot be brought into effect until regulations under clause 49 (interim measures of the European Court of Human Rights) are in force.
3.2 Exceptions to the removal arrangements duty
Clause 2(11) provides that the only possible exceptions to the arrangements for removal duty are for unaccompanied children, certain victims of human trafficking (see section 5 below) and in other cases that regulations may specify.
Unaccompanied children
Clause 3 provides that the arrangements duty does not apply to unaccompanied children while they are under 18. But the Secretary of State may nevertheless decide to make arrangements for the removal of an unaccompanied child, even though not required to.
The explanatory notes say that "as a matter of current policy", arrangements for the removal of unaccompanied children will only be made in "exceptional circumstances ahead of them reaching adulthood". Once they turn 18, the duty to arrange removal would apply. [35]
Clauses 15 to 20 would allow the Home Office to arrange accommodation for unaccompanied children pending their removal once they turn 18 or if they are removed as a minor. See section 9 below.
Trafficking victims
At present, suspected victims of modern slavery or human trafficking have temporary protection against removal from the UK while their case is further considered. [36] The Bill would mostly disapply this protection for people who have entered illegally, but creates an exception for people cooperating with a criminal investigation (ie into their alleged traffickers). Where this exception applies, clause 2(11)(c) would ensure that the person is not subject to the arrangements for removal duty; otherwise they are.
Other cases
Clause 3(5) would give the Secretary of State power to make regulations exempting other people from the arrangements for removal duty. The Home Office says it expects any these exceptions to be "limited", such as where the person is being prosecuted or extradited. [37]
3.3 The automatic inadmissibility duty
Normally, somebody who claims asylum cannot be removed while their claim is pending, except to a safe 'third country' (ie not their country of origin). [38] People can also lodge a claim that removal would breach the Human Rights Act 1998, which makes the European Convention on Human Rights part of UK law. Decisions to refuse a human rights claim can be challenged in court by applying for judicial review, as in the recent Rwanda litigation. [39]
Clause 4 seeks to prevent legal claims that would normally prevent or delay removal from the UK from interfering with the clause 2 arrangements for removal duty. It provides that the duty applies regardless of whether the person has claimed asylum, made a human rights claim, been assessed as a potential victim of human trafficking or applied for judicial review to challenge their removal.
Clause 4(2) provides that asylum claims by people who are subject to the arrangements for removal duty must be declared inadmissible. So must human rights claims contesting removal to the person's country of origin. An inadmissible claim cannot be processed; it is, essentially, null and void.
The UN Refugee Agency characterises this as an "asylum ban" in "clear breach of the Refugee Convention". It notes that the automatic inadmissibility duty applies to asylum seekers "no matter how genuine and compelling their claim may be, and with no consideration of their individual circumstances". [40]
The UK already has inadmissibility rules. But they rule out the processing of asylum claims, not human rights claims. They only apply automatically to claims by citizens of EU countries (with a proviso allowing cases to be processed in "exceptional circumstances"). [41] Declaring claims by citizens of other countries inadmissible requires proof of connection to a safe third country. [42] By contrast, the new inadmissibility duty focuses on the person's illegal entry to the UK, and their nationality is not directly relevant.
In addition, under existing rules, asylum claims declared inadmissible can nevertheless be admitted for processing. [43] This normally happens if the person cannot be removed to a safe third country within six months. [44]
The new Bill does not contain such a clause. The intention is for the claim to be "permanently inadmissible". [45] This does not mean the person will inevitably be removed (see section 4 below), but does mean there is no obvious mechanism for them to enter the asylum system if they remain.
3.4 Exceptions to automatic inadmissibility
Human rights claims that challenge removal to a 'third country' – for example, an Iraqi asylum seeker being sent to Rwanda – are an exception. The claim is not subject to the automatic inadmissibility duty and must still be processed. But the person will still be subject to the arrangements for removal duty, and the Home Office says it intends to process any such claim after the person has been removed to the third country. [46]
Clauses 37 to 49 would create new forms of legal challenge that do allow the person to contest removal despite being subject to the arrangements for removal duty. These are discussed in section 4.6 below.
4 Detention and removal of migrants
4.1 Detention and bail
The Government has wide powers to detain people for reasons of immigration control. People who are subject to immigration control may be held while they wait for permission to enter the UK or before they are deported or removed from the country. Immigration detention is an administrative process and powers to detain are exercised by Home Office officials rather than judges.
A November 2022 briefing published by the Migration Observatory at the University of Oxford, which provides analysis on migration to the UK, provides an overview of recent trends in immigration detention in the UK and related issues. [47]
There are different types of immigration detention facility, with different restrictions on use and permitted length of detention.
• Short-term holding facilities – these are secure places to hold people (typically upon arrival to the UK) pending examination or a decision to grant, cancel or refuse permission to enter, or pending their removal. [48] Different time limits apply depending on the categorisation of the facility, up to a maximum of seven days. [49]
• Immigration Removal Centres – these are places to detain people whilst their immigration cases are processed or pending removal from the UK. There is no statutory time limit on the length of detention.
• Pre-departure accommodation – this type of secure accommodation is used to detain families with children under 18 as a last resort to enforce their removal from the UK. There is a statutory requirement to consult the Independent Family Returns Panel on each decision to detain a family in these facilities. There are statutory time limits on how long families can stay in pre-departure accommodation (72 hours or up to seven days in cases personally authorised by a government minister). [50]
There were 2,192 bed spaces available across the eight operating Immigration Removal Centres, in December 2022. [51] Over the past couple of years, plans have been confirmed to open Immigration Removal Centres at Campsfield House and Haslar (both previously used as places of immigration detention). [52]
The average daily cost to hold an individual in immigration detention has been increasing over the past five years. In the fourth quarter of 2022 (the most recent figure available), the average cost was £120.
Gatwick pre-departure accommodation currently has capacity to accommodate two families at a time.
Statutory powers to detain
The statutory powers to detain are spread across different pieces of immigration legislation, such as:
• The power to detain an illegal entrant or person liable to removal is set out in the Immigration Act 1971 (as amended), Schedule 2, paragraph 16(2)
• Powers to detain under the authority of the Secretary of State, as provided for in the Nationality, Immigration and Asylum Act 2002, section 62
• Powers to detain people liable to deportation are set out in the Immigration Act 1971, Schedule 3, paragraph 2, and the UK Borders Act 2007, section 36.
To be lawful, detention must be in line with one of the statutory powers and in accordance with the limitations imposed by case law (both domestic and that of the European Court of Human Rights). It must also be in line with the Home Office's stated policy. [53]
Safeguards for vulnerable groups
Detention of families and unaccompanied children
Policy changes made in 2010 under the Coalition Government ended the detention of families with children under 18 in Immigration Removal Centres before their removal from the UK. A new family returns process, including oversight by the Independent Family Returns Panel (IFRP), was developed and aspects of the policy were subsequently put into primary legislation. [54]
Since then, families have only been detained prior to removal in secure "pre- departure accommodation". It has remained permissible for families (and unaccompanied children) to be held in short-term holding facilities pending admission to or immediate removal from the UK.
The Independent Family Returns Panel was established to provide advice to the Home Office on the safeguarding and welfare plans for the removal of families who do not have permission to remain in the UK. As per section 54A of the Borders, Citizenship and Immigration Act 2009 (as amended), the Secretary of State is required to consult the IFRP:
• in all family returns cases, about how best to safeguard and promote the welfare of the children and the family (s54A(2)(a))
• in all family cases proposed for detention in pre-departure accommodation, about the suitability of so doing, having particular regard to the need to safeguard and promote the welfare of the children of the family (s54A(2)(b)).
It also has a non-statutory role to maintain an overview of the treatment of families denied entry to the UK who are held at ports of entry pending a decision on whether to admit them or their departure from the UK. [55]
Detention of unaccompanied children under 18
Home Office policy states that unaccompanied children should only be detained in very exceptional circumstances, to support their removal from the UK, even where a statutory power to detain is available. [56]
Section 6 of the Immigration Act 2014 amended Schedule 2 of the 1971 Act to limit the detention of unaccompanied children to detention in short-term holding facilities and prevent them being detained for longer than 24 hours.
Detention of pregnant women
Pregnant women are within the scope of the Adults at Risk in immigration detention policy, issued pursuant to section 59 of the 2016 Act. [57] The guidance includes a presumption that detention will not be appropriate if a person is considered 'at risk'. It should only be used if immigration control considerations outweighed the presumption.
Statutory limitations on the detention of pregnant women were introduced through section 60 of the Immigration Act 2016. Section 60(2) of the 2016 Act prevents a pregnant woman from being detained under relevant powers in the 1971, 2002 or 2007 Acts, unless the Secretary of State is satisfied that she will shortly be removed from the UK or there are exceptional circumstances which justify the detention. Where detention occurs, there is a statutory time limit of 72 hours (subject to an absolute maximum of seven days, where personally authorised by a Government Minister), as per section 60(4).
There have been calls for an absolute prohibition on the detention of pregnant women. [58]
4.2 New powers to detain people subject to arrangement for removal duty
Clause 11 would provide new powers to detain people who are covered, or potentially covered, by the duty to arrange removal specified in clause 2 and their relevant family members (as defined in clause 8).
Existing statutory limitations on the detention of families with children, pregnant women and unaccompanied children would not apply to the exercise of these new powers.
New powers to detain
Clause 11(1-3) would amend Schedule 2 to the Immigration Act 1971 to insert new sub-paragraphs 2C-2G into paragraph 16.
Proposed sub-paragraph 2C would confer four new powers to detain:
• If the immigration officer suspects that the person falls within the cohort specified in clause 2, pending a decision on whether the four conditions in clause 2 are met.
• If the immigration officer suspects that the Secretary of State has a duty to make removal arrangements under that section, pending a decision on whether the duty applies.
• If the Secretary of State has such a duty, pending the person's removal from the UK.
• To detain an unaccompanied child, either pending removal under clause 3(2) or pending a grant of limited leave (as per clause 29) or as a victim of modern slavery (as per section 65(2) of the Nationality and Borders Act 2022.
Sub-paragraphs 2D and 2E would provide similar powers to detain the relevant family member of such a person (as defined in clause 8).
To ensure clarity over which detention powers are used, proposed sub- paragraph 2F specifies that detention must be under the powers given by sub-paragraphs 2C or 2D rather than the powers provided for elsewhere in paragraph 16.
Proposed sub-paragraph 2G would allow for people of any age detained under sub-paragraphs 2C or 2D to be detained in any place considered appropriate by the Secretary of State. The Explanatory Notes confirm that this could mean places other than pre-departure accommodation, Immigration Removal Centres and short-term holding facilities, but do not specify any particular alternative facilities. [59]
Clause 11(6) would amend the 2002 Act to provide new detention powers for the Secretary of State in line with the proposed changes to immigration officers' powers under the 1971 Act.
Disapplying detention time limits for families and pregnant women
Clause 11(4) would amend the definition of "pre-departure accommodation" so that the specified time limits on detention in pre-departure accommodation would not apply to cases subject to paragraph 16(2C) or (2D) powers. There would be no time limit on detention for such cases.
Elsewhere, clause 14 would amend the 2009 Act to disapply the requirement for the Secretary of State to consult the IFRP, where a family's proposed removal and detention is under the powers conferred by clause 2, 7, or the statutory detention powers as provided for in clause 11. The ECHR memorandum cites a desire to facilitate prompt removal as justification for the change. [60]
Clause 11(11) would disapply the statutory time limit on detention of pregnant women provided for in the 2016 Act in respect of detention powers provided for by the clause.
Reactions to new powers to detain
The Refugee Council, a charity, has said the measures will lead to "tens of thousands" of refugees being detained. [61] It calculates the potential cost of detaining for 28 days everyone subject to the duty to arrange removal would be £219m per year, or £1.4bn for six months. The figures are based on a Home Office prediction that 65,000 people might cross the Channel in 2023.
The amount of additional detention spaces likely to be needed to accommodate the potentially large cohort of people covered by the new powers to detain has been queried, including by the Shadow Home Secretary Yvette Cooper. [62] The Home Secretary, Suella Braverman, told the House of Commons on 7 March that the Government "will roll out a programme of increasing immigration detention capacity, and we are working intensively on that now." [63] According to a report in The Times, the Government is in talks about buying two disused RAF bases in Lincolnshire and Essex. [64]
4.3 Period of detention
Background
Home Office powers to detain are subject to the limitations imposed by the four 'Hardial Singh' principles. [65] These are:
(i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(ii) the deportee may only be detained for a period that is reasonable in all the circumstances;
(iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;
(iv) the Secretary of State should act with reasonable diligence and expedition to effect removal. [66]
It is an established principle that in legal challenges to the lawfulness of detention, the court decides for itself whether there is a reasonable or sufficient prospect of removal within a reasonable period of time. [67]
An article on the immigration law blog Free Movement written by a barrister at Garden Court Chambers discusses how the Hardial Singh principles have been applied by the courts. [68] It explains that the second and third principles operate together, because any breach of the second principle implies an earlier breach of the third. It comments that "Hardial Singh 2 is therefore technically superfluous, but still has a useful purpose in reinforcing to Home Office officials the need for detention to not exceed the reasonable period."
Deciding what is a "reasonable period" depends on the individual circumstances of the case. Factors considered include the length of detention, the nature of obstacles preventing deportation/removal, the speed and effectiveness of Home Office efforts to overcome the obstacles, the detainee's risk of absconding, and the effect of detention on the detainee and their family. The article notes that "Often different factors will pull in different directions, leaving the judge with significant discretion in determining the reasonable period."
The Bill
Clause 12 would codify the second and third Hardial Singh principles and specify that determining what is a reasonable period to detain a person is a matter for the Secretary of State rather than the courts. These changes would apply to existing detention powers as well as the new powers provided for in clause 11.
Clause 12(1) would amend Schedule 2 of the Immigration Act 1971 to allow for people liable to detention under paragraph 16 powers to be detained for the period the Secretary of State considers is "reasonably necessary" to enable the underlying purpose of detention to be carried out. [69] As per proposed new paragraph 17A(2), the powers to detain under paragraph 16 would apply regardless of whether there was anything preventing those purposes of detention from being carried out for the time being.
If the Secretary of State subsequently decided that the purpose of detention could not be carried out within a reasonable period (such as, if removal from the UK was not possible), they would be able to detain the person for a further period "as considered necessary" so arrangements could be made for the person's release. This is reflected in proposed new paragraph 17A (sub- paragraphs 4 and 5).
Neither the Bill nor the explanatory notes indicate what type of arrangements might be made where a person is released from detention in such a scenario. The range of conditions that can be attached to a grant of immigration bail are covered in the Home Office policy guidance on immigration bail. [70] They include, for example, conditions restricting work or study, requirements to reside at a particular address, reporting conditions (whether in person, by telephone, or digital reporting), and electronic monitoring. [71]
Clause 12(2-4) would amend other immigration acts so that the proposed codified Hardial Singh principles also apply to the exercise of other detention powers, affecting people subject to deportation orders, people unlawfully in the UK, and foreign offenders subject to the automatic deportation regime.
4.4 Powers to grant immigration bail
Background
Schedule 10 of the Immigration Act 2016 provides for immigration bail arrangements. A person in immigration detention can apply to be released on bail by applying for immigration bail, either to the Secretary of State or the First-Tier Tribunal (Immigration and Asylum Chamber).
Applications for Secretary of State bail can be made at any time after arrival in the UK, whereas applications to the Tribunal can only be made more than eight days after arrival. The Tribunal cannot grant bail without the Secretary of State's consent if there are directions to remove the person within the following 14 days.
Initial decisions to detain are not subject to automatic independent oversight by an immigration judge. The Immigration Act 2016 introduced a duty on the Secretary of State to refer cases to the Tribunal for consideration of bail after four months' detention and every four months thereafter, subject to exceptions including foreign national offender cases pending deportation.
Separately, the lawfulness of a decision to detain can be challenged by applying to the High Court for a judicial review or issuing a writ (court order) of habeas corpus (or equivalent procedure in Scotland). A writ of habeas corpus allows a person deprived of their liberty to have the decision reviewed by the court, to decide if the justification for the detention is lawful.
The remedy of judicial review has a broader scope than habeas corpus and is more widely used in practice. Whereas habeas corpus applications focus on the power to detain, judicial review applications concern the exercise of the discretion to detain.
The Civil Procedure Rules set out the process for applying for a writ of habeas corpus for release in England and Wales. [72] If the decision to detain is found to be illegal, the court order must be issued and there is no discretion to withhold relief (unlike in judicial review proceedings).
There are longstanding concerns among asylum rights advocates and immigration law practitioners and other stakeholders about the absence of judicial oversight of decisions to detain. A submission to the UN Human Rights Committee (January 2020) by the charity Bail for Immigration Detainees, which campaigns against immigration detention and provides legal advice to detainees, identifies some practical obstacles to challenging a decision to detain:
… in the absence of automatic judicial oversight, a challenge to an unlawful Home Office decision must be initiated by the person held in immigration detention, and often after an unlawful decision and detention has already occurred. Detainees need therefore to understand complex immigration and public law principles and common law sufficiently to apply for permission to judicially review the decision to detain them, or they must find a lawyer willing and sufficiently competent to represent them in a judicial review (or more rarely, habeas corpus) challenge before the courts. Access to quality immigration advice within detention is very limited. [73]
The Bill
Clause 13 would amend the immigration bail provisions in Schedule 10 to the Immigration Act 2016. It would also restrict the jurisdiction of the courts to review the lawfulness of a decision to detain (or to refuse bail) under the new powers provided for in clause 11.
The clause would amend Schedule 10 of the 2016 Act to provide a power to grant bail to people detained under the proposed new paragraphs 16(2C) and (2D) and proposed new powers in the 2002 Act (as per clause 11). However, clause 12(3) prevents the First-tier Tribunal from granting bail during the first 28 days of detention under those powers. It would be able to grant bail after that period, but there would be no automatic right to bail after 28 days.
When considering an application for bail, the Tribunal would be obliged to consider whether the Secretary of State has a duty under clause 2 or 7 to arrange the removal of the person (or a member of their family where clause 8 applies). [74]
Clause 13(4) is an "ouster clause" (discussed further in section 6 of this briefing). It would prevent a person from challenging their detention through judicial review during the first 28 days. The only exception would be if the grounds were that the Secretary of State had acted in bad faith or in such a way that amounted to a fundamental breach of natural justice. The possibility of issuing a writ of habeas corpus (or equivalent in Scotland) would remain.
In the Government's view, the availability of habeas corpus proceedings and absence of restrictions on individuals pursuing damages for any period of unlawful detention ensure the clauses' compatibility with ECHR Article 5. [75] For further discussion of the effects of the clause, see sections 6 and 7 of this briefing.
Reactions to immigration bail provisions
Immigration barrister and blogger Colin Yeo has suggested that judges would be likely to grant bail after 28 days, if there was no realistic prospect of the person's removal. [76] However, he also identifies difficulties accessing legal advice as a likely issue for detainees.
4.5 Removal of people subject to the arrangements for removal duty
Clause 5 addresses the removal of people who are subject to the arrangements for removal duty.
The Secretary of State must ensure that arrangements for removal are made "as soon as reasonably practicable". Clause 5(3) provides that people can, as a general rule, be removed to their home country, the country they entered the UK from or another country prepared to accept them. This reflects existing powers of removal under the Immigration Act 1971. [77]
But there are certain restrictions if people have claimed asylum or made a human rights claim. This is despite the automatic inadmissibility duty stopping these claims being processed (see section 3.3 above).
Removal to country of origin
Clause 5(4) provides that people can normally be removed to their home country if that country is listed as safe. The list of safe countries is set out in clause 50 and consists of the 27 EU countries plus Albania, Iceland, Liechtenstein, Norway and Switzerland.
The exception is if the person has made an asylum or human rights claim and there are "exceptional circumstances". These include, but are not limited to, situations where the country in question is opting out of its obligations under the European Convention on Human Rights. This proviso mirrors the existing inadmissibility rules for EU citizens. [78]
Clause 5(9) provides that people from countries not listed as safe cannot be removed to their home country if they have made an asylum or human rights claim. As such claims cannot be processed – either to accept them or reject them – it is not clear that people in this position can lawfully be removed to their own country. [79]
In 2022, 16,100 people from countries listed in clause 50(3) applied for asylum in the UK, almost all of whom (15,900 or 99% of the total) were Albanian. [80]
They accounted for 18% of all asylum applicants in 2022. This proportion was higher than in other years and driven by the increase in applications from Albanian nationals.
Looking over a ten-year period from 2013 to 2022, 42,000 people from countries listed in clause 50(3) applied for asylum. That accounts for 9% of all asylum applicants during this time, meaning that 91% came from countries not listed as safe.
Removal to safe third country
Clause 5(7) introduces a second list of safe countries. These are countries considered safe for people to be removed if they are not a citizen of that country.
The list of safe third countries is in a schedule to the Bill and is longer than the list of safe countries of origin. It includes not only European countries, but an additional 25 mostly non-European countries. These 25 countries largely replicate an existing list of safe countries, with the addition of Rwanda and exclusion of Ukraine. [81]
Clause 6 allows the Secretary of State to add countries to the list if satisfied that there is, in general, no risk of persecution or human rights violations there. Countries can also be listed as safe for certain groups of people. For example, the schedule lists several African countries as safe for men only.
What if people are not removed?
In practice, removals require the cooperation of another country, which Parliament cannot guarantee by legislation. [82]
Under the scheme proposed by the Bill, the main avenue for removal of asylum seekers is to third countries. Aside from Rwanda, no third country has agreed to accept asylum seekers from the UK in large numbers. The Government has said it is "in discussions" about returning asylum seekers to EU countries. [83]
There is no obvious mechanism in the Bill for asylum seekers to have their claims processed if not removed. Immigration lawyer Colin Yeo argues this creates "perpetual limbo". [84]
As outlined in section 8 below, clause 29 does allow people subject to the removal duty to be granted permission to stay in the UK, albeit in limited circumstances. This is possible if the Secretary of State considers it necessary to comply with the European Convention on Human Rights or other international obligations. But it is not clear that this provides a mechanism for people to be routinely admitted to the asylum system.
Clause 9 would provide for people with inadmissible claims to receive asylum support under section 4(2) of the Immigration and Asylum Act 1999. [85] Jon Featonby of the Refugee Council suggests that people who would normally be refused asylum and removed may end up being accommodated by the Home Office "indefinitely". [86]
Other removal issues
Clause 7 would require people who are being removed to be given notice in writing and informed about the limited legal challenges they are still allowed to make (see section 4.3 below).
It also allows the Secretary of State to require transport operators, such as airlines, to make arrangements to remove someone from the UK. The operator can be granted the power to detain the person in custody on board the ship, aircraft, train or vehicle to stop them getting off before removal has taken place.
Clause 8 would allow certain close family members of people being removed under clause 7 to be removed along with them. This is provided the family member has no permission to be in the UK. Clause 8(2) defines family members in line with the rules on eligibility for family visas.
4.6 Legal challenges to detention and removal
Clauses 37-48 would create new rights of legal challenge. While such challenges are ongoing, a person subject to the arrangements for removal duty cannot be removed from the UK. The intention is that these actions are the only ones that can suspend the person's removal. They are accordingly referred to as 'suspensive' claims.
Clause 37 provides for two kinds of suspensive claims. 'Factual suspensive claims' can be used to challenge removal to any country. 'Serious harm suspensive claims' can only be used to challenge removal to a third country (ie not the person's country of origin).
In both cases, the person has eight days to lodge their claim. The clock starts running on the day they receive their removal notice. Late claims can be processed if there are "compelling reasons".
The Secretary of State then has four days to decide the claim. If rejecting the claim, the Secretary of State can certify it as "clearly unfounded". This prevents the person having an automatic right of appeal (see below).
If the suspensive claim is accepted as valid, the person cannot be removed unless there is a change of circumstances (clause 45).
Factual suspensive claims
Clauses 37(4) and 41 provide that someone given notice of their removal can challenge it by lodging a factual suspensive claim. The sole ground for such a claim is that the Home Office has made a mistake in deciding that the person met the four conditions that makes them subject to the arrangements for removal duty. [87] The explanatory notes suggest that challengeable mistakes could include an erroneous finding that the person entered the UK illegally. [88]
Serious harm suspensive claims
The test of serious and irreversible harm has been chosen to mirror the threshold for the issuing of injunctions by the European Court of Human Rights. [89]
What counts as "serious and irreversible harm" will be defined in clause 38. At present this is a placeholder clause. The explanatory notes give an indication of what the definition may ultimately be:
"Serious" indicates that the harm must meet a minimum level of severity, and "irreversible" means that the harm would have a permanent or very long- lasting effect. [90]
Clause 39 provides that there is no right of appeal to the immigration tribunal if the Secretary of State refuses a serious harm suspensive claim. These claims are not regarded as human rights claims.
It also confirms that human rights claims challenging removal to a third country, such as Rwanda, are still permitted. But the intention is that they will not suspend removal. Clause 29 provides for the return of such people to the UK in the event of a successful challenge (see section 8 below). [91]
Clause 40 mentions factors the Secretary of State must take into account when deciding the claim. They are also given the power to make rules about the way claims can be submitted.
Appeals
Clause 42 provides a right of appeal to an immigration judge against refusal of a suspensive claim, so long as it not been certified as clearly unfounded. However, the case will be heard in the Upper Tribunal, skipping the First-tier Tribunal.
If the Home Office has certified the claim as clearly unfounded, there is no automatic right to appeal. But under clause 43, the person can ask the tribunal to grant permission for an appeal to proceed.
Clause 44 would allow the person to challenge a Home Office decision not to process a late claim. The tribunal can order the Secretary of State to process suspensive claims made later than the eight days normally allowed, if there is "compelling evidence" that the delay was justified. Judges cannot hold a hearing on such challenges; only written arguments and evidence are allowed.
The timescale for appeals is provided for in clause 47. The Upper Tribunal is required to change its internal rules so that appeals against refusal of a suspensive claim must be heard within seven working days. The tribunal then has 23 working days to make its decision.
These deadlines can, however, be extended if the tribunal considers it necessary for justice to be done in an individual case.
Clause 48 (discussed in section 6 below) provides that certain Upper Tribunal decisions in this process cannot be appealed or judicially reviewed. A decision to refuse the substance of the suspensive claim can, however, go to the Court of Appeal or Court of Session in the normal way under clause 42(7). [92]
Clauses 21-24 would have the effect of disapplying aspects of modern slavery law to those subject to the arrangements to remove duty, where they have had a positive reasonable grounds decision. [93]
5.1 Current legal position
Under the European Convention on Action Against Trafficking in Human Beings (ECAT), once a person has been identified as a potential victim of trafficking, states have certain obligations to that person.
Part 5 of the Nationality and Borders Act 2022 codified various aspects of ECAT relating to protections for potential victims. The intention was "to ensure victims are identified as quickly as possible, while enabling decision makers to distinguish more effectively between genuine and non-genuine accounts of modern slavery". [94] Most of the provisions in Part 5 came into force on 30 January 2023. [95]
Section 61 codified the obligation to provide a reflection and recovery period of 30 days, reflecting ECAT Article 13.
Article 13(3) of ECAT allows for exemptions to the protections during the recovery period "if grounds of public order prevent it or if it is found that victim status is being claimed improperly."
Previously, the Statutory Guidance contained the policy on disqualifying improper claims and on public order grounds. In summary, the recovery period would not be observed if there was "firm, objective evidence" that an "improper" claim to victim status had been made or if "grounds of public order prevent it". [96]
Sections 62 and 63 of the Act introduced a new approach and put the policy on a statutory footing.
Section 63 allows for people considered to be a threat to public order or who have claimed to be a victim in "bad faith" to be disqualified from the reflection and recovery period (and the corresponding protection from removal), and from consideration for VTS leave (if applicable). The updated Statutory Guidance provides frameworks for decision-making on public order and bad faith grounds. [97]
The new approach to public order disqualifications applies to any cases referred to the National Referral Mechanism (NRM) or that have already received a positive reasonable grounds decision but are still waiting for a conclusive grounds decision, including those referred to the NRM before 30 January 2023. [98] Decision-makers must consider whether the individual's need for modern slavery protections outweighs the threat to public order they pose. The bar is set "high"; more weight is given to the public interest in disqualification. [99]
Decisions to disqualify on bad faith grounds are possible where it is believed there is sufficient evidence to decide, on the balance of probabilities, that the person has claimed to be a victim in bad faith. [100]
Separately, section 62 provides that people may be disqualified from an additional recovery period if they have benefitted from one previously and bring further grounds which relate to matters that occurred before the previous decision.
ECAT Article 14 requires states to issue a renewable residence permit to confirmed victims if the competent authority considers it necessary "owing to their personal situation", as per Article 14 (1)(a), and/or for the purpose of cooperating in investigation of criminal proceedings, as per Article 14(1)(b). Article 15 specifies various obligations on states to facilitate victims to pursue compensation and legal redress.
Until recently, UK policy allowed discretionary leave to be granted to victims of slavery on either ground identified in ECAT Article 14, and/or to enable the victim to pursue compensation. [101]
Section 65 put the commitment to providing leave to remain to confirmed victims of modern slavery into primary legislation and adjusted the grounds on which it would be granted:
(2) The Secretary of State must grant the person limited leave to remain in the United Kingdom if the Secretary of State considers it is necessary for the purpose of—
(a) assisting the person in their recovery from any physical or psychological harm arising from the relevant exploitation,
(b) enabling the person to seek compensation in respect of the relevant exploitation, or
(c) enabling the person to co-operate with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation.
The Home Office has confirmed that it only considers leave granted under section 65(c) as implementing the UK's obligations under ECAT Article 14. Where immigration permission is granted for the other two purposes specified in section 65, this is considered to reflect domestic law and policy rather than obligations under ECAT or any other international instrument. [102]
Section 65 further provides that leave does not have to be given if the victim's recovery needs can be met in their country of nationality or a third country where they can be removed to, or if the victim could pursue compensation from overseas and it would be reasonable for them to do so. [103]
For further detail see Briefing Paper Modern slavery cases in the immigration system.
5.2 The Bill
Clause 21 would extend the public order disqualification to persons subject to the arrangements to remove duty who have had a positive reasonable grounds decision. The effect of this would be to disapply the prohibitions provided for by sections 61 and 62 of the 2022 Act on removal of potential victims and the section 65 requirement to grant limited leave to remain to a confirmed victim.
According to the Bill's explanatory notes, the justification for this is based on a number of factors
… including the pressure placed on public services, the large number of irregular arrivals and the loss of life caused by arrivals from illegal and dangerous journeys, including via small boat Channel crossings. [104]
There would be an exception to the public order disqualification where a person was cooperating with an investigation or criminal proceedings relating to conduct which resulted in a positive grounds decision or was relevant to a conclusive grounds decision. This would extend to a child or parent of someone cooperating with an investigation.
Clause 21 would also enable the Secretary of State to revoke limited leave to remain granted under section 65(2) of the 2022 on or after 7 March 2023, where they would otherwise be subject to the arrangements duty.
Clauses 22-24 would provide for another consequence of the public order disqualification, disapplying the requirement to provide support during the recovery period in England and Wales, Scotland and Northern Ireland respectively.
These measures are subject to a sunset provision in clause 25 after two years. This would operate automatically, but the Secretary of State could by regulations suspend them earlier, extend them for a further 12 months, or revive them if previously suspended.
Clause 28 would add two further categories of person to section 63(3) who would be disqualified from a recovery period on the basis of being a threat to public order. These are:
• persons liable to deportation from the UK under the 1971 Immigration Act on grounds of it being conducive to the public good or as a result of deportation of a family member or a recommendation following conviction; and
• persons liable to deportation under any other enactment that provides for such deportation.
6 Limiting judicial review: 'Ouster clauses'
In a number of instances, the Bill would seek to restrict the supervisory jurisdiction of the courts by limiting the possibility of judicial review, including through the use of 'ouster clauses'.
6.1 What are ouster clauses?
Ouster clauses are clauses in primary legislation which seek to preclude the court's jurisdiction on specific issues, placing certain powers and decisions beyond the reach of judicial review.
The courts have tended not to give effect to ouster clauses which purport to oust their jurisdiction entirely. Instead, they have found that decisions based on errors of law are still capable of being reviewed, on the basis that they involve the exercise of powers that Parliament did not intend to give to the decision maker. For example in Privacy International, Lord Carnwath concluded that there was:
a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal … . In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld… . [105]
In 2021, the Government consulted on judicial review reform, explaining its view on the courts' approach to ouster clauses as:
… detrimental to the effective conduct of public affairs as it makes the law as set out by Parliament far less predictable, especially when the courts have not been reluctant to use some stretching logic and hypothetical scenarios to reduce or eliminate the effect of ouster clauses … .The danger of an approach to interpreting clauses in a way that does not respect Parliamentary sovereignty is, we believe, a real one. [106]
It also suggested that ouster clauses are not a way of avoiding scrutiny, but rather "are a reassertion of Parliamentary Sovereignty, acting as a tool for Parliament to determine areas which are better for political rather than legal accountability". [107]
The Judicial Review and Courts Act 2022 implemented some of the consultation's proposals, including introducing a limited ouster clause which sought to clarify that some decisions of the Upper Tribunal cannot be judicially reviewed along the lines permitted following the UK Supreme Court judgments in Cart and Eba. [108]
6.2 How would the Bill limit judicial review?
Clause 4(1)(d) states that the arrangements duty would apply regardless of whether the person subject to it has made an application for judicial review. As a result, unless the person made a successful suspensive claim, a pending judicial review would not prevent their removal. The judicial review would be able to proceed, with the claimant in their home country or a safe third country, according to the explanatory notes. This is not therefore an ouster clause, but one which would affect the practical impact of a judicial review.
Clause 13(4) introduces an ouster with respect to detention decisions. It provides that where a person is detained under the Bill's provisions, the decision to detain is "final and is not liable to be questioned or set aside in any court". It states further that the powers of the decision makers (immigration officer or Secretary of State) "are not to be regarded as having been exceeded by reason of any error made in reaching the decision". And that the supervisory jurisdiction does not extend to the decision and that no application or petition for judicial review may be made in relation to it.
It excludes from the ouster any decision which may have been made in bad faith or "in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice".
It further provides that the ouster does not affect a person's right to apply for a writ of habeas corpus or any other prerogative remedy (which may limit its practical effect).
Another ouster can be found in clause 48, which concerns the finality of certain decisions by the Upper Tribunal. It provides that any decision of the Upper Tribunal is final and cannot be questioned or set aside in any other court in relation to:
• granting or refusing permission to appeal against certification of a claim as clearly unfounded;
• granting or refusing an application for a declaration concerning an out of time claim; and
• granting or refusing an application for a declaration concerning the consideration of new matters
As with clause 13(4), it further states that the Upper Tribunal is not to be regarded as having exceeded its powers due to any error made in reaching the decision; that the decision is not covered by the supervisory jurisdiction; and that no judicial review may be brought.
It also defines decision as including any "purported decision". [109]
Excluded from the ouster are questions as to:
• whether the application was valid;
• whether the Upper Tribunal was properly constituted; and
• whether the decision was made in bad faith or in such a procedurally defective way as to be a fundamental breach of the principles of natural justice.
Human rights organisation Liberty suggested that this "creates a legal fiefdom insulated from the influence of other courts, in cases where the stakes – the possible removal of an individual to a country where they may face serious and irreversible harm – could not be higher". [110]
Liberty noted that ouster clauses have routinely been found to be unlawful, "and in cases where the consequences of error are so potentially catastrophic, there is particular importance in ensuring that errors made by the Upper Tribunal can be judicially reviewed".
Concerns about the limits on judicial review were shared by law reform and human rights charity Justice, suggesting that they prevent individuals from holding the Government accountable for decisions it makes and challenging unlawful acts. [111]
Justice described clause 4(1)(d) as "an extraordinary attack on the rule of law and the ability of the judiciary to legitimately scrutinise Home Office decision- making and prevent unlawful exercise of state powers".
7 Compatibility with human rights law
7.1 The Human Rights Act and European Convention on Human Rights
The European Convention on Human Rights ('ECHR') came into force on 3 September 1953. By ratifying the Convention, Member States accept international legal obligations to guarantee certain civil and political rights to people within their jurisdiction.
These rights are set out in a series of Articles of (and Protocols to) the Convention. They include the right to life; the right to be free from torture and inhuman and degrading treatment; the right to liberty; and the right to freedom of expression, among others.
The European Court of Human Rights (ECtHR) is an international court, based in Strasbourg, France. It rules on applications from individuals or states, that allege violations of the rights set out in the ECHR.
The UK takes a 'dualist' approach to international law. This means that international law only becomes part of domestic law when expressly incorporated. The HRA effectively incorporated the ECHR into UK law.
The Human Rights Act (HRA) was intended to 'bring rights home' and does so in part by allowing human rights claims to be brought in UK courts.
Before the HRA's entry into force, the UK was already bound by the ECHR as a matter of international law. An individual in the UK could enforce their ECHR rights, but only by taking a case to the ECtHR directly.
As noted above, in the UK's dualist system the HRA incorporates the ECHR into domestic law. However, regardless of the position in domestic law the UK is bound by the ECHR under international law as long as it chooses to remain signatory.
The UK's international law obligations
As well as guaranteeing the substantive Convention rights to those in their jurisdiction, members of the ECHR are subject to certain obligations in international law, including:
• Article 1 provides that the parties to the Convention "secure to everyone within their jurisdiction the rights and freedoms" contained in the Convention. [112]
• Article 13 requires signatories to provide an "effective remedy" (a legal outcome to a complaint, such as damages) before a "national authority" for any person whose rights have been violated. [113] Since the HRA came into force, anyone can access an effective remedy for a breach of ECHR rights in the UK. This has been principally through section 7, which entitles "a person who claims that a public authority has acted (or proposes to act) in a way which" is incompatible with an
ECHR right, to bring proceedings in the appropriate court or tribunal, or to rely on the ECHR rights in any other legal proceedings.
• Article 34 provides the right of individual application to the ECtHR and requires signatories "not to hinder in any way the effective exercise of this right".
• Article 46 requires that parties to the Convention abide by the final judgment of the ECtHR in any case to which they are parties. The Committee of Ministers supervises the "execution" of judgments of the ECtHR, meaning whether States take satisfactory steps to resolve any incompatibility identified. [114]
Implications for the Bill of Rights Bill
The Government's Bill of Rights Bill was introduced in the House of Commons on 22 June 2022. Second reading was provisionally scheduled for 12 September but did not take place.
It would repeal the HRA and replace it, replicating some aspects of it, and amending and removing others. [115]
After his reappointment as Justice Secretary by the current Prime Minister, Dominic Raab responded to questions about the status and timing of the Bill from Joanna Cherry, Chair of the Joint Committee on Human Rights (JCHR), stating "The Bill of Rights, as introduced, should receive its Second Reading in the coming weeks". [116]
On 13 December the Prime Minister announced that the Government would introduce legislation "early in the new year" aimed at dealing with those arriving in the UK illegally. [117]
Giving evidence to the JCHR the following day, Dominic Raab said of the Bill of Rights Bill:
We are ready to go. The Bill has been published, which of course gives us all the more time for valuable scrutiny and consultation. The change of government has had an impact. It is a collective effort and the Prime Minister today addressed his sequencing of priorities, which I fully support, but we are ready to go. The Bill of Rights is ready to go and we look forward to bringing it to Second Reading and engaging with your committee and with Members of both Houses. [118]
He acknowledged that he had not yet been given a date for second reading, but declined to comment on media speculation that the Bill had been deprioritised in favour of immigration legislation announced by the Prime Minister. [119]
Joanna Cherry further questioned the Prime Minister on the Bill's timing at the Liaison Committee on 20 December 2022, and specifically whether it had been deprioritised as reported in favour of immigration legislation. Rishi Sunak said:
I am a new Prime Minister; you would expect me to look at the entire legislative programme and make decisions on that basis. There are some things we need to do sooner rather than later. For example, with Northern Ireland we had to make decisions because of the lack of a functioning Executive. That meant that that legislation had to be introduced at that time. That was not something I was anticipating beforehand. Those are the types of things that come up, but we are keen to deliver on illegal migration, and it is something that I have said is a priority. [120]
During Justice questions on 10 January 2023 Dominic Raab said that the Bill would have second reading as soon as parliamentary time allows. [121]
The current status of the Bill of Rights Bill is unclear.
7.2 Section 19 statement
Section 19 of the HRA requires the minister in charge of a Bill to make a statement before second reading to say the Bill is compatible with the Convention rights (s19(1)(a)), or that they are unable to make such a statement, but the Government wishes Parliament to proceed with the Bill nonetheless (s19(1)(b)). [122] The HRA therefore explicitly envisages Parliament passing legislation that is incompatible with Convention rights. [123]
The Secretary of State has made a section 19(1)(b) statement with respect to the Bill. As the explanatory notes say, this does not mean that the provisions in the Bill are incompatible with Convention Rights, or that the Government is not satisfied that they are capable of being applied compatibly with those rights. [124]
However the statement may be seen as "an acknowledgement that the European Court of Human Rights may rule against the UK on a future challenge". [125]
In her statement introducing the Bill in the Commons, Suella Braverman said
Other countries share our dilemma and will understand the justice of our position. Our approach is robust and novel, which is why we cannot make a definitive statement of compatibility under section 19(1)(a) of the Human Rights Act 1998. Of course, the UK will always seek to uphold international law, and I am confident that this Bill is compatible with international law. [126]
It was reported that in a letter to all MPs and Peers about the Bill, the Home Secretary stated that the section 19(1)(b) statement did not mean that the provisions in the Bill are incompatible with the Convention rights but "only that there is a more 50% chance that they may not be" (sic). The letter described the Bill as "testing the limits" and stated the Government would expect the courts to take account of the fact that once approved, the Bill would have been expressly endorsed by Parliament. [127]
Asked recently about section 19 statements, Dominic Raab told the JCHR "the test in practice is whether it is more likely than not that the Bill would withstand legal challenge on convention grounds. It is effectively a 51% test". [128]
7.3 European Convention on Human Rights memorandum
The Government has published an ECHR memorandum to accompany the Bill which provides its assessment of the Bill's compatibility with Convention rights. It states that the following rights may be engaged:
• Article 2: right to life
• Article 3: prohibition of inhuman or degrading treatment
• Article 4: prohibition of slavery
• Article 5: liberty and security of person
• Article 6: fair trial
• Article 8: private and family life
• Article 13: right to an effective remedy
• Article 14: prohibition of discrimination in the enjoyment of Convention rights.
Curiously, despite the section 19(1)(b) statement, the memo argues that the Bill's provisions do not infringe these Convention rights because of various safeguards and exceptions. In the case of Article 8, it states that any interference can be justified as being in accordance with the law and in pursuit of a legitimate aim.
Justice suggested that the Government was sending "considerable mixed messages" on this point. [129]
The memo does not address the Bill's compatibility with other relevant aspects of international law, notably the Refugee Convention and the Convention on the Rights of the Child. [130]
The Children's Commission for England has expressed concern about the Bill, suggesting its implications for children's rights are opaque, and calling for evidence of what assessment has been made of its impact. [131]
Disapplication of section 3
Clause 1(5) of the Bill states that section 3 of the HRA "does not apply in relation to provision made by or by virtue of this Act". [132]
Sections 3 and 4 of HRA provide the mechanisms for the courts, the Government and Parliament to resolve inconsistencies between domestic law and the ECHR.
Section 3 HRA requires all legislation to be read and given effect in a manner that is compatible with the rights guaranteed by the European Convention on Human Rights "so far as it is possible to do so". Previously the courts could consider the ECHR to help them resolve ambiguities in legislation, but section 3 goes further, allowing the courts to interpret legislation in a manner that is not obvious from the language used by Parliament, as long as it does not run counter to the underlying thrust of the statute or statutory instrument.
Where a Convention compliant interpretation of primary legislation is not possible, the court can make a declaration of incompatibility under section 4 HRA. This does not affect the validity or continuing operation of the legislation under scrutiny. It puts the onus on Government and Parliament to remedy the incompatibility.
The Bill would disapply this requirement in relation to its own interpretation and that of any regulations made under it. As a result, the courts would revert to the pre-HRA approach to statutory interpretation, following the ordinary and natural meaning of the language unless there is any ambiguity or uncertainty, which should be resolved in a Convention compliant way.
This approach is based on the assumption that Parliament intends to act compatibly with the UK's international legal obligations. The ECHR would therefore be treated in the same way in terms of its influence on statutory interpretation as other unincorporated international treaties.
The ECHR memo states that this provision does not affect the Government's assessment of the compatibly of the Bill with the Convention rights.
A consequence of this provision is that any legal challenge to the Bill's provisions will be more likely to result in a declaration of incompatibility, which does not provide the claimant with a remedy.
Override of section 6 HRA
Section 6 HRA provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, unless the public authority could not have acted differently as a result of a provision in primary legislation.
Clause 4 would provide that the arrangements to remove duty (or the power in clause 3) applies regardless of whether the person has made a human rights claim. It would also require the Secretary of State to declare as inadmissible any claim that a person's removal to their country of origin or where they have a passport would be unlawful under section 6 HRA. Such claims would therefore not be considered by the courts in the UK.
Human rights claims concerning a person's removal to a third country would be admissible, but would not have the effect of suspending the claimant's removal unless a serious harm suspensive claim was made, as provided for by clauses 37-47.
Under clause 5 a person who is a national of a country listed in section 80AA(1) of the Nationality, Immigration and Asylum Act 2002 (as amended by the Bill) may not be removed there if they make a human rights claim and the Secretary of State considers that there are exceptional circumstances which prevent it. Clause 5(5) lists examples of exceptional circumstances for these purposes, including that the country in question is a signatory to the ECHR but is derogating from any of its obligations thereunder. [133]
Nationals of countries which are not listed in new section 80AA(1) who have made a human rights claim may not be removed to their country of origin or to where they have a passport.
Such persons could still be removed to a third country from which they embarked or to which they might be admitted, provided it was listed in the Bill's Schedule.
The ECHR memo acknowledges that these and other related provisions may engage Articles 2, 3, 8, 13 and 14.
It argues that, when read in conjunction, clauses 4 and 5 would not infringe Articles 2 or 3 because of the safeguards in the form of Secretary of State's discretion to prevent removal where a human rights claim has been made in relation to a person's country of origin, and the possibility of a suspensive claim in relation to a third country. The memo also asserts that this "complies with the Article 13 ECHR consideration". [134]
The memo also states that the process for making suspensive claims and the appeal process potentially engages Articles 2, 3, 4, 8 and 13. It states that taken together these provisions are not aimed at limiting the underlying rights, but at determining whether claims are conducted from the UK or a third country.
It notes that the definition of a serious harm suspensive claim as provided for by clause 37 is based on the threshold for the ECtHR granting interim measures under Rule 39 (for further detail see below). However, it does not address the provision in clause 38 for the Secretary of State to amend this definition via regulations.
Inadmissibility of human rights claims
Clause 50 would create a new section 80AA(1) of the Nationality, Immigration and Asylum Act 2002, and amend the existing section 80A, expanding the list of countries to which it applies, and expanding its scope to include all human rights claims.
The ECHR memo acknowledges that Articles 2, 3 and 8 are most likely to be engaged by this provision but that "claims under other articles cannot be ruled out". It states that the provision "removes the rights of appeal for those human rights when declared inadmissible", that "the exceptional circumstances safeguard will apply to human rights claims", and "the remedy for which will be Judicial Review". [135]
The memo does not engage in any detailed analysis as to how these safeguards will prevent any infringement of the Convention rights identified in the event that a human rights claim is declared inadmissible.
Detention powers
As noted above, clause 13 would provide that for the first 28 days of detention pending removal or a decision, the First-Tier Tribunal will not be able to grant bail and there will be no ability to challenge a decision to detain by way of judicial review.
The ECHR memo acknowledges that Article 5 may be engaged, but states that because there is no restriction on the ability to challenge detention from the outset by applying for a writ of habeas corpus, and that damages will be available for any unlawful detention, there is no incompatibility. [136]
Legal commentator Joshua Rozenberg suggested that while this is one of a number of concessions and exceptions included in the Bill which enable the Government to claim that it is compatible with the Convention, it may undermine the Bill's deterrent effect. [137]
Disapplication of modern slavery law
Clauses 21-24 would disqualify potential victims of slavery or human trafficking from protection from removal; modern slavery support; and any requirement to grant leave.
The ECHR memo claims that the provisions reflect the position under the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) and are premised on the fact that those arriving illegally are a threat to public order. This includes the pressure on public services and the loss of life caused by illegal and dangerous journeys.
However, it acknowledges that ECAT is not identical to the requirements of Article 4 ECHR, which include the following positive obligations:
• Having a legislative and administrative framework to protect the right;
• Taking operational measures to prevent slavery and trafficking and protect victims; and
• Investigating breaches of Article 4
The memo identifies various "safeguards" in the Bill in order to justify its conclusion that these provisions are capable of being applied compatibly with Article 4, namely:
• The exclusion from the provisions for the period that a person is cooperating with an investigation;
• The potential for a suspensive claim where there is a real risk of serious and irreversible harm;
• Home Office assurances that receiving countries can investigate trafficking claims and provide support for victims.
However, it is not clear how these provisions would operate to render the Bill compatible with Article 4 and the memo does not include any detailed analysis of this issue.
As noted by Joshua Rozenberg, it appears to be these provisions which meant that the Secretary of State was unable to make a statement under section 19(1)(a). [138]
Law reform and human rights charity Justice expressed concerns that extending public order grounds for modern slavery and trafficking to anyone who arrives without a visa is in breach of Article 4 and ECAT, noting specific issues with the safeguards. Firstly, requiring a person to be supporting an investigation in order to benefit from protection is problematic as the recovery and reflection period is often essential to enable witnesses to support investigations. Further, an investigation may not have begun before a victim is deported. [139]
Interim measures of the European Court of Human Rights
Clause 49 would introduce a power to make regulations concerning interim measures of the ECtHR "as they relate to the removal of persons from the United Kingdom under this Act". It goes on to set out a non-exhaustive list of the matters which may be addressed by such regulations, namely the effect of interim measures on:
• The clause 2 duty to make arrangements for removal;
• The clause 3 power to make arrangements for remove;
• The removal of a family member under clause 8; and
• Any claim by a person relating to their removal
It is described by the explanatory notes as a placeholder. It is therefore likely to be replaced by a substantive clause by way of Government amendment during the passage of the Bill. [140]
What are interim measures?
Rule 39 of the ECtHR's Rules of Court states:
The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.
They are urgent measures which only apply where there is an imminent risk of irreparable damage. [141]
They are only applied in limited situations, most typically where there are fears of a threat to life or torture. [142]
The majority of cases relate to expulsion, extradition or the applicant's health while in detention.
They are dealt with as a matter of priority and can last for the duration of the proceedings before the court or other specified duration. [143]
Are interim measures binding on member states?
Following the decision of the ECtHR in which interim measures prevented the removal of asylum seekers from the UK to Rwanda, [144] there was some debate as to whether State parties are bound to comply with interim measures, on the basis that they are not part of the Convention itself, and that Article 46 requires compliance with "the final judgment of the Court". [145]
However, the ECtHR has held that non-compliance could amount to a violation of Article 34, which requires States not to hinder the effective exercise of an applicant's right to bring a claim. [146]
Any regulations introduced under clause 49 would not be capable of altering this position as a matter of international law.
Noting that Parliament "cannot relieve the government of its duties to comply with international agreements", Joshua Rozenberg suggested that the provision envisages a future breach of international law and could be seen as a threat to be carried out if Strasbourg does not change Rule 39. [147]
However, it is notable that clause 56(7) provides that clause 2 of the Bill cannot be brought into force until regulations under clause 49 are in force, which may suggest that it represents something more than a threat.
7.4 Reaction
The consequences of the Bill's provisions which would prevent the domestic courts from interpreting it in a way which is compatible with Convention rights, or from hearing human rights claims at all, are likely to be that more claimants take their cases to Strasbourg, and that the UK loses more of those cases.
This has led to suggestions that the Bill is being used as a pretext for creating a dispute with the ECtHR over implementation of any adverse judgments, or declarations of incompatibility in the domestic courts, which may precipitate proposals to withdraw from the Convention.
In response to the Home Secretary's statement introducing the Bill, Joanna Cherry, Chair of the JCHR, asked:
Is the plan behind the Bill simply this: the legislation will go through in the certain knowledge that the domestic courts of the United Kingdom will find that it is incompatible with international law and the ECHR; and then the Tories will fight the next general election on a promise to take the United Kingdom out of the European convention on human rights? That is the whole point of this, is it not? [148]
Alexander Horne, a former parliamentary lawyer, was quoted in the Guardian describing the section 19(1)(b) statement as a "big red flashing light", which indicated that the Government would be likely to anticipate a declaration of incompatibility and consequent application to Strasbourg. This would send a strong signal to Strasbourg "saying read the convention in this way or if you don't… you're setting up a conflict with the UK". [149]
However, Alexander Horne pointed out that in this scenario claimants could be awarded compensation, which differentiates it from the situation in which the UK Government took several years to respond to an adverse judgment on prisoner voting. If there were many claimants, he suggested it could result in a situation where the Government was "quite quickly haemorrhaging money". [150]
An alternative theory was put forward in the Times, which reported that "Ministers are preparing a strategy of delay and prevarication" in order to avoid the need to withdraw from the Convention. This would involve contesting any ruling against the UK, and potentially ignoring a final adverse judgment, while continuing to implement the policy, according to the article. It cites a government source as saying that the plan is "not to trigger a full-on confrontation with the court" but to "implement the policy while that process takes place". [151]
Yuan Yi Zhu, a Senior Research Fellow at Policy Exchange, described the Bill as "curiously half-hearted". [152] Noting that many of its provisions are based on a paper by Professor Richard Ekins and Sir Stephen Laws for Policy Exchange (a think tank), [153] he queried the absence of provisions implementing several of their recommendations, including the disapplication of sections 4 and 10 HRA. [154]
As a result, the courts will be able to declare aspects of the legislation incompatible and "a future Government will be able to amend the offending parts out of existence without the need for an Act of Parliament", he suggested.
He also noted that section 6 is not disapplied by the Bill, meaning that "most potential litigation related to the new legislation will continue unabated".
Yuan Yi Zhu concludes that if the implied threat of the UK's withdrawal from the ECHR does not dissuade the ECtHR from intervening, the Government will have to accept that compliance is not compatible with its goal of ending illegal entry into the UK.
Human rights organisation Liberty said that the Bill will create a two-tiered system of human rights protection based on how people enter the country and "set the UK firmly on a collision course" with the ECHR and the ECtHR. [155] Liberty suggested that MPs should consider whether the Government's aims are what they say they are, "or whether a fight with the courts is the point".
Liberty also expressed concern about the wide powers given to the Home Secretary by clause 49, and queried why the substantive clause was not included in the Bill for second reading.
8 Restrictions on future visas, settlement and citizenship
Clauses 29 to 36 set out restrictions on future grants of immigration status and citizenship for people who have ever been subject to the duty to arrange removal (see section 3 above). This is unless the Secretary of State decides to exempt them to comply with the UK's international treaty obligations or, sometimes, in "compelling circumstances". The citizenship restrictions extend to their UK-born children.
It is not necessary for the person to have actually been removed from the UK for these restrictions to be engaged. They apply indefinitely from the point at which the person meets the four conditions that makes them subject to the arrangements for removal duty. The conditions, in brief, are that the person entered the UK illegally after 7 March 2023, has no permission to be in the UK and did not come directly from a place where they fear persecution.
8.1 Limits on future grants of immigration status
Clause 29 would insert a new section 8AA into the Immigration Act 1971.
Permission to enter the UK
New section 8AA(3) contains a re-entry ban. This prevents the relevant people from being granted permission to return, whether in the form of leave to enter, entry clearance or an electronic travel authorisation.
This is unless the Secretary of State considers it necessary to grant such permission to comply with the UK's international obligations or in "compelling circumstances". Visa applications that do not rely on these grounds are void and cannot be considered. The explanatory notes say that this "waiver" might be applied if somebody who has been removed from the UK to a third country wins a judicial review after the fact: "such a person will be allowed to return to the UK". [156]
Permission to stay and settle in the UK
New section 8AA(4) places similar restrictions on grants of leave to remain. This is again subject to an exception for international obligations or compelling circumstances.
New section 8AA(6)(b) provides for applications relying on these exceptions to be considered (other applications for leave to remain are void). It is not clear whether this potentially provides a mechanism for people with inadmissible claims to regularise their position if not removed from the UK.
New section 8AA(5) prevents people in this position from being granted indefinite leave to remain, also known as settlement. There is an exception limited to compliance with treaty obligations. This suggests that someone might be granted leave to remain in light of "compelling circumstances" but remain ineligible for settlement.
These immigration status restrictions also apply to family members of such people, as defined in clause 8.
8.2 Limits on future grants of British citizenship
People subject to the arrangements for removal duty are also restricted in obtaining British citizenship.
Clause 30 sets out who is covered by these citizenship restrictions. They are described as an "ineligible person" (i.e. ineligible for citizenship). The ineligibility relates to the naturalisation and registration routes outlined in clause 31, and is subject to an exception in clause 35.
Under clause 30(3), someone would be ineligible for citizenship if they have "ever met the four conditions" that makes them subject to the removal duty. Clause 30(4) would provide that the child of such a person, born after 7 March 2023, is also ineligible.
This would not prevent the child from acquiring British citizenship at birth if their other parent were British or settled. [157] But it would prevent a UK-born child who is not born British from acquiring citizenship later in life.
Clause 31 sets out the routes to citizenship that ineligible persons are disqualified from. These include naturalisation, the main route to British citizenship for adults. [158] Also closed off are the main routes to citizenship for UK-born children. These are registration if they have lived for the first ten years of their life in the UK; if a parent becomes settled; or at the Secretary of State's discretion. [159]
Some less common routes to citizenship are not listed in clause 31. They therefore remain open, in principle, to people in this position. These include provisions for stateless people born in the UK to obtain British citizenship. [160]
Clauses 32, 33 and 34 would close off routes to other forms of British nationality: British overseas territories citizenship, British overseas citizenship and British subject status.
Clause 35 would provide a general exception to the citizenship disqualification provisions. It would apply if the Secretary of State considers it necessary in order to comply with the European Convention on Human Rights or another international treaty.
Clause 36 would essentially repeat the exercise of clauses 31-34 by amending the British Nationality Act 1981 in the relevant places. In each case, a proviso would be added to the relevant route to citizenship, stating that it is subject to the new disqualification provisions. For example, section 6 of the 1981 Act – on naturalisation as British citizen – is "subject to sections 30, 31 and 35 of the Illegal Migration Act 2023 (restriction of eligibility for citizenship etc)".
9.1 Policy background
Local authority safeguarding
Local authorities in the UK have a range of duties relating to safeguarding children's welfare in their areas. For example, in England this includes, but is not limited to, the following duties under part 3 of the Children Act 1989:
• A duty under section 17 "to safeguard and promote the welfare of children within their area who are in need…by providing a range and level of services appropriate to those children's needs". Further information is available in the Library briefing: Local authority support for children in need (England). [161]
• A duty under section 20 to provide accommodation to certain children in need, including those who require it because there is no one who has parental responsibility for them. [162] A child provided with accommodation under section 20 for a continuous period of more than 24 hours is a looked after child. [163]
Local authorities are under a duty to safeguard and promote the welfare of looked after children, and act as their corporate parent. [164] More information on local authority duties with regard to looked after children is available in statutory guidance published by the DfE: Children Act 1989: care planning, placement and case review. [165]
Information on the safeguarding framework in the other parts of the UK is available on the website of the NSPCC:
• Child protection system in Scotland. [166]
• Child protection system in Wales. [167]
• Child protection system in Northern Ireland. [168]
Unaccompanied migrant children
In November 2017, the Department for Education (DfE) published statutory guidance for local authorities on the Care of unaccompanied migrant children and child victims of modern slavery. [169]
The guidance highlights the general local authority duty to safeguard and promote the welfare of children and notes an unaccompanied child will become a looked after child if they have been provided with accommodation by the local authority under section 20 of the Children Act 1989 for 24 hours. It adds that the local authority's duties to looked after children under the 1989 Act apply equally to unaccompanied children and child victims of modern slavery who are looked after as they do to any other looked after child. [170]
The National Transfer Scheme
In July 2016, the Home Office launched the National Transfer Scheme in response to pressure on some local authorities arising from increases in the number of unaccompanied asylum seeking children arriving in the UK. [171] From 15 February 2022, all local authorities with children's services in the UK have been directed to participate in the scheme. [172]
Further information is available in the Government guidance: National Transfer Scheme Protocol for Unaccompanied Asylum Seeking Children. [173]
Placement of unaccompanied children in hotels
In June 2021, Kent County Council said it would no longer be able to accept statutory responsibility for children and young people arriving in the county to seek asylum in the UK. [174] Following this, the Home Office decided to house those children in hotels while they waited for a permanent local authority placement via the National Transfer Scheme. [175]
A report published by the Independent Chief Inspector of Borders and Immigration in October 2022 said the hotels did not constitute a local authority placement and the Home Office had not assumed statutory responsibility for the children in them:
Correspondence between more than 60 charities and the Education Secretary between July and November 2021 confirmed that the use of hotels did not constitute a permanent local authority placement but were provided on a 'short-term interim basis', and it fell to local authorities to provide services under Part III of the Children Act 1989. No agency or government department has statutory responsibility for these children. The Home Office has not assumed this statutory responsibility and is not operating as the 'corporate parent'. The local authorities of the areas where these hotels are located do not have statutory responsibility for these young people as they are not considered to be 'Looked After'. [176]
It added that local authorities and stakeholders had raised concerns this meant children were prevented from "accessing the relevant safeguards" afforded to looked after children. [177]
The report also quoted a concern recorded in the Home Office's 'UASC hotels risk register' in August 2021 that the department was running unregistered children's homes (see box below). [178]
Children's homes
The Care Standards Act 2000, as amended, says "an establishment in England is a children's home [subject to some additional provisions] if it provides care and accommodation wholly or mainly for children" (children are defined as people aged under 18). The Act additionally specifies certain types of accommodation that are not children's homes (eg, hospitals). [179]
A blog published by Ofsted in July 2019 provided some further discussion of what 'care' means in this context:
What does 'care' mean? It is not defined in law. It is not just about the age of the child, although that's a factor. It is about a child's vulnerability and the level of help that they need. If a child does need care, then the service they're getting is very likely to need registration as a children's home. Certainly, if children are under constant supervision then this is likely to be 'care'.
It's also not about how long the child lives there. There is an all too common myth that if you only provide care for 28 days you do not need to register – this is not true! It does not matter how long you provide accommodation for. If you're providing care as well as accommodation, then you need to register. [180]
Unless they meet the criteria for an exemption, establishments which meet the definition of a children's home are required to register with Ofsted. It is an offence to operate a children's home without the appropriate registration. [181]
The Children's Homes (England) Regulations 2015 prescribe nine quality standards which children's homes must meet, with further information provided in guidance published by the Department for Education. [182]
In response to a parliamentary question on 7 March 2023, the Immigration Minister, Robert Jenrick, said the Government "had no alternative but to temporarily use hotels to give some unaccompanied children a roof over their heads whilst local authority accommodation is found." He added:
The National Transfer scheme (NTS) transferred 3,148 children to local authorities with children's services between 1 July 2021 and 30 September 2022. We are providing local authorities with children's services with an additional £15,000 for every eligible young person they take into their care from a dedicated UASC hotel, or the Reception and Safe Care Service in Kent, by the end of February 2023. [183]
In response to a further parliamentary question on 24 February 2023, Mr Jenrick set out safeguarding measures at hotels accommodating unaccompanied children:
The safety and wellbeing of those in our care is our primary concern. Robust safeguarding and welfare procedures are in place to ensure all children and minors are safe and supported as we seek urgent placements with a local authority. This includes support workers being onsite in the hotels 24 hours a day, supported by nurses and social workers. UASC are not detained and are free to leave the accommodation. All contingency sites have security staff and providers liaise closely with local police to ensure the welfare and safety of vulnerable residents. [184]
As of 8 February 2023, the average length of unaccompanied children's stay in hotels was 20.11 days. The shortest stay was less than a day and the longest was 128 days. [185]
Children going missing from hotels
More recently, concerns have been raised about children going missing from hotels. In response to an urgent question on 24 January 2023, immigration minister Robert Jenrick said:
We have no power to detain unaccompanied asylum-seeking children in these settings and we know some do go missing. Over 4,600 unaccompanied children have been accommodated in hotels since July 2021. There have been 440 missing occurrences and 200 children remain missing, 13 of whom are under 16 years of age and only one of whom is female. [186]
In response to a parliamentary question on 6 March 2023, Mr Jenrick said there were 444 "missing episodes" between 1 September 2021 and 28 February 2023 and on 253 of these occasions the young person was subsequently located. [187]
A response to a further parliamentary question on 7 March 2023 provided information on the protocol followed when a child or young person goes missing. [188]
9.2 The Bill
As set out in section 3 above, the Secretary of State is not required to make arrangements to remove unaccompanied children until they turn 18 years of age, but they have the power to do so.
Provision of accommodation and support
Clause 15 provides for the Secretary of State to have the power to provide, or arrange for the provision, of accommodation for unaccompanied children within scope of the duty to remove. The power does not apply to unaccompanied children outside the duty's scope. Under clause 15(2), the Secretary of State may provide "other types of support for the child" while they are in the provided accommodation. These powers are applied retrospectively as having had effect from 7 March 2023 (clause 15(4)).
The explanatory notes say clause 15 provides "for the care of unaccompanied migrant children… pending their removal as adults or if it is decided to use the power to remove as a child." [189] The clause contains no limit on how long a child may spend in Home Office accommodation, but the explanatory notes say the "policy intention is that their stay is a temporary one until they transfer into local authority care." [190]
The explanatory notes additionally make clear that the Home Office will not become the corporate parent of unaccompanied children:
The Secretary of State is currently not in the position of corporate parent to any unaccompanied child. There is nothing in the Bill which changes this position. The Home Office has always taken the view that these children should be in local authority care. The Home Office does not have, and therefore cannot discharge, duties under Part 3 of the Children Act 1989. It is for the local authority where an unaccompanied child is physically located to consider its duties under the Children Act 1989. [191]
The Government notes article 14 of the ECHR (protection from discrimination) may be engaged in respect of decisions to provide accommodation and support to unaccompanied migrant children. The human rights memorandum to the Bill says:
Unaccompanied children who are subject to the scheme may be in a different position than other children, who are looked after by a local authority and not subject to removal. However, the duties owed by a local authority to a child who is physically present within their area will remain the same even if the child is accommodated by the Home Office. Furthermore, any difference in treatment would not be as a result of nationality. The Government considers that any difference in treatment would be minimal in any event and that it would be objectively justifiable in pursuit of a legitimate aim. [192]
Transfer of children to local authorities and vice versa
Under clause 16, the Secretary of State may direct a local authority in England to receive a child currently residing in Home Office accommodation. When a local authority receives a child following such a direction, they become a child within the area of that local authority for the purposes of part three of the Children Act 1989 (clause 16(4)).
The Secretary of State may also decide that an unaccompanied child who is being looked after by a local authority in England is to cease being looked after by the authority (clause 16(5)). On deciding this, the Secretary of State must direct the local authority to cease looking after the child on a certain date (the transfer date) and arrange for the child to reside in Home Office accommodation (clauses 16(6) to 16(8)).
These powers do not apply to unaccompanied children outside of the scope of the duty to make arrangements for removal (clause 3(3)).
The explanatory notes say the policy intention behind clause 16 is to "allow the Secretary of State to transfer a child quickly into local authority care in England if that child is in Home Office provided accommodation." [193]
Under clause 17, the Secretary of State would be able to direct local authorities in England to provide information about the support and accommodation provided to children in their care, or other information prescribed in regulations (subject to the negative procedure). The explanatory notes say the policy intention is to "ensure there is a legal framework to allow for the sensible flow of information that would be relevant to a child transferring into local authority care or out of their care." [194]
Clause 18 would provide for the Secretary of State to be able to make an order declaring a local authority to be in default of a direction or duty under clauses 16 or 17 (clause 18(1)). The order may contain directions to the local authority for the purpose of ensuring compliance (clause 18(3)). Such directions may be enforced by a mandatory order made by the High Court (clause 18(4)). The explanatory notes say that "whilst not provided for in this bill breach of an order by the local authority would constitute a contempt of court, the maximum penalty for which includes an unlimited fine." [195]
Clause 20 of the Bill would make consequential amendments to the Immigration Act 2016 to ensure children in scope of the duty to remove can be transferred from one local authority to another under the National Transfer Scheme (NTS). The explanatory notes say the intention is to "[allow] the legal framework with respect to the NTS to continue to work effectively when a child is an unaccompanied child but is not considered to be an unaccompanied asylum-seeking child once their claim is deemed to be inadmissible." [196]
Extension to Scotland, Wales and Northern Ireland
Clause 19 provides the Secretary of State may make regulations (subject to the affirmative procedure) enabling clauses 15 to 18 of the Bill to apply in relation to Scotland, Wales and Northern Ireland. The regulations may amend, repeal or revoke any enactment, including those contained in, or made under, legislation of the Senedd Cymru, Scottish Parliament and Northern Ireland legislation. The regulations may not, however, confer functions on ministers in Scotland, Wales or Northern Ireland.
The explanatory notes say these provisions "build on the existing burden sharing provisions in respect of unaccompanied asylum-seeking children in the [Immigration Act 2016]." [197]
The Delegated Powers Memorandum explains that while the Bill covers a reserved matter, the functions of local authorities in respect of looked after children is a devolved matter. It adds:
…in order to make the provisions in clauses 15 to 18 effective in Scotland, Wales and Northern Ireland it may be necessary to make some detailed modifications of Scottish, Welsh and Northern Ireland legislation. This will require detailed input from the devolved administrations. It is considered appropriate for this to be done in secondary legislation once the clauses in respect of England have been approved by Parliament. [198]
9.3 Reaction
The Children's Commissioner for England, Dame Rachel de Souza, said she is "deeply concerned about the measures in the Bill". [199] She added:
I do not believe that the Home Office has been able to adequately care for children in the hotels it has been providing since 2021 – these children should have looked after status and be in the care of local authorities from the moment they arrive, with access to legal aid, advocacy, education and care.
On 7 March 2023, the charity Article 39, along with 49 other organisations, wrote to the Joint Committee on Human Rights asking it to launch an inquiry into the accommodation of children in hotels. The charity has "threatened legal action against the Home Office and the Department for Education if they do not stop housing unaccompanied asylum-seeking children in Home Office- run hotels." The charity's director, Carolyne Willow, said:
The Children Act 1989 does not differentiate children on the basis of where they were born, and this legislation is absolutely clear that it is local authorities who have the legal responsibility for looking after and protecting individual children.
[…]
Government must properly fund local authorities to look after all children who are without parental or family care and protection, no matter where those children were born. [200]
A joint statement by children's charities including NSPCC, Barnardo's, Action for Children and The Children's Society said that they "disagree in principle" with the proposed powers to accommodate children, citing "profound concern for the children it would affect, and for the long term implications of undermining the universality of protection provided by the Children Act 1989, and the UK's fulfilment of its international obligations under the United Nations Convention on the Rights of the Child." [201] The Association of Directors of Children's Services, a membership association for local authority children's services leaders, has said that "all new legislation should be child-focused and protect children's rights" and that it awaits further information from the Government about the Bill and its likely impact on vulnerable children, young people and their families. [202]
In response to the Home Secretary's statement announcing the Bill, Stuart McDonald (SNP) suggested "the policies that have seen hundreds of children go missing from hotels will be enshrined in her Bill." [203] No other Members referred specifically to the contents of clauses 15-20 of the Bill in response to the statement.
10 Cap on 'safe and legal routes'
10.1 Policy background
The term 'safe and legal' (or 'safe and lawful') routes is generally taken to refer to immigration routes that provide access to the UK for humanitarian reasons. Safe and legal routes can take various forms including refugee resettlement schemes, family reunion provisions, and nationality-specific humanitarian admission programmes.
Successive recent UK governments have expanded UK refugee resettlement schemes. They have also created extra immigration routes in response to deteriorating security and human rights in Hong Kong, Afghanistan, and Ukraine. [204]
Despite this, criticisms remain that the UK's offer is inadequate and that many people with well-founded cases for being admitted to the UK do not have viable alternatives to irregular journeys. [205] The UK's willingness to establish legal pathways has also been identified as relevant to its prospects for securing bilateral readmission agreements with neighbouring European states (or an overarching agreement with the EU). [206]
The Prime Minister's December 2022 statement on illegal migration confirmed the Government's intention to create additional legal routes of entry, as measures to reduce illegal migration have effect. [207] But recent governments have said it would be inappropriate and counterproductive to establish routes for migrants who make unauthorised journeys to Europe and want to travel on to the UK. [208]
10.2 The Bill
Clause 51 would introduce an obligation on the Secretary of Secretary to make regulations specifying an annual cap on the number of people who may enter the UK using "safe and legal routes". The Prime Minister had previously confirmed the Government's intention to do so in his December 2022 statement. [209]
The regulations would be subject to the draft affirmative procedure.
Before specifying the annual cap, the Secretary of State would be required to consult with representatives of local authorities and "other persons or bodies" she considered appropriate. However, the duty to consult would not apply in circumstances when she considered that the cap needed to be changed as a matter of urgency, for example in response to a humanitarian emergency (sub-sections 2 and 3).
If the number of people entering the UK through one of the safe and legal routes exceeded the annual cap provided for in the regulations, the Secretary of State would be obliged to lay a statement before Parliament confirming how many people had arrived and why the cap had been exceeded (subsection 4). There is no equivalent requirement to explain in the event that the cap was not met.
The Government argues that it is not possible to identify the size of the annual cap in advance of consultations with local authorities and other parties, and that the figure will be subject to change as capacity varies. [210] For these reasons it considers that it is more appropriate to use secondary legislation to set the annual figure rather than specifying it on the face of the Bill.
It wishes to consult with local authorities and other parties to ensure that decisions reflect the capacity of local authorities and other front-line service providers to support new arrivals. Experience from previous schemes suggests that certainty about related funding agreements is a key consideration for local authorities when asked to make commitments to receive people through such immigration routes.
What constitutes a "safe and legal route" isn't defined in the Bill. Rather, the definition would be provided in regulations (also subject to the draft affirmative procedure). The Government justifies this on the basis that existing refugee resettlement schemes are not provided for in the Immigration Rules or primary legislation and are subject to periodic change. [211]
Currently, the UK operates several different immigration routes that the Government describes as 'safe and legal' routes. Some apply to people recognised as refugees under the terms of the 1951 Refugee Convention, but others apply broader eligibility criteria.
The explanatory notes refer to existing refugee resettlement schemes as examples but clarify that those particular routes may not necessarily be part of the cap, explaining: "defining the routes and cap figure depends on a number of factors including local authority capacity and the resettlement routes offered at the time of the regulations." [212]
Responses from external stakeholders
Refugee rights campaigners have previously called for an annual target for refugee resettlement. But they have also cautioned that safe and legal routes are not available to everyone who needs protection. Consequently, they want them to be provided alongside an accessible in-country asylum system.
The Centre for Policy Studies, which describes itself as a centre-right think- tank, welcomed plans for an annual cap on resettlement places. [213] It has previously called for a statutory limit on the number of refugee resettlement places as part of a broader set of proposals to deter small boat arrivals and irregular entry to the UK. [214] It suggested a limit of 20,000 places, with changes subject to Parliamentary debate and scrutiny.
________________________
The House of Commons Library is a research and information service based in the UK Parliament. Our impartial analysis, statistical research and resources help MPs and their staff scrutinise legislation, develop policy, and support constituents.
Our published material is available to everyone on commonslibrary.parliament.uk.
Get our latest research delivered straight to your inbox. Subscribe at commonslibrary.parliament.uk/subscribe or scan the code below:
commonslibrary.parliament.uk
@commonslibrary
(End)
[1] Home Office, Irregular migration to the UK, year ending December 2022, 23 February 2023, summary tables, tab Irr_02a
[2] As above, section 4
[3] In total, 89,400 people applied for asylum in 2022
[4] In total, 268,900 people applied for asylum during this time, including 76,100 people who arrived in small boats and 192,800 who arrived via other routes *Possible modern slavery victims here means people referred to the National Referral Mechanism
[5] Small boat arrivals made up 2,700 out of the 16,900 people referred to the NRM in 2022. Between 2018 and 2022, they accounted for 6,200 of the 51,600 people referred. Home Office, Modern Slavery: National Referral Mechanism and Duty to Notify statistics UK, October to December 2022, 2 March 2023, data table 1.
[6] 5,897 or 95% of the 6,210 small boat arrivals who were referred to the NRM between 2018 and 2022 had also made an application for asylum, according to section 5.1 of the Home Office's Irregular Migration Statistics: December 2022
[7] See Commons Library briefing CBP-9681, Irregular migration: A timeline of UK-French co-operation
[8] Prime Minister's Office, PM speech on action to tackle illegal migration, 14 April 2022; High Court consent order CO/4338/2021 (PDF), 25 April 2022
[9] Home Office, Statement of changes to the Immigration Rules, HC 1043, 10 December 2020
[10] See Commons Library briefing CBP-9568, The UK-Rwanda Migration and Economic Development Partnership
[11] HM Government, New Plan for Immigration Policy Statement (PDF), CP 412, March 2021, p3
[12] See Commons Library briefing CBP-9275, Nationality and Borders Bill, Bill 141 of 2021-22
[13] Nationality and Borders Act 2022, s12; UK Visas and Immigration, Permission to stay on a protection route for asylum claims lodged on or after 28 June 2022, v1.0, 28 June 2022
[14] Nationality and Borders Act 2022, ss15-17
[19] Home Office, Illegal Migration Bill Explanatory Notes (PDF), 7 March 2023, para 20
[20] European Court of Human Rights press release, ECHR 197 (2022), 14 June 2022; "Rwanda asylum flight cancelled after legal action", BBC News [online], 15 June 2022
[21] Prime Minister's Office, PM speech on building a better future, 4 January 2023. The speech alternatively describes the promise as being to "pass new laws to stop small boats".
[22] HC Deb 13 December 2022 cc885-913
[23] For comparisons with the EU see Commons Library briefing SN01403 Asylum statistics, section 4
[24] Home Office, Irregular migration to the UK, year ending December 2022, 23 February 2023, section 4
[25] Home Office, Asylum and resettlement datasets, table Asy_D03 (accessed 9 March 2023)
[26] Migration Observatory, The UK's asylum backlog, 23 February 2023
[27] Home Affairs Committee, Oral evidence: The work of the Home Secretary, 23 November 2022, HC 201, 2022-23, Q486
[28] Bill 262 of 2002-23
[29] Prime Minister's Office, Queen's speech 2022: Background briefing notes, pp120-1
[30] Immigration Act 1971, s11. Electronic travel authorisations are not yet in place but will be required for people who do not need a visa to visit the UK: Nationality and Borders Act 2022, s75 and Home Office, Statement of changes to the Immigration Rules, HC 1160, 9 March 2023, para APP ETA1
[31] See Commons Library briefing SN/PC/06454 Retrospective legislation for other examples up to 2013
[32] Convention Relating to the Status of Refugees, (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137. See Commons Library Briefing CBP- 9281, Article 31 of the Refugee Convention
[33] Immigration Act 1971, sch 2
[34] Home Office, Illegal Migration Bill Explanatory Notes (PDF), 7 March 2023, para 38
[35] Home Office, Illegal Migration Bill Explanatory Notes (PDF), 7 March 2023, paras 46-48; Free Movement, What is in the Illegal Migration Bill?, 8 March 2023.
[36] Nationality and Borders Act 2022, s61
[37] Home Office, Illegal Migration Bill, Delegated Powers Memorandum (PDF), 7 March 2023, para 7
[38] Nationality, Immigration and Asylum Act 2002, s77(1)
[39] AAA and others v Secretary of State for the Home Department [2022] EWHC 3230 (Admin), 19 December 2022
[40] UNHCR UK, Statement on UK Asylum Bill, 7 March 2023
[41] Nationality, Immigration and Asylum Act 2002, s80A
[42] Nationality, Immigration and Asylum Act 2002, s80B
[43] Nationality, Immigration and Asylum Act 2002, s80b(7)
[44] See Commons Library briefing CBP-9724 Refusing to process asylum claims: the safe country and inadmissibility rules, section 3.2
[45] Home Office, Illegal Migration Bill, Delegated Powers Memorandum (PDF), 7 March 2023, para 3
[46] Home Office, Illegal Migration Bill Explanatory Notes (PDF), 7 March 2023, para 50
[47] Migration Observatory, Immigration detention in the UK, 2 November 2022
[48] Immigration and Asylum Act 1999, s147
[49] Short-term Holding Facility Rules 2018, SI 409/2018 as amended by SI 1345/2022
[50] Asylum and Immigration Act 1999, s147 (as amended)
[51] PQ UIN101782, answered on 7 December 2022
[52] PQ UIN HL2721, answered on 2 November 2022
[53] See, for example, GOV.UK, Guidance, Offender management: caseworker guidance (accessed 8 March 2023)
[54] Immigration Act 2016, ss2-6
[55] GOV.UK, Independent Family Returns Panel, About Us (undated; accessed 8 March 2023)
[56] Home Office, Detention: General instructions, v2.0, 14 January 2022, pp.36-38
[57] Home Office, Immigration Act 2016: Guidance on adults at risk in immigration detention, May 2021
[58] Home Office, Review into the welfare in detention of vulnerable persons, Cm 9186, January 2016, para 10
[59] Home Office, Illegal Migration Bill Explanatory Notes (PDF), 7 March 2023, para 82
[60] As above, para 32
[61] Refugee Council, Government plans will lead to tens of thousands of refugees being locked up like criminals, 6 March 2023
[63] HC Deb 7 March 2023 cc162-3
[64] "Migration Bill: Suella Braverman announces ban on boat asylum claim", The Times [online], 7 March 2023
[65] [1983] EWHC 1(QB), as adopted in [2011] UKSC 12
[67] R(A) v SSHD [2007] EWCA Civ 804
[68] Free Movement, What are the Hardial Singh principles?, 9 July 2020
[69] Subject to restrictions specified elsewhere in legislation on the length of time a person may be detained pending examination by an immigration officer, and length of detention of unaccompanied children and pregnant women.
[70] Home Office, Immigration bail (PDF), v15.0, 27 January 2023
[71] Restrictions on study do not apply to children under 18: Home Office, Immigration bail (PDF), v 15.0, 27 January 2023, p15
[72] Civil Procedure Rules, Part 87 Applications for writ of habeas corpus
[73] Bail for Immigration Detainees, Submission to the International Covenant on Civil and Political rights periodic review of the UK: January 2020
[74] This is in addition to the matters specified in paragraph 3(2) of Schedule 10 of the 2016 Act
[75] Home Office, Illegal Migration Bill, ECHR Memorandum (PDF), 7 March 2023, para 34
[76] Free Movement, What is in the Illegal Migration Bill?, 8 March 2023
[77] Immigration Act 1971, sch 2
[78] Nationality, Immigration and Asylum Act 2002, s80A(5)
[79] "The government's plan to remove asylum seekers will be a logistical mess – and may not deter people from coming to the UK", The Conversation [online], 9 March 2023
[80] The statistics in this section come from table Asy_D01 in the Home Office's Immigration statistics quarterly: December 2022
[81] Nationality, Immigration and Asylum Act 2002, s94(4). This list is used to identify safe countries of origin; asylum and human right claims by citizens of those countries are presumed "clearly unfounded". It continues in force and is not directly affected by the new list.
[82] On the practical considerations, see Home Affairs Committee, Oral evidence: Migration and asylum, HC 197, 6 July 2022, Q307
[83] PQ 47636 [on: Dublin Regulations], 5 September 2022
[84] Free Movement, What is in the Illegal Migration Bill?, 8 March 2023
[85] Immigration and Asylum Act 1999, s4
[86] Jon Featonby (@jonfeatonby). "One of the rather perverse implications of the new asylum bill is that the Home Office will end up indefinitely accommodating and supporting people whose asylum claims they could refuse and then return if they actually processed their claim". (Twitter). 8 March 2023 [Accessed on 9 March 2023]. Available from: https://twitter.com/jonfeatonby/status/1633387840070377475
[87] Or, for family members being removed along with them, that there has been a mistake in deciding that they are eligible for removal
[88] Home Office, Illegal Migration Bill Explanatory Notes (PDF), 7 March 2023, para 181
[89] As above, para 171
[90] As above
[91] Home Office, Illegal Migration Bill Explanatory Notes (PDF), 7 March 2023, para 150
[92] Tribunals, Courts and Enforcement Act 2007, s13
[93] That is, a decision that there are reasonable grounds to believe that they may be a victim of human trafficking or modern slavery. This is an initial decision pending a conclusive grounds decision.
[94] Explanatory Notes, Nationality and Borders Act 2022, para 37
[95] Specifically, s60-65, 68, 69 (where not already in force): SI 2023/33
[96] Home Office, Modern Slavery: statutory guidance for England and Wales and non-Statutory Guidance for Scotland and Northern Ireland (v2.13), para 14.232-14.234
[97] Home Office, Modern Slavery: statutory guidance for England and Wales and non-Statutory Guidance for Scotland and Northern Ireland (v3.0, 30 January 2023), para 14.231 – 14.282; 14.283 – 14.324
[98] As above, para 14.235
[99] As above, para 14.260
[100] As above, para 14.290
[101] Home Office, Discretionary leave considerations for victims of modern slavery v5.0, 10 December 2021
[102] Home Office, Temporary permission to stay considerations for victims of human trafficking or slavery, v1.0, 30 January 2023, p.8
[103] s65(4)(a-b)
[104] Home Office, Illegal Migration Bill Explanatory Notes (PDF), 7 March 2023, para 119
[105] R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, para 144
[106] Ministry of Justice, Judicial Review Reform: The Government response to the Independent Review of Administrative Law, CP 408, March 2021, para 39
[107] Ministry of Justice, Judicial Review Reform: The Government response to the Independent Review of Administrative Law, CP 408, March 2021, para 86
[108] R (Cart) v Upper Tribunal [2011] UKSC 28; Eba v Advocate General for Scotland [2011] UKSC 29. For further information see Commons Library briefing Judicial Review and Courts Bill
[109] This appears to be intended to address a point raised in Privacy International , that Parliament could have made its intention clearer by excluding from review "any determination or "purported" determination": R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, eg para 111
[110] Briefing on the Illegal Migration Bill ahead of second reading in the Commons, Liberty, March 2023
[111] Illegal Migration Bill House of Commons Second Reading Briefing, Justice, March 2023, para 17
[112] European Convention on Human Rights
[113] Article 13 is not included in the rights contained in Schedule 1 of the HRA because the HRA itself provides a remedy in human rights claims
[114] The Government publishes an annual report for the JCHR on how it has responded to ECtHR judgments and declarations of incompatibility in the UK courts. For the most recent report see Responding to human rights judgments: Report to the Joint Committee on Human Rights on the Government's response to human rights judgments 2021-2022, Ministry of Justice, 2022
[115] For detailed analysis of the Bill of Rights Bill see the JCHR's Legislative scrutiny report: Bill of Rights Bill, Ninth Report of Session 2022-23, HC 611, HL Paper 132, 25 January 2023
[116] Dominic Raab letter to Joanna Cherry KC, Chair of the Joint Committee on Human Rights (PDF), 14 November 2022
[117] HC Deb 13 December 2022, c888
[118] Joint Committee on Human Rights, Oral evidence session ,14 December 2022, Q18
[119] As above
[120] Liaison Committee, Oral evidence session, 20 December 2022, Q69
[121] HC Deb 10 January 2023, c415
[122] Section 19(1)(b) statements are unusual, but there are some previous examples, such as the Communications Act 2003. They have tended to concern issues where the future development of the relevant law was unclear.
[123] The Bill of Rights Bill proposes to repeal section 19 without replacement. The consultation that preceded the Bill suggested that "the stigma attached to the making of a section 19(1)(b) statement risks effectively acting as a veto on innovative policy-making, even in cases where legislation may be successfully defended in court": Human Rights Act Reform: A Modern Bill of Rights, paras 88-89
[124] Home Office, Illegal Migration Bill Explanatory Notes (PDF), 7 March 2023, para 231
[125] Rozenberg J, An illegal bill?, 8 March 2023, A Lawyer Writes
[126] HC Deb 7 March 2023, c152
[127] Eg, Exclusive: Suella Braverman Admits Immigration Crackdown May Not Be Legal, Huffington Post, 7 March 2023
[128] Evidence to Joint Committee on Human Rights, 14 December 2022, Q34
[129] Illegal Migration Bill House of Commons Second Reading Briefing, Justice, March 2023
[130] There is no statutory requirement to do so, or to produce a memo at all, but it has become standard practice to include such analysis where relevant
[131] Children's Commissioner, CCo statement on Illegal Migration Bill, 9 March 2023
[132] This may be contrasted with the requirement in clause 1(3) to read and give effect to the Bill's provisions so as to achieve the purpose set out in clause 1(1), namely " to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by requiring the removal from the United Kingdom of certain persons who enter or arrive in the United Kingdom in breach of immigration control"
[133] Article 15 of the Convention allows member states to temporarily derogate from specified obligations in exceptional circumstances, such as times of war
[134] Home Office, Illegal Migration Bill, ECHR Memorandum (PDF), 7 March 2023, para 16
[135] Home Office, Illegal Migration Bill, ECHR Memorandum (PDF), 7 March 2023, para 71
[136] Para 34
[137] Rozenberg J, An illegal bill?, 8 March 2023, A Lawyer Writes
[138] Home Office, Illegal Migration Bill, ECHR Memorandum (PDF), 7 March 2023, para 47; Rozenberg J, An illegal bill?, 8 March 2023, A Lawyer Writes
[139] Illegal Migration Bill House of Commons Second Reading Briefing, Justice, March 2023, paras 11-14
[140] Delegated powers memorandum, para 62. Clause 24 of the Bill of Rights Bill would require the UK courts to ignore interim measures issued by the ECtHR when determining the rights and obligations of a public authority or any other person under domestic law. It would also require the courts to ignore interim measures when considering whether to grant any relief which might affect the exercise of Convention rights.
[141] Mamatkulov and Askarov v Turkey [GC], 46827/99 and 46951/99 (2005)
[142] Practice Direction, General presentation of interim measures, European Court of Human Rights
[143] Practice Direction, General presentation of interim measures, European Court of Human Rights
[144] See ECtHR Press release, ECHR 197 (2022), 14 June 2022
[145] Eg Ekins, R., The Strasbourg court's disgraceful Rwanda intervention, Law Society Gazette, 15 June 2022
[146] Paladi v Moldova [GC], App. No. 39806/05 (2009)
[147] Rozenberg, J., An illegal bill?, 8 March 2023, A Lawyer Writes
[148] HC Deb 7 March 2023, c 160
[149] "What does the UK government's bill on illegal immigration propose?", The Guardian [online], 7 March 2023
[150] What are the legal obstacles faced by the UK's illegal migration bill?, The Guardian [online], 8 March 2023
[151] "Tories will speed up migrant deportations by dragging heels in court", The Times [online], 8 March 2023
[152] Yuan Yi Zhu, Small boats. Ministers are boisterous and their critics strident. But this Bill is in some ways curiously half-hearted, Conservative Home, 9 March 2023
[153] Ekins, R & Laws, S., How to legislate about small boats, Policy Exchange, 11 February 2023
[154] As described above, section 4 enables the courts to make a declaration of incompatibility with respect to legislation which cannot be interpreted compatibly. Section 10 enables Ministers to take remedial action to deal with any incompatibility.
[155] Briefing on the Illegal Migration Bill for second reading in the House of Commons, Liberty, March 2023
[156] Home Office, Illegal Migration Bill Explanatory Notes (PDF), 7 March 2023, para 150
[157] British Nationality Act 1981, s1(1)
[158] British Nationality Act 1981, s6
[159] British Nationality Act 1981, ss1(3), 1(4) and 3(1). Registration under s1(4) is not limited to children.
[160] British Nationality Act 1981, sch. 2
[161] Commons Library briefing CBP-7730, Local authority support for children in need (England)
[162] Children Act 1989, section 20
[163] Children Act 1989, section 22(1)
[164] Children Act 1989, section 22; Children and Social Work Act 2017, section 1; DfE, Applying corporate parenting principles to looked-after children and care leavers, 26 February 2018
[165] DfE, Children Act 1989: care planning, placement and case review, last updated 8 July 2021
[166] NSPCC, Child protection system in Scotland, last updated 24 October 2022
[167] NSPCC, Child protection system in Wales, last updated 7 November 2022
[168] NSPCC, Child protection system in Northern Ireland, last updated 24 October 2022
[169] DfE, Care of unaccompanied migrant children and child victims of modern slavery, 1 November 2017
[170] Department for Education, Care of unaccompanied migrant children and child victims of modern slavery, November 2017
[171] As above, para 37
Home Office, National Transfer Scheme Protocol for Unaccompanied Asylum Seeking Children, September 2022, pp3-4; Councils to be forced to take child asylum seekers, BBC News, 23 November 2021
[173] DfE & Home Office, National Transfer Scheme Protocol for Unaccompanied Asylum Seeking Children, last updated 5 September 2022
[174] Independent Chief Inspector of Border and Immigration, An inspection of the use of hotels for housing unaccompanied asylum-seeking children (UASC) March-May 2022, October 2022, p5; "Kent council refuses to accept more unaccompanied child migrants", The Guardian [online], 11 June 2021
[175] Independent Chief Inspector of Borders and Immigration, An inspection of the use of hotels for housing unaccompanied asylum-seeking children (UASC), October 2022, p14
[176] Independent Chief Inspector of Borders and Immigration, An inspection of the use of hotels for housing unaccompanied asylum-seeking children (UASC), October 2022,p5
[177] As above, pp42-43
[178] As above, p43
[179] Care Standards Act 2000, s1; Children Act 1989, s 105(1)
[180] Ofsted, Unregistered and unregulated provision - what's the difference?, 8 July 2019
[181] Care Standards Act 2000, s11
[182] Department for Education, Children's homes regulations, including quality standards: guide, 6 March 2015
[183] PQ 153961 [Asylum: Children], 7 March 2023
[184] PQ 142660 [Asylum: Children], 24 February 2023
[185] As above
[186] HC Deb 24 January 2023, c859
[187] PQ 156233 [Asylum: Children], 7 March 2023
[188] PQ 156968 [Asylum: Children], 7 March 2023
[189] Home Office, Illegal Migration Bill Explanatory Notes (PDF), 7 March 2023, para 97
[190] As above, para 100
[192] Home Office, Illegal Migration Bill ECHR Memorandum (PDF), 7 March 2023, para 40
[193] Home Office, Illegal Migration Bill Explanatory Notes (PDF), 7 March 2023, para 104
[194] As above, para 106
[195] As above, para 109
[196] Home Office, Illegal Migration Bill Explanatory Notes (PDF), 7 March 2023, para 116
[197] As above, para 111
[198] Home Office, Illegal Migration Bill, Delegated Powers Memorandum (PDF), 7 March 2023, para 28
[199] Children's Commissioner, CCo statement on Illegal Migration Bill, 9 March 2023
[200] Article 39, Article 39 seeks legal protection for highly vulnerable children housed in Home Office hotels, 7 March 2023
[201] ECPAT, Care for every child: Duties to care for children must apply equally to all children: Joint statement in response to the Illegal Migration Bill, (undated; accessed 10 March 2023)
[202] ADCS, Comment: Illegal Migration Bill, 8 March 2023
[203] HC Deb 7 March 2023, c156.
[204] The Library briefing on Safe and legal routes to the UK for people seeking protection provides further background information about existing safe and legal routes of entry to the UK, and recent related debates.
[205] The Guardian, 'MPs, unions and refugee groups condemn Braverman's small boats deal with France', 14 November 2022; Financial Times, 'France urges UK to overhaul asylum system to curb Channel tragedies', 18 December 2022
[206] British Future, Control and compassion: A new plan for an effective UK asylum system, February 2023; European Policy Centre, Discussion paper 9, Post-Brexit EU–UK cooperation on migration and asylum: How to live apart, together, 20 June 2022
[207] HC Deb 13 December 2022 c888
[208] For example, Home Affairs Committee, Government's response to the Committee's first report; HL Deb 8 February 2022 c1508
[209] HC Deb 13 December 2022 c888
[210] Home Office, Illegal Migration Bill, Delegated Powers Memorandum (PDF), 7 March 2023, para 75
[211] As above, para 77
[212] Home Office, Illegal Migration Bill Explanatory Notes (PDF), 7 March 2023, para 221
[213] Centre for Policy studies, 'Government immigration announcement 'welcome steps towards taking back control', says CPS', 7 March 2023
[214] Centre for Policy Studies, Stopping the Crossings: How Britain can take back control of its immigration and asylum system',