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Illegal Migration Bill – A Five Minute Explainer

Written by
Gary McIndoe, Latitude Law
Date of Publication:

I've seen a lot of legislation in my more than 25 years practising in the immigration and asylum field, but this Bill really does leave me speechless. It is reactive legislating at its worst – and I remember the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. It is a ham-fisted attempt to tackle an admittedly concerning problem through a series of pronouncements, threats, assumptions and rules which are blatantly unworkable.

According to the Home Secretary the proposed Act's 'novel approach' to the UK's human rights and refugee commitments is not something she currently wants to go into in detail. I'm not surprised. She continues, some of the nation's 'finest legal minds' are at work addressing how to shoe-horn these laws into the rights-based architecture of public international law developed – not least by the British – since the end of the Second World War. The prospect of yet further conflict – with the courts, the lawyers representing individuals, with the ECtHR – is plain to see.

The trade-off is the availability of 'safe and legal routes' to seeking asylum. How are these going so far? The various Afghan schemes have proved unworkable. Even the Ukrainian family and sponsorship routes – designed with a particularly light touch, so hardly likely to be replicated for other war-torn nations – has faced maladministration and delays in processing. Asking an already-stretched UNHCR to take responsibility for determining eligibility is just pointless – viz the many thousands of Afghan citizens stuck in Pakistan, unable to engage with exhausted UNHCR teams in the country in order to leave for the UK under the Afghan Pathway 2 scheme.

And as well as being substantively bound to fail, we are told safe and legal routes for other nationalities are simply a proposal for the future; how then can they be used as a sop to the introduction of such inequitable rules on admissibility – and I mean admissibility for life?

Legislation to 'prevent something' is most often found in the criminal context. This Bill treats potential refugees in the same way, but it is the person, not the crime, that is targeted. Playing the man rather than the ball in such a shameless way is just unforgiveable. Rendering such individuals unable to ever access this Sceptred Isle – through the provisions of Clause 29 and a fundamental change to the Immigration Act 1971 – is particularly draconian. The Bill goes further at Clause 31, in preventing such individuals – and this includes child family members – of ever obtaining British citizenship through registration or naturalisation. At least the citizenship ban can be lifted at the Secretary of State's discretion if it doesn't comply with the UK's international obligations – see Clause 35.

From the outset – Clause 1(1) – the Bill explains the Act will 'require the removal from the UK of certain persons who enter or arrive … in breach of immigration control'. This requires a complete re-examination of how the UK implements its obligations under the Geneva Convention relating to the status of refugees and its 1967 Protocol, and under the European Convention on Human Rights. Those seeking international protection do not enter or arrive in breach of immigration control – they enter or arrive and seek protection in accordance with their convention-derived rights.

Inadmissiblity, safe third countries, 'white lists' of countries (Albania, your time to shine!) whose nationals automatically fail to qualify for protection – these are not new concepts in asylum legislation. What they have all been, of course, is notoriously difficult to implement. A tiny fraction of protection claims declared inadmissible under existing laws actually end in the summary removal of the claimant. The UK's withdrawal from the EU – and with it the Dublin Regulations on the transfer of asylum seekers back to an EU country where they've previously travelled – makes it very unlikely that such returns will occur in real life. Rwanda might become a destination for a few hundred – but certainly not for the 40,000 small boat arrivals in 2022.

Ouster clauses are always keenly observed by lawyers, hopefully including the country's finest legal minds Suella mentioned in Parliament earlier this week. We have an example at Clause 13(4) on the ability to challenge a decision to detain.

The Bill continues in similar fashion right to the end, mining deep seams through long-established legislation. Disruptive it certainly is.