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As the Illegal Migration Act 2023 becomes law, the Law Society warns it will be unworkable in practice


Law Society says new Act will leave people in limbo, unable to be removed and unable to claim asylum

Date of Publication:
20 July 2023

The Illegal Migration Bill received Royal Assent today and the Illegal Migration Act 2023 is now law.

Immigration stampImage credit: UK GovernmentPrime Minister Rishi Sunak said the new Illegal Migration Act marks a vital step forward to stopping small boats crossing the Channel as it removes the incentive for making the journey in the first place.

Under the Act, asylum seekers and refugees arriving in the UK via irregular routes will be unable to claim asylum and will be liable for detention and removal to their country of origin or a safe third country.

The Law Society warned in a statement today, however, that the Act will prove unworkable in practice because it does not provide solutions to the asylum backlog, and the legal aid sector does not have the capacity to provide the immigration advice needed.

As a result, a growing number of people will be left in limbo in the UK, unable to be removed and unable to claim asylum.

Lubna Shuja, the president of the Law Society, said: "The Rwanda removal agreement has been ruled unlawful and is subject to an appeal in the Supreme Court. Even if that appeal proves successful, there are no other removal agreements in place. Rwanda alone would not be able to accept anywhere near the number of people who will be scheduled for 'removal'."

Shuja added that the legal aid sector does not have the capacity to provide the immigration advice needed for asylum seekers facing removal.

The president of the Law Society commented: "There is a severe lack of asylum and immigration solicitors to represent those who are subject to removal orders. Whilst the government launched a consultation on raising legal aid fees for work covered by the Act, it does not go anywhere near far enough to tackle the capacity crisis. Nor is it going to overcome the practical difficulties of individuals who are facing removal having just eight days to secure legal advice and bring a suspensive claim. If they are detained in offshore barges for example, it will be extremely difficult for them to access a lawyer."

A similar point was made by the Public Law Project in a statement today, saying: "There is a crisis in access to immigration legal services. Cuts to legal aid have decimated the supply of advice and representation, creating geographical 'advice deserts' and undermining the sustainability and quality of service that lawyers are able to provide. … As recognised by the Ministry of Justice (MoJ), the passing of the Illegal Migration Bill will only make this problem worse, creating significantly more demand for legally-aided advice and representation. In the face of the existing capacity constraints in the sector, the MoJ has proposed higher hourly rates for legal aid work resulting exclusively from the Illegal Migration Bill. In reality, to address the crisis in the immigration legal aid sector, we need higher rates across all areas."

While the Law Society is concerned that the Act threatens the UK international obligations and undermines the rule of law, the Government maintains that the Act does respect the UK's international obligations. Most recently, Lord Murray, the Parliamentary Under-Secretary of State for Migration and Borders, told the House of Lords on Monday: "As I have set out throughout the passage of the Bill, and as the Immigration Minister has set out in the [House of Commons], the Government take their international obligations, including under the European Convention on Human Rights, very seriously. There is nothing in the Bill that requires any act or omission that conflicts with the United Kingdom's international obligations."

Among those disagreeing with the Government are the United Nations High Commissioner for Refugees and the Office of the United Nations High Commissioner for Human Rights. The two UN bodies said in a joint statement on Tuesday that the Act is at variance with the UK's obligations under international human rights and refugee law.

A group of UN human rights experts today urged the Government to swiftly repeal the new legislation, saying it directly breaches the UK's obligations.

"Any deportation policy is in direct breach of the UK's commitments and obligations under international human rights and refugee law if it fails to provide for due process safeguards, individualised risk assessments, asylum procedures and adequate protection measures," the experts said in a statement.

Professor Alison Phipps, the UNESCO Chair in Refugee Integration though Languages and the Arts (RILA) at the University of Glasgow, said in a statement today that the Act conflicts with international refugee law and represents "an act of breath-taking international irresponsibility and domestic selfishness against people seeking refuge and against future generations."