Briefing – Government’s “Illegal Migration Bill”
Background:
The government’s “Illegal Migration Bill” effectively dismantles the asylum system in the UK and leaves nothing in its place, with the result that most people coming to the UK to seek asylum will simply be left in a permanent limbo. Under these plans the only people who will have access to refugee protection in the UK are the very few arriving on the government’s extremely limited resettlement programs.1 It will cause untold harm on an alarming scale.

This Bill will not have its intended effect and is doomed to fail on its own terms. We can predict the impact of this Bill with reasonable accuracy because it follows a very similar model as the Nationality and Borders Act, through the attempt to exclude people arriving by boats from the asylum system. That piece of legislation has caused an increase in the asylum backlog to its largest level ever, a spike in waiting times for asylum decisions, and has had none of the impacts that the government promised it would. This Bill will have a similar impact.

Fundamentally this Bill appears more designed as a piece of political theatre than serious workable legislation that the UK could come close to implementing. However, the limbo and bureaucratic inertia that it will cause will no doubt have very real consequences for the men, women and children that come here to seek protection. We ask that you oppose it at every opportunity.

This was an opportunity to end chronic delays in processing claims and introduce safe routes that negate the need for refugees to take dangerous journeys – such as by fixing the systemic problems with the Refugee Family Reunion system identified by the Immigration Inspector last month. Instead, we are seeing more of the same so-called ‘deterrence’ policies that have already failed on every possible metric, while causing untold harm and bringing the asylum system grinding to a halt.

Asylum ban:
The Bill will ban people arriving through irregular means, after 7th March, from ever claiming asylum in the UK – if they meet four conditions:

1. Entered in breach of normal immigration laws;
2. Entered or arrived in the UK on or after 7 March 2023;
3. Travelled through a safe third country; and
4. Require leave to enter or remain but do not have it.

It will also ban those people from ever being granted entry clearance, leave to enter, leave to remain or citizenship (clauses 29 to 36). This goes for both them and their family members who will similarly be blocked from the UK’s asylum system. Meanwhile those born to parents who meet the four conditions will also be banned from ever accessing British citizenship, even if they were born in the UK and have never left.

This is a fundamental departure from our own treaty obligations and the system for international refugee protection as a whole, and it turns our back on the people who need our protection. According to the government’s own refugee determination process, the vast majority of those people coming to the UK on small boats are genuine refugees. Banning them from seeking asylum is entirely contrary to the principles set out in the 1951 Refugee Convention, which the UK helped draft and has since been a proud signatory.

It builds on and deepens the divisions introduced by the Nationality and Borders Act which created a two-tier system of refugee protection, according to the route that people came to the UK. Only the small number of people who arrive on the extremely limited refugee protection regimes can access the asylum system. The remainder will be left in a permanent limbo state where they will be acutely vulnerable to exploitation. Those individuals will be living in temporary forms of accommodation – probably in military barracks or hotels, permanently barred from working, renting or participating in society. Those individuals will need to be perpetually supported by the state, thereby massively increasing the cost of the asylum system.

We have witnessed first-hand the unfolding mental health crisis among asylum seekers made to live in temporary accommodation for months or years, surviving on meagre subsistence payments without the legal right to work or participate in society.

The Bill fundamentally misunderstands the nature of fleeing conflict and persecution and seeking protection in a foreign country. People fleeing the Taliban in Afghanistan or indefinite military service in Eritrea are not able to apply for a visa to come to the UK. It is not illegal to cross a border without a visa for the purpose of seeking asylum and people are not required to claim asylum in the first country where their life and liberty is not threatened.

The UK already accepts fewer refugees than many other countries, even our closest neighbours,2 and the great majority of refugees relocate internally or in neighbouring countries. The relatively small numbers of people who seek asylum in the UK do so because they may have family here, or connections to a diasporic community, or English language skills. Many come from countries that are connected to the UK because of war, invasion or colonisation. Internal Home Office documents confirm that these are the primary motivations for those seeking asylum in the UK.

Detention:
The Bill introduces sweeping new powers of detention (Clause 12), under which people who meet the four conditions can be detained. Those individuals will be detained indefinitely, without trial, in ‘any place that the Secretary of State considers appropriate’. For the first 28 days of their detention, they will be unable to apply for bail to a court and will be denied the opportunity to challenge their detention through judicial review. It is commonly accepted that incommunicado detention exposes detainees to risks of serious human rights abuses.

Clause 12 of the Bill also states that detention can be maintained for as long as the Secretary of State deems it to be “reasonably necessary”, and it can continue “regardless of whether there is anything that for the time being prevents the deportation order from being made or the removal from being carried out”. This severs the link between the use of detention and the requirement for removal to be imminent, and will allow the Home Secretary to keep people in detention even when removal is not imminent, or even possible. This appears to include all people in detention – not just recent arrivals - including long-term residents who grew up in the UK or have families here and are now facing deportation.

Those people can be ‘of any age’ – seemingly indicating a return to detention of children, which was banned 13 years ago by the coalition government, in 2010. This goes against current legislation banning the detention of children except for very short periods. The Immigration Act 2014 banned the detention of unaccompanied children for more than a 24-hour period at any one time, while children can be detained with families for up to 72 hours, extendable to 7 days with ministerial approval. That detention can take place ‘in any place that the Secretary of State considers appropriate’.

This means possibly as many as 60,000 men, women and even children fleeing persecution will be locked up indefinitely without trial. Detention destroys lives and particularly those who are already vulnerable, as people arriving in the UK fleeing conflict or persecution usually are. Policies that traumatise tens of thousands of people will harm ‘integration’ and create further strain on public services when people are eventually released – the government knows they cannot be locked up forever, but in a radical departure from existing detention laws, the government will remove the power of individuals to challenge their detention.

The UK is also in no position to implement this type of mass-scale incarceration. The prison population is on average around 90,000 people. The government proposes to detain an additional 60,000 next year. This is pure fantasy. The UK is nowhere near having the resources to do this and any attempt to actually implement these plans will only divert vital funds away from dealing with the cost of living crisis.

Removal duty:
The Home Secretary has created a duty upon herself to remove people who meet the 4 conditions (clause 2). Not only is this in breach of the Refugee Convention, but it is precisely what the Home Office has already committed to doing for every individual arriving in a small boat under the Nationality and Borders Act.

Home Office data shows that Between 1 January 2021 and 30 September 2022, 20,605 asylum claimants were identified for consideration on inadmissibility grounds, and 18,494 ‘notices of intent’ were issued to individuals informing them that the Home Office was considering removal on inadmissibility grounds. Of those, 83 people were served with inadmissibility decisions and 21 individuals were forcibly removed. 9,772 were simply admitted into the asylum system. Therefore just 0.1% of people issued with a ‘notice of intent’ for inadmissibility have been removed. This has contributed to the asylum backlog and had no impact on removal numbers.

It is unclear how putting this duty into statute would change any of this. Instead it will simply cause further harm and delays.

Deterrence policy:
The entire Bill is based on a logic of deterrence, that people will stop coming to the UK to seek protection if you make it sufficiently difficult for those that do arrive. There is no evidence that this type of approach works. In fact, in its own Impact Assessment on the Nationality and Borders Bill, the Government admitted that the plan to “increase security and deterrence” could encourage people to “attempt riskier means of entering the UK”. It also states that “evidence supporting the effectiveness of this [security and deterrence] approach is limited”.

Asylum seekers choose which country they go to as a result of a range of complex interacting factors, but there is no evidence that a change in asylum policy such as this would have any meaningful impact on the destination choice of refugees.

Undermines parliamentary sovereignty:
The Bill transfers power away from parliament and concentrates it in the hands of the Home Secretary. There are 17 instances where the Bill gives the Home Secretary the power to change the law by making regulations. This is fundamentally contrary to the principles of the UK’s parliamentary democracy.

Human Rights:
While the Home Secretary has stated that she is confident in the Bill’s lawfulness, it is striking that she states on the first page that “I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights, but the Government nevertheless wishes the House to proceed with the Bill.” The Bill also states that section 3 of the Human Rights Act does not apply to the provisions in the Bill, meaning that the Bill does not have to be interpreted as far as possible in a way that is compatible with the Human Rights Act.

Trafficking:
The provisions also exclude people from the protections afforded to trafficking victims under the Modern Slavery Act. That is not only in breach of the UK’s treaty obligations under the European Convention Against Trafficking (ECAT) but will make it more difficult for the government to pursue the trafficking gangs that the government claims to be targeting with this legislation. This removal of protections, alongside banning access to the asylum system, will produce a more exploitable class of people and create the conditions for human trafficking and modern slavery to flourish in the UK.

Public opinion:
We note that there was no consultation on this Bill – and we are disappointed that the government did not consider it necessary to gather the opinions of experts, including those with lived experience of the asylum system, stakeholders, or the general public. However there is compelling evidence from the consultation responses in the Nationality and Borders Act that this approach is not popular:

“The consultation has shown that there is some support for these broad ambitions, more so from members of the public. However, the responses sent into the Government consultation also show that around three quarters of those who responded said they opposed many of the policies set out in the New Plan for Immigration.”

More recent evidence published this week by UK in a Changing Europe, overwhelmingly finds that public opinion on immigration has shifted a long way since 2016. Culturally, the UK public now has a much more progressive stance on immigration questions. These plans do not have the support of the general public and we remain confident that there is widespread public support for a fairer, more humane immigration system that treats those seeking protection with dignity and justice.

Sustainable, evidence-based solutions:
The government could have introduced measures designed to increase the quality and efficiency of asylum decisions. That is what other European countries have done. It could also finally create safe routes for refugees to get to the UK, both by introducing a humanitarian visa and expanding the scope of family reunion. Tellingly, despite the country being at war, not a single Ukrainian national was detected entering the UK by boat. This is because the UK created safe and accessible visa routes for Ukrainian nationals, meaning they did not need to resort to dangerous journeys. As the Immigration Inspector found, “the lack of an effective family reunion route carries with it the risk that vulnerable people will resort to dangerous journeys to join their family members in the UK”.

The government has shown no interest in doing so, despite leading figures such as Home Secretary Suella Braverman being unable to explain how a refugee should travel to the UK. The longer the government persists with deterrence-based policies, the more difficult it will be to eventually implement sensible and evidence-based solutions. Neither this piece of legislation, or its predecessor, or any that succeed it based on deterrence, will help to prevent further tragedies in the channel.

About RAMFEL
Refugee and Migrant Forum of Essex and London (RAMFEL) is a legal charity providing advice to migrants in the community on issues related to immigration and asylum claims, welfare/benefits, access to housing and prevention of destitution, and integration support. As part of our Refugee and Asylum Casework Team, we have advised and represented many refugees and people with humanitarian protection applying for family reunion with family members overseas. We work on behalf of both adult and child refugees, with the family members applying usually being pre-flight spouses, children (under and over 18), parents or siblings.
If you would like more information please contact Nick Beales on [email protected].

Yesterday, the government introduced yet another piece of asylum legislation doomed to failure. This was an opportunity to end chronic delays in processing claims and introduce safe routes that negate the need for refugees to take dangerous journeys. Instead we are seeing more of the same so-called ‘deterrence’ policies that have already failed on every possible metric, while causing untold harm and bringing the asylum system grinding to a halt.

Last year the government introduced processes for making asylum claims ‘inadmissible’ – this policy, intended to have a ‘deterrent’ effect, has had the sole consequence of increasing waiting times and caused an alarming spike in the asylum backlog. This latest proposed legislation works in a similar way and there is not a shred of evidence that it will have different consequences.

As journalist May Bulman recently reported, the pursuit of unworkable, headline-grabbing policies has diverted focus and resources from asylum decision-making and, as one civil servant put it, a “neglect of the fundamentals of how the asylum system functions”.

We know these policies don’t work – the Home Office was even brazen enough to admit the lack of evidence in the course of last year’s Nationality and Borders Bill. We do know they cause distress, anguish and trauma on a massive scale. And this is just through announcing ever crueller measures with increasingly extreme rhetoric that make it clear to refugees: the UK government does not want you here. We have witnessed first-hand the unfolding mental health crisis among asylum seekers made to live in temporary accommodation for months or years, surviving on meagre subsistence payments without the legal right to work or participate in society.

A key part of the latest legislation is the intention to detain tens of thousands of people each year – possibly as many as 60,000 men, women and even children fleeing persecution will be locked up indefinitely without trial. Detention destroys lives and particularly those who are already vulnerable, as people arriving in the UK fleeing conflict or persecution usually are. Policies that traumatise tens of thousands of people will harm ‘integration’ and create further strain on public services when people are eventually released – the government knows they cannot be locked up forever, but in a radical departure from existing detention laws, the government will remove the power of individuals to challenge their detention.

The UK is in no position to implement this type of mass-scale performative cruelty. The prison population is on average around 90,000 people. Anyone who believes the government could lock up another 60,000 people next year is deluded, but that is the government’s proposal. The UK is nowhere near having the resources to do this state, and any attempt to actually implement these plans will only divert vital funds away from dealing with the cost of living crisis.

When it comes to deterrent policy, there are no new ideas. These proposals are a re-working of the Nationality and Borders Bill, and many other short-lived ideas that have been trialled over the past 20 years. The Guardian traced 43 times we were promised flashy new plans to end the crisis, once and for all.

The government could have introduced measures designed to increase the quality and efficiency of asylum decisions. That is what other European countries have done. It could also finally create safe routes for refugees to get to the UK, both by introducing a humanitarian visa and expanding the scope of family reunion. The government has shown no interest in doing so, despite leading figures such as Home Secretary Suella Braverman being unable to explain how a refugee should travel to the UK.
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The longer the government persists with deterrence-based policies, the more difficult it will be to eventually implement sensible and evidence-based solutions. The government cannot continue to take the public for fools, and these measures will do nothing to prevent further tragedies in the Channel. 

The individual applicants in this case needed public funds to supplement their income because of their or their family members’ disabilities, but the government imposed an NRPF condition and failed to adequately consider their disability-related needs. Romoke Kehinde Ali, who brought the claim is a 55-year-old woman was left unable to continue working as a care assistant after suffering a stroke. The other claimant is the parent of a disabled child who can only work limited hours. Sky  Sadly their unjust treatment is far from unique. Take RAMFEL’s client Mercy – a mother of 4 with a 9-year-old son with cerebral palsy – who risked being plunged into poverty after the government suddenly removed all access to public funds, without explanation.

Shortly before the hearing, the government conceded that its guidance, and the immigration rules themselves, are unlawful, as they do not comply with the Equality Act, and fail to make it clear that disabled people can be allowed access to public funds even if they are not destitute or imminently destitute. On 15th February 2023 a High Court order was approved, and the immigration rules and guidance must now be amended. Until that happens, if anyone with a disability requiring public funds is told that they cannot access public funds, that decision is likely to be unlawful.

We don’t know how many people have been harmed by the government’s existing, unlawful policy. In 2021, 118,100 people were given leave to remain in the UK subject to having no recourse to public funds. However, despite admitting in 2020 that its NRPF policy risked discriminating against disabled people, the government maintained a cruel and inflexible approach towards those people for 3 more years.

This is the latest in a long line of defeats for the NRPF scheme and the hostile environment policy more broadly. DPG solicitors, who acted in this case, last year recorded that the NRPF policy had been found to be unlawful four times in the last four years.

In 2020, the government published an assessment of the NRPF policy’s compliance with their Public Sector Equality Duty, and acknowledged a risk that disabled people could be discriminated against, stating that they would monitor the impact. The government does not appear to have done that, failing to provide any information about this issue in response to RAMFEL’s Parliamentary Questions and Freedom of Information Requests. Having acknowledged and then ignored the risks, it is little surprise that the government is now forced to concede the unlawfulness of its approach.
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RAMFEL’s head of campaigns, Nick Beales, said:
“The NRPF policy has caused untold harm for the past decade. Public funds are a vital safety net for everyone, even more so during the current cost of living crisis. The fact that the government has been consistently denying that to some of the most vulnerable people in our society, namely people with disabilities, is utterly shameful. We are pleased to have contributed to the case that will end this pernicious practice, and hope the government will now swiftly update its NRPF guidance to better protect disabled people.”