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On 08 March 2023, the government proposed the new Illegal Migration Bill in an attempt to stoppeople coming to the UK 'unlawfully' by 'unsafe andillegal routes' such as on small boats crossing the channel.This article will provide an overview of the Illegal MigrationBill's purpose, its main provisions and its legality.

The Illegal Migration Bill, or the 'Stop the BoatsBill', is one of the government's latest measures to reduce'unlawful migration' to the UK, following the introductionof the Rwanda policy, the Nationality and Borders Act 2022, the primeminister's statement on illegal migration and the recentintroduction of the Streamlined Asylum Questionnaire.

The Illegal Migration Bill is a proposal for a new law whichaims to deter 'unlawful migration' by 'irregular'or 'unsafe and illegal routes': the bill aims to preventpeople coming to the UK for example in the back of lorries or onsmall boats without having leave to enter the UK before or uponarrival.

This bill proposes to prevent those entering the UK in this wayfrom being able to claim asylum or other forms of leave in the UK.Instead, the Secretary of State would have a duty to remove suchpeople to their home country or a safe third country, such asRwanda, and could detain them in the process. The bill would bansuch people from having permission to enter or remain in the UK orobtaining British citizenship in the future.

The bill is currently at the report stage in the House ofCommons and is not yet law. It may still be amended before beingenacted. If enacted, it will apply retrospectively. As will beaddressed below, much like the Rwanda policy, the legality of theIllegal Migration Bill is likely to be challenged in thecourts.

The current version of the Illegal Migration Bill makesprovision for and/or about:

Each of these will be dealt with in turn below.

Removal of Persons who Have Entered or Arrived in Breachof Immigration Control

The Illegal Migration Bill imposes a duty on the Secretary ofState to make arrangements for the removal of people who enter theUK in breach of immigration control as soon as is reasonablypracticable after their entry, subject to limited exceptions.

This duty automatically applies where a person meets thefollowing four conditions:

This duty does not automatically apply to unaccompaniedchildren, some victims of slavery and human trafficking or whereother exceptions apply. See below.

A person may be removed to a country and/or territory:

A national from a country defined by the bill as a safe thirdcountry cannot be removed to that country where they have made anasylum and/or human rights claim in relation to that country underexceptional circumstances. Nationals from other countries cannot beremoved to their home countries; they can only be removed to safethird countries.

A person will be given notice of their removal and of thecountry to which they will be removed, prior to their removal. Theycan only be removed after their time to challenge their removal hasexpired.

This removal duty could also apply to their dependent familymembers who do not have leave to enter or remain in the UK, are nota British or Irish citizen and do not have the right of abode in the UK.

Detention for Immigration Purposes

A person may be detained where:

A person of any age could be detained anywhere as consideredappropriate by the Secretary of State, for a period which theSecretary of State deems reasonably necessary to enable a decisionto be made on their case or their removal to be carried out. Familymembers subject to the removal duty may also be detained. There arelimitations on the detention of children and pregnant women.

The bill allows applications for immigration bail after 28 days.

Unaccompanied Children

Although the removal duty does not automatically apply tounaccompanied children, the Secretary of State may makearrangements for their removal. The removal duty applies as soon asa person ceases to be an unaccompanied child, for example when theyturn 18.

Victims of Slavery or Human Trafficking

This bill proposes to disapply protections and entitlements toassistance and support which are available to victims of modernslavery or human trafficking. This includes the prohibition onremoving or requiring such people to leave the UK.

Leave to Enter or Remain, Settlement andCitizenship

The Illegal Migration Bill effectively bans people who have evermet the four conditions for removal, and in some cases their familymembers, from ever being granted entry clearance, leave to enter,leave to remain or indefinite leave to remain in the UK.

People who have met these conditions may only be granted suchleave if necessary to comply with the Secretary of State'sobligations under the European Convention on Human Rights or otherinternational treaty to which the UK is a party, or in compellingcircumstances, if appropriate.

Similarly, people who have ever met the four conditions forremoval are not entitled to British citizenship. No exceptionsapply. Their children could also be prevented from obtainingBritish citizenship if born in the UK on or after 07 March2023.

Inadmissibility of Certain Protection and Human RightsClaims

The removal duty applies regardless of whether a person has madean asylum or protection, human rights, victim of slavery or humantrafficking claim or an application for judicial review in relation to their removalfrom the UK under this act. In such circumstances, their asylum orprotection and/or human rights claim would be deemed inadmissible and could not be considered underthe immigration rules. No right of appeal would arise from aninadmissibility decision.

Maximum Number of Persons Entering the UK Annually UsingSafe and Legal Routes

The Illegal Migration Bills provides for the introduction of acap on the number of persons who may enter the UK annually using'safe and legal' routes. These would be the only routesopen to those seeking asylum in the UK.

Removal can be challenged on the basis of exceptionalcircumstances, as addressed above. Refusals of challenges made onthis basis cannot be appealed but could be challenged by judicialreview. The removal duty continues to apply throughout suchchallenges.

Alternatively, removal can be challenged on the basis of seriousirreversible harm, within 7 days of being given notice of removal.A decision will need to be made on such a challenge within 3 days.The duty to remove is suspended during this process. If successful,the duty will resume but removal will not be carried out. A changein circumstances may restart this process. An unsuccessful decisioncould be challenged, however the bill restricts the ways in whichthis could be done. Removal can also be challenged on the groundsof a factual mistake.

The Illegal Migration Bill severely limits challenges todetention, including by way of judicial review.

Pursuant to the Human Rights Act 1998, all legislation in the UKmust be compatible with the European Convention on Human Rights.However, the Illegal Migration Bill contains a clause whichdisapplies section 3 of the Human Rights Act 1998 and indicatesthat the bill may not be compatible with this convention.

Further, the bill creates challenges such as the fact thatpeople will need to claim asylum from outside the UK, many peopleto whom the removal duty will apply will not be able to be removeddue to a lack of safe third countries willing to receive them andthrough the introduction of a cap on such migration. Much like theRwanda policy, it is likely that this bill will be challenged inthe courts.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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What Is The New Illegal Migration Bill 2023? - General Immigration ... - Mondaq News Alerts