What is it?

In March 2023, the so-called “Illegal Migration Bill” was introduced to Parliament, with the aim of stopping people from crossing the English Channel in small boats. The Bill set out a plan that will mean that anyone who arrives irregularly into the UK will have their asylum claim deemed “inadmissible”—the Home Office won’t even consider someone’s claim. They could be detained indefinitely and then removed either to their own country or a “safe third country” if that’s not possible.

The Illegal Migration Bill became law—and therefore an Act—on 20 July 2023. The stated aim of the Act is to prevent and deter ‘unlawful’ migration by those using unsafe routes. It passed Parliament relatively quickly compared to other legislation, having been announced in December 2022 as a component of Prime Minister Rishi Sunak’s pledge to “Stop the Boats”. It was then laid before Parliament in March 2023 and debated for five months before passing in July.

The Act places a legal duty on the Home Secretary to remove anyone arriving irregularly to the UK, which includes those arriving by small boat and other means of transport, either to their home country or to a safe, third country such as Rwanda. The duty to remove does not apply to unaccompanied children, who the Home Secretary will only be required to remove when they turn 18.

Anyone crossing the channel in small boats or other “irregular” means after 20 July 2023 will have their asylum claims declared “inadmissible”, meaning they will not be considered under the UK’s asylum system and the Home Office will not process their claims. The Government then intends to “detain and swiftly remove” these people.

There is no legal duty on the Home Secretary to detain people, it is only a power to do so, and people can only be removed to their home country if they are from one of 32 countries, which are the EU 27 member states, Iceland, Liechtenstein, Norway, Switzerland or Albania. Anyone else would have to be removed to a safe third country.

The UK Government signed the Migration and Economic Development Partnership with Rwanda in April 2022 with the aim of sending people arriving on small boats to have their claims processed in Rwanda. The plan has however faced legal challenges. The Court of Appeal ruled in June 2023 that Rwanda is not a safe country for people to have their claims processed. It is being heard at the Supreme Court on 9 October for a few days with a judgment expected before Christmas.

As part of the Illegal Migration Act, the Government are also required to set a cap on the number of refugees to come to the UK via safe and legal routes each year.

Who has been affected by the Illegal Migration Act so far?

In short, nobody. Home Office estimates reveal that as of 3 October 2023, around 11,000 people have crossed the channel in small boats since the Illegal Migration Act was passed. But so far, none of these people have been removed from the UK. This is because the duty to remove these people has not yet come into force.

Just before the legislation was passed, the Government tabled an amendment which allowed them to change the date after which the Home Secretary will be under a duty to remove these people. This could mean the Government change the date to align with the Rwanda judgment, or another date in the future of their choosing.

Which provisions have come into force?

On 28 September, certain provisions around detention powers and seizing electronic information came into force. The former gives the Home Secretary much more power to determine what is a reasonable period of detention, lessening the Court’s ability to interpret that.

This provision goes much wider than the main group of people impacted by the bill as it covers anyone detained for immigration purposes. The sections of the Act related to the cap on safe and legal routes will also commence, with a consultation expected before 20 October 2023 on the safe routes cap.

In the near future, we are expecting secondary legislation related to the use of scientific age assessments to determine whether people are over the age of 18. This is concerning due to the concerns around safeguarding and certainty. There is no single age assessment method (scientific or not) which can determine an individual’s age with precision.

Why do Refugee Council believe the Act will not work?

The Refugee Council continues to advocate for a fair and humane asylum system governed by the principles of compassion and control as opposed to the Illegal Migration Act. Our report released in October 2023 highlighted the Home Office’s own statistics that three in every four people who have crossed the channel this year would be recognised as refugees if we processed their claims.

It is simply unfounded to say these people are economic migrants. 54% came from just five countries including Afghanistan and Eritrea which have asylum grant rates of over 97%. Even if the Rwanda Agreement were to be operationalised, over 25,000 people will be left in limbo as they cannot be returned to their home country or removed to Rwanda given limits on its processing capacity.

Updated 3 October 2023