Stop the Boats – a Detailed Look at the Government’s Illegal Migration Bill
As UK immigration lawyers we use the law to its full advantage for the benefit of our business immigration and individual immigration clients, including asylum seeker claimants, those seeking humanitarian protection and refugee status, and those challenging Home Office decisions by way of the judicial review application process.
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The Illegal Migration Bill
Some of OTS Solicitors’ clients are the most vulnerable in society, having been trafficked into the UK or subject to modern slavery or indescribable torture for their political beliefs in their home country or because they are LGBTQ+ and that’s enough in their country of origin for them to be thrown into prison.
As immigration lawyers, we are proud of the work we do within the confines of UK immigration laws to help our business and individual immigration clients and that’s why we were so surprised to see that a British Home Secretary was putting forward the Illegal Migration Bill to Parliament in circumstances where in the first lines of the Bill Ms. Suella Braverman makes the statement that under section 19(1)(b) of the Human Rights Act 1998: ‘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.’
In a letter from the Home Secretary to MPs, Ms. Braverman said the provisions in the Bill are more than 50% likely to be found to be incompatible with rights under the European Convention on Human Rights (ECHR) although the government thinks the Bill is compatible with international law. The UNHCR has already said the Bill breaches the Refugee Convention by denying protection to many asylum claimants unable to make an admissible claim because of their means of entry to the UK. They say that is in breach of the Refugee Convention and potentially subject to challenge by the ECJ.
It seems to the immigration lawyers at OTS Solicitors that the Home Secretary is asking Parliament to approve a Bill and pass into law provisions that she can't say with any degree of certainty are compatible with UN Convention rights that the UK has committed to.
For a Secretary of State whose job it is to uphold the law it is an interesting introduction to a Bill. The written words may come back to haunt the Home Secretary when the Illegal Migration Bill is subject to legal challenges. They will undoubtedly occur as the opening lines of the Bill appear to encourage judicial scrutiny of the Bill.
There’s a second point to make, even if the Bill makes it onto the statute books and survives legal challenges, will the Illegal Migration Act work as a deterrent against crossing the English Channel on small boats? In reality, will the UK government have the practical resources to detain the boat people and remove them from the UK given the examples in recent years of failed deportation flights to Jamaica and the stalling and challenges to the Rwanda scheme?
Interestingly, if the Bill eventually becomes law, the Home Secretary is under a duty to remove those crossing the English Channel on small boats or others who arrive without entry clearance. Imposing a duty on the Secretary of State when there are so many legal and practical hurdles may be setting up the Home Secretary to fail in her statutory duty.
The Illegal Migration Bill – what is illegal about it?
As immigration lawyers who are well-versed in UK immigration law, we are impressed by how far the Illegal Migration Bill takes us away from current enshrined legal protections for asylum seekers in UK immigration laws and under Convention rights.
The Illegal Migration Bill says that anyone arriving in the UK who:
- Entered the UK on or after 7 March 2023 in breach of normal immigration laws and
- Travelled through a safe third country to get to the UK and
- Doesn’t have the required leave to enter or remain
is to either be removed to their home country or to a safe country as soon as practicable. Judicial review applications against detention and bail are denied under the Bill so immigration lawyers will no doubt pursue writs of habeas corpus.
The Bill offers some safeguards if you are an asylum seeker who is under the age of 18 (but on reaching adulthood the protection ends) or ‘those at real risk of serious and irreversible harm’.
The latter category isn’t clear-cut and will be subject to further detail and regulation. However, take the example of an LGBTQ+ person at risk of ‘serious and irreversible harm’ if they are sent to their home country or to a designated safe country such as Rwanda where they may feel that they cannot be their true selves without facing persecution and psychological harm and that this fear affects their mental health, creating suicidal thoughts.
According to the wording in the Illegal Migration Bill, a person wanting to claim asylum after arrival in the UK by boat can't make an admissible asylum claim and therefore can't appeal the decision to remove them to a country that is on the safe list of countries because they can't make an admissible application. Does that sound rather Orwellian?
Would-be asylum seekers can technically apply to the court to judicially review the decision to remove them to a specified safe country but the Illegal Migration Bill allows for the removal to take place before any human rights claim or judicial review application is determined. The supposed safeguard is that if the claimant is intrepid and determined enough to win their human rights case from an overseas location such as Rwanda, they can get a flight back to the UK.
The exception to this rule is where a person is claiming that removal would place them at risk of serious and irreversible harm, as in our example of the person experiencing suicidal thoughts because of their views about their safety in a third-party country that the UK government deems safe for them. In those circumstances, the person could potentially seek a review of the decision to remove and ask the court to allow them to remain whilst they challenge removal on the basis that being removed from the UK whilst their human rights claim or judicial review application is pending would cause serious irreversible harm. The Home Secretary’s duty to remove is suspended for that category of applicant until the UK courts or the tribunal determine the application.
Anyone who believes they are at risk of serious irreversible harm by removal will need to act fast as the Illegal Migration Bill only provides 7 days to object to the removal with the Home Office being under a duty to make a decision within 3 days of the challenge. That’s fast work. This category of person then has a limited right of appeal as the Home Office can certify that the claim is clearly unfounded so the claimant must first seek permission to bring an appeal as an extra hurdle.
Permission is only to be authorised if the Upper Tribunal concludes there is an obvious and real risk of serious and irreversible harm. The claimant can't appeal against the refusal of permission to appeal but if they are fortunate to be given the go-ahead to appeal their case is to be decided by the Upper Tribunal. This tribunal must make a decision within 22 days unless the tribunal extends the time limits.
The complex provisions limiting applications and appeals mean legal challenges to the Illegal Migration Bill are inevitable as the Bill appears to fly in the face of large swathes of existing UK immigration and judicial review law and the UN Convention on Human Rights. Those that cross the English Channel on small boats aware of the provisions of the Illegal Migration Act (if it comes into force) may be more tempted to simply disappear and work illegally in the UK on the basis that they have no right, in most cases, to make an admissible claim or to oppose removal and therefore no incentive to engage with the Home Office and regulate their immigration status.
The legal migration route for asylum seekers and refugees
What hasn’t featured in the headlines on the Illegal Migration Bill is the clause introducing a humanitarian-style visa for those asylum seekers seeking asylum in the UK through legal migration routes. That’s the people stuck in camps in Syria and elsewhere who are unable to make it to Calais to wait for a small boat. Some make think it is fair to prioritise those who are trying to claim asylum through legal migration routes but there is a catch…
The government says it will not introduce a humanitarian-style visa until it has sorted out stopping the arrival of claimants on small boats and that it will cap the number of annual applicants after consulting with local authorities on how much capacity they have to help asylum seekers and then allow MPs to participate in an annual vote on the cap. You can anticipate the limited consultation response in some areas of the UK where people are seeing rises in council tax and reductions in council services and local politicians seek votes.
It is a classic case of carrot and stick but in this case, there is no carrot until the stick has been fully wielded on those entering the UK on small boats but there is no effective deterrent for them to stop until the carrot is introduced with a properly funded humanitarian visa system. To end on a negative note, even the Home Office modelling shows that legal routes to admissible asylum claims won't be enough to stop the boats, hence Rwanda and other countries remain the first line of attack in stopping the boats.
At OTS Solicitors we know that many people are worried about how the Illegal Migration Bill will affect their families and loved ones. We will keep you updated as the Illegal Migration Bill passes through Parliament.
UK Online and London-Based Immigration Solicitors