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The
Illegal Migration Bill, currently making its way through the House of Commons, is one of the worst bills pursued by a British government in recent history. For most refugees, it is a ban on seeking safety in the UK.
The bill would:
•harm refugees and victims of modern slavery by breaching the UK’s international obligations;
•detain the world’s most persecuted people with minimum safeguards;
•undermine natural justice;
•increase unaccountable ministerial power; and
•create even more problems for our already problem-laden asylum system.
International protection obligations
For example, clause 2 imposes a duty on the home secretary to remove people who arrive in the UK without leave after 7 March 2023 and did not come directly from a country where their life and liberty were threatened for their race, religion, nationality, social group or political opinion. To speed up removals, clause 4 requires the home secretary to disregard any asylum, human rights, modern slavery or judicial review claim. This makes asylum applications pointless.
Also troubling are clauses 21–28, which ban victims of modern slavery from relying on the Modern Slavery Act 2015 to resist removal. This undermines the
Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), which requires a ‘recovery and reflection period’ of at least 30 days during which victims are not removed (article 13). This has raised cross-party concern. During
the bill’s second reading, former prime minister Theresa May argued that ‘we are shutting the door on victims who are being trafficked into slavery here in the UK’.
Arbitrary detention
Clause 12 of the bill grants the home secretary an expansive power to detain people she suspects are liable for removal. This is a subjective power to detain as long as is reasonably necessary in the opinion of the home secretary, making a successful challenge more difficult as the bill prioritises the minister’s opinion and not objective reasonableness.
Further, clause 13(4) contains an ouster clause that makes the home secretary’s decision final and unchallengeable in any court for 28 days. While a person could
invoke habeas corpus, this is unlikely to provide a real safeguard because the bill expressly authorises this detention. In practice, people would be locked up for a month with no real opportunity to challenge it.
Natural justice
Under the bill, removals could only be challenged through ‘suspensive claims’ (clause 37), where individuals will suffer serious harm or because the Home Office made factual errors. However, clauses 40 and 41 impose difficult procedural hoops on suspensive claims. Clauses 40(5) and 41(5), for example, state that individuals must provide 'compelling evidence' of serious harm or factual errors respectively.
A person would have only eight days to make a suspensive claim and the minister would have only four days to consider it (clauses 40(7) and 41(7)). A refugee is unlikely to have the resources to make a formal claim in just over a week and a busy government department – particularly with the current backlog of asylum cases – is unlikely to seriously consider that evidence in just a few days. Further, immigration legal advice is very difficult to obtain in practice, with many areas described as
‘legal aid deserts’.
If the Home Office refuses a suspensive claim, the bill provides a right of appeal to the Upper Tribunal (clause 42) within seven working days but it would normally be required to decide the case within 23 working days (clause 47).
Moreover, clause 48 creates another ouster that makes decisions of the Upper Tribunal final. Therefore, a tribunal decision that has been rushed, which follows a Home Office process that has also been rushed, will be the final decision about a person’s life and safety.
Ministerial power
The bill is littered with expansive ministerial powers. For example, clause 51 empowers the home secretary to set an annual cap on the number of refugees entering the UK through approved schemes. There is no requirement for advance parliamentary approval, nor any duty to set up such schemes.
Creating more problems
Beyond its moral implications, the bill is demonstrably unworkable. For example, it would require a major increase –
on one estimate between 400 and 500 per cent – in the detention estate. The bill would also require a number of removal and return agreements with safe countries that the government does not have and is unlikely to secure. In the words of former lord chancellor Robert Buckland, the bill risks becoming
‘ineffective authoritarianism’.
The Illegal Migration Bill is policy based on magical thinking. It has a wanton disregard for the rule of law and – more importantly – any sense of compassionate responsibility for refugees and victims of modern slavery.