Why the Illegal Migration Bill won't stop the boats but will cause irreparable harm

As immigration lawyers we have become used to bracing for bad news, particularly in the form of terrible legislation. But no one could have been prepared for the sheer audacity, international law busting and compassionless horror show that is the Illegal Migration Bill.

The Government’s latest foray into immigration law making has been introduced with the supposed aim of ‘stopping the boats’. Once it passes, the new legislation will place a legal duty on the Home Secretary to immediately detain and then remove “as soon as reasonably practicable” anyone who entered the UK after 7 March 2023 via a third country and without a visa. Anyone removed under this legislation will also then be subject to a lifetime ban from the UK, and both they and any children born to them in the UK, will be permanently barred from becoming a British citizen in the future. Anyone who does not come to the UK directly via an official safe and legal route will face these barriers, irrespective of their mode of arrival. This bill, effectively, is intended to send the message that the UK asylum system is now closed.

The bill presents significant practical and logistical challenges, likely breaches international law and raises real questions about the morality of our nation. We are very aware that in raising these concerns about this bill, the Government can accuse us of playing into their narrative of being ‘activist lefty lawyers’ but it is important to note that opposing the measures set out in this bill is not in and of itself evidence of political bias. It does not make you an open border activist, nor does it make you anti-British. It simply makes you someone who has actually thought about the consequences rather than the vote-winning headlines. The purpose of the bill is purportedly to act as a deterrent against “illegal” migration, thereby undercutting the business of the criminal gangs bringing people to the UK in small boats. Setting aside the fact that in international law there is no such thing as an illegal refugee, we can all agree that small boat crossings are dangerous and that no one wishes to see lives lost attempting to cross the channel. The problem is that there is no evidence that this bill will have any real impact on these crossings, as a deterrent or otherwise.

The Nationality and Borders Act, passed less than a year ago, was also touted as a deterrent, mandating that anyone who arrived illegally would be deemed inadmissible and returned to the country they arrived from or a safe third country. The Home Office has deemed 18,000 people to be inadmissible because they travelled through safe third countries but, because they had no return agreements in place, just 21 of them have been returned. That is 0.1%. The other 99.9% just remained here in the UK, in limbo, often in hotels, at an extra cost of £500 million. And it didn't deter anyone, even more boats arrived. The Home Secretary continue to blame the low number of removals on immigration lawyers, but the issue does not lie with lawyers simply doing their jobs, but rather with the fact that the system is simply unworkable. It has not been thought through or designed to work, it has simply been designed to make a political point. It also does not address the reasons people are willing to risk their lives to reach the UK or offer an alternative to those making these perilous journeys.

The Government states that those seeking asylum in the UK ought to avail themselves of safe and legal routes and ought not ‘jump the queue’. This is entirely misleading because there is no queue and such routes either don’t exist or, like the Afghan schemes, have failed to provide safe passage to those in need. We understand that the Government does not wish to extend safe and legal routes until they have dealt with the issue of small boats but reducing small boat crossings is contingent on providing safe alternatives, not on simply punishing those who utilise the only route available to them. Having witnessed the failure of other ‘deterrent’ measures, it is hard to believe the Government is not cognizant of this fact, suggesting that any promise of future safe and legal routes is disingenuous at best.

The Government messaging on the new bill emphasises that arrivals will be detained and then removed. However, it is a fact that the vast majority of those who claim asylum in the UK (around 75% in the latest statistics) ultimately obtain refugee status. As such, they are not removable to their country of origin (and surely the Government is not proposing to remove, for example, fleeing Afghans back to Afghanistan). There is no agreement in place with France or the rest of the EU to return asylum seekers and so, the only option left is Rwanda, who have clearly stated that they will only accept a few hundred people. The reality therefore is that people will not be removed from the UK. 

So, do those people remain in indefinite detention, neither returned nor given sanctuary, never having their case resolved and remaining in perpetual purgatory; prevented from working or contributing to society? Are they to be indefinitely housed in tax-payer funded hotels or detention centres? (And how many hotels and detention centres will they need and how much will they cost?) Or will they be released and left destitute without hope of supporting themselves. This proposed legislation will not provide a solution to the broken asylum system at all, but instead will generate significant additional litigation and a whole set of new problems and expenses.  On any assessment of the practicalities, this bill is doomed to failure.

Turning then to the question of morality. The UK has a legal and moral obligation to play its part in the international refugee protection system. The UK already takes a very small number of refugees in comparison to its European neighbours. The absolute prohibitions on granting status set out in the bill, combined with the failure to set out alternative safe and legal routes suggests a complete abandonment of this long standing and widely recognised and accepted obligation.

In the Bill the Home Secretary has made the following statement 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.” There is wide acknowledgement that the provisions of the bill are incompatible with the UK’s obligations under the ECHR and will unavoidably lead to protracted and costly litigation, for which the taxpayer will foot the bill and lawyers will inevitably be blamed. The number of MPs openly calling for withdrawal from the ECHR is a sea-change which cannot be ignored and, taking a cynical perspective, it is possible to view the Small Boats Bill as a thinly veiled attempt to lay the groundwork for withdrawing from the ECHR. It is entirely foreseeable that if the Courts were ultimately to rule the provisions of the Bill incompatible with the ECHR then the government would state that they sadly had no choice but to withdraw from the Convention.

Going one step further, and reading between the lines of the Home Secretary’s resoundingly anti-refugee rhetoric, it is clear that the ultimate goal could be to entirely extinguish the right to seek refugee protection in the UK. As Zoe Gardener so neatly put it, ‘it doesn’t really work for us to say to the French that given that we are geographically slightly to the West of you that none of these refugees are our responsibility. Because France can say the same thing, and then Italy can say the same thing and so on, and then the entire international refugee protection system will crumble’.

It is understandable, when presented with the crippling cost of living crisis we are currently facing, that people might ask why we should care about the plight of refugees. Why should we care about protecting migrants when the Government is currently failing to protect the general British public. But Britain is ultimately a country that has historically grown and developed and succeeded with hardworking migrants at its core. Most migration economists agree that the presence of more migrants in the labour force doesn’t hurt native workers, because we typically have a different set of skills and compete for different types of jobs. Arguably, the earlier a state commits to protecting refugees and processing them quickly through an efficient but effective asylum system, the earlier they can move forward with their lives, without uncertainty blocking the way. By providing them with the right to work, refugees can start productive lives in their host countries and the faster they can integrate into the labour force, the faster they can become productive members of society. The UK ought to play its part in international refugee protection because it is the right thing to do and because of our international obligations, but it is also true that embracing our obligations here leads to a better and, likely more prosperous, society for us all.

What the UK needs is not political grandstanding and damaging rhetoric, but for the Home Office to put in place an efficient and cost-effective system for processing asylum claims along with safe and legal routes which offer an alternative to small boat crossings. A system that is workable and does not leave people in costly limbo indefinitely. A system that we know they are capable of building, because they have done it before with other visa categories. While we hope that the bill does not become law, and know that if it does it will ultimately fail to achieve its stated aims, we fear that it will do irreversible damage to vulnerable asylum seekers and that the division this bill and its accompanying rhetoric continue to stoke will have far reaching consequences.

As immigration lawyers we are used to bracing for bad news and bad legislation and, as we absorb the impacts, we are used to fighting back. The Government can be assured that this time will be no different and, as they ready their ‘lefty lawyer’ barbs, we will be readying legal arguments and preparing to stand up for the UK’s legal and moral obligations.

FURTHER INFORMATION

If you have any queries on the above issues or any other immigration matter, please contact Katie Newbury, Elli Graves or a member of our immigration team.

ABOUT THE AUTHOR

Katie Newbury is a Partner in the immigration team and has over 10 years' experience across a wide spectrum of UK immigration matters, with particular expertise in applications made under Tier 1 of the Points Based System and complex personal immigration matters.

Elli Graves joined Kingsley Napley in August 2018 as a Legal Assistant in the private client immigration team. She is now a Senior Immigration Advisor. Elli has a wide range of experience in both immigration and nationality matters, including points-based applications, EEA applications and Appendix FM applications. She also has a keen interest in complex immigration matters including Human Rights based applications, cases on appeal and asylum claims.