The Illegal Migration Act 2023:

An Unworkable and Cruel Mess

One of the most famous and best novels of the 20th century is Joseph Heller’s Catch-22. A work of satire about the absurdity of war and military life, the title refers to a central paradox at the centre of the plot. In the book, a “Catch-22” is when any pilot requests mental evaluation for insanity -hoping to be found not sane enough to fly and thereby escape dangerous missions – demonstrates his own sanity in creating the request and thus cannot be declared insane. 

The term “Catch-22” is now used to refer to any situation where a person cannot escape from certain consequences due to inflexible and contradictory rules or limitations.

 While often overused, it would be absolutely fair to describe the UK government’s latest immigration law as a Catch-22 for refugees and asylum seekers.

On 20 July 2023, the Illegal Migration Act of 2023 was given royal assent and signed into law. The act, championed by prime minister Rishi Sunak and home secretary Suella Braverman, has been condemned by the UN High Commission for Human Rights (UNHCRR) and described as effectively abolishing the right to claim asylum in the UK.

To summarise the law very briefly, it attempts to deter non-UK citizens from coming to the UK via irregular means by threatening them with removal to either their country of origin or a safe third country (namely Rwanda) and by denying them access to the UK’s asylum and immigration systems permanently. No one entering the UK irregularly will ever be able to apply for or be granted leave to remain or the right to work in the UK, and their families will never be permitted to join them. This will be the case even for genuine refugees and people who are fleeing violence, persecution and the threat of serious harm. People will not be able to challenge their removal using the laws against modern slavery and trafficking, and upon arrival, people will be detained for 28 days without access to bail and unable to appeal.

Regarding the removal of irregular migrants to their home country or a safe country, a key part of this is the agreement with the Rwandan government to remove asylum seekers from the UK to Rwanda. This scheme, as has been discussed in previous blog posts, is currently in legal limbo and while it is possible that the Supreme Court will deem it lawful, it is still going to be difficult to implement, and it is unlikely that a significant number of people will be removed there.

Schedule 1 of the act lists the countries to which a person may be removed.

If your country is not on that list, then you can only be removed to a safe third country. In the event that the country of an asylum seeker is on the list but still has a genuine fear of persecution, they can challenge their removal to their home country by way of a human rights challenge to argue that there are exceptional circumstances that should prevent their removal or that they would suffer serious irreversible harm if removed. It remains to be seen how easy it will be to make legal challenges and may depend heavily on how quickly the government is able to remove people from the UK.

As for removals to a safe third country, as has previously been discussed in the blog posts on the rulings in the High Court and Court of Appeal, even in the case where the Rwanda scheme is eventually ruled to be lawful, a full assessment of each individual’s human rights and whether the removal of each person to Rwanda is compatible with the UK’s obligations under the European Convention of Human Rights (ECHR) will have to be made before they can remove people there. In either event, the UK would need to find another country on the aforementioned list who would be willing to take them, which may be difficult. It is therefore difficult to imagine a scenario where large numbers of irregular migrants are removed from the UK, certainly without a lengthy and costly legal battle beforehand.

So what happens to people who cannot be removed but, as mentioned above, cannot claim asylum because of their irregular entry to the UK?

The answer is that they will be detained. If they are subsequently released or granted bail, they will be entitled to state support. They will not, however, be allowed to work. They will also have no route to ever obtain refugee status or any form of entry clearance or leave to remain, and never be allowed to obtain British citizenship. Incredibly, these same restrictions even apply to their children.

The act grants limited exemptions where a person may be granted legal status or citizenship in order to comply with the ECHR, another international agreement or there are “compelling circumstances” that make it appropriate to do so. While there is some limited case law that holds protracted immigration limbo to be a breach of human rights, the bar is very high. It remains to be seen how the case law develops following this law.

All of the above provisions even apply to people who have been identified by the Home Office as victims of human trafficking and modern slavery, with the only exemption being for those who are cooperating with law enforcement in criminal proceedings. Victims have no control over whether the authorities decide to investigate or prosecute perpetrators, so many victims will not have this exemption available to them.

One of the major problems with this new law is its main aim, deterring people from entering the UK irregularly.

By doing this, it is gambling that its harsh provisions will act as a deterrent on people coming to the UK. To put it bluntly, if the current rate of people coming to the UK via irregular methods continues under this law, it will cause complete administrative chaos for the UK government. It would effectively require a police state to enforce it adequately. So it only works if it leads to people declining to make the journey to the UK. The problem with that approach is that it is impossible to predict the decision-making process and the knowledge of thousands of individuals, especially those fleeing from unspeakably awful circumstances.

It also does not help that the law, while offering many deterrents to irregular entry, does not offer any incentives for people to enter lawfully. In its introduction, the act states its intention to prevent and deter migration through “unsafe and illegal routes”. The problem is that there are next to no “safe and legal routes”. There is no visa that allows people from anywhere in the world to apply to enter the UK for the purposes of seeking asylum. The only legal routes specifically for asylum seekers are a number of schemes, all of which apply to very limited and specific groups of people and are all very flawed. Apart from the bespoke schemes available for people from Afghanistan, Ukraine and Hong Kong (which are far from perfect and will be analysed separately in the near future), the only legal routes available to asylum seekers are the UNHCR resettlement schemes, which account for a negligible number of people granted asylum and which the UK government has seemingly closed for new referrals, and family reunion applications, which only applies to the partner and children of those already granted refugee status in the UK.

There have been attempts in the past to introduce a scheme to allow unaccompanied children in refugee camps to be allowed to enter and settle in the UK, mainly championed by Lord Alfred Dubs, who himself was a child refugee from Nazi-occupied Czechoslovakia. The UK government, however, has continuously resisted reintroducing such a scheme, which existed briefly from 2016 to 2017.

Not everyone who is not a British citizen or has a UK visa is prohibited from entering the UK. Many countries have agreements with the UK allowing for visa-exempt entry to the UK for short-term visits. While this list contains many countries that do not provide many refugees to the UK, such as EU member states, the US, Canada, Australia, etc., it also includes many countries that, while not experiencing armed conflict or civil war, are in the global south and experience significant social, economic and political problems, as well as countries with repressive governments and restrictive laws against marginalised groups, and countries with significant problems relating to organised crime, gang warfare and other forms of non-military generalised violence. Many people from these countries enter the UK perfectly legally and are permitted to claim asylum upon arrival. The UK government, however, is seeking to further limit this safe and legal route. As of 19 July 2023, nationals of five countries, which had previously been entitled to visa-free entry to the UK, will need to apply for a visa to enter the UK. These are Dominica, Honduras, Namibia, Timor-Leste and Vanuatu. In the case of Honduras and Namibia, the reason cited by the UK government for the change was specifically the number of asylum claims being made from nationals of these countries.

The lack of safe and legal routes is the single biggest reason for people seeking to enter the UK via small boats or any other irregular method. The inadequacy of the existing schemes for safe and legal entry to the UK for asylum seekers can be found in the numbers. In the last year, nearly three-quarters of asylum seekers were granted protection in their initial claim, and many of those who were not were granted protection on appeal.

Over 90% of people arriving in the UK via small boats, meanwhile, apply for asylum.

The most common nationalities for small boat arrivals are Afghanistan, Albania, Iran, Iraq and Syria. Asylum seekers from Syria, Afghanistan and Iran have very high rates of being granted protection (99%, 98% and 80% respectively). While the rate is much lower for Iraqis and Albanians (56% and 49% respectively), these figures still suggest that a large number will be genuine refugees. While the backlog of undecided cases means that the vast majority of those who arrived by small boat have not yet received the decision, the overall success rate of asylum claims and the nationalities of those arriving by small boats mean that many of these people have come to the UK because they are genuinely at risk of violence and persecution.

Anyone who thinks that people may seek to come to the UK via small boat or another irregular method not because they are genuine asylum seekers but because it is cheaper and easier than a legal visa route should examine what these people must endure. Most will have had to pay an extortionate amount of money to a people smuggler to get to the UK at all. Those who come via small boat will have crossed the English Channel, which is a dangerous journey with a high risk of drowning. Once they have made their claim for asylum, they will be housed in miserable living conditions in cramped hotel rooms and not be permitted to work. The huge backlog of undecided asylum claims means that they will have to live in limbo like this for months, maybe even years, until their claim has been processed.

The only incentive asylum seekers have for staying in touch with the Home Office and going through this dangerous and miserable process is that they have a good chance of being granted the right to remain in the UK legally at the end of it. The Illegal Migration Act withdraws any incentive for refugees arriving in the UK irregularly to cooperate with the authorities.

The social consequences of this will likely be catastrophic. Currently, most small boat crossings go from Calais to Dover, the narrowest point in the English Channel and where small boats are relatively easy to detect. Instead, the people smugglers will likely make people take longer and more dangerous routes that will be harder for the authorities to detect. This will almost certainly lead to more people drowning during the crossing. Those who survive, meanwhile, will have no incentive to contact the authorities upon arrival in the UK. Instead, they will just disappear. Even many of those apprehended by the authorities will vanish after a while, as the UK simply does not have the state capacity to detain tens of thousands of people indefinitely.

By definition, it is hard to count how many people are in the UK without legal status. Estimates range from 600,000 to 1.2 million. Without the right to obtain the necessities of life through legal means, the only option for them will be the exploitation economy and the criminal underworld. This will have real-world negative consequences for thousands of people, while exploitative employers and mafiosos will enjoy a golden age.

A term that is often used pejoratively to describe irregular migrants is “illegal immigrants” or simply “illegals”. Such a word conjures up the image of criminals, on reflection a strange way to describe people who immediately seek out law enforcement once they have committed their “crime”. Ironically, this law will almost certainly lead to more of them actually becoming criminals.

This paradox leads to a broader depressing irony of the law: it is called the Illegal Migration Act because it is supposed to be combatting illegal migration. Instead, by making more people suddenly become illegal migrants, preventing them from ever changing that and incentivising them to evade the authorities, the act will likely become a cause of more illegal migration. On that basis, it is a well-named law. Just not for the intended reason.


The Illegal Migration Act 2023

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