Immigration law expert responds to the new Illegal Migration Bill

Barbed wire fence

On 7th March, Home Secretary Suella Braverman announced the new Illegal Migration Bill in the House of Commons. This bill is the latest attempt by the Home Office to ‘stop the boats’. The proposals include that, from today, anyone arriving in the UK without a visa will be detained for 28 days without access to bail or judicial review, then deported either to their own country or to a ‘safe’ country. They will never be allowed to claim asylum in the UK, or enter the UK for any other reason.

Sheona York, Clinic Solicitor at Kent Law Clinic, says that the new Illegal Migration bill is ‘immoral, illegal and impracticable.’ She comments:

‘The Home Secretary repeated that the UK ‘welcomes’ refugees, and that this Bill is a ‘humanitarian’ measure. Her claim of ‘welcome’ refers to the various settlement schemes for Syrian, Hong Kong, Afghan and Ukrainian nationals. But there are no ‘schemes’ or ‘safe and legal routes’ for other nationalities, and ‘refugee family reunion’ is not available for most divided families. Her claim to be ‘humanitarian’ may refer to the ‘danger’ of crossing the Channel in small boats.

‘However, the measures in the Bill will have profound consequences which I argue are immoral, illegal and impracticable.

‘Immoral because it blames and stigmatises migrants solely on the basis of how they arrived here, rather than on any claim arising from their personal circumstances. Tomorrow’s small boats may be carrying a woman fleeing risk of FGM, an Afghan selected for evacuation by the UK but unable to reach the airport in time, an Eritrean fleeing forced military service whose brother already has asylum in the UK, an Iranian opposition activist whose wife is here but who can’t risk waiting the 2 years it takes for a family reunion visa to be granted.

‘But no bail and no judicial review means that none of these claims can even be made. The Home Secretary stated that the measures will not apply to those who are under 18, or who are medically unfit, or who may face ‘serious irreversible harm’. But we saw from the scandal of asylum-seekers kept in Manston Airport that for several weeks they had no doctor on site.[1] And the Home Office’s own age assessment process has resulted in scores of young people being declared adult and accommodated and detained with adults, only to be properly assessed as children after they managed to run away.

‘These and other measures in the Bill are plainly illegal. The UN Refugee Convention requires that a person landing on the territory be afforded an individual determination of their asylum claim. The ECHR effectively requires the same, since a signatory State is required not to breach a person’s human rights. These conventions are embodied in UK domestic law. The Home Secretary stated that decisions to deport would be based on the person’s individual circumstances – but the Bill’s measures allow neither time nor legal processes for considering these, at least until after the person has been deported.

‘It is evident also that passing this Bill will mean the end of any UK effort to assist victims of trafficking. Imagine a young woman trafficked from Nigeria or Moldova by a ‘family friend’ who obtains a visitor’s visa for them and then sells them into sexual slavery. She faces the same detention with no bail or judicial review followed by deportation as a small boat passenger. This is because her ostensibly legal entry to the UK would have been obtained by deception – and deception renders the person illegal, even if practised by another person and without her knowledge.

‘Finally the Bill’s measures are hopelessly impracticable. Any attempt to ‘manage’ asylum flows around the world requires international cooperation, but this Bill has been introduced with almost no returns agreements in place, especially with the European countries whose cooperation would be required to enforce a ‘first safe country’ plan. The 28-day detention period is unlikely to be long enough to remove more than a few. The vast majority will either be kept in detention, at great cost both financial and in human suffering, or released either into destitution ‘in the community’ or into ex-MOD accommodation like Manston Airport and Napier Barracks – and with no case determination, no future, no conceivable outcome. They will only ever be illegal.

‘These of course will not be the first cohort of asylum applicants condemned to limbo by an incompetent Home Office. Delays and backlogs of asylum applications have existed since the 1990’s. The 2000’s saw the ‘legacy’ programme designed to deal with 450,000 unresolved claims. Some of the one million or so migrants unlawfully present in the UK are people still here from that time. Currently the asylum backlog stands at 160,000, and the new ‘streamlined’ asylum system once more attempts to speed up claims processing by shortening time limits rather than simplifying the legal requirements.

‘The Home Secretary referenced her own father’s history, as a ‘Kenyan Asian’ who gained refuge in the UK. But thousands of ‘Kenyan Asians’ were excluded from the UK despite holding British passports, and had to queue for years, in growing poverty, for entry vouchers.[2] That was a betrayal, as this Bill will be a betrayal of refugees.’

Sheona York is a Clinic Solicitor at Kent Law Clinic, part of Kent Law School. She supervises students working on clients’ immigration and asylum cases. She also works closely with local NGOs and refugee charities and contributes to academic and public debate on immigration issues. Her recently published book ‘The Impact of UK Immigration Law’ (Palgrave Macmillan) provides a rigorous analysis of the administrative and legal failures of modern UK immigration control. It engages topical issues such as Brexit, Windrush and boat channel crossings and discusses the context around law

[1] Independent Chief Inspector of Borders and Immigration David Neal visited the site in October last year and told MPs he was left “speechless” by what he saw at the Manston Airport site in Kent, prompting him to write to the home secretary with his concerns.

[2] See among many other accounts We are here because you were there: Immigration and the end of empire Ian Patel, Verso 2022