The Illegal Migration Bill: seven questions for the government to answer

Think tank: Institute for Government

Author(s): Rhys Clyne; Sachin Savur

March 10, 2023

This report from UK think tank the Institute for Government highlights seven questions for the government to answer on the new Illegal Immigration Bill.

One of the five key pledges Rishi Sunak set out in January was to stop asylum seekers arriving in the UK by small boats crossing the English Channel. The number of people arriving this way has increased in recent years, from the low hundreds before 2020 to 45,755 people in 2022. Tragically, more than 130 people have died or gone missing trying to cross the Channel since 2019. Of those who arrived safely, the vast majority (around 90%) have claimed asylum and the Refugee Council estimates that over two thirds of these claims are likely to be successful under the current system. To act on the prime minister’s commitment the home secretary, Suella Braverman, has introduced the Illegal Migration Bill to parliament. The new bill aims to deter people from crossing the Channel in small boats by preventing those that do so from claiming asylum in the UK, detaining and removing them from the country.

The new legislation seeks to achieve this in several ways: It places a new duty on the home secretary to remove those entering the UK by irregular means via a safe country. In practice, this means almost everyone arriving by small boat from France, and over 85% of all irregular arrivals. The only exceptions to this duty are for people at risk of “serious and irreversible harm” and unaccompanied children until they turn 18. All people who arrive irregularly – including those exempted from the duty to remove – are to be deemed permanently “inadmissible” to the UK’s asylum system and cannot challenge their removal using rules related to modern slavery. Three quarters of people detained for return after arriving by small boat in 2021 were referred as potential victims of modern slavery (and two thirds between January and September 2022), and the government is seeking to close this pathway. Almost everyone referred was subsequently released from detention, either by the Home Office or on bail by a judge. The government would be able to detain arrivals for 28 days without access to bail and unable to appeal. After that, the government will be able to continue to detain someone for as long as the home secretary considers there to be a “reasonable prospect of removal” from the UK, though they may be granted bail by an immigration judge. The government will be able to return people to the country from which they arrived or to their home country if the government deems it “safe”. It would also be able to send them to a third country where the home secretary considers there to be no serious risk of persecution. This would include Rwanda as part of its asylum removals scheme. The bill also includes plans for a new cap on the number of people who can arrive in the UK via safe and legal routes, to be voted on in parliament each year. But this plan would only be enacted once the small boats issue has been resolved.

The government is right to try to reduce Channel crossings as much as possible. It is a dangerous trend, perpetuated by organised criminals, that puts vulnerable people at extreme risk. But the prime minister’s pledge to “stop the boats” completely is unrealistic. Nothing Sunak can realistically do will totally eliminate uncontrolled flows of migration into the country. The movement of asylum seekers is affected by many overlapping factors including geopolitical events and global economic trends that and no single piece of legislation can hope to resolve. The government is keen to present the bill as a clear plan to deliver the prime minister’s pledge. But since its publication, the legislation has raised more questions than answers – about whether it adheres to the UK’s international obligations, how it will be interpreted and implemented, and whether it will work in practice. The bill will now be subject to scrutiny as it passes through parliament. Given its importance and risk, the government should not rush the legislation through its stages to avoid detailed scrutiny. Without clear answers to seven questions, the new bill will fail to make a meaningful difference.