The Illegal Migration Act 2023 received royal assent in July, changing the law so that those who arrive in the UK illegally will not be able to stay here and will instead be detained and then removed. The act aims to put a stop to illegal migration into the UK by removing the incentive for people to make dangerous boat crossings and prevents those who have made these journeys from using modern slavery safeguards to block their removal.
What is the Illegal Migration Act?
The Illegal Migration Act imposes a duty on the Home Secretary to make arrangements to remove someone from the UK if they entered the country in breach of immigration laws, if they have travelled through a safe third country en route to the UK, and if they require leave to enter or remain, but do not have it. People meeting the conditions for removal, in addition to their family members, must be removed ‘as soon as is reasonably practicable’, unless the Home Secretary considers that there are ‘exceptional circumstances’ preventing their removal.
The Home Secretary is not required to remove unaccompanied children but has the power to make arrangements for their removal as soon as they turn 18.
If someone meets the conditions for removal, the Secretary of State has a duty to refuse to process any asylum claim they make. This is in addition to any claim that removal to their country of origin would breach their human rights.
How Will the Act Operate in Practice?
The Act places a legal duty on the Home Secretary to remove any person who has arrived through irregular routes either to their home country (where it is deemed safe) or a safe third country. 57 countries are identified in the Act as countries to which a person can be removed, including all EU states. There are eight countries in Africa which have been identified as safe ‘in respect of men’ only.
Currently, the UK has no arrangements in place to transfer asylum-seekers to a safe third country, though this is expected to change in due course. There are currently no bilateral agreements with EU countries enabling the return of irregular migrants or asylum seekers who have passed through on their journey to the UK.
The Act allows a person to challenge their removal by arguing that they would face ‘a real, imminent and foreseeable risk of serious and irreversible harm’ if they were to be sent to the territory specified in the removal notice. They will have a week to bring such a claim from their place of detention. However, no formal process has been established to do this as no Home Office asylum interview will take place.
All other legal challenges to removal, including those on human rights grounds, would only be considered by the UK courts after a person’s removal from the UK.
The Impacts of the Act
The impacts of the Act cannot be fully measured at present as only certain provisions and sections are in force now, most of the regulations compiled in the Act are due to be brought into force at a later date. The main sections which came into force with royal assent were those regarding entry, settlement and citizenship. The Government have indicated most other regulations in the Act will not be brought in until the conclusion of the Rwanda litigation as this would provide answers on whether migrants could be sent to Rwanda if their home country is not safe to return to