Illegal Migration Bill: What Is It & Is It Legal?

The Illegal Migration Bill was introduced on March 7th and is already causing controversy, but what is it and why are people worried about it?

Migrants and Asylum Seekers in a small dingy in the Channel
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On the 7th March 2023, the Conservative Government released their Illegal Migration Bill [1]Parliament UK: Illegal Migration Bill. The bill covers the removal of “persons who have entered or arrived in breach of immigration control” and also makes provisions for unaccompanied children and victims of human trafficking.

The Bill itself isn’t a completely new piece of legislation but is an amendment to the 1971 Immigration Bill.

The bill was introduced by Home Secretary Suella Braverman and has already started to cause a massive amount of controversy within major political parties and the wider public due to the way that certain elements of the legislation seem to be in direct contravention of the Human Rights Act and United Nation Convention on Refugees.

I won’t go into a full explanation of the Human Rights Act as I have already broken down what the European Convention on Human Rights (ECHR) is and what rights and freedoms it gives us but it would appear that Braverman either forgot or (more likely) doesn’t care that the Human Rights Act is enshrined in UK law as she states on page one of the bill:

Cover of the Illegal Migration Bill

Secretary Suella Braverman has made the following statement under section 19(1)(b) of theHuman 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.

So right off the bat the Government accepts and acknowledges that the bill is probably not compatible with existing UK and European law.

As a reminder: Immigration cases can currently be brought to the European Court of Human Rights – The ECtHR – as was the case with the Rwanda flights which were blocked and have yet to take place despite over £140 million being spent on the scheme already[2]BBC News: What is the UK’s plan to send asylum seekers to Rwanda?.

So why is this bill needed? Is the UK being overrun with asylum seekers coming ashore in small boats or are the government just pandering to a specific demographic in order to win votes? Let’s take a look at some stats and what the bill contains.

What Is A Refugee Or A Migrant And What Makes Them “Illegal”?

According to Article 1 of the 1951 United Nations Convention Relating to the Status of Refugees[3]UNHCR: Convention and Protocol Relating to the Status of Refugees, a refugee is a person who:

owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country

A migrant on the other hand is someone who has left their country in order to find work or to study. They have not had to flee due to any form of persecution or threat and are not claiming asylum – they may however seek leave to remain or apply for citizenship of the country they are living in[4]BBC News: How many people cross the Channel in small boats and where do they come from?.

A migrant or refugee can technically considered illegal if they arrive in a country without the proper visas or have not travelled through official or safe channels – there are exceptions regarding this which will be discussed below.

How Many Asylum Seekers Does The UK Take In Each Year?

According to official Government figures as of September 2021 (the latest stats they had available) the government granted “asylum, humanitarian protection or alternative forms of leave and resettlement to 13,210 (including dependents)… additionally 6,524 partners and children of refugees [already] living in the UK were granted entry to the UK”[5] How many people do we grant asylum or protection to? .

In the year ending September 2021 there were 37,562 asylum applications so only around a third were actually granted leave to stay.

In 2022, this had risen to 74,751 applications for asylum in the UK (this figure excludes Ukraine as that route wasn’t opened up until December 2022 and saw 154,500 enter through this option)[6]UK Parliament: Asylum statistics.

However according to the UN Refugee Agency as of November 2022 there were 231,597 refugees in the UK with 127,421 of those having pending asylum cases[7]UNHCR: Asylum in the UK so I am assuming that the Government figures are only counting refugees coming though the safe and approved routes and not all people arriving and/or being detained.

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By contrast other countries have received much higher rates of asylum seekers. For example Germany hosts 1.24 million refugees and 233,000 asylum seekers[8]UNHCR: Germany so by that standard the UK is hardly “swamped”.

Where Are The Asylum Seekers Coming From?

As you would expect, the majority of people seeking asylum are from countries that are experiencing war or political instability such as Afghanistan, Syria and Iran.

However over the past few years the majority of asylum seekers coming to the UK via The Channel are Albanian (12,301 in 2022 compared to 8,633 from Afghanistan) and this upward trend is worrying the government. In 2020, 50 arrived on small boats, In 2021, 800 made the crossing and 2022, 12,301 arrived via The Channel[9]BBC News: Albanian migrants: Why are they coming to the UK and how many have arrived?.

Albania is hardly a war-torn country, women are not being forced out of education or work by a Taliban-like regime, so why are they coming here?

According to some reports, Albanian gangs now have a foothold in Northern France making it easier for them to send boats across.

Many Albanians are unhappy with the lack of opportunities that they have: there is little investment, a lack of job opportunities and high unemployment (up to 60% in 18-34 year olds), poor working conditions, a low quality of life, high crime rates and systemic corruption[10]iNews: Why are people leaving Albania? How many UK asylum seekers are Albanian and if the country is safe. This meant that when asked almost 60% of people said that they wanted to leave Albania.

What Does The Illegal Migration Bill Cover?

Weirdly in the introduction to the act it makes a provision for protection claims and certain human rights claims (1.2.b) so people are still protected by the Human Rights Act in some way.

There are 4 main parts to the bill to determine whether someone can be detained or removed (section 2):

  1. Method of entry to the UK
  • They must have entered illegally or deceptively
  • They are in breach of a deportation order
  • Has not cleared immigration under the rules of immigration and has no valid clearance to enter the UK
  • Has not arrived with the proper “electronic travel authorisation”
  1. It would appear that the bill does not apply retrospectively and will only affect those who are entering the country on or after 7th March 2023
  2. The person seeking asylum did not come directly from the country in which they are seeking refuge from and passed through another “safe” country in order to reach the UK without first claiming asylum in the safe country.
  3. The person does not have leave to enter or remain in the UK

However if a person does not arrive in the UK via one of the “safe and legal routes” and meets the above criteria then all immigration/refugee protections are null-and-void and the person can be removed to a third country (presumably Rwanda) and banned from coming back to the UK or claiming UK citizenship [11]PoliticsHome: What Does The Controversial Illegal Migration Bill Cover?.

People who meet these four conditions can be detained for 28 days without being allowed to apply for bail until that period has passed (13.3.b).

This means that an asylum seeker’s ability to challenge deportation will effectively be removed unless they are kept in the UK for longer than 28 days. Presumably if they are sent to a third country within this initial 28 day period the rule that they are no longer eligible to enter the UK or seek citizenship will apply meaning that (even if they have family in the UK) they will be unable to re-enter the country.

Are There Exceptions To The Illegal Migration Bill?

Yes, but not many.

If an asylum seeker can prove that they are “gravely ill” and unfit to travel further, a victim of human trafficking or an unaccompanied child then the 28 day detention rule can be waived.

However, if they’re an accompanied child or attempting to join family already settled in the UK they will not be allowed to stay under these new rules.

Is The Illegal Migration Bill Legal?

Despite what the government would like you to believe – that the bill is compatible with International and current Human Rights laws, it’s not.

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It’s not compatible with the United Nations Convention Relating to the Status of Refugees either which is the most important one.

The UK is signed up to the 1951 Convention Relating to the Status of Refugees (which was revised in 1967 to remove boundaries set relating to people displaced by World War II) and this convention explicitly states the following:

The Convention further stipulates that, subject to specific exceptions, refugees should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules.

Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.

Importantly, the Convention contains various safeguards against the expulsion of refugees. The principle of non-refoulement is so fundamental that no reservations or derogations may be made to it. It provides that no one shall expel or return (“refouler”) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom (page 3)

So you can see that the new UK Bill already falls foul of the Refugee Convention by essentially classing entering the UK by “non-legal” routes as a crime for which the asylum seeker will be detained, removing the asylum seeker against their will and not giving them access to the court system (which is a fundamental human right and also covered in Article 16 of the Refugee Convention).

There are exceptions laid out the in Refugee convention – for example if you’re a war criminal but I don’t think the people coming over in small boats really fall into this category.

It’s almost as if the Government forgot that the UK signed up to this convention and that it doesn’t even apply to us when it most clearly does and, to put it bluntly, completely destroys any legality the new Illegal Migration Bill claims to have.

So Why Are The Government Doing This?

It’s no lie that immigration is costing the UK taxpayer a lot of money. According to some reports it’s costing almost £7 Million a day to house asylum seekers in hotels[12]Independent: Government spending £6.8m a day housing asylum seekers in hotels (although one has to wonder if the cost would be reduced had the government set up proper centres and facilities).

However, sending people to Rwanda won’t be cheap either. The Government have already spent £140 million on the scheme and not a single refugee has been deported there, plus there will be an additional “processing fee” per person paid to the Rwandan Government.

Currently it costs the UK around £12,000 per asylum application and they have said that an equivalent sum would be paid to the Rwandans when they receive a deportee [13]The Migration Observatory: Q&A: The UK’s policy to send asylum seekers to Rwanda.

Some reports however say that the costs of sending someone to Rwanda could be as high as £30,000[14]The Guardian: Sending UK asylum seekers to Rwanda will save money, claims minister when accommodation and flights are taken in to account so the UK will technically not be saving any money on this process.

The Government also argue that deporting people straight away will deter the people smugglers who are bringing the refugees over in the small boats. Recent reports however suggest that a large majority of the smugglers (up to two-thirds) already reside in Britain[15]Sky News: Channel crossings: People smugglers are ‘settling in Britain, renting houses and investing profits in UK businesses’ so will this bill really be a deterrent to them? I doubt it very much.

So This Is Now The Law, Right?

No, not yet.

The Bill was merely “Introduced” to the House of Commons by Suella Braverman on the 7th March 2023 and there are several stages it needs to go through before it is adopted in to law[16]UK Parliament: How does a bill become a law?.

  • Introduction: This is where the Bill is introduced to the House and is just a formality
  • First Reading: The title of the Bill is read out and an order for it to be printed is issued. The Bill is then formally published as a House of Commons Paper
  • Second Reading: This gives MPs the opportunity to debate portions of the Bill. This usually takes place no later than 2 weeks after the First Reading. MPs will vote on whether to take it to the next stage or not.
  • Committee Stage: The Committee takes a detailed look at the Bill, can ask experts and public interest groups for advice or opinions and then a list of amendments is drawn up and voted on by the Committee. The Bill is then reprinted with the amendments before the next stage.
  • Report Stage: The Bill returns back to the House of Commons for further debate and amendments. One the Bill and any amendments are agreed it goes to the next stage.
  • Third Reading: This is a debate on the final form of the Bill. Amendments cannot be suggested at this stage. After the debate MPs vote on accepting the Bill or rejecting it.
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After the Third Reading, the Bill will then move to the House Of Lords for its first reading there. The Bill then follows essentially the same process as in the House of Commons. After the Third Reading in the House of Lords, if there are no amendments, the Bill is passed over for Royal Assent, if there are amendments then the Bill goes back to the House of Commons.

It’s important to note that the House of Commons does not have to accept any of the House of Lords amendments and may propose alternatives, this means that the amended bill will return to the House of Lords to be looked at again in what is known as “Ping Pong”[17]UK Parliament: Consideration of Amendments.

Both Houses must agree to the final and exact wording of the Bill in order for it to be sent for Royal Assent, if they don’t agree then the Bill fails. This does not mean that the Bill will not become law though as the House of Commons can pass the Bill during the next session (usually after elections) using the Parliament Act.

While the Bill will move through the second reading quite quickly, the Committee stage may take a long time to complete as there are many legal issues (as we have discussed above) to consider – in fact it’s possible that the Bill gets radically altered[18]UK Parliament: Public Bill Committees in order to adhere to international law, although the Government may decide to convene a Committee of the Whole House [19]UK Parliament: Committee of the whole House to debate and amend the bill but given the opposition it has, that may prove unwise.

So despite what the Conservative Government would like you to believe, the amendments to the Illegal Migration Bill won’t be made law any time soon.

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