The Illegal Immigration Act is the cornerstone of one of the government’s stated five national priorities – to “Stop the Boats”. The Act is designed to fundamentally change the status of asylum seekers in the UK, making it illegal to enter the UK and claim asylum without permission. The legislation states that anyone who enters the country without permission, whether by crossing the channel or by another means, will be detained, removed to another country, and unable to apply for asylum in the UK at any point in the future. This does not include exceptions for accompanied or unaccompanied minors.
A ban on claiming asylum
The wording of the legislation, and the nature of existing UK law means that the Act effectively equates to a ban on claiming asylum in the UK. It is currently only possible to apply for asylum once you enter the UK, and it is not possible to be granted permission to enter the UK aiming to claim asylum. As the Bill makes no provision for individuals to start asylum claims overseas, and entering the UK without permission will disqualify you from an asylum claim, it will be impossible to claim asylum. The only way to be granted asylum in the UK is to come via one of the limited government programmes such as UK Resettlement Scheme. The Illegal Migration Act makes no firm commitment to opening further safe and legal routes, meaning unless you are from the very small group who currently have access to the UK through country-specific routes, such as those for Ukrainian nationals, there will be no way of entering the UK to claim asylum.
Responsibility to detain and remove
As well as stopping people from being able to apply for asylum once they arrive in the UK, the Act also sets a responsibility for the Home Secretary to detain and remove people who arrive without permission swiftly after their arrival. This means the government’s intention is for all asylum seekers arriving from now on to be removed, either returned to their country of origin, or an alternate “safe third country”.
The Act does not set out a legal requirement for what “swift” means, and the likely possibility that their country of origin is not ‘safe’ to return to means many are likely to be detained indefinitely, with no ability to dispute their detention. During the passage of the Bill the government made concessions around the length of time children and pregnant women could be detained, agreeing to limit it to 8 days and 72 hours respectively.
In order to accommodate the rapid rise in the number of people being detained that this step will lead to, the government are seeking more detention accommodation across the UK. Given the worrying deterioration in the treatment of asylum seekers in current asylum accommodation, such as hotels and army barracks, the quality of life and care that asylum seekers would receive while detained, either temporarily or indefinitely, is of grave concern.
Further, few asylum seekers will be able to be returned to their country of origin. International law upholds the principle of non-refoulement, meaning that a state cannot remove someone to their country of origin when there are substantial grounds for believing that person would be at risk of harm on return (see more about non-refoulement here). The majority of people arriving in the UK to claim asylum come from countries deemed unsafe, and therefore could not return to their home country. For countries deemed safe, to legally return somebody to their country of origin against their will, there must be a return agreement in place with the subsequent nation. Currently, the UK government only has a return agreement with Albania.
The Act therefore demands that asylum seekers are removed to a ‘safe third country’, but there are currently no working agreements in place for this to happen. The Rwanda scheme has been declared unlawful by the Court of Appeal, and the government have yet to conduct any deportations under this plan. Even if the government finds a way to start the Rwanda scheme, the number of asylum seekers Rwanda have so far agreed to take is far lower than the numbers entering the UK or stuck in the current backlog. All of this means there is a very real possibility that tens of thousands of asylum claimants will be stuck in indefinite detention – unable to leave, and unable to have their claim assessed.
What will the overall impact be?
The government claims they want to stop spurious asylum claims – those who jump the queue, and have no claim, hurting those who do. But the Act makes no consideration of a claimant’s individual situation or if their reason for seeking asylum is legitimate. Rather than adjusting the system so that spurious claims are rapidly detected, and rejected, or investing in further staff to allow a clearing of the backlog, this blanket ban has no nuance. It punishes all those who are genuinely fleeing persecution to prevent the minority who may intend to misuse the system. By banning anyone who claims asylum from ever attempting to claim asylum again, without ever assessing the validity of their claim, they are failing to support people’s ability to flee desperate situations, either currently or in the future. Many, such as the United Nations High Commission for Refugees, see this as a significant breach of human rights protections and the UK’s responsibilities under international law.