The so-called “Illegal” Migration Bill, so far

Yumna Kamel (@yumnakamel), Legal Education Officer at Right to Remain.

Immigration is constantly in the British headlines, and exported as a British crisis in international news coverage.

Most recently, the so-called “Illegal” Migration Bill is, on the surface, the culmination of a prolonged effort to scapegoat migrant communities in Britain and distract from the effective collapse of the welfare state and economy. Beneath the surface, it’s much more than that.

It is extremely important that we, and our collective communities, understand what is happening. Hostility does not operate in a container; it spreads if we allow it to. This is an attempt to summarise key themes surrounding the Bill’s journey through Parliament and explore potential (and certainly less harmful) alternatives to the Bill.

I use quotation marks around the word “illegal” for a number of reasons. First, it is clearly dehumanising and apathetic to the experiences of people seeking sanctuary or a better life, whose journey to the United Kingdom (UK) was dictated by nothing more than an accident of birth. Second, it is factually incorrect. The act of migrating is not inherently illegal — not under entrenched principles of international law and policy. People move; we always have, and we always will. Third, it is grammatically incorrect. In any other arena, if an individual commits a crime, they do something illegal, they don’t become something illegal. In this way, our well-known belief that #NoOneIsIllegal has become increasingly poignant and urgent.

If you are interested in the Bill’s specific clauses, I’d suggest reading this legal opinion (quoted below) commissioned by Freedom From Torture which breaks down the Bill’s incompatibility with international and domestic law, and this comprehensive cross-sectoral civil society briefing submitted to the House of Lords ahead of their Committee stage. The former states that:

“In summary… key aspects of the Bill are incompatible with the UK’s international obligations under… the “Refugee Convention”… the European Convention on Human Rights (the “ECHR”, compliance with which the Government has notably been unable to certify), the European Convention Against Trafficking (the “ECAT”), and the Convention on the Rights of the Child (the “CRC”).

The Bill also seeks to undermine long-established domestic safeguards against arbitrary detention and to significantly curtail the courts’ constitutional role as an independent check on the lawfulness of executive action. If the Bill were to enter into force in its current form it would, for all practical purposes, effectively extinguish the right lawfully to seek asylum in the UK.”

Deterrence doesn’t work

It is worth noting that several tenets of the Bill are not new; they are reiterations of or additions to elements of the UK immigration and asylum system that have existed for some time and have failed to achieve their goal of stopping — or even limiting — Channel crossings.

For example, the Inadmissibility Rules were introduced in January 2021 to attempt to remove people who had passed through other allegedly safe countries on their way to the UK. The same applies to the notion of illegalising arrival in the UK without leave to remain (a visa), which was codified in the Nationality and Borders Act 2022 (NABA).

This Bill takes these policies one step further. Instead of having a ‘connection’ with a safe third country, a person needs only to have ‘passed’ through for the UK to consider them inadmissible. Instead of making some allowances (like NABA) for entering the UK without leave to remain in order to claim asylum, the Bill further illegalises this and extends punishment — in the form of detention, removal of protections, and deportation to potentially dangerous countries — to survivors of modern slavery and children.

Yet again enacting laws to make it more difficult for people to seek safety in the UK will not deter people’s movement: nearly 500 people crossed the English Channel in a single day in April 2023, and this was after the existence of the new Bill was announced.

In fact, the Migration Observatory has questioned whether, in practice, the clauses of the new Bill will diminish the possibility of returning people to their countries of origin altogether. If a person’s asylum claim is never even considered because their entry has been deemed illegal, then they cannot be refused (or even removed) because they will never have been in the system in the first place. In this way, the new Bill might actually result in even fewer removals of people who come to the UK seeking safety.

A state of destitution

Nevertheless, a potential drop in consideration of claims and/or removals will lead to an increase in destitution and vulnerability to exploitation. This is set to be the one of the most obvious and devastating impacts of the Bill. Its legal unworkability will not prevent the harm that will ensue — within and without the UK — if and when it is passed into law.

An official impact assessment for the Bill is yet to be published, however, the Refugee Council carried out its own analysis using publicly available information. It estimated that in the first 3 years of its implementation, the Bill could result in nearly 200,000 people being detained or made destitute — including 45,000 children.

Those who are not detained or are released from detention will not be provided with housing, food, clothing, schooling, healthcare, or the right to work. The UK will not be able to remove every person — either because they will not be able to find a country to remove them to, or because of the sheer expense of running a detention and removal system. This will lead to an increase in the homeless population in the UK, as people who are not considered under the asylum framework will never be able to gain status in the UK, no matter how long they stay. They will be forced to go underground, and live in a shadow society — a prime breeding ground for exploitation, forced labour, and modern slavery.

The Bill includes the right to detain unaccompanied children, and removes protections for survivors of modern slavery. The default position in UK law is to consider the best interests of the individual child, but the introduction of this Bill insists that the detention of children will add to its deterrent effect — despite protest from across the Conservative party itself. With regard to the stripping of protective measures in response to modern slavery, even Theresa May (often referred to as the architect of the Hostile Environment) has condemned the Bill and stated that through its enactment

“The government will be ensuring that more people will stay enslaved and in exploitation… it will give traffickers another weapon to hold people in that slavery and exploitation because it will be very easy to say to them: don’t even think about trying to escape”.

The creation of a near-default detention-to-removal pipeline in lieu of an immigration, asylum, and human rights law framework will have profound implications for human rights across the world. These activities will not operate in a vacuum; the world is watching the UK and this Bill will set a precedent for evading, not sharing, international responsibility.

Next stage

The Bill will be contemplated and debated during the Committee Stage in the House of Lords from the end of May until mid-June. To learn more about the journey of a Bill into an Act, you can read our Legal Update here.

To follow the Bill’s journey through the Lords, including what has happened so far, click here.

An unusually high number of peers — 87 to be precise — have signed up to speak on and suggest amendments to the Bill, which emphasises the controversy and cross-party outrage at its introduction. This includes a ‘motion to decline’ to give the bill a second reading that was put forward by Lord Paddick (it was not agreed to after a vote of 179:76).

Looking to the future

There are at least two clear paths that lead to an alternative future, where migration is not illegalised and where safe and legal routes exist.

The first is collectively committing to playing the long game. This means committing to advocating for the rights of people seeking asylum and all other affected groups, perhaps not with immediate victory in mind, but with the intention of setting a precedent that future elected parties must note when assessing popular beliefs. For example, when a political party states that it would not stand for this legislation, pledges like this should not be allowed to slide. This is done through initiatives like Asylum Matters’ long term campaigns against Anti Refugee Laws, which you can read about and get involved with here.

Second, it is important to educate ourselves about safe and legal routes before we promote them. When the extremity of the Bill is mentioned, it is often juxtaposed with talk of how it fails to include ‘safe and legal routes’ without further iteration of what those routes could be. It is important to acknowledge that Channel crossings are dangerous and do indeed present a problem that requires a humane solution — and it is equally important that when we oppose hostile solutions that we are familiarised with and able to promote what the alternative should be.

As a starting point, the UN has created a fact sheet about safe and legal routes to the UK for people seeking asylum here. Also, Gideon Maltz has written a comparative summary which mentions how other countries like Canada and the US — albeit far from perfect — have allowed for specific safe and legal routes to safety because they acknowledge that limiting lawful migration does not stop people from moving. By contrast, the UK is aiming to bar legal migration for people seeking asylum without any alternative, which would lead to an exploited population living in the shadows. If we could at the very least move away from an approach of cruelty to one of practicality, that would be a start.

In the end, we need to build strength within our communities. The challenges that lie ahead are complex and scary, but we must not be deterred. Providing and receiving support — both moral and practical — is essential in forming the foundation we need to build the strength to go on.

As our Director, Eiri Ohtani, says: building radical solidarity is, at its core, about learning how to connect with people who are not like you so that we do not fall into the trap of having siloed and separate pockets of society. In doing so, we will be able to build a just and alternative community for all — where people acknowledge and facilitate their shared existence and everyone can exercise their right to remain where they need to be, with dignity.