Illegal Migration Act 2023

Overview of the Act

1. The purpose of the Act is to create a scheme whereby anyone arriving illegally in the United Kingdom ("UK") will be promptly removed to their home country or to a safe third country to have any asylum or human rights claim processed. The Act builds on the Nationality and Borders Act 2022 ("the 2022 Act"), and the measures set out in the New Plan for Immigration 1 , as part of a wider strategy to tackle illegal migration. The purpose of the Act is to:
   • deter illegal entry into the UK;
   • break the business model of the people smugglers and save lives;
   • promptly remove those with no legal right to remain in the UK; and
   • make provision for setting an annual cap on the number of people to be admitted to the UK through safe and legal routes.
2. The Act includes the following measures:
1. Section 1 sets out the purpose of the Act and provides an overview of its contents. The section also disapplies section 3 of the Human Rights Act 1998.
2. Sections 2 to 10 (and Schedule 1) place a duty on the Secretary of State to make arrangements for the removal from the UK, as soon as reasonably practicable, of persons who meet the four conditions in section 2. The scheme applies to those who come to the UK illegally on or after 20 July 2023 and have not come directly from a country where their life and freedom were threatened. The duty to make arrangements for removal applies irrespective of whether a person makes a protection claim, human rights claim, or claims to be a victim of modern slavery or human trafficking; protection claims and human rights claims in respect of a person’s home country will be declared to be inadmissible to the UK system. The Secretary of State is not required to make arrangements to remove an unaccompanied child from the UK until they turn 18 years old, but there is a power to do so in limited circumstances ahead of them reaching adulthood. Persons within the scheme will be removed either to their home country (where it is deemed safe) or a safe third country where any protection or human rights claim will be considered.
3. Sections 11 to 14 confer powers to detain those within scope of the scheme pending their removal and whilst a determination is made as to whether a person falls within the duty to make arrangements for removal. Unaccompanied children may only be detained in circumstances to be prescribed in regulations. Provision is made for the First-tier Tribunal, on application, to consider granting bail once a person has been detained for a period of 28 days (eight days in the case of an unaccompanied child who is being detained for the purposes of removal). The Secretary of State will have the power to grant immigration bail at any time and individuals will also retain the right to apply for a writ of habeas corpus. Section 12 codifies common law principles, placing emphasis on the Secretary of State’s opinion as to whether the time period of detention is reasonable, rather than leaving that determination to the court. This will apply across all immigration detention powers. In order to ensure that, where the duty applies, the Secretary of State is able to remove individuals promptly, the Act disapplies the duty on the Secretary of State to consult the Independent Family Returns Panel in relation to the detention of families with children under the powers conferred by the Act and disapplies it for the purposes of removal of unaccompanied children.
4. Section 15 and Schedule 2 confer powers on immigration officers to search, seize and retain electronic devices from persons liable to be detained under the scheme provided for in the Act.
5. Sections 16 to 21 make provision for the accommodation and transfer of unaccompanied children under 18 who meet the four conditions set out in section 2. The Act confers a power on the Secretary of State to provide accommodation, and other appropriate support, for unaccompanied children who meet the four conditions, and a power, enforceable through the courts, for the Secretary of State to transfer an unaccompanied child to a local authority and vice versa. These provisions apply to England but with a power, by regulations, to apply them to Scotland, Wales and Northern Ireland.
6. Sections 22 to 29 extend the public order disqualification as provided for in the Council of Europe Convention on Action against Trafficking in Human Beings to persons within the scheme, the effect of which is that provisions in modern slavery legislation barring removal during the minimum 30-day reflection and recovery period, requiring the Secretary of State to grant limited leave to remain in the UK in certain circumstances and in respect of the provision of support, do not apply. The application of the public order disqualification is subject to a limited exception for those co-operating with the investigation of an offence linked to their trafficking or modern slavery where it is necessary for them to remain in the UK to provide such co-operation. These provisions are subject to a sunsetting mechanism so that they can be suspended (and, if necessary, revived) should the Government decide that a change of situation warrants the suspension or revival of the provisions. Section 29 also adds Foreign National Offenders and others liable for deportation, under provisions other than automatic deportation, to the non-exhaustive list of persons eligible to be considered for the Public Order Disqualification under section 63 of the 2022 Act. If applied, individuals will no longer benefit from the rights that flow from a positive reasonable grounds decision. Previously the disqualification only brought into scope individuals with a year’s prison sentence or longer: the Act now applies this provision to those given a custodial sentence of any length.
7. Sections 30 to 37 provide for a permanent bar on those who fall within the scheme from lawfully re-entering the UK or from securing settlement or British citizenship through naturalisation or registration. These bans will be subject to limited exceptions where necessary to comply with the UK’s obligations under the European Convention on Human Rights ("ECHR") or (in the case of limited leave to remain) other international agreements to which the UK is a party or (in the case of re-entry or limited leave to remain) where there are compelling circumstances.
8. Section 38 to 56 make provision in respect of legal proceedings. Sections 38 to 53 provide that persons subject to removal will have a limited time in which to bring a claim based on a real, imminent and foreseeable risk of serious and irreversible harm arising from their removal to a specified third country or a claim that they do not meet the removal conditions in section 2. The Act establishes defined time limits on the submission of such claims, for their consideration by the Secretary of State and for appeals to the Upper Tribunal of the Immigration and Asylum Chamber. These sections provide that certain decisions of the Upper Tribunal, including refusing permission to appeal, would not be subject to judicial review. All other legal challenges to removal whether on ECHR grounds or otherwise, would be non-suspensive and would therefore be considered by the UK’s domestic courts following a person’s removal. Section 55 makes provision about the circumstances in which interim measures indicated by the ECHR affect the duty in section 2 to make arrangements for the removal of a person from the UK.
9. Sections 57 and 58 make further provision about age assessments. Section 57 disapplies the right of appeal for age assessment, established under section 54 of the 2022 Act, for individuals that come to the UK illegally and are subject to the duty to remove in the Act. Instead, those wishing to challenge a decision on age will be able to do so through judicial review which will not suspend removal and can continue from outside the UK after they have been removed. Age assessment judicial review challenges will be considered by the courts on normal public law principles. Section 58 introduces a power, by regulations, to make provision about the circumstances in which an automatic assumption of adulthood may be made where a person refuses to undergo scientific age assessment without good reason.
10. Section 59 extends section 80A of the of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), which provides that asylum claims from EU nationals must generally be declared inadmissible to the UK’s asylum system, to cover nationals of Albania, Iceland, Liechtenstein, Norway and Switzerland, and other countries to be specified in regulations, and to include rights-based claims as well as, as now, asylum claims.
11. Section 60 requires the Secretary of State, by regulations, to determine an annual cap on the resettlement of individuals admitted to the UK via safe and legal routes (defined in regulations). The annual cap will be determined following consultation with local authorities in Great Britain, The Executive Office in Northern Ireland and other relevant bodies. Section 61 requires the Secretary of State to lay a report before Parliament, within six months of Royal Assent, detailing existing and any proposed additional safe and legal routes.
12. Section 62 amends section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 ("the 2004 Act") to add to the behaviours which should be considered damaging to the credibility of a person who has made an asylum or human rights claim.
13. Section 63 to 69 make general provision, including in respect of the Act’s territorial extent and commencement.