Illegal Migration Act 2023

Policy background

3. In 2022, over 45,700 illegal entrants entered the UK having crossed the English Channel in small boats; this compares to some 28,500 in 2021 and 8,500 in 2020 1 . In 2022, many of the illegal entrants originated from safe countries, such as Albania (28% of the total), and all travel through safe countries, such as France or other safe European countries. The annual cost of the asylum system is the highest in over two decades at over £3 billion, with £6 million a day spent housing migrants in over 300 hotels.
4. Between 2015 and March 2023 the UK has offered refuge to over half a million (511,998) people, through safe and legal routes, including those from Hong Kong, Syria, Afghanistan and Ukraine, as well as family members of refugees.
5. The Act creates a system in which anyone arriving illegally in the United Kingdom will not have their asylum claim, human rights claim or modern slavery referral considered while they are in the UK, but they will instead be promptly removed either to their home country or to a safe third country to have their protection claims processed there. The only way in which illegal entrants will be able to stay in the UK, and then only on a temporary basis, is if they can provide credible and compelling evidence that they face a real, imminent and foreseeable risk of serious and irreversible harm (for example persecution, torture or death) in the specific third country to which they are due to be removed.

The Nationality and Borders Act 2022

6. The Nationality and Borders Act 2022 ("the 2022 Act") introduced new measures to protect and support those in need of asylum, to deter illegal entry into the UK and to remove more easily from the UK those with no right to be in the UK. The intended cumulative impact of these measures is to dissuade migrants from considering using criminal smugglers to facilitate dangerous and illegal journeys to the UK and therefore to reduce the number of dangerous journeys from safe countries.
7. Following the end of the EU Transition period (on 31 December 2020), changes to the Immigration Rules were brought into effect which amended legal powers to treat cases as inadmissible (that is, the UK does not take responsibility for assessing the asylum claim) where individuals have passed through safe countries or have connections to a safe country where they could have made a claim for asylum. Through the 2022 Act, inadmissibility rules were clarified and placed into primary legislation. This was aimed at encouraging asylum seekers to claim asylum in the first safe country they reach and to deter onward travel to the UK.
8. The 2022 Act also enhanced the enforcement capability of the Home Office by enabling the Department to exclude serious offenders from the National Referral Mechanism (the NRM system for identifying and supporting victims of modern slavery) on public order grounds. It also introduced expedited appeals processes to tackle the mischief of late and opportunistic legal claims. A number of provisions of the 2022 Act came into force on 28 June 2002, 30 January 2023 and 10 May 2023.

Asylum and Illegal Migration

9. There were 74,751 asylum applications (main applicants only) in the UK in 2022, more than twice the number in 2019 2 . This is higher than at the peak of the European migration crisis 2015-16 (36,546 in year ending June 2016) and is the highest number of applications for almost two decades (since 2003). Almost a quarter (24%) came from EU, EEA or EU accession states, including over 14,000 alone from Albania, a safe European country.
10. The annual cost of the asylum system is now the highest in over two decades at over £3 billion, including around £6 million a day on hotel accommodation.
11. Methods of irregular entry can be dangerous and leave migrants open to exploitation by organised crime groups. One such method of entry is across the English Channel using small boats, which saw a significant increase since 2020. In 2020, 8,500 people crossed the English Channel in small boats, rising to over 28,500 in 2021 and over 45,700 in 2022.
12. The majority of small boat arrivals claim asylum. In 2022, 90% (40,302 of 44,666 arrivals) claimed asylum or were recorded as a dependent on an asylum application.
13. These high volumes have contributed to an unsustainable backlog. As of 28 June 2022, there were 92,601 cases awaiting initial decision, which the Home Office has committed to clear by the end of 2023.
14. Around two-thirds of those detained after arriving on a small boat are referred into the NRM up from just 6% in 2019. There has been a significant rise in modern slavery caseload due to a 600% increase in referrals since 2014 – in the year to Q3 2014 less than 2,300 potential victims of modern slavery were referred into the NRM but this has risen to almost 16,000 in the year to Q3 2022. This increase means that potential victims of modern slavery waited an average 531 days for a conclusive grounds decision in Q3 2022, up from 165 in Q3 2014.
15. This Act contains provisions that place a duty on the Secretary of State to make arrangements to remove any person who enters or arrives in the UK illegally, and has not come directly from a territory where their life and liberty was threatened, back to their home country or a safe third country for consideration of any asylum or humanitarian protection claim. The UK will continue to be bound by international treaties on modern slavery– but the Act extends the public order disqualification provided for in the Council of Europe Convention on Action Against Trafficking in Human Beings to exclude persons within the scheme from the protections afforded to potential victims of modern slavery. These measures are intended to remove any incentives which may attract illegal migrants to the UK and to incentivise people to seek protection by safe and legal routes or in the first safe country.
16. In April 2022, the UK Government and the Government of Rwanda signed a Memorandum of Understanding for the provision of the Migration and Economic Development Partnership ("MEDP") between the two countries. The purpose of the MEDP arrangement is to provide a mechanism for the relocation of any individual who arrived in the UK through dangerous, illegal and unnecessary methods since 1 January 2022 to Rwanda, where they will have their claim for protection considered. On 29 June 2023, the Court of Appeal handed down its judgment in the Judicial Review of the partnership. The Court found the deficiencies in the Rwanda asylum system were such that there were substantial grounds for believing that asylum seekers removed to Rwanda face a real risk of being returned to their home countries where they faced persecution or other inhumane treatment. However, the Court found that the policy of relocating asylum seekers to safe third countries is, in principle, compliant with the Refugee Convention. On 13 July 2023, the Home Secretary was granted permission to appeal the Court of Appeal’s findings to the Supreme Court.
17. In 2022, the UK received more than 5,200 asylum applications from unaccompanied asylum-seeking children (UASC). Of those applications, the most common age group were 16- and 17-year-olds. The duty to remove does not require the Secretary of State to make arrangements to remove an unaccompanied child from the UK (whether they seek asylum or not) until they turn 18 years old, but there is a power to do so whilst under 18. The Act provides that this power may only be exercised for unaccompanied children whilst under 18 in limited circumstances ahead of them reaching adulthood. This includes for the purpose of reunion, with a parent, where removal is to a safe country of origin, where the person has not made a protection claim or human right claim, or in other circumstances specified in regulations made by the Secretary of State. The Act provides the Secretary of State with the power to provide or arrange for the provision of accommodation and support for unaccompanied children who are in scope of the duty to make arrangements for removal. Where removal from the UK is temporarily suspended until an unaccompanied child turns 18, they will normally be provided with temporary permission to remain in the UK until they are 18 years old under provision to be made in the Immigration Rules.
18. This Act also introduces a comprehensive set of measures to deter irregular entry and improve the Home Office’s ability to remove those with no right to remain in the UK. This includes conferring new powers to detain persons for the purpose of considering whether they are within scope of the scheme and pending their removal. Unaccompanied children will only be able to be detained in circumstances to be prescribed in regulations. There would be no right to Tribunal bail for 28 days (eight days in the case of an unaccompanied child where they are detained for the purposes of removal), from the date of detention and, barring limited exceptions, any illegal migrants that fall within the scheme will be prevented from qualifying for re-entry, settlement or citizenship.
19. The Act will provide for two limited circumstances in which a legal challenge would suspend removal; all other legal challenges to removal, whether on human rights grounds or otherwise, would be non-suspensive, that is the legal proceedings in the UK would run their course, but they would not suspend the removal of the person from the UK in the meantime. As a consequence of this, section 54 restricts domestic courts granting interim remedies in proceedings relating to a decision to remove a person from the UK under the Act. Section 55 makes provision about the circumstances in which interim measures indicated by the European Court of Human Rights affect the duty in section 2 to make arrangements for the removal of a person from the UK. A person will not be relocated to an otherwise safe country if they make a human rights-based claim and the Home Office concludes in respect of that claim that there is a real, imminent and foreseeable risk of serious and irreversible harm were that person to be so removed. A person may also challenge their removal on the basis that they do not meet the conditions for removal. Where the Home Office rejects such a claim, the person will have an avenue to appeal the decision in the Upper Tribunal. In a case where the Home Office certifies the claim as clearly unfounded, the person will be able to petition the Upper Tribunal for leave to appeal against the certification of the claim and, if given leave to appeal, the appeal will then be heard. Relocation to a third country will not proceed until any appeal is exhausted. The Act provides for time limits for each stage of the process in respect of the submission of suspensive claims, their consideration by the Home Office and any subsequent appeal so that removals are not significantly delayed.
20. The scheme provided for in the Act is part of a wider strategy to tackle illegal entry. The Government is working with partners in Europe, especially France and Belgium, to prevent migrants attempting to make their way illegally to the UK. This includes work funded through overseas development aid and activities of law enforcement and intelligence partners including the National Crime Agency. The Government intends to continue working with these partners and all operational partners and agencies to tackle the upstream causes of illegal immigration. On 14 November 2022, the Home Secretary announced a new agreement between the UK and France to strengthen the bilateral partnership to tackle illegal migration at the shared border, with a focus on small boats crossings 3 . On 13 December 2022, the Prime Minister announced, amongst other things, a new agreement with Albania aimed at deterring and disrupting illegal migration (House of Commons, Official Report, column 885 to 888).

Individuals coming to the UK through safe and legal routes

21. The UK will maintain well-defined safe and legal routes for people in need of protection. With worldwide displacement now standing at around 100 million people, the UK cannot help everyone. Data from the United Nations Refugee Agency on resettlement shows that from 2016 to March 2023, the UK resettled over 28,000 individuals, including a large number of children, direct from regions of conflict and instability via established refugee resettlement schemes – the fourth highest number in the world (after the United States, Canada and Sweden). In total, the UK has granted permission to enter to over 500,000 people including through bespoke routes created for those from Afghanistan, Hong Kong and Ukraine.
22. In his statement on 13 December 2022, the Prime Minister committed to continuing to work with the United Nations Refugee Agency to identify those most in need of sanctuary so the UK remains a safe haven for the most vulnerable. In the statement the Prime Minister said that, "the only way to come to the UK for asylum will be through safe and legal routes and, as we get a grip on illegal migration we will create more of those routes". The statement reiterates the Government's commitment to continue to provide safe and legal routes for protection, with the intention that this commitment is achieved through resettlement routes. The Prime Minister also committed to introduce an annual quota, set by Parliament in consultation with local authorities to determine the country’s capacity, and amendable in the face of humanitarian emergencies; section 60 gives effect to that commitment.
23. The Government currently operates the following safe and legal routes:

Global Resettlement Schemes:

• The UK Resettlement Scheme is the UK’s global resettlement scheme, offering a route for United Nations High Commissioner for Refugees-referred refugees from priority situations. The UK Resettlement Scheme was launched in March 2021, following the closure of the Vulnerable Persons Resettlement Scheme and the Vulnerable Children’s Resettlement Scheme in February 2021; under the Vulnerable Persons Resettlement Scheme the UK resettled some 20,000 refugees fleeing the conflict in Syria.
• The Mandate Resettlement Scheme resettles recognised refugees with a resettlement need, who have a close family member in the UK who is willing to accommodate them.
• The Community Sponsorship Scheme enables civil society - friends and neighbours, charities and faith groups - to directly support refugees resettled to the UK. This route has been used to resettle individuals predominantly from Syria and Afghanistan.

Resettlement Schemes for Specific Contexts:

• The Afghan Citizens Resettlement Scheme, launched in January 2022, provides a bespoke solution to 20,000 people affected by events in Afghanistan.

Relocation/Visa routes for Specific Contexts:

• The Afghan Relocations and Assistance Policy, open since April 2021, provides relocation to those who served for or alongside HM Government and military in Afghanistan.
• The British Nationals (Overseas) ("BN(O)") immigration route provides a pathway to settlement for BN(O) status holders and their immediate family members from Hong Kong.
• Homes for Ukraine, the Ukraine Family Scheme and Ukraine Extension Scheme, launched in early 2022, provide a three-year visa to those fleeing the war in Ukraine.