Illegal Migration Act 2023

Commentary on provisions of the Act

Section 1: Introduction

32. Subsection (1) sets out the purpose of the Act, namely to prevent and deter unlawful migration and, in particular, migration by unsafe and illegal routes, such as those seeking to enter the UK illegally by crossing the Channel in a small boat.
33. Subsection (2) summarises the main provisions of the Act directed towards that purpose. Subsection (4) summaries the other immigration-related provisions in the Act.
34. Subsection (3) reaffirms the established principle that the courts and others should interpret the Act to deliver the purpose in subsection (1).
35. Subsection (5) provides that section 3 of the Human Rights Act 1998 does not apply in relation to provision made by or by virtue of this Act. Section 3 of that Act requires the courts to read and given effect to legislation, so far as it is possible to do so, in a way which is compatible with the Convention rights.

Section 2: Duty to make arrangements for removal

36. This section places a duty on the Secretary of State to make arrangements to remove persons to their home country or a safe third country who have entered or arrived in the UK illegally, and the conditions under which this duty will apply. The duty to make arrangements for removal is absolute, subject to the subsequent provisions of the Act as specified in subsection (11).
37. Subsections (2) to (6) set out the four conditions which must be satisfied for the duty to apply to a person.
38. The first condition (subsection (2)) relates to the lawfulness of a person’s entry or arrival in the UK, namely that they either: entered without leave to enter when required or where that leave to enter was obtained by deception; entered in breach of a deportation order; entered or arrived when they were an excluded person within the meaning of section 8B of the 1971 Act (that is, someone who is subject to a travel ban imposed by the United Nations or the UK); arrived without valid entry clearance when required; arrived without avalid electronic travel authorisation when required.
39. The second condition (subsection (3)) specifies the duty applies to those that meet the conditions in subsection (2) and entered or arrived in the UK on or after 20 July 2023, that is the date the Act received Royal Assent.
40. The third condition (subsections (4) or (5)) specifies that the duty applies to persons who did not come directly to the UK from the country in which their life and liberty was threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion (see the definition of a refugee in Article 1 of the Refugee Convention). If a person passed through or stopped in another country where their life and liberty was not threatened, they will not be considered to have come directly to the UK.
41. The fourth condition (subsection (6)) specifies the person requires leave to enter or remain but does not have it.
42. Subsection (7) provides that any leave granted to unaccompanied children under the immigration rules is to be disregarded for the purposes of the condition in subsection (6).
43. Subsection (11) provides that the duty to make arrangements for the removal from the UK of persons who meet the four conditions is subject only to subsequent provisions of the Act, namely:
• Section 4 which provides that the duty in section 2(1) does not require the Secretary of State to make removal arrangements for unaccompanied children until they turn 18 years old, although they may do so whilst they are under 18 using the power in 4(2) and for the Secretary of State to specify other exceptions in regulations.
• Section 22 (read with sections 61 and 62 of the 2022 Act) which make provision for the duty to be suspended where a person is a potential victim of modern slavery and is cooperating with law enforcement agencies in connection with the investigation or prosecution of an offence relating to them being a potential victim of slavery or human trafficking.

Section 3: Amendment of date in section 2(3) etc

44. This section confers a power on the Secretary of State, by regulations (subject to the negative procedure), to amend the date specified in sections 2(3), 5(8)(a), 6(12)(a) or 6(14)(a). These provisions currently specify the date on which the Act was passed, that is 20 July 2023. Any regulations may only bring the relevant date forward and not specify an earlier date (subsection (5)). So, for example, regulations may amend the date in section 2(3) to substitute a later date than 20 July 2023; the effect of this would be that the duty to make arrangements for the removal applied to a person who entered the UK illegally on or after the revised date.

Section 4: Unaccompanied children etc

45. The duty on the Secretary of State to make arrangements for removal applies to all persons, regardless of age, who meet the four conditions in section 2. However, subsections (1) to (2) of section 4 provide that 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. Sections 16 to 21 make further provision in respect of the accommodation and other support for unaccompanied children who meet the four conditions set out in section 2 of the Act.
46. The power in subsection (2) 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 (as listed in section 80AA(1) of the Nationality, Immigration and Asylum Act 2002), where the person has not made a protection claim or human rights claim, or in other circumstances specified in regulations made by the Secretary of State.
47. Subsection (4) provides that regulations made under subsection (3)(d) may confer a discretion on the Secretary of State, that is in specifying other circumstances where a child may be removed, the regulations may provide for the Secretary of State to determine whether to remove children who meet the criteria on a case-by-case basis.
48. Subsections (5) and (6) set out the definition of an unaccompanied child for the purpose of this Act except for section 16 and 17 (accommodation and transfer powers) which have a specific definition in section 16 (5).
49. Subsections (7) to (9) enable the Secretary of State by regulations to specify categories of persons to whom the duty to remove is not to apply, whether on a temporary or permanent basis. Such categories may include, for example, persons subject to extradition proceedings or persons being prosecuted in the UK for a criminal offence.
50. Regulations made under subsection (3)(d) are subject to the draft affirmative procedure, whereas regulations made under subsection (7) are (by virtue of subsections (11) to (14)) subject to the made affirmative procedure.
51. Subsection (15) applies, for the purposes of the Act as a whole, the definitions of a "human rights claim" and a "protection claim" in sections 113(1) and 82(2) of the 2002 Act respectively; those definitions are as follows:
• "human rights claim" means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require them to leave the United Kingdom or to refuse them entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Convention);
• "protection claim" is a claim made by a person that their removal from the United Kingdom would breach the UK's obligations under the Refugee Convention, or would breach the UK's obligations in relation to persons eligible for a grant of humanitarian protection.

Section 5: Disregard of certain claims, applications etc

52. This section provides that the duty (in section 2(1)) to make arrangements to remove, or the power to make arrangements in section 4(2), applies to persons that meet the conditions under section 2 regardless of whether they have made a protection claim or human rights claim, they claim to be a victim of slavery or human trafficking or have made an application for judicial review (as defined in subsection (7)) in relation to their removal from the UK under the Act. Where a protection claim or a human rights claim falling within subsection (6) is made by such a person, it will be declared as inadmissible by the Secretary of State and will not be considered in the UK (subsections (2) and (3)). Any such inadmissibility decision is not a refusal of a claim and therefore there is no right of appeal against such a decision (subsection (4)). A human rights claim is within subsection (6) if it is a claim that removal from the UK to a person’s country of origin or where they have a passport would be unlawful under section 6 of the Human Rights Act 1998.
53. Human rights claims that relate to a person’s removal to a specified safe third country will be admissible, however any such claims will be considered following the claimant’s removal to the third country concerned; any judicial review in relation to such a claim will also be considered by the UK domestic courts while the claimant is out of country (by virtue of subsection (1)(d)). The removal of the claimant to the specified safe third country will only be suspended pending consideration of, and any appeal relating to, a serious harm suspensive claim or removal conditions suspensive claim (see sections 38 to 53).
54. Subsection (7) make a transitional provision to take account of the fact that a protection, human rights or modern slavery claim made by a person who arrived in the UK between the date of introduction and the date of commencement may have had the claim assessed and determined during this period. In such a case, the determination will stand and they will continue to be dealt with under pre-Illegal Migration Act law and policies. The effect of subsection (7) is that where a person has made a claim on or after the date that the Illegal Migration Act 2023 was passed that is outstanding on commencement, the duty to make arrangements for removal will apply (by virtue of subsection (1)) and the Secretary of State must declare the claim inadmissible (by virtue of subsection (3)).

Section 6: Removal for the purposes of section 2 or 4

55. Subsection (1) specifies that where the duty to make arrangements for removal applies, the Secretary of State must ensure the person is removed as soon as reasonably practicable. In the case of an unaccompanied child, this should be as soon as reasonably practicable once they have ceased to be an unaccompanied child, that is once they have turned 18. The provisions also apply to an unaccompanied child where the Secretary of State has decided to exercise the power in section 4(2) to make removal arrangements.
56. A person may be removed to a country or territory where: they have nationality or citizenship; have a passport or other identity document for; where they embarked for the UK from; or where they will be admitted (subsection (3)). These alternatives are subject to the exceptions provided for in subsections (4) to (11).
57. Subsections (4) to (6) provide for exceptions in respect of nationals of countries to which section 80A of the 2002 Act applies. Section 80A of the 2002 Act currently provides that asylum claims from EU nationals must be declared inadmissible to the UK’s asylum system, save in exceptional circumstances as a result of which the Secretary of State considers that the claim ought to be considered. Section 59 extends the application of section 80A of the 2002 Act to nationals of other safe countries as listed (along with EU member states) in new section 80AA(1) of the 2002 Act. Subsection (4) provides that a national of a country listed in new section 80AA(1) of the 2002 Act may not be returned to their home country (that is a country falling within subsection (3)(a) or (b)) if they have made a protection claim (that is a claim for asylum under the Refugee Convention) or human rights claim and the Secretary of State considers there are exceptional circumstances which prevent the person’s removal to that country. Subsection (5) sets out a non-exhaustive list of exceptional circumstances. In such a case a national of a country to which section 80A of the 2002 Act applies may be returned to a third country or territory, but only if that country or territory is listed in Schedule 1 to the Act (subsection (7)).
58. Subsections (8) and (9) apply to nationals of a country not listed in new section 80AA(1) of the 2002 Act who have made a protection claim or human rights claim (if they have not made such a claim they will be removed to their home country). Such a person may not be removed to their home country (that is one falling within subsection (3)(a) or (b)), but may instead be removed either to the country or territory where they embarked for the UK from or to a country or territory where they will be admitted if, in each case, it is listed as a safe country or territory in Schedule 1 to the Act.
59. If the country of removal listed in Schedule 1 is only safe for persons of a certain description, that is, men, it will only be considered a safe country of removal if the person fits that description (subsection (10)).
60. If the country of removal listed in Schedule 1 references only a part of that country, only that part of the country will be considered safe for removal (subsection (11)).
61. Subsection (12) is a further transitional provision linked to that in section 5(8). The effect of subsection (12) is that the provisions of this section governing the country to which a person may be removed will apply to persons who made a claim in the period between the date of Royal Assent of the Act and commencement but whose claim is outstanding on commencement.
62. Where additional States are added to the list of safe countries in new section 80AA(1) of the 2002 Act, the same provisions will apply to nationals of these countries if they have made claims after the date of Royal Assent, and where that claim has not been decided by the Secretary of State before the country has been added to the list in section 80AA(1) of the 2002 Act (subsection (14)).

Section 7: Powers to amend Schedule 1

63. Subsections (1) and (5) enables the Secretary of State, by regulations (subject to the draft affirmative and negative procedures respectively), to amend Schedule 1 to the Act by –
• adding a country or territory to the Schedule;
• adding a country or territory to the Schedule in respect of a description of person;
• modifying a reference to a country or territory in the Schedule; or
• removing a country or territory from the Schedule.

64. Subsection (1) further provides that the Secretary of State may add a country or territory, or part of a country or territory, to Schedule 1 if is satisfied that:
• there is in general in that country or territory, or part, no serious risk of persecution, and
• removal of persons to that country or territory, or part, pursuant to the duty in section 2(1) will not in general contravene the UK’s obligations under the ECHR.

65. In addition to adding a country or territory, or a part of a country or territory, at large, subsection (2) provides that regulations may also add a country or territory or part thereof in relation to a description of person. Subsection (3) sets out a list of characteristics, such as a person’s sex, which may be used for the purpose of such descriptions. Schedule 1 to the Act already lists certain countries where only males may be removed to.

Section 8: Further provisions about removal

66. This section makes further provision about the removal of persons from the UK pursuant to the duty in section 2 or the power to make arrangements to remove in section 4(2).
67. Subsections (2) and (3) require the Secretary of State or an immigration officer to give a person to be removed a notice in writing stating the country or territory to which they are to be removed and setting out their right to make a suspensive claim (see sections 43 and 44). Removal may not be effected unless the claim period has expired, that is the period prescribed for making a suspensive claim, or the person has notified the Secretary of State (orally or in writing) that they do not intend to make a suspensive claim. If a suspensive claim is submitted, section 47 makes further provision to stay removal pending the determination of the claim and any subsequent appeal.
68. Removal may take place by ship, aircraft, train or (road) vehicle and the Secretary of State or an immigration officer may give the owner or agents (in effect, the operator of the service) directions requiring them to make arrangement for a person’s removal (subsection (8)). This subsection applies where removal is to take place on a scheduled service. Alternatively, subsection (9) provides that the Secretary of State or an immigration officer may themselves make the arrangements for removal; in such a case, the Home Office typically charter aircraft to effect removals.
69. Subsection (11) enables a person who has been served with a removal notice to be placed, under the authority of the Secretary of State or an immigration officer, on board a ship, aircraft, train or vehicle in which the person is to be removed. Subsection (12) enables the Secretary of State, or an immigration officer, to require the captain of the ship or aircraft, train manager or driver of the vehicle to prevent a person from disembarking in the United Kingdom.
70. Subsection (14) applies new paragraph 17A of Schedule 2 to the 1971 Act to the detention powers under subsection (12)(b). It provides that a person liable to detention – under paragraph 16(4) of that Schedule - may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the examination, decision, removal or directions to be carried out, made or given.
71. Subsection (15) adds a definition to an "owner" of a ship, aircraft, train or vehicle, and subsection (17) adds a definition of an "immigration officer", which is applicable across the Act and defined in section 66.

Section 9: Support where asylum claim inadmissible

72. Those individuals whose claims are declared inadmissible under section 5 of the Illegal Migration Act 2023 who are not detained may need access to support. This section amends relevant legislation to provide for support to individuals whose asylum claims are declared inadmissible under section 5 on the same basis as those whose asylum claims are declared inadmissible under section 80A or 80B of the 2002 Act.
73. Subsections (2) and (3) amend the provisions of the 1999 Act relating to the provision of asylum support. Section 4(2) of the 1999 Act enables the Secretary of State to provide, or arrange for the provision of, accommodation of a person if they were, but are no longer, an asylum-seeker, and their claim for asylum was rejected or declared inadmissible under section 80A or 80B of the 2002 Act. Subsection (2) amends section 4(2) of the 1999 Act to extend this power to provide accommodation to cover persons whose asylum claims are declared inadmissible by virtue of section 5 of the Illegal Migration Act 2023 . (Section 4 of the 1999 Act is prospectively repealed by schedule 11 to the 2016 Act but the repeal is not yet in force except for the repeal of section 4(1).)
74. Part 6 of the 1999 Act confers powers on the Secretary of State to provide accommodation and other support for asylum seekers. Subsection (3) amends section 94 of the 1999 Act (which defines terms used in Part 6) so that the circumstances in which an asylum claim is determined or rejected include where the claim is declared inadmissible under section 5 of the Illegal Migration Act 2023 and that notification of a declaration of inadmissibility is treated as notification of the decision on the asylum claim.
75. Subsections (5) and (6) amend Part 2 of the 2002 Act which makes provision for accommodation centres for asylum-seekers and their dependents. Subsection (5) amends section 18 so that the circumstances in which an asylum claim is determined include where asylum claims are declared inadmissible under section 5 of the Illegal Migration Act 2023. Subsection (6) amends section 21 of the 2002 Act, the effect of which is to provide that a claim for asylum is to be treated as determined for the purposes of Part 2 of that Act when the Secretary of State declares a claim inadmissible under section 5 of the Illegal Migration Act 2023. Schedule 3 to the 2002 Act restricts the type of support and accommodation that is provided to, amongst others, failed asylum seekers. Subsection (7) amends paragraph 17(2A), the effect of which is to treat persons who have had their asylum claim declared inadmissible under section 5 of the Illegal Migration Act 2023 as not, or no longer, being asylum-seekers for the purposes of the provisions in Schedule 3 to the 2002 Act .

Section 10: Other consequential amendments relating to removal

76. This section makes other consequential amendments to existing immigration legislation relating to removal.
77. Subsection (2) adds to the criminal offences provided for in section 24(1) of the 1971 Act. New section 24(1)(fa) makes it an offence fora person to disembark whilst still in the UK from a ship, aircraft, train, or vehicle after being placed on board for the purpose of their removal under this Act. By making such disembarkation an offence, this then allows for the use of reasonable force under section 3 of the Criminal law Act 1967 (which enables a person to use reasonable force to prevent a crime).
78. Subsection (3) inserts two new paragraphs into section 28(1) of the 1971 Act, the first (new paragraph (aa)) making it an offence for a captain of a ship or aircraft, train manager, or driver of a vehicle to knowingly permit a person to disembark whilst in the UK where required to prevent it under section 8(12) of this Act, and the second (new paragraph (ba)) making it an offence for the owners or agents of ships, aircraft, trains or vehicles to fail, without reasonable excuse, to comply with directions given to them under this Act to remove a person from the UK.
79. Subsection (4) inserts new paragraph 11A into Schedule 2 to the 1971 Act which provides that paragraphs 8 to 10 of that Schedule (which makes provision for the removal of persons refused leave to enter and illegal entrants) do not apply to persons where the duty to make arrangements to remove in section 2 applies or the power to make removal arrangements in section 4(2) applies.
80. Subsection (6) inserts new subsection (12) into section 10 of the 1999 Act (which makes provision for the removal of persons unlawfully in the UK) which provides that that section does not apply to persons where the duty to make arrangements to remove in section 2 applies or the power to make removal arrangements in section 4(2) applies.
81. Subsection (7) amends section 156 of the 1999 Act, the effect of which is that the provisions of that section (which enables the Secretary of State to make arrangements for the escorting of detained persons by contract or otherwise) apply to the removal of persons subject to the duty to remove in section 2.
82. Subsection (8) amends section 80A of the 2002 Act, which provides that asylum claims (that is a claim by a person that to remove them from the UK would breach the UK’s obligations under the Refugee Convention) from EU nationals must generally be declared inadmissible to the UK’s asylum system. New subsection (5A) of section 80A provides that the inadmissibility provisions in that section do not apply to a person to whom section 2 applies. Instead, the inadmissibility provisions in section 5 will apply.
83. Subsection (9) amends Schedule 3 to the 2004 Act (which makes provision for the removal of asylum seekers to safe third countries) to disapply paragraphs 3, 8 and 13 of that Schedule (which make provision for the determination of a safe third country to which a person who has made an asylum claim may be removed) to persons where the duty to make arrangements to remove in section 2 applies or the power to make removal arrangements in section 4(2) applies.

Section 11: Powers of detention

84. This section makes provision for the detention of persons falling within section 2, that is persons liable to removal to their home country or a safe third country pursuant to the duty imposed on the Secretary of State by that section.
85. The section amends paragraph 16 of Schedule 2 to the 1971 Act which makes provision for the detention of persons liable to examination or removal. Specifically, paragraph 16 enables a person to be detained under the authority of an immigration officer pending their examination, pending a decision to give or refuse them leave to enter, or pending a decision to remove in the following circumstances:
• where they have arrived at a port and they are required to submit to examination (usually questioning) under paragraph 2 of Schedule 2 to the 1971 Act, pending that person’s examination and pending any decision to give or refuse leave to enter (paragraph 16(1) of Schedule 2);
• where their leave is suspended at port under paragraph 2A of Schedule 2 to the 1971 Act (examination of persons who arrive with continuing leave), pending completion of that person’s examination and a decision whether to cancel that leave (paragraph 16(1A) of Schedule 2 to the 1971 Act);
• where they are required to submit to further examination (usually questioning) under paragraph 3(1A) of Schedule 2 to the 1971 Act (examination of persons embarking or seeking to embark in the UK), for up to 12 hours pending completion of that examination (paragraph 16(1B) of Schedule 2 to the 1971 Act); and
• where there are reasonable grounds to believe that they are a person in respect of whom removal directions may be given under paragraphs 8 to 10A or 12 to 14 of Schedule 2 to the 1971 Act pending a decision to give such directions or pending removal in pursuance of such directions (paragraph 16(2) of Schedule 2 to the 1971 Act).

86. Subsection (2) inserts new sub-paragraphs (2C) to (2P) into paragraph 16 of Schedule 2 to the 1971 Act. New sub-paragraph (2C) confers four new powers of detention. New paragraph (2C) (a) enables a person to be detained under the authority of an immigration officer where the immigration officer suspects that the person falls within the cohort specified in section 2; such detention may last until a decision is taken that the person does indeed fall within the cohort. New paragraph (2C)(b) provides that where the Immigration Officer suspects that the Secretary of State has a duty to make arrangements for removal, an individual may be detained pending a decision on whether the duty applies. New paragraph (2C)(c) provides that once a determination has been made that a person is subject to the duty to remove, they may be detained pending the person’s removal. New paragraph (2C)(d) enables an unaccompanied child to be either detained pending removal under section 4(2) or, where an unaccompanied child is temporarily exempt from the duty to remove by virtue of section 4(1), pending the granting of limited leave under the Immigration Rules, new section 8AA of the 1971 Act (see section 30) or section 65(2) of the 2022 Act (which provides for the giving of limited leave to victims of modern slavery).
87. New sub-paragraph (2D) provides that where an immigration officer is satisfied that a woman being detained under new sub-paragraph (2C) is pregnant, then the woman may not be detained for a period of more than 72 hours from the relevant time, or more than seven days from the relevant time, in a case where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975).
88. New sub-paragraph (2E) provides that where a woman has been released from detention as a result of the time limit set out in sub-paragraph (2D), they may be detained again at a future point under the detention powers in paragraph (2C) if appropriate.
89. New sub-paragraph (2F) provides that where a woman has been previously detained under section 62(2A) of the Nationality, Immigration and Asylum Act 2002 and switched to detention under new sub-paragraph (2C), the relevant time will be the first point of detention.
90. New sub-paragraph (2G) provides the definition for ‘the relevant time’, setting out that this means the later of the time of which the immigration officer is first satisfied that the woman is pregnant, and the time at which the detention under new sub-paragraph (2C) begins. A woman means a female of any age.
91. New sub-paragraph (2H) provides that an unaccompanied child may only be detained under the powers of detention set out in new sub-paragraph (2C) in the circumstances to be specified in regulations made by the Secretary of State. In Immigration Removal Centres (IRC)unaccompanied children will only be detained in age-appropriate accommodation, as is set out in the Detention Centre Rules 2001 (made under section 153 of the Immigration and Asylum Act 1999). Rule 11 of the 2001 Rules provides that ‘detained persons aged under 18 and families will be provided with accommodation suitable to their needs’. Similarly, for short term holding facilities, Rule 15(3) of the Short-term Holding Facility Rules 2018 provides that ‘a detained person must be provided with everything reasonably necessary for the protection, safety, well-being, maintenance and care of any person under the age of 18 detained with them for whom they are responsible’.
92. New sub-paragraph (2I) confers a regulation-making power which enables the Secretary of State to set out in regulations, if required, time limits that apply in relation to the detention of an unaccompanied child under sub-paragraph (2C)(d)(iv), which is detention for the purpose of removal.
93. New sub-paragraph (2J) provides that the regulation making power under sub-paragraph (2H) confers a discretion on the Secretary of State or an immigration officer when exercising the relevant powers of detention for an unaccompanied child.
94. New sub-paragraph (2L) provides that a person detained under new sub-paragraph (2C) may no longer be detained under paragraph 16(1), (1A), (1B), (2), (3) or (4) as described in paragraph 85 above; this provision ensures clarity as to which immigration detention powers should be applied.
95. New sub-paragraph (2M) provides that a person detained under new sub-paragraphs (2C) may be detained in any place the Secretary of State considers appropriate (this includes, but is not limited to, pre-departure accommodation, a removal centre or a short-term holding facility, as defined by section 147 of the 1999Act).
96. New sub-paragraph (2N) provides that the regulations under sub-paragraph (2H) or (2I) are subject to the negative procedure.
97. Subsection (4) amends the definition of "pre-departure accommodation" in section 147 of the 1999 Act. The term means a place used solely for the detention of detained children and their families for a period of not more than 72 hours, or not more than seven days in cases where the longer period of detention is authorised personally by a Minister of the Crown. The effect of the amendment is that a person detained under the powers conferred by new paragraph 16(2C) of Schedule 2 to the 1971 Act may be detained for any period in pre-departure accommodation.
98. Subsection (6) inserts new subsections (2A) to (2M) into section 62 of the 2002 Act. That section confers detention powers on the Secretary of State akin to those conferred on immigration officers by Schedule 2 to the 1971 Act. New subsections (2A) to (2M) mirror the provisions in new paragraphs 16(2C) to (2P) described above.
99. Subsections (7) to (10) make further changes to section 62 of the 2002 Act consequential to the insertion of new subsections (2A) to (2M).
100. Subsection (11) provides that the limitation on the detention of pregnant women to a maximum of 72 hours (or seven days when the longer period of detention is personally authorised by a Minister of the Crown) as provided for in section 60(8) of the 2016 Act does not apply to detention under this section. Instead, such limitation is provided for by new paragraph 16(2D) to (2G) of Schedule 2 to the 1971 Act and section 62(2B) to (2E) of the 2002 Act as detailed above.

Section 12: Period for which persons may be detained

101. This section replaces, in part, the common law Hardial Singh principles with a codified statutory version of the second and third principles. The four Hardial Singh principles, which apply with necessary modification to all immigration detention powers, are as follows:
• the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
• the deportee may only be detained for a period that is reasonable in all the circumstances;
• if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, they should not seek to exercise the power of detention;
• the Secretary of State should act with reasonable diligence and expedition to effect removal.

102. As well as codifying, in part, the Hardial Singh principles, this section also overturns the common law principle established in R(A) v SSHD [2007] EWCA Civ 804 (and later authorities) that it is for the court to decide, for itself, whether there is a reasonable or sufficient prospect of removal within a reasonable period of time.
103. Subsection (1)(a) inserts new sub-paragraph (5) in paragraph 16 of Schedule 2 to the 1971 Act, which confers a power to detain persons liable to examination or removal, the purpose of which is to signpost the provisions in new paragraph 17A.
104. Subsection (1)(b) inserts new paragraph 17A(1) to (7) into Schedule 2 to the 1971 Act. It provides that a person liable to detention under paragraph 16 may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the examination, decision, removal or directions to be carried out, made or given. The powers to detain under paragraph 16 apply irrespective of any impediment to those statutory purposes for the time being. The effect of this section is to clarify that it is for the Secretary of State, rather than the courts, to determine what is a reasonable period to detain an individual for the specific statutory purposes (for example, to effect removal from the UK), subject to any statutory limitations on the period of detention where relevant. If the Secretary of State does not consider that the examination, decision, removal or directions will be carried out, made or given within a reasonable period of time, the person may be detained for a further period that is, in the opinion of the Secretary of State, reasonably necessary to enable arrangements to be made for release that the Secretary of State considers to be appropriate. This section also covers the detention of those who are to be removed from or on a ship or aircraft.
105. Subsections (2) to (6) amend paragraph 2 of Schedule 3 to the 1971 Act, (detention pending deportation), section 10(9) of the 1999 Act (detention of persons unlawfully in the UK), section 62 of the 2002 Act (detention by Secretary of State), section 36 of the 2007 Act (detention relating to deportation) and regulation 32 of the Immigration (European Economic Area) Regulations 2016 respectively, so that the codification of the second and third Hardial Singh principles, as described in paragraph 101 above, applies to the detention powers provided for in those provisions.

Section 13: Powers to grant immigration bail

106. This section amends Schedule 10 to the 2016 Act which makes provision for the grant of bail by either the Secretary of State or the First-tier Tribunal to persons in immigration detention. Sub-paragraphs (1) to (3) of paragraph 1 of Schedule 10 set out the categories of persons being detained or liable to be detained who may be given immigration bail. This section also makes provision to restrict the jurisdiction of the courts to review the lawfulness of a decision to detain under the new powers in section 11, or a decision by the Secretary of State to refuse bail under Schedule 10 to the 2016 Act where an individual is detained pursuant to one of the powers in section 11.
107. Subsection (2) amends paragraph 1(1) and (3) of Schedule 10 to the 2016 Act so that those detained under new sub-paragraph (2C) of paragraph 16 of Schedule 2 to the 1971 Act (as inserted by section 11) and section 62(2A) of the 2002 Act also fall within the categories of detained persons who may be given immigration bail in accordance with the provisions in Schedule 10 to the 2016 Act.
108. Subsection (3)(a) inserts a new sub-paragraph into paragraph 3(2) of Schedule 10 to the 2016 Act, setting out a further matter that must be considered by the First-tier Tribunal when considering the grant of immigration bail. That additional matter is whether the Secretary of State has a duty, under section 2(1) of the Illegal Migration Act, to make arrangements for the removal of the individual.
109. Subsection (3)(b) inserts new paragraph 3(3A) to (3C) into Schedule 10 to the 2016 Act. The effect of new paragraphs 3(3A) is that the First-tier Tribunal may not grant immigration bail to a person detained under paragraph 16(2C) of Schedule 2 to the 1971 Act or section 62(2A) or (2B) of the 2002 Act until 28 days has elapsed from the date the person was first detained under those provisions. In the case of an unaccompanied child detained for the purpose of removal under paragraph 16(2C)(d)(iv) of Schedule 2 to the 1971 Act, or section 62(2A)(d)(iv) of the 2002 Act, the 28 day period is reduced to eight days. There is no automatic right to bail after the 28 day (or eight day) period, however after the 28 day (or eight day) period there will be no restriction on the ability of the First-tier Tribunal to grant bail. In considering an application for bail, the First-tier Tribunal is required to take into consideration the matters specified in paragraph 3(2) of Schedule 10; such matters already include the likelihood of the person failing to comply with a bail condition (bail conditions are specified in paragraph 2(1) of Schedule 10 and can include for example, a requirement that the person periodically reports to the Secretary of State or other specified person).
110. Subsection (4) inserts new paragraph 3A into Schedule 10 to the 2016 Act, the effect of which is that during the first 28 days of detention an individual will have no ability to challenge their detention via the courts by way of judicial review, unless the challenge relates to grounds of bad faith or is made in such a procedurally defective way as to amount to a fundamental breach of the principles of natural justice. This applies in relation to decisions to detain under any of the powers in section 11, or in relation to a decision by the Secretary of State to refuse bail, where an individual is detained pursuant to one of those powers. During the 28-day period there will be no restriction on an individual’s ability to apply for a writ of habeas corpus (or the equivalent procedure in Scotland). There will also be no restriction on an individual’s ability to claim damages in relation to unlawful detention, for any time period, including in respect of the first 28 days of detention.

Section 14: Disapplication of duty to consult Independent Family Returns Panel

111. Section 54A of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act") makes provision for the Independent Family Returns Panel ("IFRP"). The IFRP provides advice on the safeguarding and welfare plans for the removal of families with children who have no legal right to remain in the UK, and have failed to depart voluntarily. The IFRP makes recommendations to the Home Office, ensuring the welfare needs of children and families are met when families are returned to their home country (or, in asylum cases, the third country where the asylum claim legally must be heard). Section 54A(2) of the 2009 Act requires the Secretary of State to consult the IFRP in every family returns case, on how best to safeguard and promote the welfare of the children of the family (subsection (2)(a)), and in each case where detention in pre-departure accommodation is proposed on the suitability of so doing, having particular regard to the need to safeguard and promote the welfare of the children of the family (subsection (2)(b)). 
112. This section inserts new subsections (3A) and (3B) into section 54A of the 2009 Act which disapply the duty on the Secretary of State to consult the IFRP under section 54A(2)(a) and (b) in cases where the proposed removal and detention of families with children is under the powers conferred by section 2 or 4, new paragraph 16(2C) of Schedule 2 to the 1971 Act, or section 62(2A) of the 2002 Act (see section 11 above).

Section 15 and Schedule 2: Electronic devices etc

113. This section introduces Schedule 2 to the Act which confers powers to search for, seize and retain things on which relevant information is stored in electronic form, and to access, copy and use that information.
114. Paragraph 1 of Schedule 2 sets out that where "relevant person" is used throughout the Schedule, this refers to a person who is liable to be detained under paragraph 16(2C) of Schedule 2 to the 1971 Act and who entered or arrived in the UK as mentioned in section 2(2) of this Act on or after this schedule comes into force.
115. Paragraph 2 defines "appropriate adult", "container", "intimate search", "item subject to legal privilege", "local authority", "registered social worker", "relevant article", "relevant authority", "relevant function", "relevant information", "ship", "vehicle" and "voluntary organisation" for the purpose of the Schedule.
116. Paragraph 3 provides powers for an immigration officer to search a relevant person and explains the types of search that are authorised. Sub-paragraph (3) sets out a number of safeguards required where a search under sub-paragraph (2)(c), in which the officer may require the person to remove any clothing, is carried out.
117. Paragraphs 4 to 6 provide powers for an immigration officer to search, in certain circumstances, vehicles or containers, premises, and personal property, and sets out what those circumstances are.
118. Paragraph 7 provides powers for immigration officers to seize any relevant article which has been found on a search under Schedule 2 or which appears to the officer to be, or have been, in the possession of a relevant person. This power is not intended to enable immigration officers to seize legally privileged information.
119. Paragraph 8 provides that an immigration officer or the Secretary of State may retain an article seized under Schedule 2 for as long as they consider it necessary for a purpose relating to any function of an immigration officer or a function of the Secretary of State in relation to immigration, asylum or nationality. When it is no longer considered necessary to retain it, the article must be returned. Sub-paragraph (2) provides a power to make regulations (subject to the negative procedure) setting out circumstances in which a relevant article will not need to be returned. This is necessary to ensure that, for example, where evidence of non-immigration related criminal offending is found, this can be passed on to the police or other appropriate law enforcement agency.
120. Paragraph 9(a) provides a power for an immigration officer or the Secretary of State to access and examine any information stored on a relevant article that is retained under paragraph (8). Where relevant information is found, paragraph 9(b) provides a power to copy and retain that information. Paragraph 9(c) provides a power to use any information retained under paragraph 9(b) for any purpose relating to a relevant function.
121. Paragraph 10 provides that the Secretary of State may by regulations (subject to the draft affirmative procedure) make provision about articles that contain or may contain legally privileged information, including for them to be seized.
122. Paragraph 11 provides that the Secretary of State may by regulations (subject to the negative procedure) make provision for the powers available to immigration officers in Schedule 2 to be available to other people, including persons designated by the Secretary of State, such as contractors.

Section 16: Accommodation and other support for unaccompanied migrant children

123. This section makes provision for the accommodation and support of unaccompanied migrant children who meet the four conditions set out in section 2 of the Act These powers do not apply to unaccompanied migrant children outside the scope of the duty to make arrangements for removal.
124. Subsections (1) to (3) confer a power on the Secretary of State to provide, or arrange to provide, accommodation and other support to unaccompanied migrant children in England.
125. Subsections (1) to (3) are applied retrospectively as having had effect at all times on or after 7 March 2023 (that is, the date the Illegal Migration Bill was first introduced) as set out in subsection 4.
126. Subsection 5 sets out a definition of an unaccompanied child for the purposes of section 16 and 17. For the purposes of section 16 and 17, a person ("C") is an unaccompanied child if- (a) C meets the four conditions in section 2, reading subsection (3) of that section as if it referred to a person entering or arriving in the United Kingdom as mentioned in subsection (2) of that section on or after 7 March 2023, (b) C is under the age of 18, and (c) at the time of C’s entry or arrival in the United Kingdom by virtue of which C meets the condition in section 2(3), no individual (whether or not a parent of C) who was aged 18 or over had care of C.
127. The section does not require the Secretary of State to provide this accommodation but rather provides the power to do so if such provision was considered appropriate. The section also enables the Secretary of State to ask a third party to provide this accommodation to unaccompanied children. An unaccompanied child who meets the four conditions in section 2 of the Act may be accommodated by a local authority without first being accommodated by the Home Office under this power. Whilst there is no time limit on how long an unaccompanied child spends in this accommodation where it was provided, the intention is that accommodation and support will be provided on a temporary basis pending a child’s transfer to a local authority.
128. The government expects local authorities to meet their statutory obligations to unaccompanied children from the date of arrival and for the Home Office to only step in sparingly and temporarily. The Home Office does not have, and therefore cannot discharge, duties under Part 3 of the Children Act 1989. It is for the local authority where an unaccompanied child is located to consider its duties under the Children Act 1989. The Act does not change this position. Accommodation of unaccompanied children by the Home Office does not change the obligations of any local authority in respect of assessment and the provision of services and support, including, where appropriate, suitable accommodation.

Section 17: Transfer of children from Secretary of State to local authority and vice versa

129. This section facilitates the transfer of an unaccompanied migrant child from accommodation, which the Secretary of State has the power to provide or arrange to provide under section 16, to a local authority in England. These powers do not apply to unaccompanied migrant children outside of the scope of the duty to make arrangements for removal and do not apply to those aged 18 and over.
130. The section provides a mechanism for the Secretary of State to decide that a child is to cease residing in such accommodation and to then direct a local authority in England to provide accommodation to the child under section 20 of the Children Act 1989 after five working days of the direction being made. The Secretary of State may also apply this power to direct a local authority in England to cease looking after an unaccompanied migrant child and to transfer a child into Home Office provided accommodation after five working days of the direction being made. This power can also be used where the child has not previously been in Home Office provided accommodation, for example where they first entered a local authority care placement upon arrival to the UK.
131. This power will enable the Secretary of State to transfer a child quickly into local authority care in England if that child is in Home Office accommodation. This power does not apply to transfers where the unaccompanied child is a looked after child in the care of one local authority and that local authority seeks to transfer that child to another local authority.
132. Transfers between Home Office accommodation and local authority accommodation will be managed operationally as part of an updated National Transfer Scheme ("NTS") which currently manages the movement of unaccompanied migrant children between local authorities. All local authorities with children's services in the UK have been directed to participate in the NTS. These new powers are enforceable through the courts.

Section 18: Duty of local authority to provide information to the Secretary of State

133. This section enables the Secretary of State to direct local authorities in England to provide information about the accommodation and support provided to children in their care (or other information as may be specified in regulations (subject to the negative procedure). This will inform arrangements made for the transfer of particular unaccompanied migrant children from the Secretary of State to that local authority or vice versa. The Secretary of State may specify the form, manner and timescales in which a local authority must provide such information.
134. The policy intention is to ensure there is a legal framework to allow for the sensible flow of information that would be relevant to a child transferring to and from local authority care. This is akin to existing arrangements already set out in section 70 of the 2016 Act for the operation of the NTS.

Section 19: Enforcement of local authorities’ duties under sections 17 and 18

135. This section provides a mechanism for the enforcement, should it be necessary, of the duties on local authorities imposed by sections 17 and 18.
136. Subsections (1) and (2) enable the Secretary of State to make an order declaring that a local authority is in default of a relevant direction under section 17 or a duty under section 18. Such an order must specify the reasons for the making of the order. No order may be made in circumstances where the Secretary of State is satisfied the local authority has a reasonable excuse for its failure to comply with a relevant direction or duty.
137. Subsections (3) and (4) provides for an order made under subsection (1) to include directions to the local authority for the purpose of ensuring compliance with the direction or duty within a specified time frame and for such directions to be enforced by a mandatory order made by the High Court; whilst not provided for in this Act breach of an order by the local authority would constitute a contempt of court, the maximum penalty for which includes an unlimited fine.

Section 20: Extension to Wales, Scotland and Northern Ireland

138. This section enables the Secretary of State to make regulations (subject to the affirmative procedure) to extend the provisions made by sections 16 to 19 to Wales, Scotland and Northern Ireland. Such regulations may amend, repeal or revoke any enactment, including provisions in the Illegal Migration Act.
139. This meets the policy intention that the powers relating to the accommodation, transfer, information sharing and enforcement with respect to unaccompanied children in scope of the duty to make arrangements for removal will be applied to the whole of the UK. These provisions build on the existing burden sharing provisions in respect of unaccompanied asylum-seeking children in the 2016 Act.

Section 21: Transfer of children between local authorities

140. This section makes consequential amendments to section 69 of the 2016 Act which facilitates the transfer of responsibility for caring for particular categories of unaccompanied migrant children which the 2016 Act defines as a relevant child from one local authority in England to another.
141. Section 69(9) defines a "relevant child" for the purpose of such transfers; subsection (2) adds an unaccompanied child within the meaning of section 16 of the Illegal Migration Act 2023 to the definition of a relevant child (new section 69(9)(d) of the 2016 Act). This relates to the definition of an unaccompanied child set out at section 16(5).
142. The effect of this amendment is that once the Secretary of State has transferred responsibility for the accommodation of an unaccompanied migrant child to a local authority under the provisions in section 17, that local authority may subsequently transfer responsibility for the to another local authority in the UK under the powers conferred by section 69 to 72 of the 2016 Act. This means that an unaccompanied child in scope of the duty to make arrangements for removal can be transferred from one local authority to another under the NTS.
143. This section is necessary so that changes to apply inadmissibility to children in the scope of the duty to make arrangements for removal do not prevent a local authority to local authority transfer of unaccompanied children who may not be captured by the current definitions of "relevant child". Section 69(10) of the 2016 Act enables the Secretary of State to make regulations about the meaning of "unaccompanied" for the purposes of the definition of a relevant child in section 69(9); subsection (3) of section 21 of this Act amends section 69(10) of the 2016 Act so that such regulations are confined to the definitions in section 69(9)(a) to (c) – new section 69(9)(d) draws on the definition of "unaccompanied child" in section 16 of the Act.
144. The intention for this section is to enable the legal framework with respect to the NTS to continue to work effectively when a child is an unaccompanied child but is not considered to be an unaccompanied asylum-seeking child once their claim is deemed to be inadmissible.

Section 22: Provisions relating to removal and leave

145. The Council of Europe Convention on Action against Trafficking in Human Beings ("ECAT") provides that once there are reasonable grounds to believe that a person is a victim of trafficking, states have certain obligations to that person (such person being a "potential victim"). Part 5 of the 2022 Act, which came into force on 30 January 2023, placed a number of the provisions of ECAT into domestic law. Section 61 of the 2022 Act provides for a minimum 30 day recovery and reflection period for potential victims of modern slavery during which, subject to section 63, the victim must not be removed from the UK; section 62 provides that only one recovery period will be provided to a potential victim, unless the Secretary of State considers it appropriate to provide a further period of protection from removal in the particular circumstances of the case, or unless the further instance of exploitation occurred after the previous reasonable grounds decision; section 63 sets out disqualifications to providing a recovery period, support or temporary leave to a potential victim of modern slavery based on grounds that the individual is a threat to public order or has claimed to be a victim in bad faith; section 64 (which inserts section 50A into the 2015 Act) sets out obligations to provide potential victims with assistance and support to aid their recovery during the recovery period; and section 65 sets out the circumstances in which the Secretary of State must grant temporary, limited leave to remain to confirmed victims of modern slavery.
146. The public order disqualification may currently be applied to the category of persons listed in section 63(3) of the 2022 Act, including certain foreign national offenders. This section extends the operation of the public order disqualification such that the consequences listed in section 63(2) of the 2022 Act also apply to persons within the scheme provided for in this Act, subject to the qualifications outlined below.
147. Subsection (1) provides that the public order disqualification provided for in subsection (2) automatically applies to an illegal migrant if the Secretary of State is required under section 2(1) to make arrangements for their removal from the UK, and a decision (known as a reasonable grounds decision) has been made by the relevant Home Office competent authority that they are a potential victim of modern slavery. In reaching such a decision, a competent authority will apply the statutory guidance issued under section 49 of the 2015 Act. The application of the public order disqualification to such persons is based on a number of factors including the pressure placed on public services, the large number of irregular arrivals and the loss of life caused by arrivals from illegal and dangerous journeys, including via small boat Channel crossings.
148. Subsections (2) and (3) provides for an a exception to the automatic application of the public order disqualification, namely where the Secretary of State is satisfied that a person is cooperating with a public authority (this is not limited to a police investigation but in practice is most likely the National Crime Agency, a police force and/or the Crown Prosecution Service (or equivalent in Scotland and Northern Ireland)) in connection with an investigation or criminal proceedings in respect of the conduct or alleged conduct resulting in the positive reasonable grounds decision or which was relevant to any subsequent conclusive grounds decision. In order for the exception to apply, the Secretary of State must consider it necessary for that person to be present in the UK to provide that cooperation and must consider the public interest in the person providing that cooperation to outweigh any significant risk of serious harm to members of the public posed by that person.
149. Subsection (2) sets out two of the effects of applying the public order disqualification to such persons, namely to disapply:
• any prohibition (contained in section 61 or 62 of the 2022 Act) on removing a potential victim from the UK; and
• any requirement (imposed by section 65 of the 2022 Act) to grant limited leave to remain to a confirmed victim.

150. Subsection (4) sets out that a person cooperating with a public authority in connection with an investigation or criminal proceedings is a refence to them doing so to the extent that is reasonable having regard to the person’s circumstances. Subsection (4) also defines "the relevant exploitation" set out in subsection (3) as meaning the conduct or alleged conduct resulting in the positive reasonable grounds decision, and where a positive conclusive grounds decision has also been made in relation to the person, any other conduct resulting in that decision.
151. Subsection (5) sets out that for the purposes of the exception to disqualification on the basis of the person’s cooperation with an investigation, the Secretary of State must assume that it is not necessary for the person to be present in the United Kingdom to provide the cooperation in question. This presumption applies unless the Secretary of State considers that there are compelling circumstances which require the person to be present in the United Kingdom for that purpose.
152. In determining whether there are compelling circumstances, the Secretary of State must have regard to guidance (subsection (6)).
153. Subsection (7) provides for an exception to subsection (2) where:
     1. Subsection (2) would apply to a child but subsection (3) applies that child’s parent or an individual who lives in the same household or has care of that child;
     2. Subsection (2) applies to a parent of a child or an individual who lives in the same household as the child and has sole responsibility for them and subsection (3) applies to that child.
154. Sections 23 to 25 deal with a third consequence of applying the public order disqualification, namely the disapplication of any obligations to provide assistance and support during the recovery period.
155. Subsections (8) to (10) provides that the Secretary of State may revoke limited leave to remain granted under section 65(2) of the 2022 Act to a person falling within subsection (8). Section 65(2) of the 2022 Act provides that the Secretary of State must grant limited leave to remain to a person if it is considered necessary for the purposes of (a) assisting the person in their recovery from any harm arising from the relevant exploitation to their physical and mental health and their social well-being, (b) enabling the person to seek compensation in respect of the relevant exploitation, or (c) enabling the person to co-operate with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation. Unless the exception at sub-section (3) or (7) applies, a person falls within subsection (8) if they would otherwise be subject to the duty to make removal arrangements under section 2(1) save for the fact that they had been granted limited leave under section 65(2) of the 2022 Act on or after 7 March 2023 (that is, the day the Illegal Migration Bill was introduced in the House of Commons).
156. Subsection (11) defines terms used in this section. The terms "victim of slavery" and "victim of human trafficking" take their meaning from the Slavery and Human Trafficking (Definition of Victim) Regulations 2022 (S.I. 2022/877).

Section 23: Provisions relating to support: England and Wales

157. This section deals with the third consequence of applying the public order disqualification to illegal entrants in respect of whom the Secretary of State is under a duty to make removal arrangements under section 2(1). Where such a person has received a positive reasonable grounds decision that they are a potential victim of modern slavery and the exception in section 22(3) does not apply (that is, they are not cooperating with an investigation , as summarised above), subsection (2) disapplies the duties on the Secretary of State under section 50A of the 2015 Act (which applies to England and Wales) to provide necessary assistance and support to potential victims during the recovery period.

Section 24: Provisions relating to support: Scotland

158. This section makes similar provision to that in section 23 such as to disapply certain modern slavery provisions relating to support in Scotland to persons in respect of whom the Secretary of State is under the duty to make removal arrangements in section 2(1), are in receipt of a positive reasonable grounds decision and who are not cooperating with a public authority in connection with an investigation or criminal proceedings in respect of the conduct or alleged conduct relevant to the reasonable grounds decision or a later conclusive grounds decision. Those provisions are:
• Section 9(1) of the Human Trafficking and Exploitation (Scotland) Act 2015 which provides that where there are reasonable grounds to believe that an adult is a victim of human trafficking, the Scottish Ministers must secure the provision of such support and assistance as is necessary given the adult’s needs, for the relevant period (that is the period between a reasonable grounds decision and a conclusive grounds determination).
• Section 9(3) of the Human Trafficking and Exploitation (Scotland) Act 2015 which confers discretion on the Scottish Ministers to provide support and assistance out with the mandatory period under section 9(2).
• Section 10(1) of the Human Trafficking and Exploitation (Scotland) Act 2015 which enables the Scottish Ministers to make regulations about the provision of support to adult victims of the offence of slavery, servitude and forced or compulsory labour.

159. Subsection (9) enables the Secretary of State, by regulations (subject to the affirmative procedure), to amend this section consequential on regulations made by Scottish Ministers under powers conferred by sections 9(8) or 10(1) of the Human Trafficking and Exploitation (Scotland) Act 2015.

Section 25: Provisions relating to support: Northern Ireland

160. This section makes similar provision to that in sections 23 and 24 such as to disapply certain modern slavery provisions relating to support in Northern Ireland to persons in respect of whom the Secretary of State is under a duty to make removal arrangements under section 2(1), are in receipt of a positive reasonable grounds decision and who are not cooperating with a public authority in connection with an investigation or criminal proceedings in respect of the conduct or alleged conduct relevant to the reasonable grounds decision or a later conclusive grounds decision. Those provisions are:
• Section 18 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 which places a duty on the Department of Justice to provide assistance and support to adult potential victims of human trafficking in accordance with the provisions of that section.
• Section 18(8) of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 which provides a discretionary power to enable the Department of Justice to continue to provide support to potential victims in specific cases where a person is relocated to another jurisdiction on the advice of the Police Service of Northern Ireland.
• Section 18(9) of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 which provides a further discretionary power which enables the Department to continue to provide support to a person beyond the point where a conclusive determination is made, where that is considered necessary.

Section 26: Suspension and revival of sections 22 to 25

161. This section allows provisions in section 22 to 25 (other than the regulation-making power in section 24(9)) to be suspended if their continuance is no longer justified. It also allows for the provisions to be revived if needed again. The method of achieving suspension and revival is by way of regulations made by the Secretary of State. Subsection (1) provides that the operation of these sections is automatically suspended two years after commencement. This is subject to the regulation-making power in subsection (3), read with subsections (4) and (5). Under these provisions, regulations may:
     1. provide for the operation of a relevant provision to be suspended before the time at which its operation would otherwise be suspended (for example, before the end of the initial two-year period provided for in subsection (1));
     2. provide for a relevant provision to continue in force for a further period not exceeding 12 months;
     3. provide for the previously suspended operation of a relevant provision to be revived for a specified period not exceeding 12 months.
162. Suspension and revival can be done more than once (subsection (6)).
163. Subsection (7) provides that a suspension of a provision should be treated in the same way as a repeal for the purposes of applying the general savings provisions that apply to repeals contained in section 16(1) of the Interpretation Act 1978.
164. Subsection (8) enables the Secretary of State, by regulations, to make other transitional or saving provision (in addition to that provided for by virtue of subsection (7)) in consequence of the suspension of a relevant provision. Such regulations are not subject to any parliamentary procedure save if combined with regulations made under subsection (3).
165. The provisions in sections 22 to 25 reflect provision in Article 13(3) of the Council of Europe Convention on Action against Trafficking in Human Beings which provides that State parties to the Convention are not bound to observe the minimum 30-day recovery and reflection period if grounds of public order prevent it or if it is found that victim status is being claimed improperly. The Government considers that it is appropriate to apply the public order disqualification to illegal entrants in respect of whom the Secretary of State is required to make arrangements for removal under section 2, on the basis that it is in the interests of the protection of public order in the UK including to prevent persons from evading immigration controls in this country, to reduce or remove incentives for unsafe practices or irregular entry, and to reduce the pressure on public services caused in particular by illegal entry into the UK. The Government recognises, however, that the application of the public order disqualification to this cohort of illegal entrants (subject to the limited exception where a person is cooperating with law enforcement agencies in the investigation or prosecution of an offence relating to the circumstances of their modern slavery or human trafficking) is a significant step and only justified during such time as the exceptional circumstances relating to illegal entry into the UK including by persons crossing the Channel in small boats continues to apply. Accordingly, it is considered appropriate for the continued necessity for these provisions to be kept under review and, when appropriate, for them to be suspended in accordance with the provisions of this section, with power to revive, if circumstances were to again change.

Section 27: Procedure for certain regulations under section 26

166. This section makes provision for the parliamentary procedure in respect of regulations made under section 26(3)(c). Section 65 provides for the parliamentary procedure for regulations made under section 26(3)(a) and (b) and (8). Regulations made under section 26(3)(c) are generally subject to the draft affirmative procedure (subsection (1)), but subsections (2) to (5) provide for the made affirmative procedure to apply in cases of urgency, for example in response to an increase in small boat arrivals over the parliamentary summer recess.

Section 28: Amendments relating to sections 22 to 25

167. Subsection (1) inserts new subsection (5A) into section 50A of the 2015 Act; that section places a duty on the Secretary of State to secure the provision of any necessary assistance and support to potential victims of modern slavery during the recovery period. New subsection (5A) acts as a signpost to make it clear that this duty is subject to the operation of the public order disqualification provided for in section 22.
168. Subsection (3) inserts new subsection (10) into section 9 of the Human Trafficking and Exploitation (Scotland) Act 2015. That section places a duty on the Scottish Ministers to secure the provision of support and assistance for adult victims of human trafficking, on an assessment of needs, during a defined period. New subsection (10) acts as a signpost to make it clear that this duty is subject to the operation of the public order disqualification provided for in section 24.
169. Subsection (4) inserts new subsection (3) into section 10 of the Human Trafficking and Exploitation (Scotland) Act 2015. That section enables the Scottish Ministers to make regulations about the provision of support to adult victims of the offence of slavery, servitude and forced or compulsory labour. New subsection (4) acts as a signpost to make it clear that this power is subject to the operation of the public order disqualification provided for in section 24.
170. Subsection (5) inserts new subsection (10A) into section 18 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 which places a duty on the Department of Justice to provide assistance and support to adult potential victims of human trafficking in accordance with the provisions of that section. New subsection (10A) acts as a signpost to make it clear that this duty is subject to the operation of the public order disqualification provided for in section 25.
171. Subjection (7) amends section 61(2) of the 2022 Act to provide that the prohibition on the removal of a potential victim of modern slavery during the recovery period is subject to the operation of the public order disqualification provided for in section 22 (in the same way as the prohibition is already disapplied in cases where the public order disqualification provided for in section 63(2) of the 2022 Act applies).
172. Subsection (8) amends section 62(2) of the 2022 Act to provide that the discretion conferred on a competent authority to protect a potential victim from removal from the UK during any additional 30-day recovery period or until a further conclusive grounds decision is made, if later, is subject to the operation of the public order disqualification provided for in section 22 (in the same way as the discretion is already disapplied in cases where the public order disqualification provided for in section 63(2) of the 2022 Act applies).
173. Subsection (9) inserts new subsection (8) into section 63 of the 2022 Act. New subsection (8) acts as a signpost to make it clear that the public order disqualification provided for in section 63 is augmented by the public order disqualification provided for in section 22.
174. Subsection (11) amends section 65(3) of the 2022 Act to provide that the duty on the Secretary of State to grant temporary, limited leave to remain to confirmed victims of modern slavery in specified circumstances, is subject to the operation of the public order disqualification provided for in section 22 (in the same way as the duty is already disapplied in cases where the public order disqualification provided for in section 63(2) of the 2022 Act applies).
175. Subsection (12) inserts new subsection (8A) into section 65 of the 2022 Act. New subsection (8A) acts as a signpost to make it clear that section 22(8) and (9) also makes provision for the revocation of leave to remain granted under section 65(2).

Section 29: Disapplication of modern slavery provisions

176. This section amends section 63 of the 2022 Act which sets out disqualifications to providing a recovery period to a potential victim of modern slavery based on grounds that the person is a threat to public order or has claimed to be a victim in bad faith.
177. Section 63(3) of the 2022 Act sets out categories of person who are considered to be a threat to public order. Subsection (4)(b) adds two further categories to that list, namely: persons liable to deportation from the UK under section 3(5) or (6) of the 1971 Act on grounds of it being conducive to the public good or as a result of deportation of a family member or a recommendation following conviction; and liable to deportation under any other enactment that provides for such deportation.
178. Section 29(2) and (3) turns the current discretion that applies to the public order disqualification in section 63(2) of the 2022 Act into a rebuttable presumption so that modern slavery decision making caseworkers must apply section 63(2) unless there are compelling circumstances which mean it should not apply.
179. Subsection (4) also ensures that the public order disqualification is capable of applying to any foreign national offender who is convicted of any offence in the UK for which they are sentenced to a period of imprisonment of any length, as opposed to the previous minimum sentence set out in the 2022 Act of 12 months.

Section 30: Entry into and settlement in the United Kingdom

180. This section provides for illegal migrants who have ever satisfied the conditions in section 2 to be barred from securing limited leave to remain, settlement and lawful re-entry into the UK following their removal, subject to certain exceptions. The bar will apply to persons illegally entering or arriving in the UK on or after 7 March 2023, that is the date the Illegal Migration Bill was introduced in the House of Commons, and the condition in section 2(3) is to be read for the purposes of this section as if the reference there to the date the Act was passed was a reference to 7 March 2023.
181. Subsection (2) amends section 8 of the 1971 Act. The 1971 Act provides that, subject to certain exceptions, a person who is not a British citizen requires leave (that is permission) to enter and remain in the UK. Section 8(1) of the 1971 Act provides for one such exception, namely a crew member of a ship or aircraft. Crew members may not enter without leave in three circumstances (as set out in section 8(1)(a) to (c)), namely where the person has been the subject of a deportation order, where that have at any time been refused leave to enter the UK and have not subsequently been given leave to enter or remain in the UK, and where an immigration officer requires them to submit to examination under Schedule 2 to the 1971 Act. This subsection introduces a fourth case where crew members may not enter without leave (as set out in new section 8(1)(d) of the 1971 Act) if they have ever met the four conditions in section 2 of the Act (as modified).
182. Subsection (3) inserts new section 8AA into the 1971 Act.
183. New section 8AA(2) provides that, subject to new section 8AA(3) to (5), an illegal migrant who has ever met the four conditions in section 2 of the Act (as modified) must not be given entry clearance, an Electronic Travel Authorisation or leave to enter or remain in the UK, other than bridging leave given under the Immigration Rules to an unaccompanied child falling within section 4(1) of the Act, or limited leave given under section 65 of the 2022 Act as it applies under this Act.
184. New section 8AA(3) sets out the grounds on which the Secretary of State may temporarily waive the bar on re-entry to grant limited leave to enter, entry clearance or an Electronic Travel Authorisation. The waiver may be applied where the failure to grant such leave, entry clearance or Electronic Travel Authorisation would contravene the UK’s obligations under the ECHR, or where there are other exceptional circumstances which mean it is appropriate to grant such leave. The power to waive the bar on re-entry in other exceptional circumstances includes, but is not limited to, where it is necessary to comply with the UK’s international obligations.
185. Similarly, new section 8AA(4) sets out the grounds on which the Secretary of State may temporarily waive the bar to grant limited leave to remain in the UK. A waiver of the bar may be applied where it is necessary to comply with the UK’s international legal obligations, such as the ECHR or under certain maritime or aviation conventions, where a member of crew, particularly seafarers, seeks entry for urgent medical treatment or for welfare purposes. A waiver may also be applied where other exceptional circumstances mean it is appropriate to grant an individual limited leave to remain where limited leave to enter, entry clearance or an Electronic Travel Authorisation has been given under new section 8AA(3).
186. Under new section 8AA(3) and (4) the waivers may be applied, for example, where a person having been removed to a safe third country successfully challenges their removal by way of judicial review on ECHR grounds. Such a person will be allowed to return to the UK and be granted limited leave to enter and limited leave to remain.
187. New section 8AA(5) provides that the Secretary of State may grant indefinite leave to remain if the Secretary of State considers that giving such leave is necessary in order to comply with the UK’s obligations under the ECHR.
188. Subsection (4) allows for a person to be given limited leave to enter until section 2(1) comes into force, unless that person leaves or is removed from the UK and subsequently returns to the UK (subsection (5)). Similarly, subsection (4) allows for a person to be given limited leave to remain until section 2(1) comes into force, unless that person has been given leave to remain under new section 8AA(3) of the 1971 Act (subsection (6)).
189. Subsection (7) clarifies that any leave given under subsection (4) is to be disregarded in determining whether a person meets the four conditions in section 2.

Section 31: Persons prevented from obtaining British citizenship etc

190. This section sets out which people will not be eligible for British citizenship, British overseas territories citizenship, British overseas citizenship and British subject status because they have entered the UK, the Islands, or an overseas territory unlawfully. It defines who is an "ineligible person" and so will not be able to apply under the provisions of the 1981 Act specified in section 32 to 35.
191. Subsection (3) provides that a person will not be eligible if they have ever met the four conditions in section 2 of the Act, Subject to the modification of the condition in section 2(3) which is to be read for the purposes of this section as if the reference there to the date the Act was passed was a reference to 7 March 2023.
192. Subsections (4) to (7) allow references to the UK in this section to be read as references to the Islands and British overseas territories. British citizenship can be acquired through a connection with the Islands, in the same way as in the UK, and through birth in an overseas territory. There are parallel provisions for British overseas territories citizenship to be acquired through a connection with an overseas territory, and a person holding British overseas territories citizenship alone is able to register as a British citizen. References to immigration provisions in section 2 are therefore to be read as if they included immigration provisions in the Islands, and equivalent immigration provisions in the territories.

Section 32: British citizenship

193. This section provides that ineligible persons will not be able to register or naturalise as a British citizen under the specified provisions.
194. Subsection (1) provides that an ineligible person will not be entitled to register as a British citizen under the following sections of the 1981 Act:
• Section 3(2) – registration of a child under 18 where one of the parents is a British citizen "by descent" and lived in the UK for a period of 3 years at any time before the birth.
• Section 3(5) - registration of a child under 18 where one of the parents is a British citizen "by descent" and the family have lived in the UK for the period of 3 years prior to the application.
• Section 4(2) - registration of British nationals. British nationals who have lived for a period of five years in the UK are able to register if they meet residence and good character requirements.
• Section 5 – registration of a British overseas territories citizen with a connection with Gibraltar.
• Sections 10(1) and 13(1) - registration routes for "resumption of citizenship" following renunciation.

195. Subsection (2) provides that the Home Secretary may not register or naturalise an ineligible person as a British citizen under the following sections of the 1981 Act:
• Section 3(1) – registration of a child under 18 at the Home Secretary’s discretion, provided they are of good character. ( Published guidance sets out when discretion will normally be exercised.)
• Section 4A - registration of a British overseas territories citizen as a British citizen, at the Home Secretary’s discretion.
• Section 6 - naturalisation as a British citizen, based on a period of residence in the UK – three years for spouses and civil partners of British citizens, five years for others.
• Sections 10(2) and 13(3) - registration routes for "resumption of citizenship" following renunciation, at the Home Secretary’s discretion.

Section 33: British overseas territories citizenship

196. British overseas territories citizens are people connected with one of the UK’s 14 overseas territories (for a list of these, see the glossary at annex A). Many British overseas territories citizens are also British citizens, by virtue of the British Overseas Territories Act 2002. Foreign nationals are able to register or naturalise as a British overseas territories citizen if they meet the requirements, and can then apply to register as a British citizen.
197. This section prevents ineligible persons people acquiring British overseas territories citizenship under routes which mirror the above routes for British citizenship.
198. Subsection (1) provides that an ineligible person will not be entitled to register as a British overseas territories citizen under the following sections of the 1981 Act:
• Section 17(2) – registration of a child under 18 where one of the parents is a British overseas territories citizen "by descent" and lived in the UK for a period of 3 years at any time before the birth.
• Section 17(5) - registration of a child under 18 where one of the parents is a British overseas territories citizen "by descent" and the family have lived in the UK for the period of 3 years prior to the application.
• Sections 22(1) and 13(1) - registration routes for "resumption of citizenship" following renunciation.

199. Subsection (2) provides that the Home Secretary may not register or naturalise an ineligible person as a British overseas territories citizen under the following sections of the 1981 Act:
• Section 17(1) – registration of a child under 18 at the Home Secretary’s discretion, provided they are of good character.
• Section 18 - naturalisation as a British overseas territories citizen, based on a period of residence in the UK – three years for spouses and civil partners of British citizens, five years for others.
• Sections 22(2) and 13(3) - registration routes for "resumption of citizenship" following renunciation, at the Home Secretary’s discretion.

Section 34: British overseas citizenship

200. British overseas citizens are mainly people who were citizens of the UK and Colonies before the 1981 Act came into force, but who did not become British citizens or British dependent territories citizens (now British overseas territories citizens). The status can only now be acquired by registration; section 27(1) of the 1981 Act allows for a child to be registered as a British overseas citizen at the Home Secretary’s discretion. Published guidance sets out when that discretion would normally be used.
201. This section provides that an ineligible person shall not be registered as a British overseas citizen under section 27(1) of the 1981 Act.

Section 35: British subjects

202. Those who became British subjects under the the 1981Act are mainly people with a connection with Ireland, or people connected to the former British India who have not acquired any alternative citizenship. Some British subjects (mainly those linked to Ireland) have the right of abode in the UK; most do not. Section 32 of the 1981 Act allows for a child to be registered as a British subject at the Home Secretary’s discretion. Published guidance sets out when that discretion would normally be used.
203. This section provides that an ineligible person shall not be registered as a British subject under section 32 of the 1981Act.

Section 36: Disapplication of sections 32 to 35

204. This section allows the Secretary of State to determine that a person is not "ineligible" for registration or naturalisation, as set out in sections 32 to 35, if they consider that applying those sections would contravene the UK’s obligations under the ECHR.

Section 37: Amendments relating to sections 32 to 36

205. This section amends the relevant provisions of the 1981 Act (as listed above), by adding that they are subject to the relevant provisions in sections 31, 32 and 36 of the Illegal Migration Act.

Section 38: Suspensive claims: interpretation

206. This section defines terms for the purposes of sections 38 to 53 which set out limited circumstances in which legal proceedings relating to the removal of a person falling, or purportedly falling, within section 2 of the Act, have the effect of suspending that person’s removal. All other legal proceedings not addressed in these sections will be non-suspensive (see section 5(1)(d)).
207. There are two kinds of claim that would defer removal under section 6, a "removal conditions suspensive claim" or a "serious harm suspensive claim" (known collectively as a "suspensive claim").
208. Subsection (3) defines a "removal conditions suspensive claim". Such a claim arises where a person issued with a removal notice under section 8(2)(a) asserts that they do not meet the removal conditions (the four conditions in section 2) and are therefore not liable to removal under section 6.

Section 39: Serious harm suspensive claims: interpretation

209. Subsection (3) defines a "serious harm suspensive claim". Such a claim arises where a person would face a real, imminent and foreseeable risk of serious and irreversible harm were they to be removed to the country or territory specified in the removal notice given under section 8(2)(a). The harm must arise before the substantive human rights claim has been decided by the Secretary of State or any application for judicial review is exhausted. The "real, imminent and foreseeable risk of serious and irreversible harm" test reflects that applied by the European Court of Human Rights when considering whether to grant interim measures (in effect an injunction) under Rule 39 of its Rules of Court (see factsheet here ). "Serious" indicates that the harm must meet a minimum level of severity, and "irreversible" means that the harm would have a permanent effect.
210. Subsections (4) and (5) provide a non-exhaustive list of examples of what does and does not constitute serious and irreversible harm for the purposes of the Act. Subsections (6) and (7) provide an example of what is unlikely to constitute serious and irreversible harm for the purposes of the Act. Subsection (8) defines persecution for the purposes of subsections (4) and (5).
211. Subsection (9) defines the term "relevant period" as used in this section.

Section 40: Meaning of "serious and irreversible harm"

212. This section enables the Secretary of State, by regulations (subject to the affirmative procedure), to amend section 39 to make provision about the meaning of "serious and irreversible harm" for the purposes of this Act. Such regulations may not amend section 39(4) so as to remove any of the examples of serious and irreversible harm contained in that subsection when the Act was passed (subsection (3)).

Section 41: Relationship with other proceedings

213. This section sets out the relationship between serious harm suspensive claims and human rights claims and provides that a serious harm suspensive claim is not a human rights claim, and, therefore, any refusal of a serious harm suspensive claim will not attract a right of appeal under section 82(1)(a) or (b) of the 2002 Act (subsections (1) and (2)).
214. The raising of a serious harm suspensive claim does not prevent a person from raising a human rights claim in relation to their removal from the UK to a third country under this Act. The refusal of a human rights claim will not attract a right of appeal under section 82(1)(a) or (b) of the 2002 Act, but it would be open to the claimant to seek a judicial review of the decision (subsections (4) and (5)). Subsection (6) makes a consequential amendment to subsection (3) of section 82 of the 2002 Act to disapply the rights of appeal provided for in that section.

Section 42: Serious harm suspensive claims

215. This section sets out the process for the submission and determination of serious harm suspensive claims. The section provides for time limits for the submission of claims and their determination to ensure that the process operates expeditiously so as not to unduly delay removal in cases where a claim is not made out.
216. Subsections (1) and (5) set out the requirements for making a valid serious harm suspensive claim. Those requirements are:
• the claim is made within the claim period (as defined in subsection (7)), unless the claim period is extended as provided for in subsection (6);
• the claim contains compelling evidence that the serious harm condition is met, that is that the person would face a real, imminent and foreseeable risk of serious and irreversible harm and that the harm would arise before the substantive human rights claim has been decided by the Secretary of State or any application for judicial review is exhausted (see definition of "relevant period" in section 39(9));
• the claim contains the prescribed information; and
• the claim is made in the prescribed form and manner.

217. The claim must be made within eight days following receipt of the notice (‘claim period’) and the Secretary of State must make a decision within four days following receipt of the claim (‘decision period’), unless the decision period is extended under subsection (6). In coming to a decision, the Secretary of State must take into account the factors listed in subsection (4). Where the Secretary of State concludes that the claimant would face a real, imminent and foreseeable risk of serious and irreversible harm if removed to the country or territory specified in the removal notice, they will not be removed to that country or territory (see section 47(2)). Where the Secretary of State concludes that the person would not, before the Secretary of State’s decision or conclusion of a judicial review in relation to a human rights claim, face a real, imminent and foreseeable risk of serious and irreversible harm, the Secretary of State may also certify the claim as clearly unfounded (subsection (3)).
218. The refusal of a claim or the certification of a claim as clearly unfounded does not give rise to an appeal under section 82(1)(a) or (b) of the 2002 Act (see section 41(2)), instead provision for appeals is made in section 44 below.

Section 43: Removal conditions suspensive claims

219. This section sets out the process for the submission and determination of removal conditions suspensive claims. The section again provides for time limits for the submission of claims and their determination to ensure that the process operates expeditiously so as not to unduly delay removal in cases where a claim is not made out.
220. Subsections (1) and (5) set out the requirements for making a valid removal conditions suspensive claim. Those requirements are:
• the claim is made within the claim period (as defined in subsection (7)), unless the claim period is extended as provided for in subsection (6);
• the claim contains compelling evidence that the person does not meet the removal conditions;
• the claim contains the prescribed information; and
• the claim is made in the prescribed form and manner.

221. The claim must be made within eight days following receipt of the notice (‘claim period’) and the Secretary of State must make a decision within four days following receipt of the claim (‘decision period’), unless the decision period is extended under subsection (6). Where the Secretary of State concludes that a person does not meet the removal conditions, the duty to remove will not apply and the person will not be removed from the UK under the provisions of this Act. It may be, for example, that the Secretary of State is satisfied that the claimant met the first, third and fourth conditions in section 2, but on further examination it was found that they had entered the UK before 20 July 2023 and therefore did not satisfy the second condition; in such a case other enforcement action would be appropriate. Where the Secretary of State concludes that the person meets the removal conditions, the Secretary of State may also certify the claim as clearly unfounded (subsection (3)).

Section 44: Appeals in relation to suspensive claims

222. This section provides for an appeal to the Upper Tribunal where the Secretary of State has refused a suspensive claim and has not certified the claim as clearly unfounded (subsections (1) and (2)).
223. Subsection (3) sets out the grounds, and only grounds, on which an appeal may be brought.
224. In considering an appeal against the refusal of a serious harm suspensive claim, the Upper Tribunal must take into account the same factors that the Secretary of State is required to take into account when considering the claim (see section 42(4)).
225. Subsection (6) sets out the matters that the Upper Tribunal must decide when considering an appeal under this section. In effect, the Upper Tribunal is considering a suspensive claim on its merits and coming to its own view on whether the test for allowing a claim has been met.
226. Subsection (7) provides that the only right of appeal against Upper Tribunal decisions is to the Court of Appeal in England and Wales or Northern Ireland or the Court of Session in Scotland (as provided for in section 13 of the Tribunals, Courts and Enforcement Act 2007).

Section 45: Permission to appeal in relation to suspensive claims certified as clearly unfounded

227. This section makes provision for permission to appeal against a decision by the Secretary of State to certify a suspensive claim as clearly unfounded. Where the Secretary of State has rejected a suspensive claim and certified the claim as clearly unfounded, there is no automatic right of appeal against the refusal of the claim, instead a person may apply to the Upper Tribunal for permission to appeal the substantive decision (subsection (2)).
228. Subsection (3) sets out the test to be applied by the Upper Tribunal when considering an application for permission to appeal in relation to a serious harm suspensive claim. The test is higher than that, in section 44(6)(a), applied by the Upper Tribunal when considering an appeal against the refusal of a claim which has not been certified as clearly unfounded. If it is to grant permission to appeal, the Upper Tribunal must consider whether there is compelling evidence that the person would, within the relevant period, face an obvious and real, imminent and foreseeable risk of serious and irreversible harm if removed to the safe third country specified in the removal notice.
229. The threshold for granting permission to appeal the refusal of a removal conditions suspensive claim that has been certified as clearly unfounded is also higher than that for granting an appeal against the refusal of a removal conditions suspensive claim that has not been so certified. The Upper Tribunal may only grant permission to appeal where it considers that there is compelling evidence that the appellant does not meet the removal conditions (subsection (4)).
230. Applications for permission to appeal under this section must be determined by the Upper Tribunal on the basis of written submissions and evidence, unless the Upper Tribunal considers oral submissions are necessary to secure that justice is done in a particular case (subsection (5)).
231. Where the Upper Tribunal grants permission to appeal it will then go on to consider the substantive appeal against the Secretary of State’s decision to refuse a suspensive claim (subsection (6)).
232. Subsection (7) provides that the right of appeal to the Court of Appeal in England and Wales or Northern Ireland or the Court of Session in Scotland against Upper Tribunal decisions (as provided for in section 13 of the Tribunals, Courts and Enforcement Act 2007) does not apply to decisions of the Tribunal on an appeal against the refusal to grant an application for permission to appeal a suspensive claim.

Section 46: Suspensive claims out of time

233. Sections 42 and 43 require suspensive claims to be submitted within eight days. This section makes provision in respect of out-of-time suspensive claims made before a person’s removal from the UK, where the person has not previously made a suspensive claim.
234. On receipt of an out-of-time suspensive claim, subsection (2) requires that the Secretary of State must consider whether there were compelling reasons for the out-of-time claim, for example, because they were seriously ill. The Secretary of State must make a decision within four days, unless the period is extended under the power conferred by subsection (9).
235. If, as a result of such consideration, the Secretary of State concludes that there were compelling reasons for the out-of-time claim, the Secretary of State must then come to a decision on the claim itself (subsection (3)).
236. Subsection (4) provides for a review by the Upper Tribunal of the Secretary of State’s decision that there were no compelling reasons for the out-of-time claim. Where a person applies for a declaration from the Upper Tribunal and the Upper Tribunal concludes that there were compelling reasons for the out-of-time claim, the Upper Tribunal is required to make a declaration that there were compelling reasons for the out-of-time claim. The Upper Tribunal is not required to consider the substance of the claim at this stage, instead the effect of such a declaration is to require the Secretary of State to consider the substance of the out-of-time claim (subsection (6)).
237. Applications for a declaration under subsection (4) must be determined by the Upper Tribunal on the basis of written submissions and evidence; it is therefore not open to the Upper Tribunal to consider oral submissions (subsection (5)(b)).
238. A decision of the Upper Tribunal not to make a declaration under subsection (4) is not subject to appeal to the Court of Appeal in England and Wales or Northern Ireland or the Court of Session in Scotland as provided for in section 13 of the Tribunals, Courts and Enforcement Act 2007 (subsection (7)).

Section 47: Suspensive claims: duty to remove

239. This section deals with the consequences of a person making a suspensive claim.
240. Subsection (2) suspends the removal of a person to the country or territory specified in the removal notice issued to that person in the following circumstances:
• where a person has made an in time suspensive claim, removal is suspended until the Secretary of State has made a decision on the claim;
• where a person has made an out-of-time suspensive claim, removal is suspended until the Secretary of State has made a decision on whether there were compelling reasons for an out-of-time claim and further suspended if the Secretary of State decides there were compelling reasons for an out-of-time claim pending a decision on the substantive claim;
• where a person has made an out-of-time suspensive claim and the Secretary of State considers there were no compelling reasons for an out-of-time claim, removal is suspended until either the person has applied to the Upper Tribunal for a declaration that there were compelling reasons for an out-of-time claim or the period for making such an application has expired;
• where a person has made an out-of-time suspensive claim and the Secretary of State considers there were compelling reasons for an out-of-time claim or the Upper Tribunal grants an application under section 46(4) requiring the Secretary of State to consider the out of time claim, removal is suspended until the Secretary of State has considered the claim;
• where the Secretary of State has refused a suspensive claim and has not certified the claim as clearly unfounded, removal is suspended until any appeal is determined or the time for lodging an appeal has expired.

241. The bar on removal also applies where the Secretary of State agrees with the claim that the person would face a real, imminent and foreseeable risk of serious and irreversible harm if removed before the appeals process is exhausted or agrees that the person does not meet the removal conditions (subsection (2)).
242. In such a case, subsection (3) provides that it would be open to the Secretary of State to revise the decision at a later date if there was a change of circumstances and, if appropriate, issue a further removal notice (for example, in a case where the risk of serious and irreversible harm related to a medical condition which no longer applied or where evidence comes to light that the leave to enter on which the claimant relied to demonstrate that the first condition in section 2 did not apply was obtained by deception). Subsection (4) provides a reference to a change of circumstances includes where a person’s human rights claim or application for judicial review in relation to their removal from the United Kingdom is not successful, which applies UK-wide.
243. Subsection (5) provides that where the Secretary of State rejects a suspensive claim, the person may be removed from the UK but only after the appeal process in sections 44 or 45 has been exhausted.

Section 48: Upper Tribunal consideration of new matters

244. The general expectation is that the Upper Tribunal will determine appeals and applications for permission to appeal on the basis of the information available to the Secretary of State at the time they made the original decision which is the subject of the appeal. This section makes provision for the consideration by the Upper Tribunal of new matters that were not available to the Secretary of State.
245. Subsections (3) and (5) provide that the Upper Tribunal cannot consider new matters (as defined in subsection (4)) unless the Secretary of State has given their consent or, if the Secretary of State has refused to provide consent, where the Upper Tribunal considers there were compelling reasons for the matter not to have been provided to the Secretary of State before the end of the claim period. The Secretary of State may provide consent where there were compelling reasons for the claimant not to have provided details of the matter before the end of the claim period (subsection (6)).
246. Where the Upper Tribunal considers new matters have been raised, the relevant period for the purpose of considering whether there are compelling reasons (and whether to allow consideration of the new matter) is three working days. This is in addition to the period for considering the appeal or permission to appeal application.
247. A decision of the Upper Tribunal to make or not make a determination under subsection (5) is not subject to appeal to the Court of Appeal in England and Wales or Northern Ireland or the Court of Session in Scotland as provided for in section 13 of the Tribunals, Courts and Enforcement Act 2007 (subsection (7)).

Section 49: Appeals in relation to suspensive claims: timing

248. Subsections (1) to (3) provide that the Tribunal Procedure Committee must introduce procedure rules in the Asylum and Immigration Chamber which set out the time limits for the appeals process. This includes a period of seven working days for a claimant to submit an appeal or to apply for permission to appeal; a period of 23 working days for the Upper Tribunal to make a decision on an appeal; and a period of seven working days to determine an application for permission to appeal under section 45(2) or 46(2)).
249. Subsection (4) provides that the Upper Tribunal may extend the prescribed time limits where it is the only way to secure that justice is done in a particular case.

Section 50: Procedure for Tribunal Procedure Rules

250. Section 49 provides time limits for the consideration of an appeal in relation to suspensive claims and for these time limits to be set out in Tribunal Procedure Rules. Such Rules are normally made by the Tribunal Procedure Committee which must follow certain procedures, including consultation; this typically takes a period of months. This section provides for the first set of Tribunal Procedure Rules to be made by the Lord Chancellor, rather than the Tribunal Procedure Committee. Before making such Rules, the Lord Chancellor is required to consult the Senior President of Tribunals, the Lord Chief Justices of England and Wales and Northern Ireland, and the Lord President of the Court of Session. These Rules would be subject to the made affirmative procedure (rather than, as now, the negative procedure). The power to make rules would then immediately revert to the Tribunal Procedure Committee.

Section 51: Finality of certain decisions by the Upper Tribunal

251. Subsection (2) makes certain decisions of the Upper Tribunal final and stipulates that they are not subject to review by any other court. The relevant decisions are those in relation to applications:
• for permission to appeal against the refusal of a suspensive claim which has been declared clearly unfounded;
• for a declaration that there were compelling reasons for the claimant to have not made a suspensive claim within the claim period; and
• for a determination that there were compelling reasons for the claimant to have not provided details of a new matter to the Secretary of State before the end of the claim period.

252. Subsection (3) further clarifies the extent of the rule. Subsection (3)(a) provides that, if the Upper Tribunal were to make an error in reaching its decision on permission (or leave) to appeal or the granting of a declaration, this does not mean that the Upper Tribunal has acted beyond its powers. Such decisions will therefore still be caught by the rule. Subsection (3)(b) emphasises the effect of subsection (2) in preventing the making of an application to a court of supervisory jurisdiction (as defined in subsection (5)) about the decision, as the jurisdiction of that court does not extend to these decisions.
253. Subsection (4) provides for specific exceptions to subsections (2) and (3), that is, certain circumstances where a challenge can still be brought against decisions of the Upper Tribunal on applications for permission (or leave) to appeal. This includes where the Upper Tribunal did not have jurisdiction, whether because it did not have before it a valid application under section 45(2) or 46(4) (subsection (4)(a)), or because the Tribunal itself was not properly constituted or to carry out its task (subsection (4)(b)). Subsection (4)(c) covers circumstances where the Upper Tribunal acted in bad faith or in such procedurally defective ways as amounts to fundamental breaches of the principles of natural justice. Fundamental breaches of the principles of natural justice include such things as the decision being affected by bias or corruption. All these scenarios would be very unlikely to arise, but it is important to ensure that such decisions would still be subject to review.
254. Subsection (5) defines "decisions" as including "purported decisions’"; this means that even decisions which might otherwise be regarded as a nullity, are caught by the limitation on judicial review.

Section 52: Judges of First-tier Tribunal and Upper Tribunal

255. This section amends section 5 of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"). Section 5 of the 2007 Act lists judges who are also judges of the Upper Tribunal; paragraph 6 of Schedule 3 to the 2007 Act then provides additional requirements for certain judges to be able to sit as judges of the Upper Tribunal, for example following a request from the Senior President of Tribunals, and with the agreement of the Lord Chief Justice (or Lord President of the Court of Session or Lord Chief Justice of Northern Ireland, as appropriate).
256. This section adds First-tier Tribunal judges and Employment Tribunal judges to the list in section 5 of the 2007 Act, making them eligible to sit in the Upper Tribunal. The decision on whether to use this deployment power sits with the Senior President of Tribunals.
257. As the Upper Tribunal will be required to deal with most appeals brought under this Act, it will need additional judicial capacity to deal with an increased caseload. This section will extend existing flexible deployment powers for the judiciary to manage fluctuations in demand in courts and tribunals, supplementing recruitment of new judges.

Section 53: Special Immigration Appeals Commission

258. This section makes provision for appeals against a decision to refuse a suspensive claim to be heard by the Special Immigration Appeals Commission ("SIAC") rather than the Upper Tribunal where the decision is based on information that should not be disclosed in the public interest. SIAC is an independent judicial tribunal that can hear immigration appeals where the decision is based on sensitive information, for example where information has been provided by the Security Services.
259. Subsection (2) provides for an appeal against a suspensive claim or permission to appeal (in relation to a claim certified as clearly unfounded) to be certified by the Secretary of State where the decision relies on sensitive material that should not be disclosed in (a) the interests of national security; (b) the interests of the relationship between the UK and another country; or (c) the public interest.
260. Subsection (3) provides that where the Secretary of State has certified a decision under subsection (2), any pending appeal or permission to appeal to the Upper Tribunal lapses.
261. Subsection (5) inserts new section 2AA into the Special Immigration Appeals Commission Act 1997 to provide for an appeal to be heard by SIAC where the Secretary of State has certified the decision under subsection (2). In considering an appeal against the refusal of a suspensive claim and the consideration of new matters that were not available to the Secretary of State, SIAC must follow the same approach as the Upper Tribunal as set out in sections 44(3) to (6) and 48(2) to (8).
262. Subsection (5) also inserts new section 2AB into the 1997 Act to provide that the SIAC’s determination about whether there are compelling reasons for the claimant to have not provided details of a new matter to the Secretary of State before the end of the claim period is not subject to review by any other court. This follows the same approach as the Upper Tribunal as set out in section 48. New sections 2AB(3) and (4) further clarifies the extent of the rule and provides for specific exceptions where a challenge can still be brought against a decision. New section 2AB(5) defines decision and supervisory jurisdiction for the purpose of this section.
263. Subsection (7) provides for the first set of procedural rules for the SIAC made for the purposes of new section 2AA of the 1997 Act to be made via the made affirmative procedure (rather than, as now, the draft affirmative procedure).

Section 54: Interim remedies

264. This section restricts the ability of a court to grant an interim remedy that would prevent or delay removal of a person subject to the duty to remove.
265. Subsection (1) provides that subsections (2) and (3) apply to any court proceedings relating to a decision to remove a person from the UK under this Act.
266. Subsection (3) prevents a court or tribunal from granting an interim remedy that prevents or delays, or has the effect of preventing or delaying, the removal of a person from the UK.
267. Subsection (4) defines terms used in this section.

Section 55: Interim measures of the European Court of Human Rights

268. This section sets out how 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.
269. Subsection (2) provides that a Minister of the Crown may, but need not, decide that the duty to remove in section 2(1) does not apply to a person where the European Court of Human Rights has indicated an interim measure in relation to that person.
270. Subsection (3) provides that the decision provided for in subsection (2) must be a personal decision by the Minister of the Crown.
271. Subsection (4) provides that the Minister may have regard to any matter that the Minister considers relevant, including the matters set out in subsection (5), when making a decision under subsection (2). Subsection (5) sets out procedures for indicating an interim measure that may be relevant when considering a decision under subsection (2) including: whether the UK government was given an opportunity to present observations and information before the interim measure was indicated; the form of the decision to indicate the interim measure; whether the European Court of Human Rights will, without undue delay, take account of any representation made by the UK government where reconsideration of the decision to indicate the interim measure has been sought; and the likely duration of the interim measure and the timing of any substantive determination by the European Court of Human Rights.
272. Subsection (6) provides that where the Minister does not make a decision under subsection (2), the person or decision-making authority as set out in subsection (7) may not have regard to the interim measure in the circumstances described in subsection (7).
273. Subsection (7) applies to the Secretary of State or an immigration officer in relation to a decision to remove under section 2(1) or 8(2), (8) or (9); the Upper Tribunal when considering an appeal or application for permission to appeal; and a court or tribunal when considering an appeal or application relating to a decision to remove a person from the UK.
274. Subsection (8) provides that no inference is to be drawn about whether a person or decision-making authority set out in subsection (7) would otherwise have been required to have regard to the interim measure.
275. Subsection (9) provides that the Secretary of State or an immigration officer is not required to effect the removal of a person under the Act pending the Minister’s decision under subsection (2).
276. Subsection (10) defines terms used in this section.

Section 56: Legal aid

277. This section ensures that individuals who receive a removal notice have access to free legal advice in relation to the removal notice. Subsections (1) to (5) make provision for England and Wales and subsections (6) to (15) make provision for Northern Ireland.
278. Subsections (2) to (4) amend the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") to bring these matters into scope. Subsection (5) amends the Civil Legal Aid (Merits Criteria) Regulations 2013 to ensure that recipients of a removal notice do not have to undergo merits testing. Within the existing legal aid scheme, different merits tests are applied to different types of cases, but in summary, they are legal tests as to whether a particular case should receive legal aid. For example, for funding to be provided for full representation in a judicial review case, the legal aid applicant must be able to show that they have met a "proportionality" test (as defined in regulations) and that the prospects of success of the case are very good, good or moderate, or are borderline or marginal, and meet some other additional criteria. Other forms of merits testing may include a public interest test, a reasonable private paying individual test and cost benefit tests, depending on the type of case. Subsection (5) ensures no such merits tests will be applied in these cases.
279. Subsection (2) amends paragraph 19 of Part 1 of Schedule 1 to LASPO, which provides for civil legal services in judicial review matters. Sub-paragraph (5) of paragraph 19 excludes services in relation to judicial reviews relating to immigration matters where the same, or substantially the same, issues have already been the subject of judicial review or an appeal to a tribunal or court within a period of one year. Subsection (2) disapplies these exclusions for the purposes of a judicial review of a refusal of a human rights claim that arises from Article 2 or 3 of the Human Rights Convention.
280. Subsection (3) amends Part 1 of Schedule 1 to LASPO by adding in new paragraph 31C which sets out that civil legal services are made available to recipients of a removal notice. New paragraph 31C(1) stipulates that civil legal services (defined in section 8 of LASPO) can be provided to such individuals in relation to the removal notice, including in relation to: a suspensive claim relating to the removal notice; and an application under section 46(4) of the Act to the Upper Tribunal for a declaration that there were compelling reasons for the person not to make a claim within the claim period.
281. New paragraph 31C(2) provides for certain exclusions in relation to the new paragraph. New paragraph 31C(3) sets out definitions.
282. Subsection (4) amends Part 3 of Schedule 1 to LASPO by adding in a new paragraph 16A to put advocacy in proceedings in the Upper Tribunal under sections 44 to 49 of the Illegal Migration Act into scope. As such, where there is a right of appeal to the Upper Tribunal relating to a suspensive claim under the Act, legal aid for advocacy at the Upper Tribunal will be available.
283. Subsection (5) amends the Civil Legal Aid (Merits Criteria) Regulations 2013 to provide that the civil legal services provided to recipients of a removal notice are available without the application of the merits criteria (to assess the merits of their case).
284. Subsections (6) to (8) amend the Access to Justice (Northern Ireland) Order 2003. Subsection (7) inserts a new sub-paragraph (2AA) into Article 14 of the Order which disapplies a merits test for a grant of representation for the purposes of the proceedings specified. Subsection (8) brings into scope of civil legal services which may be provided, legal representation in the Upper Tribunal for proceedings as specified in new sub paragraphs (ic) and (id) to paragraph 2 of Schedule 2, relating to this Act.
285. Subsections (9) to (14) amend the Civil Legal Services (General) Regulations (Northern Ireland) 2015. Subsections (11) and (13) insert new regulations 31(1A) and 41(2A) to allow for applications for advice and assistance, or representation to be made by telephone to a legal provider if a person is detained for the purposes of this Act where otherwise it would need to be made in person. Subsection (12) provides an exemption from the need to apply to the Director for an extension of advice and assistance in cases involving advice regarding removal notices under this Act. Subsection (14) provides that an application for a certificate for representation in the higher courts will be exempt from consideration on merits grounds by the Director. These two subsections effectively disapply a merits test for legal services provided in relation to removal notices.
286. Subsection (15) amends the Civil Legal Services (Financial) Regulations (Northern Ireland) 2015 to provide that the civil legal services provided to recipients of a removal notice are available without an assessment of financial means.

Section 57: Decisions relating to a person’s age

287. Subsection (1) provides that this section applies where a relevant authority (see subsection (6)) decides the age of a person who meets the four conditions in section 2 where the duty to make arrangement for removal applies. The section applies to decisions on age made by a relevant authority for the purposes of this Act and / or any other legislation, for example the Children Act 1989.
288. Subsection (2) disapplies the statutory right of appeal under section 54 of the 2022 Act, so that a person cannot bring an appeal challenging the decision on their age under section 54 where they fall within the four conditions in section 2.
289. Subsection (3) provides that subsections (4) and (5) apply to judicial reviews challenging decisions within subsection (1) or any decisions where the duty to remove applies.
290. Subsection (4) prescribes that where a challenge to a decision relating to a person’s age is made, this will not prevent the exercise of any power or duty to arrange a person’s removal from the UK. Such a person can still be removed while the application for judicial review is ongoing, and this claim can continue out of country.
291. Subsection (5) provides for the basis on which the court or tribunal can consider a decision relating to a person’s age in judicial review proceedings and confirms that a person’s age is a matter of fact to be determined by a relevant authority. Subsection (5)(a) states that a court can may grant relief only on the basis that it the decision was wrong in law (for example on the grounds rationality, procedural fairness or Wednesbury unreasonableness) and subsection (5)(b) prevents the court or tribunal from granting relief on the basis that it the decision is wrong as a matter of fact. The intention is to ensure that a court or tribunal only considers decisions on age on conventional public law principles and cannot make its own determination on age, which is reserved for a ‘relevant authority’ detailed in subsection (6), distinguishing from the position held in R(A) v Croydon London Borough Council [2009] UKSC 8.
292. Subsection (6) provides the definition for ‘relevant authority’, including (a) the Secretary of State; (b) an immigration officer; (c) a designated person as defined in Part 4 of the 2022 Act; (d) a local authority as defined in Part 4 of the 2022 Act subject to subsection (7); or (e) a public authority as defined in Part 4 of the 2022 Act which is specified in regulations under section 50(1)(b) of the 2022 Act.
293. Local authorities conduct age assessments to decide whether or how to exercise their functions under the relevant children's legislation. The Home Office then uses these decisions for immigration purposes. Subsection (7) provides that this section applies to decisions on age made by a local authority on those who fall within the duty to make arrangement for removal (section 2), only when the decision on age is for the purposes of the local authority's decision on whether to exercise any of its functions under the relevant children's legislation as defined in Part 4 of the 2022 Act. 
294. Subsection (8) stipulates that this section applies to decisions made by a relevant authority under section 50 and 51 of the 2022 Act, including decisions made by virtue of regulations under section 58 (power to make provision about refusal to consent to scientific methods) of this Act.
295. Subsection (9) provides that this section applies only in relation to a decision which is made after this section comes into force.
296. Subsections (10), (11) and (12) amend the 2022 Act to make consequential amendments following the disapplication of the statutory right of appeal for age assessment decisions by subsection (2).

Section 58: Age assessments: power to make provision about refusal to consent to scientific methods

297. Subsection (1) introduces a power to make regulations (subject to the negative resolution procedure) about the effect of a relevant person (that is, a person who meets the conditions in section 2 of the Act (see subsection (3)) refusing to consent to the use of specified scientific methods for the purposes of an age assessment, where they do not have reasonable grounds to withhold consent.
298. Subsection (2) sets out examples of what may be included in the regulations.
     1. Subsection (2)(a) provides that the regulations could disapply section 52(7) of the 2022 Act so that refusal to consent to scientific methods by a relevant person would not be taken to damage credibility;
     2. Subsection (2)(b) sets out that the regulations may provide for an automatic assumption that a person is to be treated as if the decision maker has decided that the person is an adult if they refuse to consent to a scientific age assessment without reasonable grounds to do so. The Secretary of State will not make regulations to this effect unless and until satisfied that the scientific methods in question are sufficiently accurate to mean that applying the automatic assumption in cases of refusal to consent will be compatible with the ECHR (in particular Article 8 (right to private and family life)).
299. Subsection (3) defines terms used in this section.
300. Subsection (4) amends Part 4 of the 2022 Act (age assessments):
     1. Subsection (4)(a) amends section 52(7), which provides for a negative credibility inference to be drawn by a decision maker when determining age if a person refuses to the use of specified scientific methods, to refer to this section;
     2. Subsection (4)(b) amends section 53 (regulations about age assessments) to provide that the regulation-making power about age assessments under section 50 or 51 of the 2022 Act may make provision for the circumstances in which a person may be considered to have reasonable grounds for a decision not to consent.

Section 59: Inadmissibility of certain asylum and human rights claims

301. This section amends section 80A of the 2002 Act which provides that asylum claims (that is a claim by a person that to remove them from the UK would breach the UK’s obligations under the Refugee Convention) from EU nationals must generally be declared inadmissible to the UK’s asylum system. Inadmissibility procedures allow a State to declare an asylum claim "inadmissible" when the claim is made by nationals of countries which are deemed safe (section 80A(5) provides a non-exhaustive list of exceptional circumstances), and individuals can be returned to their country of nationality.
302. Subsection (2) amends section 80A such that the inadmissibility provisions apply to human rights claims (that is, a claim by a person that to remove them from the UK would be unlawful under section 6 of the Human Rights Act 1998 which provides that a public authority must not act contrary to the ECHR) as well as asylum claims. Subsection (4) makes a consequential change to the heading of Part 4A of the 2002 Act.
303. Subsection (3) inserts new section 80AA into the 2002 Act. New section 80AA(1) sets out a list of safe States for the purposes of section 80A. Section 80A currently applies to nationals of EU member States, the list set out in new section 80AA(1) additionally includes Albania, Iceland, Liechtenstein, Norway and Switzerland. New section 80AA(2) confers a power, by regulations, to amend the list of States in new section 80AA(1). New section 80AA(3) and (4) set out the test that must be met before a State can be added to the list of safe States. Regulations adding to the list of safe States (or both adding States to and removing States from the list) are subject to the draft affirmative resolution procedure, while regulations which only remove States from the list are subject to the negative resolution procedure (new section 80AA(6) and (7)).

Section 60: Cap on number of entrants using safe and legal routes

304. This section places a duty on the Secretary of State to make regulations (subject to the draft affirmative procedure) specifying an annual number of persons to be admitted to the UK through safe and legal routes. The annual number would only cover those admitted to the UK via a safe and legal route as set out in the regulations. It will not include those on work, family or study routes. Before determining the annual number, the Secretary of State is required to consult representatives of local authorities in Great Britain, the Executive Office in Northern Ireland and other persons or bodies the Secretary of State considers appropriate (subsection (2)). Such engagement will enable the annual number to be determined having regard to the capacity of local authorities to accommodate and provide integration services for the persons to be accommodated and supported each year. However, in cases of humanitarian emergency the duty to consult does not apply (subsection (3)). The annual number will remain in place until revised by subsequent regulations; as such the annual number may apply for a period of years. Subsection (4) requires the consultation with local authorities and other relevant persons or bodies to commence within three months from Royal Assent (that is, by 20 October 2023).
305. What constitutes safe and legal routes is to be defined in regulations, again subject to the draft affirmative procedure (subsection (6)), reflecting the fact that the existing resettlement schemes are not provided for in legalisation. There are currently existing resettlement routes in the UK, including the Afghan Citizens Resettlement Scheme, the UK Resettlement Scheme, the Mandate Resettlement Scheme and the Community Sponsorship Scheme. The examples given for current safe and legal routes do not mean that these specific routes will be part of the cap, defining the routes and cap figure depends on a number of factors including local authority capacity and the safe and legal routes offered at the time of the regulations.
306. Subsections (4) and (5) require the Secretary of State to lay a statement before Parliament should the number of persons admitted through safe and legal routes in any year exceed the specified number. Such a statement must set out the number of persons admitted and the reason why the specified number was exceeded. A statement must be laid before Parliament within six months of the end of the year to which it relates.

Section 61: Report on safe and legal routes

307. This section places a duty on the Secretary of State to lay a report before Parliament within six months of Royal Assent (that is by 20 January 2024), on safe and legal routes to enter the UK. While ‘safe and legal routes’ has not been defined in this section, this section operates on the term taking its accepted meaning; inclusion in the report does not indicate that a route will be included in the definition of safe and legal routes for the purposes of the cap, provided for in section 60.
308. Subsection (1) requires the report to contain details (subsection (2)) of current safe and legal routes, and any proposed additional safe and legal routes which may not yet be in operation. This report must also set out the routes which are available to adults and children and how the routes, either existing or proposed, can be accessed by those who are eligible to use them.

Section 62: Credibility of claimant: concealment of information etc

309. This section amends section 8 of the 2004 Act by adding to the behaviours which should be considered damaging to the credibility of a person who has made an asylum or human rights claim. Section 8 of the 2004 Act provides that a decision maker should consider damaging to a claimant’s credibility behaviours listed in that section.
310. Subsections (2)(a) and (2)(b) amend subsection (3) of section 8 of the 2004 Act by replacing references to "passport" with "identity document". This makes it clear that credibility should be damaged where a claimant fails to produce, destroys, alters or disposes of any identity document without reasonable explanation, or where a claimant produces a document which is not a valid identity document as if it were.
311. Subsection (2)(c) inserts new paragraph (da) into subsection (3) of section 8 of the 2004 Act. This provides that credibility should be damaged where a claimant refuses to disclose information, such as a passcode, that would enable access to any information stored in electronic form, such as on a mobile phone or other electronic device.
312. Subsection (3) amends section 8 of the 2004 Act definitions for "document" and "identity document". It also removes the definition of "passport".
313. Subsection (4) replaces the reference to "passport" in section 8 of the 2004 Act with "identity document".

Section 64: Consequential and minor provision

314. Subsections (1) to (3) confer a power on the Secretary of State, by regulations to make consequential provision for the purposes of the Act. Such provision may include repealing, revoking or otherwise amending primary and secondary legislation.
315. Subsection (4) adds the Illegal Migration Act 2023 to the list of enactments in section 61(2) of the UK Borders Act 2007 which are collectively referred to as "the Immigration Acts". Amongst the effects of this provision is to apply to the scheme provided for in the Act the power of immigration officers to use reasonable force when it is necessary in the exercise of a power conferred by the Act (as provided for in section 146(1) of the Immigration and Asylum Act 1999) and the age assessment provisions in Part 4 of the 2022 Act.
316. Subsection (5) repeals paragraph 8(2) of Schedule 5 to the 2022 Act. Paragraph 8(2) in turn prospectively repeals section 35(3) of the 1999 Act. Section 35 of the 1999 Act is about the procedure for the imposition of penalties under sections 31A or 32 of that Act (which may be imposed in circumstances where a person is responsible for failing adequately to secure a goods vehicle against access by clandestine entrants or for carrying clandestine entrants). Section 35(3) sets out the grounds on which a person may object to a penalty: that is, they are not liable to it or it is too high. The repeal of section 35(3) was included in the 2022 Act in error (see letter from the House of Commons Clerk of Legislation to the Speaker dated 9 January 2023), this subsection accordingly repeals paragraph 8(2) of Schedule 5 to the 2022 Act.