ArticleFuture of the Illegal Migration Act

The Illegal Migration Act 2023 has garnered significant criticism since receiving Royal Assent. Despite harsh comments from the shadow Immigration Minister, Labour has not committed to repealing the Act. However, there is hope that Labour might refrain from enforcing more provisions of this contentious legislation, particularly the duty to remove, which has not yet been activated.

What provisions are currently in force?

Since its Royal Assent, several sections of the Act have been implemented through two commencement regulations. On July 20, 2023, the Act brought into effect several provisions, including section 30, which has significant implications for immigration policy.

Section 30: Prohibition on Granting Leave to Certain People

Section 30 inserted a new section 8AA into the Immigration Act 1971, prohibiting the grant of leave to individuals arriving on or after March 7, 2023, who meet specific conditions, such as passing through a “safe” country before entering the UK without permission. Exceptions include unaccompanied children, trafficking victims, human rights breaches, or exceptional circumstances. However, section 30(4) allows for limited leave to be granted in other circumstances until the duty to remove is enforced. Despite this, the Home Office has left many in limbo, waiting for a Ministerial decision.

Prohibition on Indefinite Leave and British Citizenship

Section 8AA(5) prohibits granting indefinite leave to remain unless there is a human rights breach. Without this, tens of thousands may be prevented from settling in the UK. Similarly, sections 31 to 35 prevent those arriving after March 7, 2023, from obtaining British citizenship, barring human rights exceptions. This could severely affect refugees’ ability to integrate into society.

Provisions Since September 28, 2023

The Illegal Migration Act 2023 (Commencement No. 1) Regulations 2023 brought into force sections 60 and 61, concerning the cap on arrivals via “safe and legal” routes. Section 59 was activated to make regulations adding India and Georgia to the list of safe countries, intending to deem asylum and human rights claims from these countries inadmissible.

Provisions on Detention

One of the most significant changes involved the detention provisions. The Home Secretary now determines what constitutes a reasonable detention period. This change, coupled with the May 2024 update to the Adults at Risk policy, has allowed more vulnerable individuals to be detained. Expanding detention without effective removal processes may lead to numerous unlawful detention claims, emphasising the need for more humane and effective case processing.

Provisions Since May 1, 2024

The Illegal Migration Act 2023 (Commencement No. 2) Regulations 2024 brought section 50 into force, impacting tribunal procedures. However, with section 2 unlikely to be activated, the associated tribunal rules may remain inactive.

The Northern Ireland Exemption

The High Court in Northern Ireland found that much of the Illegal Migration Act breaches the Windsor Framework, disapplying several provisions. This decision highlights the Act’s incompatibility with the European Convention on Human Rights, further complicating its

To manage and control the asylum system effectively, it is crucial to repeal at least part of the Illegal Migration Act. Given the practical and moral issues with the Act, a full repeal seems necessary. Failing to do so could exacerbate the Home Office’s existing problems. The focus should be on creating a humane, efficient asylum system that respects human rights and international obligations.

Get in touch:  For a comprehensive understanding of your options or queries on UK immigration matters, contact GigaLegal Solicitors at 02074067654 or click here to book a no-obligation consultation with an immigration expert.