This is a summary of the Government’s recently passed Illegal Migration Act 2023 and its impact on migrants arriving in the United Kingdom. This summary will cover the Act’s estimated costs to the United Kingdom’s economy, its impact on incoming migration and asylum seeking, possible human rights implications, and the potential strain it may put on local governments and legal aid providers.
Overview of the Act
Within a regional context of the South West of England, The Migration Observatory at the University of Oxford estimates that 9.4% of the South West’s population is constituted by foreign-born individuals – lower than the 14.4% average for the United Kingdom (The Migration Observatory, 2017). The Office for National Statistics further estimated that the United Kingdom experienced a net migration of 606,000 as of 2022 (ONS Census, 2021). According to The Migration Observatory, there has been a recorded 46,000 (estimated) individuals that were detected crossing the English Channel by means of ‘irregular’ arrivals such as small boats in 2022 (The Migration Observatory, 2023). Moreover, in the first half of 2023, there experienced a 10% decline in arrivals in comparison to the first half of 2022 (The Migration Observatory, 2023). Nonetheless, these ‘irregular arrivals’ have reported to have tripled the overall statistics for irregular entries, with 92% of those reported to have crossed using small boats having applied for asylum for themselves and/or their dependents (The Migration Observatory, 2023). Concurrently, the Home Office also reports a backlog in asylum applications numbering 175,457 – all of which await a decision on their applications.
Operating within this backdrop, the topic of migration has gained considerable traction in political discourse in the media and has become a central focus on the Government’s policy on migration. As of January 2023, Prime Minister Rishi Sunak named the issue of ‘small boats’ as one of five key priorities during his tenure (GOV, 2023). The BBC reports that a Home Office spokesperson stated the following: “Our Illegal Migration Bill is a key part of our work to deter and prevent people from making small boat crossings, as it will see people who make these dangerous, illegal and unnecessary journeys detained and swiftly removed.” (BBC News, 2023). With the passing of the Illegal Migration Act 2023, the Government will be provided powers to remove migrants who arrive to the United Kingdom by ‘irregular means’ (The Guardian, 2023). However, this Act has not come to fruition without its fair share of criticisms, particularly in regard to its potential human rights violations, unworkability, and its impact on local governments and legal services.
Policy Implications
With the concern stirred by the government and media surrounding the arrival of migrants in small boats, they have cited the increase of 44% of asylum applications in comparison to the month of June in 2022 (Sky News, 2023) – something that has led to a backlog in asylum claims processing. Certainly, addressing issues of migration could potentially lead to a reduction of stress on immigration services and to save costs that would otherwise be spent on the processing of applications. Indeed, the Home Office’s Economic Impact Assessment indicated that the Act may save the UK taxpayer an estimated £106,000 for every ‘illegal migrant’ deterred from making a crossing due in part to 85% of irregular arrivals incurring accommodation costs of £85 per night (Evening Standard, 2023).
Cost
However, several critiques of the Home Office’s Economic Impact Assessment have been launched, particularly in regard to the cost that could still be incurred regardless of the Illegal Migration Act being fully enforced. The Institute for Public Policy Research, reported through the Evening Standard and the Financial Times, predicts that the Act could lead to costs between £5.64 billion and £6.38 billion a year to the Treasury within five years of the Act coming into force. This statistic is calculated with the assumption that there is a high rate of migrant person removals (at 500 people per month). Moreover, the annual housing costs of migrants ‘in limbo’ will incur significant costs as result of the legislation. With the assumption that only 50 people were to be removed each month, the costs incurred by accommodations for those ‘in limbo’ will drastically increase – to upwards of £6 billion (Evening Standard, 2023; Financial Times, 2023). The economic impact of the Illegal Migration Act 2023 may also impact the operation of local governments. The NRPF Network states that the increasing categories of exclusion to be applied to those who arrive through ‘irregular’ routes will cause difficulties as to how these individuals will be housed or supported. In 2021/2022, the NRPF Network found a cost of £64 million across 72 local authorities in regard to 3423 households. With additional categories of exclusions being created, it can be argued that local governments do not have the capacity to “absorb additional costs as a result of immigration legislation” (NRPF Network, 2023).
Impact on Incoming Migration
The NRPF Network also outlines that the Illegal Migration Act 2023 will create decision-making bottlenecks, as opposed to the reduction of asylum application backlogs. Compounded by cuts to legal aid, and in spite of the Home Office purportedly increasing their intake of Immigration Caseworkers from 600 to 1,250 by August 2023, incoming migration may face decision-making bottlenecks. This is further exacerbated by ‘contentious elements of law’ that could lead to protracted litigation (NRPF Network, 2023). On top of this, local governments may also be expected to devote time and resources to the reskilling/upskilling of their staff members, ensuring that they understand the implications of the Illegal Migration Act 2023, with no guarantee that the Act itself will be workable in practice.
To ensure that the Act is workable in practice, the Institute for Public Policy Research estimates that the Home Office will need to triple the rate at which they process asylum applications to fulfil the promise of clearing the backlog by the year’s end (IPPR, 2023). The Institute for Public Policy Research also proposes that it would be practically untenable to remove every single individual who is qualified for removal from the United Kingdom. As these individuals are barred from entering the asylum-seeking system, these individuals will be left ‘in limbo’ in the United Kingdom – thus creating a ‘perma-backlog’ that cannot simply be remedied with an increase in claims-processing as the Act bars these individuals from even entering the asylum system (IPPR, 2023). The IPPR also forecasted should the Supreme Court rule in favour of the Rwanda policy, the policy itself will not be an effective deterrent. Indeed, the IPPR states that the Rwanda policy has had little to no impact on the number of irregular arrivals amongst migrants (IPPR, 2023). Therefore, even with a successful Rwanda policy, there is a predicted 200,000 migrants ‘in limbo’ to remain after five years. This is further reinforced by Lubna Shuja, President of the Law Society, who states that “Even if the appeal proves successful, there are no other removal agreements in place. Rwanda alone would not be able to accept anywhere near the number of people who will be scheduled for ‘removal’” (The Law Society, 2023).
Asylum Seekers and Human Rights
It has been argued that the Illegal Migration Act 2023 will weaken the protections provided by human rights legislations. Indeed, in disapplying the duty to first examine the validity of protection and asylum claims, the Government risks being in further breach of its obligations under the European Convention of Human Rights (Public Law Project, 2023). Most pressingly, Clause 1(5) of the Illegal Migration Act 2023 seeks to disapply Section 3 of the Human Rights Act 1998, which imposes a duty on public authorities to interpret legislation congruent to the European Convention of Human Rights (Public Law Project, 2023). Alongside Section 4 of the HRA 1998, it is possible that in disregarding the duty to consider Section 3, a ruling of incompatibility may be brought to the European Court of Human Rights.
Furthermore, in providing a ‘duty to disregard’, the Illegal Migration Act 2023 risks the harm of individuals who could have been recognised as victims of modern slavery and human trafficking (Modern Slavery & Human Rights Policy & Evidence Centre, July 2023). This aspect of the Act has come into scrutiny, including former Prime Minister Theresa May. The Modern Slavery & Human Rights Centre, moreover, argue that with the disregard of asylum and modern slavery claims, ‘potential victims may be denied protection and support and removed from the UK before the victim identification process has been completed, impacting on their safety from traffickers and their recovering from exploitation (Modern Slavery & Human Rights Policy & Evidence Centre, July 2023).
In further discussion of the Act’s impact on human rights, it has also been noted that LGBTQ+ individuals, particularly Black and Minoritised LGBTQ+ individuals, who arrive in the United Kingdom through ‘irregular routes’ will not be able to claim asylum in the United Kingdom. Victor Madrigal-Borloz, a United Nations expert, stating that LGBTQ+ individuals will be particularly impacted by the Illegal Migration Act, with the potential for them to be forcefully removed back to their countries that criminalise (or are hostile to) them based on sexual orientation and gender identity. There is also concern regarding the impact of the Act on Black and Minoritised individuals. Statistics provided find that 83% of crossings made through the English Channel are composed by nationals from seven countries – Iran, Albania, Iraq, Afghanistan, Eritrea, and Sudan (Home Office, 2023). Whilst five of these nations have ‘high grant rates’ for asylum, with the introduction of the Illegal Migration Act 2023, it would be likely that individuals from these nations (populated primarily by Black and Minoritised communities) will be barred from asylum, subject to the strenuous provisions of the Act, and removed to countries they may not be safe in.
Access to Justice: Legal Aid
It is of extreme importance that the Illegal Migration Act 2023 operates within the backdrop of an increasingly dire landscape for access to justice and legal aid. With the Legal Aid, Sentencing and Punishment of Offenders Act 2023 (LASPO), legal aid centres and law firms saw a drastic decrease in funding to carry out their work with legal aid cases, with a distinctive drop of 59% in law centres and agencies carrying out this work (Law Society, 2023). Statistics provided by the Law Society found that 53 million people (90%) do not have access to a local education legal aid provider, 49.8 million people (84%) do not have access to local welfare legal aid providers, and most pressingly, 39 million (66%) do not have access to a local immigration and asylum legal aid provider (Law Society, 2023).
The Law Society’s mapping of ‘legal aid deserts’ in the South West uncover that there are 6 Immigration and Asylum legal aid providers in Bristol, one in Plymouth, one in Southampton, and one in Portsmouth (Law Society, 2023) – demonstrating the lack of capacity to support immigration and asylum cases in the South West. With the passing of the Illegal Migration Act 2023, the Public Law Project warns that it will result in an increased demand for advisers and legal caseworkers surrounding immigration and asylum seeking – stretching an already under-capacity sector even more than it is capable of handling. Whilst there have been consultations to increase legal aid fees, there has been a real-time cut by 10% in 2011. Indeed, what is required is more support throughout the legal aid sector, not just in immigration and asylum legal aid providers.
Recommendations
This policy brief calls for action to be done at national and local levels of government. light of the aforementioned points criticising its policy implications, the following recommendations are suggested:
At a national level, the Government to reinstate the application of Section 3 duties under the Human Rights Act 1998 to ensure that individuals at significant risk of exploitation and harm (e.g., victims of modern slavery, victims of human trafficking, and LGBTQ+ people) are identified and provided asylum in the United Kingdom.
At a regional level, local authorities to increase the funding provided to legal aid providers such as law centres. This aims to remedy the ongoing ‘legal aid deserts’ particularly present in the South West of England. In expanding the capacity and availability of legal aid providers, migrants may have a better chance to find legal representation as per the eight-day ‘claim period’ provided to them under Section 42 of the IMA 2023 – an already strenuous and limited time frame.
Moreover, this brief calls for local authorities to, wherever possible, join the City of Sanctuary Local Authority Network as well as commit to becoming a Council of Sanctuary. This ensures that local authorities are better equipped to support individuals seeking sanctuary in the United Kingdom.
This brief calls for local authorities to work towards providing migrants subject to the IMA 2023 with suitable and safe accommodation whilst claims are being processed.
In addition, this also calls for local authorities to, where possible, challenge and campaign against decisions by the national government to house migrants in unsuitable and dangerous accommodations (e.g., the ‘Bibby Stockholm’ in Dorset).
To ensure a collective response campaigning against the Illegal Migration Act 2023, data and information are required. Therefore, this brief also calls for local authorities to keep a record of support provided to individuals with no recourse to public funds in an effort to provide data-driven responses to potential deportations and human rights violations under the Act.
In conclusion, it is of the utmost importance that the Illegal Migration Act 2023 is revisited and revised to respect the human rights of all migrants that arrive in the United Kingdom, regardless of whether they arrived through legal or ‘irregular’ means. The Act risks straining existing legal aid providers, local governments, and the general United Kingdom economy if it comes into full force. With a majority of individuals coming to the United Kingdom using irregular routes being Black and Minoritised individuals, it is particularly important to revisit the provisions of the Act to protect Black and Minoritised migrants who arrive in the United Kingdom. This can also be stated for LBGTQ+ migrants who are subject to the Act.
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