Blog post by Sarah Singer, Senior Lecturer at the Refugee Law Initiative

Some years ago, the Refugee Law Initiative (School of Advanced Study, University of London), together with the Centre for International Criminal Justice (VU University Amsterdam), led a research project on ‘Undesirable but Unreturnable’ migrants.  This explored the complex challenges posed to national and international public policy by excluded asylum-seekers and other migrants suspected of serious criminality but who could not be removed from the territory of a host State. This research revealed a fascinating patchwork of approaches by States as they sought to overcome the legal barriers to removal (most notably human rights non-refoulement obligations) or, even more commonly, practical obstacles surrounding removability, and the domestic measures in place to deal with those who were unreturnable.

The UK’s Illegal Migration Bill, announced by Home Secretary Suella Braverman last week, creates precisely the same challenges as those explored during this research project given the challenges that will inevitably ensue in seeking to remove persons who fall foul of the Bill from the UK. However, they will be felt significantly more acutely given the size of the population being targeted and the immense challenges to their removability in practice. The Bill envisages barring access to the asylum system for anyone entering the UK irregularly, and places an obligation on the Home Secretary to remove such persons from the UK irrespective the legitimacy of their asylum claim.  The immorality of such an approach, and incompatibility with the UK’s international legal obligations, has been heavily criticised. Furthermore, seemingly little thought has been given to the policy challenges posed by the stated aims of this Bill. In this contribution I will outline the core tenets on the Illegal Migration Bill, the foreseen challenges to removability and what our research on ‘undesirable but unreturnable’ migrants tells us about likely short-term approaches that will be adopted by the UK Home Office for those who are unremovable. Ultimately, the regime envisaged by the Illegal Migration Bill seems likely to be unworkable, costly, and ultimately harmful to UK interests.

The Illegal Migration Bill – why removal will not work

The Illegal Migration Bill seeks “to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by requiring the removal from the United Kingdom of certain persons who enter or arrive in the United Kingdom in breach of immigration control” (Clause 1(1)). In an apparent move to deter irregular small boat Channel crossings, the Bill bars anyone who arrives in the UK irregularly from access to the asylum system, from being granted leave to enter or remain in the UK, and from ever settling or obtaining citizenship in the UK, regardless of whether or not they are a genuine refugee. Any asylum or human rights claim will be declared ‘inadmissible’. This denial of access to the asylum system is clearly in breach of the UK’s obligations under the 1951 Convention relating to the Status of Refugees.

The Bill furthermore imposes an obligation on the Home Secretary to remove such persons from the UK (Clause 2). Yet, as noted by Colin Yeo, “[t]he fundamental problem with the legislation is that it does nothing to assist the Home Secretary in actually implementing that duty. It is wishful thinking in legislative form.” My research on the Undesirable but Unreturnable project revealed significant legal and practical obstacles prevented the UK from removing Foreign National Offenders and other groups of ‘undesirable’ suspected criminal migrants. This included legal, primarily human rights, obstacles in removing a person to a country where they may face a real risk of harm. More fundamentally however, my research showed that while human rights are often held up by the popular press as the defining barrier to the removal of undesirable groups such as Foreign National Offenders, in actual fact administrative problems were at the root cause of a large proportion of failed removals.

This Bill seeks to sidestep human rights barriers to removal by declaring as ‘inadmissible’ any asylum or human rights claim brought by an irregular entrant, and denying any right to appeal to the immigration tribunal (Clause 4), effectively denying access to the courts and to legal representation for anyone caught within the terms of the Bill and thus forestalling legal challenges to a removal decision. As regards compatibility with the European Convention on Human Rights, the Home Secretary herself in the Bill declares that “I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights”, effectively stating the incompatibility of the Bill, and removals under it, with the European Convention. Whilst in the short term this may seek to facilitate swift removal decisions, ultimately it is suggested this approach will only leave the Home Secretary (and the UK) open to legal challenge before the Strasbourg Court.

Legal challenges aside, however, the most fundamental obstacle to the Home Secretary implementing this removal obligation are likely to be practical in nature. The Home Office’s track record in removing ‘undesirable’ migrants has been subject to critique for some time, and has deteriorated further in recent years. Enforced returns of failed asylum seekers and other migrants without leave to remain in the UK has fallen year on year since 2012. In 2022 this constituted only 8.5% of failed asylum seekers. Historically, challenges to forced removal of undesirable groups such as Foreign National Offenders included procuring Emergency Travel Documents, cooperating with relevant embassies and, significantly, inefficiency and lack of communication with the Home Office and with their private contractors. These challenges have not gone away. More fundamentally for the persons targeted by the Illegal Migration Bill, it is highly unlikely the Home Secretary will be able to identify a suitable country to remove such persons to.

Irregular entrants to the UK in 2022 were predominantly from five countries – Afghanistan, Eritrea, Iran, Sudan and Syria, all of which currently have asylum grant rates of 80% and above. The Refugee Council estimates that two thirds of all those who made the crossing last year would be recognised as refugees if the UK Government processed their asylum applications. The majority of these individuals have legitimate protection claims and cannot be returned to their home countries. Indeed, the Illegal Migration Bill does not make provision for return to these countries. The Bill includes a schedule of countries or territories to which a person may be removed. Presumably this is the list of countries the Home Office considers ‘safe’ for the purpose of removal. It includes EEA counties and Albania, and some countries further afield such as Brazil, Jamaica, Mauritius, Rwanda and South Africa, though some in respect of men only (namely Gambia, Ghana, Kenya, Liberia, Malawi, Mali, Nigeria and Sierra Leone). What the Bill neglects to address however is the lack of removal agreements in place with any of these countries barring Rwanda which, as we know, which is currently subject to legal challenge and in any case was not designed to facilitate the removal of more than a couple of hundred asylum seekers. The only country which appears on the list and whose nationals constitute a reasonable proportion of Channel crossings is Albania. In legal terms, it is questionable whether someone from Albania with a genuine protection claim can be returned to that country, as to do so would breach the non-refoulement obligation of Article 33 of the 1951 Refugee Convention. The fundamental flaw with the Home Secretary’s plan therefore is an available and willing country to remove such persons to.

In-country responses to unreturnable asylum seekers

In the absence of removal options for those who fall foul of the Illegal Migration Bill, domestic in-country measures will be needed to address the situation of potentially tens of thousands of people caught in legal limbo. Our research revealed an array of State domestic policy responses to undesirable suspected criminal migrants who were not removable. These ranged from grants of temporary residence permits (in countries such as Germany, the UK and Sweden), the use of immigration detention (Australia) or restrictions on leave (France), to a lack of response leading to individuals living as undocumented migrants (the Netherlands). For the relatively small number of suspected criminal migrants to whom such measures were addressed, we found State responses to be often ad-hoc in nature and lacking any structural or long term solutions on how to deal with protracted situations of undesirability and unreturnability.  These issues posed serious policy concerns for States regarding a relatively small number of unreturnable migrants suspected of serious criminality. They are likely to be even more pronounced for the potentially large number of ‘inadmissible’ asylum seekers who are unremovable, do not have a criminal profile and are overwhelmingly seeking international protection. Expanding the breadth of persons considered ‘undesirable’ beyond those with a suspected criminal profile in this way will pose immense policy challenges in practice.

Detention is likely to be the short-term ‘solution’ employed by the Home Secretary. Indeed, detention is given prominence in the Illegal Migration Bill, which makes provision for a wide new power to detain “for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the decision to be made, the removal or examination to be carried out, or the directions to be given” (Clause 11). As Colin Yeo notes, “The detention power applies universally to anyone subject to the duty to remove, including to families with children and unaccompanied children. Existing safeguards introduced to protect families and children are disapplied.”

The UK is unique in Europe in not placing an express time limit on immigration detention. This is covered by common law “Hardial Singh principles”. These principles require that migrants only be detained for a reasonable period in order to remove them and not if it becomes apparent that removal will not take place within a reasonable period. Specific limitations on detaining also attach to certain groups, including a time limit on detaining unaccompanied children, pregnant women and families. It appears that even these relatively modest limits on detention are subverted by the Bill. Clause 11 introduces new powers to detain family members of those who may be subject to the removal duty unaccompanied minors, pregnant women and families with children, who would not be subject to the time limit. Clause 4 further seeks to limit scrutiny of decisions to detain, providing that “In relation to detention during the relevant period, the decision is final and is not liable to be questioned or set aside in any court”. While some routes to challenge prolonged detention may be found, these will be limited and difficult in practice. What is clear is that the Home Secretary hopes to achieve unchallenged incarceration for potentially extensive periods. It is suggested this will prove to be unworkable in practice, immensely costly to the State and damaging for all concerned.

The annual financial cost of operating the UK’s detention system for the year ending March 2022 was around £94 million. The Refugee Council estimates that detaining all small boat arrivals for 28 days would cost the UK government approximately £219 million a year. In fact, the true figure is likely to be significantly more given the lack of prospects of removal of such persons from the UK after 28 days. Furthermore, the Home Office simply does not have capacity at present to detain such large numbers of persons, even if it proceeds with controversial plans to purchase former army barracks to house asylum seekers. The Bill includes increased discretion for the Home Secretary to decide where individuals may be detained, presumably to facilitate the significant expansion of the UK’s detention estate. What is likely to ensue is large numbers of people being housed for extended periods of time in unsuitable, unsanitary conditions and lacking appropriate oversight, as we saw recently at Manston House. Even this expansion, however, will have its limits.

What then? Unable to detain such potentially large numbers of people for such a long period, the Home Secretary will likely be forced to implement a form of temporary leave for unreturnable asylum seekers and other irregular migrants. It may be similar to the Restricted Leave policy in place for excluded asylum seekers suspected of serious criminality and terrorist-related activity. Though the public interest in maintaining protection seekers – including families and children – as opposed to suspected serious criminals on such a punitively restrictive form of leave is highly questionable.

Our research on ‘undesirable but unreturnable‘ migrants showed the immense difficulties States faced in dealing with protracted situations of unremovability. The challenges were often high profile, politically charged, and attracted a disproportionate amount of resource and attention. Given the demographic of protection seekers targeted by the Illegal Migration Bill, and the lack of returns agreements in place, removal from the UK is not likely to be a viable option despite the prominence given to this in the Home Secretary’s strategy. The large numbers of people who will fall foul of this Bill but who will not be removable will pose immense policy challenges for the Home Secretary, magnifying the scale of the existing challenges dramatically. What will likely ensue is a host of in-country measures to address the irregular status of these persons. I have highlighted elsewhere how harmful immigration detention is for the individuals concerned, particularly vulnerable groups. The use of such measures in relation to such a broad swathe of protection seekers as envisaged in the Illegal Migration Bill will also be harmful to the UK’s state interests – it will be immensely costly and damaging to the UK’s international reputation. It is far better for the Home Secretary to expend her energies on establishing safe and legal asylum routes and develop a coherent and humane asylum system rather than sowing the seeds for her own policy nightmare.

The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.