In a recent move, the UK Home Secretary Suella Braverman has tabled a Bill before the ¹House of Commons that deals with curbing illegal migrants in the country. The Bill, which is known as Illegal Migration Bill focuses on removing persons from the country who have entered or arrived in breach of immigration laws of the country. This Bill deals with the persistent problem that the UK is facing related to illegal immigrants entering the country using small boats. These immigrants come to UK and when they are caught by the law enforcement agencies, they seek their asylum rights or other protection claims. By doing this, such individuals get the right to stay in UK and cannot be removed. Hence, with the rising population of illegal immigrants, the Bill seeks to curb such practices and create a deterrence effect. Therefore, in this article, the major features of the Bill are discussed.  The article further discusses the criticism that the Bill has gained by several scholars and human rights activists. 

Duty to make arrangements for removal

Under this Bill, it is the duty of the Secretary of the State to make arrangements in regard to the removal of an individual from the UK, only in specific cases. The conditions are exhaustive and as follows-

a) The individual who is seeking to be removed entered the UK without adequate permission, valid entry clearance certificate, or electronic travel authorisation or has performed deception in seeking travel permission. 

b) The person who is seeking to be removed has entered or arrived in the UK on or after 07th March 2023.

c) That the individual who has been caught did not come directly to the UK from a country where the person’s life and liberty were threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion. This means that a person is considered to have an opportunity, in such cases, to stay in another country, when such an individual has passed through or stopped in another country before coming to the UK; and

d) That the individual who is sought to be removed was required to have leave to enter or remain in the UK but did not have it. 

Conditions of removal of the person

These above-mentioned four conditions are mutually inclusive, and it is required that all the conditions have to be fulfilled before any person is sought to be removed. Moreover, as per section 3 of the Bill, the application of section 2(1) in regard to the removal of a person does not apply in such a case where the individual who, although qualifies for all the four conditions mentioned above, is an unaccompanied child. A person is considered to be an unaccompanied child when such person is under the age of 18, and at the relevant time, the individual was not in the care of any person who was aged 18 or above. So, even if an unaccompanied child meets all four conditions mentioned in section 2, such a person would still not be removed from the UK.  

Additionally, as per section 7 of the Bill, the person would not be removed from the UK unless a person has been given a notice of removal by the immigration officer, and within the such notice, the details of the country or territory where the person is to be removed is duly mentioned. Moreover, the person cannot also be removed unless the claim period regarding making serious harm suspensive claims and factual suspensive claims have expired.  Factual suspensive claims mean a claim made by a person to the secretary of State contending that there has been a mistake of fact in deciding that the person who has claimed has met the conditions of removal provided under Section (2) or (3). Similarly, suspensive claims deal with a situation where a person who is seeking to be removed is being sent to a third country where such a person faces a real risk of serious and irreversible harm. In such a case, the person can raise a claim; and unless the claim is decided, the person cannot be removed. 

Time frame and place of removal of the person

The individual who is sought to be removed from the UK as per section 2 shall be removed as soon as is reasonably practicable after the person’s entry or arrival in the United Kingdom. However, in the case of an unaccompanied child, the person can only be removed in a reasonable period when he/she has ceased to be an unaccompanied child. Before that, such a person cannot be removed. Further, as per section 5 of the Bill, a person who is seeking to be removed would be removed to the country where the person holds citizenship or nationality. Other than that, the person can also be removed to a country or territory where the person has obtained a passport or other identity document. Moreover, the section also provides the removal of the person to a country or territory in which the person embarked for the UK. Lastly, the person is also permitted to be removed to such a country or territory to which there is a reason to believe that the person will be admitted.  The section also provides certain exceptions that deal with those countries where particular persons cannot be removed. These exceptions would function on the case to case basis. 

Detention of the person

As per section 11 of the Bill, an immigration officer can detain a person if he suspects that the particular person meets the four conditions provided under section 2 of the present Bill. The person can be kept in detention until the decision is pending regarding the meeting of conditions. Similarly, a person can be detained when the immigration officer suspects that the Secretary of State has a duty to make arrangements for the removal of the person from the UK and during that time, the decision is pending regarding whether the duty applies. Other than that, the person can also be kept in detention when the Secretary of State has the duty to remove the person. So, until the person is removed or the process is pending, the person can be kept under detention. In similar cases, the relevant family member who also falls under such situations can be kept in detention. 

Human Rights claim and other claims

Under section 4 of the Bill, it is clearly stated that when such four conditions are met, and the individual is not an unaccompanied child, such individual shall be removed irrespective of whether the person makes any human rights claim, asylum claim, or protection claim. It is the duty of the Secretary of State to make such claims inadmissible. Moreover, once the protection or human rights claim is declared inadmissible, it cannot be considered under the immigration rules. Further, no right to appeal or judicial review is provided to an individual when such claims have been dismissed. Although such persons who claim these rights would not be returned to their home country where they have fear. Returning to the home country when a person is in fear would only be an exception. Other than that, these people would rather be transferred to another safe country but cannot be kept in the UK. Nonetheless, there is no absolute ban by the UK on offering sanctuary to the refugees, however, such offerings would only be limited to those individuals who enter the country by safe and legal routes, and further, there would also be an annual cap where a particular number would be decided to which the UK can offer sanctuary. 

Critical Analysis of the Bill

The United Nations High Commissioner for Refugees (UNHCR) has criticised the Bill and gave a statement that “The effect of the bill [in this form] would be to deny protection to many asylum seekers in need of safety and protection and even deny them the opportunity to put forward their case. This would be a clear breach of the refugee convention and would undermine a longstanding humanitarian tradition of which the British people are rightly proud.” Therefore, the UNHCR is of the view that they cannot create a blanket ban on accepting asylum pleas as this is against the Refugee Convention, 1951. Further, when the Bill was tabled, the Home Secretary has clearly mentioned that the Bill does not comply with European Convention on Human Rights and other international human rights laws. Jonathan Jones, a former government lawyer, stated, “The government itself accepts the bill may well breach a whole toxic soup of ECHR rights (life, torture, slavery, fair trial, detention, family and private life, discrimination, right to a remedy).² Further, Enver Solomon, CEO of the charity Refugee Council has argued that the Bill does not cater for any human rights. Enver stated that “The government’s new legislation ignores the fundamental point that most of the people in small boats are men, women and children escaping terror and bloodshed from countries including Afghanistan, Iran and Syria”³ and from many other individuals. Seemingly, those people who are in support of the Bill have initiated a newer debate. Now, the prime minister is under pressure from the Tory members in the parliament who are demanding that the UK should disengage itself from European Convention on Human Rights. Simon Clarke, who is a former minister, has noted that the “UK must leave the ECHR if the new bill aimed at tackling small boat crossings does not work. We all hope this legislation will succeed, but will she promise that if it is frustrated by the European convention on human rights that we will commit to leave it? Because leave it we must, if in the end this legislation is forestalled”. Similarly, another conservative politician, Bill Cash, has supported this Bill and has held that the Bill is in the right direction.⁴ 

Conclusion

Currently, the Bill is at the very initial stage and has only completed 2nd reading in the House of Commons. The Bill has yet to go through the reading stage in the House of Lords, and resultantly, the royal assent is not near-sighted. Therefore, the fate of the Bill is yet to be decided. However, at present, the government is very determined to make this Bill a law, as they are considerably putting efforts into reducing and prevent illegal migration in their country. Seemingly, the Bill might have to be amended as, at present; it does have many human rights and technical issues which must be considered. This Bill would become a precedent for other countries which are facing a similar problem. Hence, it is required that a Bill should be complacent to the rule of law and must reflect the will of the people, keeping in mind the human rights of not just the citizens but every individual in the society. Thus, passing this Bill as well as gaining international support would be a difficult task for the government. Therefore, it would be a testing time for the UK and its international position on human rights.