The court of appeal’s judgment that the Rwanda scheme is unlawful, may provide an opportunity for the government to ditch the illegal migration bill. The Home Office published its impact assessment for the illegal migration bill on 26 June. Much has already been written in the press about the eye-watering costs – £169,000 per person – for those being transferred to Rwanda. This piece explores the impact assessment in greater depth and its implications for further government failure.
Although the Court of Appeal, on 29 June, ruled against the government by rejecting the premise that Rwanda is a ‘safe third country’, the decision may be appealed, or alternative legislation or procedures introduced to make it comply with the court’s expectations.
Objectives of the illegal migration bill
The stated aim of the illegal migration bill is to “prevent illegal migration through the creation of a scheme whereby anyone arriving illegally in the UK will not be allowed to stay in the UK but will instead be promptly detained and removed to their home country or to a safe third country”.
It intends to achieve this aim by: “[deterring] illegal entry into the UK by making it clear that illegal entry will result in detention and swift removal to a safe third or home country … [breaking] the business model of people smugglers and … [removing] those with no legal right to remain in the UK.” It also says that the UK will “set an annual cap” on the numbers who may be offered refuge in the UK; this cap could be zero.
For the bill to justify the costs or further legislative progress it must deter would be asylum seekers, ensure their swift removal and break the business model of smuggling. If deterrence and swift removal succeed and people seeking asylum do not come to the UK, the business model will be broken, at least in so far as it relates to Channel crossings.
Scope and intention
The 2022 Nationality and Borders Act legislated to make those arriving by small boat ‘illegal entrants’ who would be detained and then deported to their own country, Rwanda, or any other country. The bill reworks and strengthens the provisions of the act by making it a requirement on the home secretary to effect removals, making it more difficult for people to appeal decisions made about their removal, and curtailing bail. To underscore its expected ‘deterrence’ impact, the government stipulated that the provisions in the illegal migration bill would apply to all those arriving in the UK after the bill’s commencement (7 March 2023).
The impact assessment is billed as an impact assessment on the illegal migration bill. It is not; it addresses only the Rwandan scheme introduced under previous legislation. The central plank of the bill, the requirement on the home secretary to remove asylum seekers from the UK, is not mentioned in the impact assessment. Future home secretaries may find they are in considerable jeopardy if these measures cannot be legally or practically implemented.
The impact assessment offers only two options for consideration – do nothing (other than continuing with the measures already in place), and implementing the bill. It does not explore or compare the bill’s proposals with other options such as joining with the EU on a Europe-wide resettlement and distribution system or opening safe routes. The underlying policy intention is to deny asylum to all those seeking it. Thankfully, other crueller measures such as pushbacks at sea are also absent.
The impact assessment deals only with the economic costs and benefits for the UK. It does not address the impact of the policy on Britain’s reputational and moral standing, or the costs for refugees and their families.
An underlying assumption of the illegal migration bill and this impact assessment, is that the Nationality and Borders Act (on which the ink is barely dry) is likely to be ineffective in achieving the government’s aims. The act is not included in the financial assessments: “the do-nothing option does not consider the impact of the envisaged system reforms described in the NABA 2022 that are yet to be delivered” and the bill is predicated on the need for stronger powers than those contained in the act.
If the bill is passed and enacted, the government assumes asylum seekers would be detained on arrival and then be deported swiftly to Rwanda (or any other ‘safe’ country that might have them). As deportation would be automatic, the capacity to appeal or contest it would be limited and, it is anticipated, would not hold up removal (elsewhere, the government is proposing a return to the ‘deport first, appeal later’ policy). The limitations on ‘throughput’ would be down to the number of refugees other countries were willing or able to accept.
Estimated costs and benefits are based on the current rising trajectory of arrivals. It assumes asylum seekers cost the UK, not just in terms of immediate accommodation and resettlement but in longer-term costs such as health and education. While refugees are, overall, net recipients of public spending, failing to include future tax contributions or improved GDP/ UK productivity skews the costs.
It assumes, based on current throughput, that it takes four years from entry to initial decision on an asylum application. While this is true for those on whom decisions are being made now, given the numbers awaiting a decision and current throughput, the wait could be as long as seven years for those who entered the UK in the past 18 months or so.
Unknowns, known unknowns and unknown unknowns
The impact assessment is primarily a document of known unknowns and while the known knowns are expertly discussed and detailed, they are largely irrelevant. The impact assessment states: “There are also unknowns in terms of the consequential impacts these plans might have on the behaviour of illegal migrants. These uncertainties have meant this impact assessment has not attempted to estimate the total costs or benefits of the proposal.”
Elsewhere, it calls the proposals “novel and untested” and is unable to estimate “the scale of the bill’s processes [including] detention, case working, judicial and third country capacity constraints… [and the] costs of illegal migration through undetected routes” – in other words the impacts (and their costs) on the whole immigration system remains unassessed.
The document acknowledges that there is some doubt about the likelihood of the Nationality and Borders Act being implemented as intended and today’s appeal court’s ruling must give further weight to that reservation. And, that the efficacy of deterrent measures is unknown and, even if the measures are effective, officials have no idea how long it will take to have an impact, or what will need to be in place during the period in which the measures are not making headway.
Unsurprisingly, they are unable to estimate how much detention and how many deportations will be required before there is an understanding amongst would-be asylum seekers that the only view of the UK they will ever see will be the inside of a prison cell.
The scheme is not entirely novel, in that Australia has a similar model and is the one on which the UK’s scheme is based. It consists of offshore processing, detention prior to removal, refusal to grant asylum or protection, and deportation. It also included pushbacks at sea. The impact assessment discusses the scheme, noting that its ‘success’ was mixed, costly and was not sustained. It also noted other means of arriving (illegal visas) increased.
The impact assessment also discusses (in great and well-researched detail) other measures countries have taken to reduce refugee flows but, excluding Australia and Albania, these measures almost all relate to border security rather than internal mechanisms for dealing with those who were in the country or territorial waters – and are irrelevant to the illegal migration bill.
With respect to Albania, the problem being addressed is primarily that of trafficking and the Albanian government’s limited ability and resources for prevention, or for safe reintegration on return. The UK government now has an agreement with Albania that incorporates developmental and economic aid, structural assistance and advice, and sharing intelligence as well as enforcement measures.
Albania is not directly or readily comparable to countries at war, but it is interesting to note the full range of fair and humanitarian measures the UK government has been prepared to consider. Whereas in respect of refugees from, primarily, Africa and the Middle East, punishment is the only option.
The government’s plan assumes people smugglers understand the UK’s policy change and will adjust their plans accordingly. This adjustment, ministers tell us, will lead to them stopping transit to the UK. The civil servants undertaking the impact assessment think the likely outcome is an increase in undetected routes and refugees disappearing into the UK, unprotected by refugee legislation. The UK economy and post-Brexit labour shortages are already making this an attractive proposition for many.
As noted earlier, the success of the bill (and the Nationality and Borders Act before it) is based on deterring asylum seekers (and people smugglers).
Home Office officials have long known that punitive measures have little impact on refugee flows. The Australian scheme relied on dangerous pushbacks at sea to achieve its aims, and then only temporarily. The level of cruelty and violence required to remove the UK “from asylum seekers’ mental list of ‘safe’ countries” is one that no civilised government should ever contemplate.
The impact assessment confirms officials have no expectation that policy will have a deterrent effect:
“The academic consensus is that there is little to no evidence suggesting changes in a destination country’s policies have an impact on deterring people from leaving their countries of origin or travelling without valid permission, whether in search of refuge or for other reasons. Non-policy drivers of behaviour (for example diaspora, shared language or culture, and family ties) are also known to be strong factors influencing the choice of final destination.”
Measures may increase illegal immigration:
“Changes in policy may also give rise to displacement to other forms of illegal entry, which can act to attenuate policy impacts. If unintended consequences become apparent, Governments may then need to take additional action or introduce new policies to address those.”
It also casts doubt on the likely success of ‘in country’ punitive measures such as “denying illegal migrants the right to work… removal to a state other than the migrant’s origin”.
Deterrent measures have a history of failure and the theory of punitive deterrence in changing or stopping unwanted behaviour is discredited. There is no evidence for it having an impact on those who transgress or the wider public who might, otherwise, be tempted to engage in it. This lack of efficacy is confirmed in the IA.
The bill has failed – even before being passed
The illegal migration bill’s provisions apply to all those who entered the country after its commencement (7 March 2023). Everyone entering after that date may be transferred to Rwanda once legal challenges to the policy have been exhausted and the bill passes into law. The choice of start date for implementation was based on the assumption that transportation to Rwanda would act as a deterrent. It has not.
Government figures indicate that up to and including 20 June, 7,368 potential deportees have crossed; there are likely to be tens of thousands more before the legislation is passed, all of whom may be detained (at a cost of 48,162 per person per annum) and deported, if and when it becomes legal to do so. Rwanda has said it can process and accommodate up to 1,000 refugees during the initial trial period.
Already then, the plan is unimplementable. Within a few short years immigration detention may overtake criminal detention (currently at about 80,000 prisoners in England and Wales). The impact assessment anticipates that detention will cost only £7,000 per person as their cases will be dealt with quickly (less than two months from arrival to departure). Given current Home Office performance on claims progression with a minimum four year backlog, this is totally unrealistic.
In estimating the savings that might be achieved from the policy, the impact assessment assumes that, as now, 85% of arrivals require accommodation support at a per night cost of £85.33 for four years whilst an asylum claim is processed and appeals are heard with an overall cost of £165,000 per asylum seeker. Only if this current failure to process claims efficiently is coupled with an imaginary deterrent effect will the net costs of the scheme come to within the estimated £63,000.
Impact assessment is damning
To compound the nonsense, the impact assessment states:
“If UK asylum processes are improved, the average time under support for individuals would reduce in the counterfactual. If the average time needing support reduced to three years, the level of deterrence that achieves a net incremental benefit of zero increases to 52 per cent. This is because the support costs avoided because of removal are now reduced. If the average time claiming support increased from four years to five years, the level of deterrence that achieves a net incremental benefit of zero falls to 23 per cent. This is because the support costs avoided because of removal are now increased.”
In summary, the government is telling us the illegal migration bill will not deter, will not lead to removal (swift or otherwise) and will offer new opportunities for people smuggling. The backlog of cases the bill has already accrued (the numbers who have crossed the Channel since March) without the legislation even having been passed, is over 7,000 and rises daily, as each new boat crosses the Channel. Of these, 6,000 (and rising daily) people are already liable for lifelong detention as they can never be deported, and the Home Secretary is barred from letting them stay. This is madness, and Rishi Sunak needs to intervene to make it stop. Perahaps, the court ruling may provide him with the get out he needs.