The Illegal Migration Act (IMA) passed the final stages of the Commons and received royal assent on 18 July. It comes into force on Thursday 20 July. Much has already been written about its cruelties, unworkability, illegality and costs. Less well covered is the act’s final destruction of the UK asylum system. The IMA is beyond wanton vandalism – it is the desperate act of a retreating government, intent on mining its defeated battlegrounds prior to fleeing.
The act creates new legal duties for the home secretary to refuse all asylum claims and arrange the removal of people who enter the country without prior permission, or who have passed through a safe country. Only if there are “exceptional circumstances” or if the person faces “a real, imminent and foreseeable risk of serious and irreversible harm”, if sent to the territory specified in the removal notice, may they be reprieved.
Those who fall within the legislation are to be detained with no time limit to their detention (with some exceptions for children and women). Adults are debarred from applying for immigration bail within the first 28 days of their detention. Refugees must be removed as “soon as is reasonably practicable” but there is no definition of what is ‘reasonably practicable’. Unaccompanied children will not be removed until their 18th birthday, nor those trafficked or made slaves – but only while cooperating with criminal proceedings.
No framework for implementation
The provisions are likely to apply to the vast majority of those attempting to seek asylum in the UK. The act will apply to every eligible person from that date. Rishi Sunak has indicated that the law will not be implemented until legal challenges relating to Rwanda have been concluded. So, everyone from Thursday will be subject to the act but will not be deported yet.
None of the arrangements for the act’s implementation are in place. No detention facilities have been procured and initial detention facilities are already overflowing. There is no new guidance for immigration staff, immigration lawyers or immigration advisers (those giving immigration advice must be qualified to do so). There is no assessment tool to determine if new arrivals come under the act or guidance for staff on how to specify the grounds for detention (or not), so staff will be working in a vulnerable legal lacuna.
There are no plans for managing the initial 28 days detention, or what sort of accommodation comprises ‘detention’ in these cases. It is not clear whether those detained can be lawfully kept alongside those who are on bail or are, under current legislation, acting fully within the law. There is no provision for detaining new arrivals from Thursday, but it would appear to be illegal for them to be bailed. There are no instructions for border staff on what to do.
Nor is there a system in place for managing bail applications at the end of the 28 days. These could be dozens from the first day alone and there is no infrastructure or system in place to manage this. Bail applications, which will have to be argued under existing criminal justice legislation, will require lawyers, court attendance and court time, none of which is planned for or resourced. As detainees will have been notified of their likely deportation, they will be deemed a risk of absconding and so bail is likely to be denied. Holding facilities (should they exist) will be full very soon with no prospect of onward removal.
No new immigration rules have been published. Current guidance for asylum seekers is still on the Home Office website without any warning that it is about to change. Today’s grounds for seeking asylum have not changed in readiness for Thursday.
Immigration staff have yet to be prepared for the change or even think through the necessary implementation steps or resources that need to be put in place to achieve it. The immigration inspectorate noted recently that the information for detainees at the immigration reception centres is wrong, misleadingly wrong. If they cannot get right their legal duties and powers and provide accurate advice in a system that has been going for some time (and repeatedly asked to put it right by the inspectorate), there is no possibility that new arrivals on Thursday will be correctly advised. Not only will chaos ensue but the Home Office will be open to legal challenge.
The government initially intended that the provisions would come into force retrospectively from 7 March, from the date of the bill’s commencement in parliament. It said that asylum seekers would be deterred from crossing the Channel if they knew they would be deported and never allowed to settle permanently in the UK.
Since 7 March there has been an unprecedented number of people crossing the Channel and when the government U-turned on retrospective applications last week, there were already 10,000 people who would have been eligible. Not one had been deterred from crossing, primarily because, until their arrival in the UK, they did not know deportation was likely. The UK has made no effort to inform anyone in Calais or anywhere else, of the new policy. If it were to make a difference, it is necessary that people know about it.
A failure on its own terms
The defeat of the Rwanda plan could have provided Sunak with an opportunity to pause and row back from this disaster in waiting. It was already clear that the bill had failed on its own terms in deterring would-be asylum applicants and that the system would be very quickly overwhelmed by the sheer numbers of those coming within its locus.
Last year, 41,000 people crossed the Channel, most of whom would be deported under this scheme. Government refugee and immigration policies have had no impact on the number of asylum applications and people crossing the Channel. To have any impact on the thinking of those seeking asylum, the UK would have to resort to levels of cruelty and violence associated with ‘unsafe’ countries such as Libya or Tunisia.
This may happen but, at present, most refugees still believe the UK is an honourable country that is fair and humane. They will still try and get to the UK, especially if they have family or community here, but they may try different routes and may be prepared to join a growing band of illegal immigrants. The numbers caught crossing the Channel may drop, as they seek other routes, but it will not be because of the act.
There is no time limit on how long people will remain detained or even on bail but ineligible for their claim to be heard and unable to be deported. There are only 1000 places likely to be available in Rwanda and it is not clear whether that will remain an option. If current numbers of refugees arriving in the UK remain broadly similar to today’s numbers, the UK will have tens of thousands of people trapped in an asylum limbo for years – perhaps for life.
In Australia it took 12 years and a change of government before the failed policy was modified. Yet the numbers of those seeking asylum were about a quarter of the UK’s.
Current asylum processing times are four years for those who have been in the system a long time, but closer to seven or eight years for newer arrivals and some have been waiting much longer, unable to work or be self-supporting. Overlaying this poorly functioning system with a parallel system designed to add delay and complicate it with prospective lengthy legal challenges, will collapse it entirely.
Incalculable reputational damage
Despite the law requiring the home secretary to deny admitting an asylum claim for processing, refugee claims will have to be processed, or people released on bail once detention is no longer “reasonable”. How the courts will decide what is reasonable may take some time and it may be many years from now with some challenges along the way, building further delays into the system. However, courts rarely take kindly to Home Office incompetence, and failure to plan or prepare is unlikely to be viewed as a ‘reasonable’ reason for delay or extending timescales.
Suella Braverman and Sunak used the power of a Conservative majority and control of parliament’s timetable to bulldoze through the act in the face of opposition from all parties including their own, and in the full knowledge of its impending failure. They are acting like a defeated army, mining their retreat with explosives, intent on causing maximum damage after their departure.
When the act collapses into a heap of legislative and administrative rubble, this cowardly and vindictive government will simply walk away, leaving the rest of the UK to manage the consequences of their wanton destruction. It will take generations for the UK to retain its reputation as a law-abiding, humane and safe country for refugees.