By Bridget Anderson.
The Athenian Laws introduced by Draco c. 621 BCE were said to be written not in ink but blood. This government’s Illegal Migration Bill currently going through the UK Parliament, is draconian. It is aimed at people who arrive irregularly – people who the government calls ‘illegal migrants’, but who might better be described as illegalised migrants. There is not some pre-existing category of illegal people who migrate, rather people are illegalised by borders and thereby rendered vulnerable to state and personal power.
The Bill places a duty on the Home Secretary to make arrangements to remove people who do not arrive via state approved routes (backdated to 7th March 2023) and who have not come directly from the country they are fleeing. The Home Secretary also has a duty to rule their asylum and certain human rights claims inadmissible. Because they are ruled inadmissible rather than refused there is no right of appeal. These people will be permanently banned from claiming asylum and from the removal protections of the Modern Slavery Act. They are an ‘ineligible person’ meaning they will never be eligible for any form of legal status or citizenship, or legal entry to the UK and neither will their family members including children yet to be born.
People falling under this legislation will likely be detained for 28 days, which can be extended if the Secretary of State believes there is a ‘reasonable prospect’ of removal. There are three options for where they will be removed to. If they are from EEA countries or Albania they will be returned to their country of origin. If they are not from those states, they will not be returned to their country of origin, but, if there is an appropriate returns agreement, to the country which they left before coming to the UK. However, UK geography means this is likely to be France, so this is not currently an option. (In her response to the Bill suggesting the Labour Party’s direction of travel, Shadow Home Secretary Yvette Cooper made it clear that negotiating a returns agreement with France and other European countries would be a Labour Government priority). Non-EEA/non-Albanian nationals will therefore be sent to other states listed in the schedule of the Bill (note some of those listed are deemed appropriate only for men). The list includes Rwanda. As yet, there are no removal agreements with any of the other countries on that list.
The Bill’s preface acknowledges that its provisions may not be compatible with the European Convention on Human Rights. It is likely to be not compliant with the Council of Europe Convention on Action Against Trafficking in Human Beings, and the UN Refugee Agency has asserted that it is in breach of the Refugee Convention:
‘The legislation, if passed, would amount to an asylum ban – extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how genuine and compelling their claim may be, and with no consideration of their individual circumstances’ (UNHCR, 7 March 2023).
The UK is effectively slamming the country shut to all those fleeing war and persecution, regardless of their circumstances. This is an end to the asylum system as we know it. Asylum seekers do not typically fly to the UK directly from their countries of origin – not least because years of carrier sanctions have closed that possibility. Most apply via the UK’s in-country application process having made long and dangerous journeys through several other countries. Should this Bill become law, the principal means of being granted refugee status will be via specific government-approved routes. The Bill requires that the Home Secretary set an annual cap on the numbers of people entering through these so-called ‘safe and legal routes’. The UK government may have set out ‘legal’ routes, but they are not necessarily ‘safe’. The MoD recently had to apologise for telling applicants to the Afghan relocations and assistance policy scheme (ARAP), which relocates MoD approved Afghans at risk of reprisals for working with the UK government in Afghanistan, that their documents needed to be approved by the Taliban to be successful.
There has been a chorus of criticism directed at the Bill. The opposition Labour Party is leading the charge with claims that it is unworkable and will not achieve the objectives of stopping the ‘small boats’. Human rights organisations, charities, religious groups and some lawyers are also challenging the ethics of the Bill – ‘cruelty without purpose’ as the Archbishop of York described it. Sections of the commentariat argue that whether it achieves its aims is a secondary issue (see, for example, The News Agents 2023; Dunt 2023). As Colin Yeo’s helpful analysis of the Bill puts it: ‘It is wishful thinking in legislative form.’
This is performance and the government is looking for a pre-election ‘wedge issue’. The Bill is cunningly drafted in such a way as to make legal challenge both difficult and limited. But challenged it will be, and we can anticipate more attacks on ‘lefty lawyers’ scapegoated for making unworkable legislation well, unworkable. The Explanatory Notes to the Bill set out the number of asylum claims (74,751 in 2022) in clause 9, followed by the ballooning cost of the asylum system (now £3 billion annually) in clause 10. But the cost of the system is not rising simply because of increasing numbers of claims, and there is no reason to think that this legislation will reduce costs.
Meanwhile, it is worth pausing to reflect on the irreparable harm to thousands of people that will be done by this performance piece. Forcible removals of desperate people will require systematic and institutionalised violence. The Home Office has said that ‘Using force on children in family groups may, unfortunately, be necessary if a family is resisting removal.’ There will be a new category of ‘ineligible person’ begging on our streets, permanently shut out of labour protections and services, and this status will be passed on from parents to children. It is estimated that there are over 200,000 undocumented children in the UK, many of whom were born here. This Bill will significantly add to this long-term undocumented population. Should a future government not repeal this Bill large numbers of people will be consigned to illegality, with all the vulnerability and potential for abuse that entails, for their entire lives.
Claims of unworkability sidestep the question of whether workability is desirable. Do we want removal agreements so that people can be efficiently sent to countries with which they have absolutely no connection? Sustained pressure must be put on the Labour Party, should it come to Government, to commit to repealing the entirety of this Bill and to mitigating the harms it will have already done. At a minimum this would mean regularising and expediting the asylum claims of all those caught up by the Bill wherever in the world they may be. This is not only because it is a vicious attack on the rights of people seeking to enter the UK, but it is also an attack on our shared futures. It attacks the rights of future children, and anyone who falls in love with them or wants to work with them or otherwise wishes to spend time with them in the UK. It undermines the global refugee regime. It will create a super exploitable workforce. It will exacerbate divisions in an already divided country. We are already seeing an increase in the criminalisation of those deemed to be assisting undocumented migrants, and more burdensome documentary checking required across employers and the public sector, with all of the racism that stokes. As the undocumented population increases, arguments for ID cards will sound more reasonable. The current government is good at three-word slogans. I have one for them: Stop The Bill.
Bridget Anderson is Director of Migration Mobilities Bristol and Professor of Migration, Mobilities and Citizenship in the School of Sociology, Politics and International Studies, University of Bristol.
Further resources for understanding the impact and ramifications of the Illegal Migration Bill can be found on our webpage here, and a recording of our online emergency discussion about the Bill on 31st March can be seen here.