Blog post by Maha Sardar of the Garden Court Immigration Team.
On 20 July 2023, the Illegal Migration Act 2023 (“IMA”) received Royal Assent and so passed into law. Whilst the detail of the Act’s provisions are complex, its message is simple: those entering without permission are not welcome in our home, and will not be allowed to remain. Though technically the Act applies to any person who enters the UK without permission, the clear focus of attention has been on asylum seekers.
In particular, those who are risking life and limb, clambering into ‘small boats’, pregnant with aspirations and hope of refuge, attempting to cross the English Channel. The Act directly targets those who are the most vulnerable and desperate for protection; an egregious violation of both our moral and legal duties to protect refugees. It spells the end of the asylum process as we know it – the UK is pulling up its drawbridges.
The case in support of the Act is not difficult to comprehend; the UK is ‘our home’, we are taking back control and we should decide for ourselves who enters our borders. Any large number of people entering outside official routes is a policy failure. But there is a sense in which this concept of ‘home’ denies that humans were ever nomadic. This idea is rooted in stasis, the policy is one of isolationism; that there is an exclusive identity that belongs only to a defined and bounded group of people. It is an idea of home and belonging that is divisive, differentiating us from them.
The government need to accept a clear and ever-present reality; displacement and relocation are on the rise. More asylum seekers are fleeing from war and persecution than ever before. The UNHCR announced on 23 May 2022 that the number of people forced to flee due to persecution, conflict, violence, human rights violations, and events seriously disturbing public order had reached more than 100 million for the first time on record. The global climate crisis has resulted in an increasing number of people fleeing from extreme weather events such as floods, earthquakes, and droughts. In April, the UNHCR published data outlining that the number of new displacements caused by climate change-related disasters since 2010 has risen to 21.5 million.
The Act’s basic policy is premised upon the notion that the UK is already doing more than its fair share. The argument is that the UK is taking more refugees than it can afford, and that there is no good reason why refugees coming here should not stay in other counties which, inevitably, given the UK’s geographic position, they pass through enroute. The statistics simply don’t support that assertion. As of 2021, when adjusted for population, the UK ranked sixteenth in Europe for the number of asylum applications received, lower than both France and Germany, and lower than the European average. Interestingly, Germany also features fourth in the top 5 countries who host the most refugees worldwide: Turkey, Iran, Columbia and Pakistan are first, second, third and fifth respectively.
In 2022, while the UK was able to clear only 18,699 asylum applications from the backlog, Germany made 197,540 decisions on asylum claims, more than the entire UK backlog. Though not quite as impressive as Germany, France made decisions on 129,735 claims, still vastly more than the UK manages. Against that backdrop, the Act’s premises are questionable. The UK does not take vastly, or indeed any, more refugees than a fair ‘burden sharing’ between safe states would represent. Criminalising refugees and excluding those coming to the UK illegally from protection has had another unintended consequence. As Sarah Champion MP and Chair of the International Development Committee puts it, the UK has been “spending billions of our greatly reduced Foreign Aid budget in the UK - the bulk of it on hotels for the tens of thousands of people awaiting an asylum decision in a horribly backlogged system….” With the implementation of the IMA, these individuals will no longer be characterised as asylum seekers and the current spending on supporting asylum seekers previously sourced from the aid budget overseen by the FCDO would now not be available to the Home Office for this purpose. This is, as Ms Champion states, “a spectacular own goal for the Government.”
The government asserts that those coming to the UK to seek asylum should do so via safe and legal routes. The fallacy of this argument is that there are no such routes for most asylum seekers, and the ones available clearly discriminate in favour of our European neighbours [1]. While accompanied by gestures in the direction of opening new resettlement routes, those routes are yet to materialise. The UNHCR confirms that almost 90% of refugees globally originate from countries where it would be impossible to travel to the UK without deviation due to a lack of direct flights. That many of these refugees reach the UK without permission simply reflects that there is no way for them to come here with permission. It is also symptomatic of their circumstances: fleeing from civil war, persecution from the state or human trafficking. There is an inherent cruelty therefore to suggestions (both Suella Braverman and Boris Johnson have used the phrase) that the Act is needed to stop refugees from ‘jumping the queue’. For most refugees, there is simply no ‘queue’ to jump.
So, what of the asylum seekers caught by the Act’s effective asylum ban? The Act is clear that they are never to be given permission to stay here; their asylum claims are not to be considered at all, as they will be deemed inadmissible (s.5 IMA). Whilst in the UK they will not be given permission to work or to reunite with family members. The Secretary of State must make arrangements for their removal as soon as is reasonably practicable (s.6.1 IMA). They cannot be sent back to their homes [2] (as we will refuse to assess whether they will be safe) and are not welcome in ours. They will be sent instead to any ‘safe third country’, against their will, that will agree to have them (s.6 IMA). Recent evidence is not encouraging that the government will prove able to negotiate effective schemes to achieve this end. The Rwanda scheme has most recently floundered before the Court of Appeal [3]. Such refugees will be left indefinitely and, absent further legislative intervention, permanently in a dehumanising state of limbo.
Much of the Act is concerned to insulate decisions in the immigration field from judicial scrutiny. Since the declaration of an asylum or human rights claim as inadmissible is not a refusal of such a claim, it will not attract a right of appeal (s. 5(4)). Decisions to detain foreign nationals are now protected from judicial oversight to an extent that the Court of Appeal in 2007 described as a substantial erosion of the common law’s protection of human liberty [4]. Victims of trafficking who enter the UK unlawfully – even where, as one might expect, their entry to the UK is itself part of their trafficking – are excluded from the protection previously afforded to all trafficking victims [5].
On 12 August, another six people died attempting to make the English Channel crossing. They were Afghan men. We do not know the reasons why they risked their lives to come to the UK; their deaths prevent that. Whatever their reasons, they were enough to make these men willing to risk death to make this final stage of their journey, to seek safety and a new home in the UK [6]. Our sense of home, of belonging, may be where our journeys begin, but due to the exigencies of circumstances people have always sought safety in new homes. We must not forget that the modern world was shaped by Europeans carving out displaced homes for themselves across the globe. The UK government’s plan to stop future tragedies on the Channel is to hope that the IMA poses a greater deterrent to making the crossing than is already posed by the risk of capsize and death. Whilst we face the real challenge of withstanding the growing sense of displacement that is the consequence of an ever-mobile population, we must as a society find a way to tackle this with tolerance, synthesis, and mercy. This can only be achieved by reinstating the fundamental right to seek refuge, without discrimination, and regardless of how individuals reach our shores.
My homes are now derelict
A dingy with no soul in it
But I’m no sentimentalist
I came with a wish list Equipped to conquer it
Not White enough for her shores
Rwanda becomes of it
The dingy has lost control
And we so desperately peddle it
But the waves are out of control
And as we grab the paddle it
Succumbs to the channel
If I had energy I’d channel it
But the journey has been too long
And an ending would end it
We call the coast guard
But it’s his coast, he’s just guarding it
The sea swallows us whole
And the ocean water I swallow it
The taste of salt is bitter
A final test and I’ve failed it
Our sin, our desire To survive
and that was it
There’s no mercy left in this world
The only mercy is that we’ve left it.
Words taken from the poem ‘Derelict’ written by my cousin, spoken word artist, Nouri Sardar. Visit here for the full poem.
Notes
[1] Resettlement routes are available for Ukrainian, Afghan and Syrian nationals. The latter two routes are objectively less generous than the schemes in operation for Ukrainian nationals. See also AB v SSHD [2023] EWHC 287 (Admin) where the Court held that there is differential treatment between Afghans and Ukrainians on the basis of nationality in the context of the resettlement routes.
[2] Unless the country is listed in s 80AA(1) NABA 2022 as amended by IMA 2023 (the EEA states and Albania)
[3] AAA v Secretary of State for the Home Department [2023] EWCA Civ 745
[4] R (A) [2007] EWCA Civ 804 paras 71-72, Keene LJ.
[5] Ss. 22-25 IMA 2023
[6] The UNHCR highlights that in 2021-2022, the most common nationalities of people arriving in the UK across the Channel were Iran, Iraq, Eritrea, Syria, Afghanistan and Albania. In each of these years, Afghanistan, Syria, Iran and Iraq were among the top 5 nationalities, which are major refugee producing countries.
