Immigration Blog: Section 2 of the Illegal Migration Act - Duty to Remove

The duty to remove under s. 2 of the Illegal Migration Act 2023 (‘IMA 2023’) is the latest incarnation of the current UK government’s commitment to stop migrants crossing the Channel.

The duty is not yet in force [1], and there are serious doubts as to whether the provisions will ever come into force. Due to the way in which the duty is currently drafted (and absent further exemptions), it will apply to some tens of thousands of people. It is difficult to see how removal on such a mass scale could ever be workable, but the concept seems particularly illusory, given the lack of functioning and lawful returns agreements with other countries willing to accept those to be removed in place.

The Illegal Migration Bill was first published in March 2023 in the wake of the judgment in AAA and Ors v SSHD [2022] EWHC 3230 (Admin), in which the Divisional Court found lawful the UK government’s flagship Migration and Economic Development Partnership with Rwanda, aimed at removing asylum seekers to the East African country for their claims to be determined there. The judgment has since been emphatically overturned both by the Court of Appeal ([2023] EWCA Civ 745) and the Supreme Court ([2023] UKSC 42), on the basis that Rwanda is not (at least currently) a safe third country for the removal of asylum seekers. As a result, the UK government is again left without a viable returns agreement with any third country, and as a result, the duty to remove is unworkable.

Despite our serious doubts as to whether the provisions will ever come into force in their current form, this blog post provides an overview of the duty to remove and a number of important ancillary provisions.

When does the duty to remove apply?

S. 2 (once in force) imposes upon the Secretary of State a duty to make arrangements to remove a person from the UK where they meet the following four conditions:

• Condition 1: they entered the UK without immigration permission (in circumstances where they required it).
• Condition 2: they entered the UK on or after 20 July 2023 (when the IMA 2023 received royal assent). S. 3 provides that this date may be changed and is likely to, should the duty ever be enforced.
• Condition 3: they did not “come directly” from a country in which the person’s life or liberty were threatened by reason of their race, religion, nationality, membership of a particular social group, or political opinion. Notably, and contrary to established international law principles [2], this condition extends to those who have spent any time by merely passing through or stopping in another safe country.
• Condition 4: they require leave to enter or remain, but do not have it.

Are there exceptions to the duty?

Yes. There are currently three exceptions (or rather suspensions) to the duty to remove. The Secretary of State has a power to expand, by way of regulations, the categories of people who are exempt from the duty to remove, but there has, as of yet, been no concrete indications on the use of this power.

Unaccompanied minors – s. 4 IMA 2023

The duty to remove is suspended for unaccompanied children [3] until the child turns 18 [4].

While not a duty, the SSHD retains a power under the IMA to remove unaccompanied children (who meet the s. 2 conditions) in the following prescribed circumstances [5]:

• Removal is for the purpose of family reunion with a parent;
• Removal is to the child’s country of nationality provided this is an EEA member state or Albania;
• Where the child has not made a protection or human rights claim, they can also be removed to the country they embarked from prior to entering the UK (most likely France, in cases where the child crossed the Channel by boat); or
• In other circumstances specified in regulations made by the Secretary of State. While the explanatory memorandum to the Bill indicates that “as a matter of current policy this power will only be exercised in limited circumstances” [6], the government’s policy position is ever shifting, and the Secretary of State is afforded a worrying wide discretion to expand the circumstances in which unaccompanied children may be removed from the UK.

Victims of trafficking – ss. 61/62 Nationality and Borders Act 2022 and s. 22 IMA 2023

The duty to remove generally applies to victims of trafficking. It is temporarily suspended where a potential victim of trafficking is cooperating with law enforcement agencies in connection with the investigation, or prosecution of an offence relating to their history of trafficking, and the Secretary of State considers that it is necessary for the person to be present in the United Kingdom to provide that cooperation.

ECtHR interim measures – s. 55 IMA 2023

Since the ‘Rwanda litigation’ referred to above, the Secretary of State has a particular bee in his bonnet about the so-called Rule 39 interim relief measures granted by the European Court of Human Rights (‘EctHR’). The Claimants in AAA and Ors who were subject to removal from the UK to Rwanda in June 2022 succeeded in resisting removal at the eleventh hour, on the basis of a Rule 39 interim measure that the EctHR had granted to one of the Claimants in the afternoon on the day of the scheduled flight.

Despite the EctHR’s decision to grant the interim measure having recently been vindicated by the Supreme Court’s decision that Rwanda in fact was ‘unsafe’, the IMA 2023 weakens the effect of any interim measure granted by the Strasbourg Court.

The presence of an interim measure against removal does not in itself provide an exception to the removal duty. Instead, the duty to remove is only displaced where, firstly, an interim measure is in place and, secondly, a Minister of the Crown has personally determined that the duty does not apply in relation to the person. Matters of particular relevance include whether the UK government had an opportunity to make representations, the likely duration of the interim measure, and the timing of any substantive determination of the matter by the Strasbourg court. We look forward to challenging the decision by a Minister of the Crown not to disapply the duty to remove in circumstances where the ECtHR found that removal would be contrary to the European Convention on Human Rights.

How will a person subject to the removal duty be able to challenge removal?

The answer is different depending on the Secretary of State intended destination of removal: the person’s country of origin or citizenship (where they are from an EEA member state or Albania) or a ‘safe third country’. This blog post is limited to dealing with removals to ‘safe third countries’.

Where the removal duty applies, the SSHD has to declare any protection or human rights claims concerning the person’s country of citizenship or origin inadmissible to the UK procedures. The effect is that there will be no substantive consideration of the person’s protection claim in the UK and no right of appeal to Immigration Tribunals. As the duty to remove will apply to the vast majority of asylum seekers in the UK, these IMA 2023 provisions – as warned by the UNHCR [7] – essentially extinguish the right to claim asylum in the UK.

A person subject to the removal duty can still claim that their removal to a proposed third country would breach their human rights. However, the remedy for such a claim would only be by way of a non-suspensive judicial review - which means that removal would not be suspended while the proceedings are ongoing. In other words, the person might be removed before the judicial review has concluded.

Removal would only be suspended in very limited circumstances – where this would cause serious irreversible harm. The IMA 2023 introduces a new statutory remedy to assert that removal would cause such harm and ought to be suspended. This is called a ‘suspensive claim’. The time limits for such a claim are very short. You have just eight days from service of the removal notice [8] – albeit that the SSHD may extend this period [9].

In addition, the grounds for bringing such a claim are very narrow. You have to argue that before the time it would take to make a human rights claim, receive a decision, and bring a judicial review, the applicant would face a “real, imminent and foreseeable risk” of serious and irreversible harm if removed to the third country.[10]

Serious and irreversible harm may include a real risk in the third country of (a) death, (b) persecution, (c) Article 3 harm, or (d) onward refoulement to a country where there would be a risk of equivalent harm [11]. Although this is not an impossible burden, it is clearly a high threshold to reach.

As a result, individuals wishing to rely on this type of claim will need very quickly to gather compelling evidence of risk, including expert evidence. The pressure this will put on already under-funded legal aid providers is clear.

Notes

[1] In accordance with the relevant commencement provisions of the IMA 2023 in s. 68(1), the Secretary of State may appoint the day of the commencement of the provisions through regulations. Hitherto no implementing regulations have been made.

[2] In international law, it has long been understood that a person who briefly transited other countries can still be considered as having “come directly”. See also: UNHCR recommendations on the implementation of the IMA.

[3] s. 4(1) IMA 2023

[4] In accordance with s. 2(7) IMA 2023, condition 4 – that the person requires leave to enter or remain and does not have it – applies even where an unaccompanied minor was granted any limited leave to enter or remain given under the immigration rules.

[5] s. 4(3) IMA 2023

[6] https://publications.parliament.uk/pa/bills/cbill/58-03/0262/en/220262en.pdf, para 48

[7] https://www.unhcr.org/uk/media/unhcr-legal-observations-illegal-migration-bill-02-may-2023

[8] S. 42(7) IMA 2023

[9] S. 42(6) IMA 2023

[10] Ss. 39(3) and (9) IMA 2023

[11] S. 39(4) IMA 2023