October 2023 – Illegal Migration Act

The Act requires the Home Secretary to remove as soon as possible anyone who meets the following four criteria:

Enters the UK in breach of immigration law

On or after the day on which the Act was passed

Did not come from a country where the life and liberty were threatened because of their race, nationality, religion, membership of a particular social group or political opinion and

Requires leave to enter or remain but does not have it

The duty to remove applies regardless of whether a person claims asylum, makes a human rights claim, says they are a victim of trafficking or modern slavery or applies for a judicial review of the decision to remove them.

Those meeting the above criteria will be subject to removal to either third countries such as Rwanda or back to safe countries if they come from one of those listed under Schedule 1 – such as Albania.

The Act aims to prevent the suspension of removal in most circumstances unless a person can show that they face serious and irreversible harm in the third country to which the home secretary plans to remove them. This does not apply if a person is from a Schedule 1 country. A person may be detained pending a decision about whether they meet the above criteria, pending removal or a decision to grant leave to those who do not meet the criteria. This can include unaccompanied minors and pregnant women, although in the case of pregnant women, there will be a standard 72 hour time limit (with specified cases being held a maximum of 7 days with ministerial authority). The power to detail unaccompanied children will also be subject to time limits but these will be set in regulations that have yet to be published.

It is important to note that in most cases of detention, the court determines for itself whether the detention has breached principles laid out in previous caselaw such as whether the period of detention is reasonable in all the circumstances or whether the Secretary of State has acted with reasonable diligence and expedition to effect removal. Under the Act the role of the court is limited to reviewing the legality of the decision to detain in terms of whether it was reasonably necessary.

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