The Illegal Migration Act 2023 is now law and poses a serious threat to children's rights, the child protection framework in the UK and to local authorities whose duties will inevitably clash with the new provisions once they are brought into force.
What is in the act?
The act contains a series of broad measures across the immigration system, including asylum, immigration, nationality, trafficking/modern slavery, detention, and care/accommodation. There are some specific clauses on claims and the care of unaccompanied asylum-seeking children.
The act contains the following:
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A new duty to remove newly arrived unaccompanied children from the UK once they turn 18
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The power to remove newly arrived unaccompanied children before their 18th birthday in certain circumstances
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The disqualification of many people from claiming asylum depending on their journey and method of arrival, including children
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The disqualification of many people from the protections we afford to victims of trafficking and modern slavery, including child victims
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New powers to put unaccompanied children in detention beyond the existing 24-hour limit (although limitations have been added since the original bill was published)
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New powers for the Home Office to accommodate newly arrived children (e.g. in hotels or other accommodation)
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A blanket prevention of those who are barred from claiming asylum or receiving protection under our anti-trafficking laws from ever being granted a form of leave (apart from in certain circumstances)
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Some changes to age assessments, including on the right to challenge an age assessment for newly arrived children.
When will it apply?
It is important to remember that most of these provisions are not yet active and will only become so when the government writes regulations and brings them into force.
The timetable for that happening, however, is unclear. This leaves a confused situation. Rules relating to entry, leave to remain, settlement and citizenship are in force, and retrospectively apply from 7 March 2023 – the date the bill was published – but most others do not. Some parts came into force on 20 July 2023, but dates are also liable to be changed and may apply for later arrivals only.
In practice, it appears that this means that if a child arrived on or after 7 March 2023 by irregular means and did not travel directly from their country of origin, they will not be granted immigration status except in limited circumstances. There will be some form of limited leave for unaccompanied children when they are under 18 and some other specific circumstances.
Powers to accommodate
The Illegal Migration Act 2023 does not amend The Children Act 1989. Local authority duties toward children under that legislation still apply. The act also makes clear that the Home Secretary is not the corporate parent of a child in her care. So it creates a complicated picture.
The sections of the act that relate to care are not yet in force and though we do not know when it will be brought into force, we know that it will not apply to children who arrived in the UK prior to 20 July 2023.
The act makes provision for the care of “unaccompanied migrant children” – a definition that covers newly arrived unaccompanied children from 20 July 2023/later date to be confirmed. The Home Office will have the power to direct the transfer of children between Home Office and local authority accommodation. It is not clear how the power for the Home Office to remove a child from council accommodation will work in practice. The Home Office can provide “other types of support”, but it is unclear how removing a child from care would work with the local authority's Children Act 1989 duties.
Duty on councils
The act imposes a duty on councils to provide information to the Home Office relevant to individual children and introduces the ability for the Home Office to obtain an order to ensure that a local authority complies with transfer requests for children and share the information demanded. Again, details of how this will work in practice are not yet clear.
The act also presents significant concerns for devolved matters in Scotland, Wales and Northern Ireland, including local authority care of children and modern slavery and trafficking legislation.
Although the act represents a wholesale attack on the UK's child protection framework and child rights legislation, it is important to keep in mind that most of the provisions in the act are not in force. The Prime Minister's spokesman stated that they would not be able to implement the act's full powers until knowing the outcome of legal challenges around the Rwanda policy. There are likely to be significant legal challenges, both from an immigration and care perspective, soon.
