Legal Update: Illegal Migration Bill
Marianne Lagrue
Tuesday, April 25, 2023
Marianne Lagrue, policy and programmes manager in the Migrant Children's Project at Coram Children's Legal Centre, assesses the Illegal Migration Bill's impact on children and agencies.
A new set of laws concerning asylum and immigration in the UK, the Illegal Migration Bill, is currently passing through parliament. This controversial legislation poses a serious threat to children's rights, the child protection framework in the UK and to local authorities whose duties will be put on a collision course with immigration policy.
The bill is not yet law. However, if it is voted through parliament in the coming months, then once it is enacted some of the measures will operate retrospectively to those who arrived on or after 7 March 2023.
What is in the bill?
The bill contains a series of broad measures, and some specific clauses on the care of unaccompanied asylum-seeking children. Almost all of the broad and punitive measures in the bill apply to children, including unaccompanied children. These include:
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Making it impossible for almost any person arriving in the UK without prior permission on or after 7 March 2023 to subsequently claim asylum
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A new duty to remove unaccompanied children from the UK once they turn 18, and the power to do so before their 18th birthday
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The power to bring back (and hugely expand) the routine detention of families, which was effectively ended in 2014
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New powers to put unaccompanied children in detention beyond the existing 24-hour limit
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Giving the Home Office powers to accommodate children (e.g. in hotels)
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Giving the Home Office a new projected power to terminate a child's “looked after” care status
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Disqualifying many people from the protections we afford to victims of trafficking and modern slavery, including child victims and the children of victims
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Preventing those who are barred from claiming asylum or receiving protection under our anti-trafficking laws from ever being granted any other form of leave or citizenship in the UK. This would also apply to the children of those individuals, including babies born in the UK in the future with an entitlement to British citizenship.
Home Office powers
The bill does not amend The Children Act 1989, and as such local authority duties toward children under that legislation still apply. The bill also makes clear that the Home Secretary is not the corporate parent of a child in her care. Instead, clauses 15 to 20 of the bill introduce a competing set of legislative duties.
Clauses 15 to 20 purport to “make provision for the care of unaccompanied migrant children in scope of the duty pending their removal as adults or if it is decided to use the power to remove as a child”. Clause 15 gives the Home Office formal power to accommodate children, putting into primary legislation the power the Home Office has effectively been wielding since 2021. In total, 4,600 children have been accommodated in such hotels since the practice began in June 2021, and 444 missing episodes have been recorded.
Clause 16 introduces a new power for the Home Office to direct the transfer of children from Home Office and local authority accommodation, and vice versa. Worryingly, this clause contains a power for the Home Secretary to terminate a child's looked-after status. Clause 17 imposes a duty on local authorities to provide information to the Home Office relevant to individual children. Further to these, clause 18 introduces a new enforcement mechanism to ensure that local authorities comply with transfer requests for children and share the information demanded.
These clauses are a wholesale attack on the UK's child protection framework and child rights legislation. Many organisations, including the children's commissioner for England and the Association of Directors of Children's Services, have expressed grave concern.
Scotland, Wales and Northern Ireland
The bill 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. The government's Delegated Powers Memorandum makes clear that the functions of local authorities in respect of looked-after children are a devolved matter and the drafting of the bill recognises this tension, as clauses 15 to 18 only apply to England, with clause 19 noting that the Home Secretary may make regulations in the future on clauses 15 to 18.
This draft bill is not yet law. It may be amended as it goes through Parliament. However, if passed as currently drafted, it will place local authorities in the impossible position of trying to comply with two competing sets of legislation as they attempt to fulfil their duties. Children, meanwhile, will be placed in the impossible position of being in the UK without the ability to ever claim asylum or be otherwise granted leave, facing mandatory removal on or after their 18th birthday and without protection if they fall prey to traffickers.
