Humanitarian Concerns over the UK’s Illegal Immigration Act 2023

The United Kingdom’s recent Illegal Immigration Act has been a major cause of concern for both the United Nations High Commissioner for Refugees (UNHCR) and the Human Rights Watch (HRW). The UNHCR’s Fillipo Grandi claims, “this new legislation significantly erodes the legal framework that has protected so many, exposing refugees to grave risks in breach of international law.” The UK government, however, insists that the Act — which was passed in July, 2023 — is rooted in good intention and seeks to deter migrants from taking unsafe passages into the country. Concerns over this issue have been on the rise since November 2021, when 27 migrants died in the English Channel en route to the UK from their pitstop in France. But if the Act aims to mitigate migrant-related tragedies, then why has it been met with such opposition?

The Act’s provisions for deportation and inadmissibility are laid out in Section two. First is that the individual has entered the UK without leave to enter, with a leave to enter attained in a deceitful manner, or is in violation of a deportation order, among other criteria. Subsection (e) of the first condition then states one must be removed from the country if they were required under immigration law to travel with electronic travel authorization (ETA), but arrived without it. Second, their arrival date must have been on or after the date of the Act’s passage. The third article refers to refugees and asylum seekers specifically: “the person did not come directly to the United Kingdom from a country in which the person’s life and liberty were threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion.”

The ETA requirement outlined in Section 1(e) has been a major cause of apprehension for human rights groups. Calling for electronic travel authorization raises concern over being a restriction on refugees. ETA is offered by the UK government as an alternative way to enter the United Kingdom without a visa. Getting ETA requires presenting other forms of identification, including a passport and credit or debit card. Expecting refugees to prioritize safeguarding these items requires a gross underestimation of the severity of their circumstances. Even more, the UNHCR sees this as a contradiction to the 1951 Refugee Convention. Article 31 of the Convention states “the Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened.” Therefore, it would be assumed that the lack of ETA cannot be used as grounds for removal of refugees. The Illegal Immigration Act, however, will allow the UK to impose penalties on refugees for entering without this authorization.

Another facet of the Act concerning the UNHCR is the third provision, which calls for the removal of asylum seekers who have not had a direct route to the UK. Under this protocol, even those migrants who use France as a springboard to reach the UK, like the 27 we lost back in 2021, would be removed upon arrival at their destination. The UNHCR submitted their “Recommendations on the Implementation of the Illegal Immigration Act 2023” on October 6, 2023. In this they urge the UK to act in the spirit of the 1951 Refugee Convention and to adopt a more lenient interpretation of what the Act means by “come directly.” This is interesting though, as even Article 31 of the Convention uses similar language: “coming directly from a territory where their life or freedom was threatened.” While humanitarian groups have been quick to cite the 1951 Refugee Convention in their critiques of the Act, it is worth noting that the Convention also emphasizes a difference between refugees who travel directly or indirectly to their destination.

Furthermore, critics have called out the broad scope of the Act. Subsection two of the Act’s introduction states to whom the “duty to make arrangements for removal” applies. The Act clearly states that it “provides for protection claims and certain human rights claims made by persons who meet the conditions for removal under this Act to be inadmissible.” This means even individuals presenting asylum claims are subject to the provisions of the Act and can be removed from the UK upon arrival. The Act also states in section four that “the Secretary of State may make arrangements for the removal of a person from the United Kingdom at a time when the person is an unaccompanied child.” The image of unaccompanied children waiting in detention centers while a legal technicality dictates their livelihood is a horror for people like Enver Solomon, the Chief Executive of the Refugee council. He says, “For children who arrive in the UK alone, the situation is even worse… knowing they face expulsion.” By roping in asylum seekers and unaccompanied minors with the common lot of migrants as a whole the Act fails to acknowledge their heightened vulnerability.

While the UK’s 2023 Illegal Immigration Act does construct barriers to entry, one of its major critiques seems to gloss over similarities between the Act and the highest standard of refugee law, the 1951 Refugee Convention. As we look at this Act in comparison to Parliament’s intention of deterring migrants from unsafe means of entry, we should be thinking about what makes an equal give-and-take in the law. Is the Illegal Immigration Act proof that no legal solution can ever be perfect, and if so, how do we determine what is close enough?