Policy paper

Nationality and Borders Act compared to Illegal Migration Bill: factsheet

Updated 20 July 2023

Why does the government need to legislate again so soon after passing the NABA?

The Nationality and Borders Act 2022 (NABA) introduced a new regime for illegal migrants that aimed to:

a) streamline how the asylum claim would be progressed through the system and amended the thresholds for granting claims

b) improve the Home Office’s ability to remove those with no right to remain, particularly foreign national offenders (FNOs)

c) raise the threshold for modern slavery claims, disqualify FNOs with 12 months or more and strengthen protections for people with modern slavery needs or those who come through safe and legal routes

d) introduce tougher criminal offences to deter illegal entry and facilitation and a new civil penalty of failing to adequately secure a goods vehicle, irrespective of whether a clandestine entrant is detected. It did not fundamentally alter illegal migrants’ rights to claim asylum, be referred for modern slavery needs, or make in-country legal challenges to prevent their removal.

Since the NABA was passed, the number of people arriving by small boats has risen to 45,000 a year, 90% of whom claim asylum, and there is clear evidence that our modern slavery system is being abused. For example, the most referred nationality into the modern slavery system last year was Albania, a country that is a signatory to the same anti-trafficking treaty as the UK and a safe, European country. The lesson from previous immigration legislation, including the NABA, is that incremental reforms do not work at the pace required. This is a problem that requires novel and ambitious solutions so we need to do things that previous governments were not willing to do to prevent our asylum system and legal framework being abused by those with no right to be here.

What does the new legislation do that NABA did not?

The Illegal Migration Bill goes considerably further than any previous immigration bill. For the first time, it will prevent those who travel via safe countries and enter the UK illegally from having their asylum claim considered by the UK and stops illegal migrants from being able to access our modern slavery system. It goes further than NABA by placing a duty on the Home Secretary to remove illegal migrants, rather than the previous discretionary duty that can be interpreted more liberally by the courts.

Unlike the NABA, the Illegal Migration Bill stops spurious attempts to frustrate removal by ensuring that human rights claims are made non-suspensive, i.e. out of country, with the sole exception of people facing a real risk of serious and irreversible harm in the country of removal. On detention, it introduces a new ability for the Home Office to detain people for up to 28 days without access to immigration bail or judicial review (habeas corpus applications are available), and it provides that all legal claims will be exhausted within weeks – rather than the months or years that people currently wait under the NABA.

Why hasn’t the government implemented all the provisions in the NABA?

The government has implemented a significant proportion of the Nationality and Borders Act, and will be implementing more elements in due course. Those provisions left to be implemented largely relate to strengthening the way the age assessments are conducted as well as decision-making and judicial processes, such as the one-stop process and accelerated detained appeals. These have been subject to consultations by the Tribunal Procedure Rules Committee.

The government intends to continue with these reforms which focus on tackling abuse within the asylum system and return of FNOs, as planned. But we are clear that the IMB is required at the same time to deal with the problems we are facing in relation to small boats arrivals. Over forty-five thousand people arrived last year, and we are now spending £5.6 million a day accommodating small boats arrivals in hotels. That is why we need to take more radical steps through this bill.

What does it mean that the new bill is s.19(1)b while NABA was s.19(1)a?

In the NABA, the then government took the decision to introduce a bill that was s.19(1)a, i.e. that ministers thought it had a better than evens chance of being successful if challenged on the basis of international law. The Illegal Migration Bill is the first piece of immigration legislation for which the Government has made a s.19(1)(b) statement, meaning, in this instance, that we believe we have credible legal arguments for the legislation but recognise that because it is novel, ambitious and untested, we cannot be sure we have a better than evens chance of success in the European Court in Strasbourg.

We will always comply with international law, but this statement demonstrates the extent to which we are doing whatever it takes to fix this problem within those boundaries.

Specific issues

Basis of enforcement

Nationality and Borders Act 2022

Home Secretary has discretionary power to remove illegal migrants.

Illegal Migration Bill

Home Secretary is bound by a legal duty to remove illegal migrants.

Asylum claims

Nationality and Borders Act 2022

People arriving illegally have their asylum claims processed more quickly:

• all claims made at once (with the exception of there being good reasons for any late claim or provision of evidence as per Section 22(4) of the Nationality and Borders Act 2022 or , as outlined in Section 19, good reasons provided in a statement which accompanies any late evidence)
• fewer stages of in-country appeal
• less protection and support compared to those granted refugee status
• damages to credibility of those we are removing if information is provided late
• claims by EU citizens deemed inadmissible

Illegal Migration Bill

People arriving illegally are deemed inadmissible for asylum altogether:

• measures focussed on enabling removals from the UK within weeks
• asylum protections met in the safe third country that illegal migrants are removed to (unless sent back to a home country which is safe)
• no right of in-country appeal or judicial review to frustrate removal except for real risk of serious and irreversible harm or issues such as mistaken identity
• generally, claims by Albanians inadmissible

Modern slavery referrals

Nationality and Borders Act 2022

People arriving illegally are subject to a streamlined modern slavery regime:

• strengthened protection for modern slavery, even if they entered the country illegally
• raised threshold for modern slavery reasonable grounds decision
• damages to credibility if information is provided late under the judicial process
• FNOs with a sentence of 12 months or more disqualified from protection

Illegal Migration Bill

People arriving illegally are not referred into the modern slavery system. They are:

• disqualified from the modern slavery system on public order grounds – unless needed in-country to assist an investigation or prosecution
• removed from the UK within days or weeks

Apart from if the police request delay to removal to help prosecute their people smugglers.

Modern slavery protections will be met in the safe or home country illegal migrants are removed to.

Human rights claims

Nationality and Borders Act 2022

People arriving illegally have their human rights claims processed more quickly:

• All claims made at once (with the exception of there being good reasons for any late claim or provision of evidence as per Section 22(4) of the Nationality and Borders Act 2022 or , as outlined in Section 19, good reasons provided in a statement which accompanies any late evidence).
• claimants required to provide evidence within set timescales
• damages to credibility if information is provided late

Illegal Migration Bill

People arriving illegally will have their ability to exploit human rights laws constrained:

• power to detain for up to 28 days without being able to seek bail from the Immigration Tribunal (they can make a habeas corpus application at any time)
• assessed within days of arrival by the Home Office
• all human rights claims dealt with out-of-country, except in truly exceptional cases
• sole in-country appeal route of “real risk of serious and irreversible harm” in the country of removal

Legal challenge

Nationality and Borders Act 2022

People arriving illegally are less able to make sequential appeals or spurious judicial review (JRs):

• priority removals notice to subject claimants to an enforced return within set timescales (with the exception that there are good reasons for any late claim or provision of evidence as per Section 22(4) of the Nationality and Borders Act 2022.)
• all appeals still made in-country

Illegal Migration Bill

People arriving illegally are less able to make sequential appeals or spurious JRs:

• all judicial review is non-suspensive of removal.
• sole in-country appeal route of “real and imminent risk of serious and irreversible harm” in the country of removal
• no further appeal out of country or ability to launch JR in country

Detention

Nationality and Borders Act 2022

People arriving illegally can be:

• detained for the purposes of accelerated detained appeals or for removal

• extended the period to 21 days in which the Secretary of State had to consent to bail if someone had a removal date set.

Illegal Migration Bill

People arriving illegally can be:

• detained for up to 28 days without recourse to bail or judicial review, although Habeas Corpus will apply.

Safe and legal routes

Illegal Migration Bill

The introduction of an annual cap, determined by Parliament, on the number of refugees the UK will accept, once illegal migration is under control.

This allows the government to plan, in conjunction with local authorities, for an orderly system.

Rule 39 interim orders

Nationality and Borders Act 2022

No provisions to address Rule 39 interim orders or other Strasbourg blocking orders from preventing removals.

Illegal Migration Bill

We have initiated discussions with Strasbourg to reform Rule 39 orders so that they meet a reasonable natural justice criteria, such as written reasons and a formal appeals route, and the bill will set out the conditions under which we would choose to comply with such orders and when these provisions will be commenced.

S19(1)b

Nationality and Borders Act 2022

NABA was s.19(1)a.

Illegal Migration Bill

This is the first time the government has made a s.19(1)(b) statement on a piece of immigration legislation. This has also never been done by any previous government on immigration legislation.

However, the previous Labour government made a 19(1)(b) statement for the Communications Act 2003; and in the coalition government, former Deputy Prime Minister Nick Clegg introduced his House of Lords Reform Bill 2012 with a 19(1)(b) statement.