Illegal Migration Act 2023

Introduction

Introduction

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Duty to make arrangements for removal

Duty to make arrangements for removal

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Amendment of date in section 2(3) etc

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Unaccompanied children and power to provide for exceptions

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Disregard of certain claims, applications etc

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Removal for the purposes of section 2 or 4

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Powers to amend Schedule 1

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Further provisions about removal

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Support where asylum claim inadmissible

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Other consequential amendments relating to removal

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Detention, bail etc

Powers of detention

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Period for which persons may be detained

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• (1) In Schedule 2 to the Immigration Act 1971 (administrative provisions as to control on entry etc.)—

• (a) in paragraph 16 (powers to detain), after sub-paragraph (4) insert—

(5) See paragraph 17A for further provision about the period for which persons may be detained under this paragraph.

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• (b) after paragraph 17 insert—

(17A) (1) A person liable to be detained under paragraph 16 may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the examination or removal to be carried out, the decision to be made, or the directions to be given. (2) Sub-paragraphs (1) to (2), (2C), (3) and (4) of paragraph 16 apply regardless of whether there is anything that for the time being prevents the examination or removal from being carried out, the decision from being made, or the directions from being given. (3) Sub-paragraphs (1) and (2) are subject to— (a) paragraph 16(1B) (power to detain for examination for period not exceeding 12 hours); (b) paragraph 16(2A) and paragraph 18B (limitation on detention of unaccompanied children); (c) paragraph 16(2B) and section 60 of the Immigration Act 2016 (limitation on detention of pregnant women); (d) paragraph 16(2D) to (2G) (limitation on detention of pregnant women). (4) Sub-paragraph (5) applies if, while a person is detained under paragraph 16, the Secretary of State no longer considers that the examination or removal will be carried out, the decision will be made, or the directions will be given within a reasonable period of time. (5) The person may be detained under paragraph 16 for such further period as, in the opinion of the Secretary of State, is reasonably necessary to enable such arrangements to be made for the person’s release as the Secretary of State considers to be appropriate. (6) In the application of this paragraph in relation to detention under paragraph 16(3), references to “the removal” are to— (a) the removal of the person from the ship or aircraft on which the person is detained so that the person may be detained under paragraph 16, or (b) the removal of the person from the United Kingdom in that ship or aircraft. (7) In the application of this paragraph in relation to detention under paragraph 16(4), references to “the removal” are to the removal of the person from the United Kingdom in the ship or aircraft on which the person is detained.

• (2) In paragraph 2 of Schedule 3 to the Immigration Act 1971 (detention or control pending deportation)—

• (a) after sub-paragraph (3) insert—

(3A) A person liable to be detained under sub-paragraph (1), (2) or (3) may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the deportation order to be made, or the removal to be carried out. (3B) Sub-paragraphs (1) to (3) apply regardless of whether there is anything that for the time being prevents the deportation order from being made or the removal from being carried out. (3C) Sub-paragraphs (3A) and (3B) are subject to sub-paragraph (4ZA) and section 60 of the Immigration Act 2016 (limitation on detention of pregnant women). (3D) Sub-paragraph (3E) applies if, while a person is detained under sub-paragraph (1), (2) or (3), the Secretary of State no longer considers that the deportation order will be made or the removal will be carried out within a reasonable period of time. (3E) The person may be detained under that sub-paragraph for such further period as, in the opinion of the Secretary of State, is reasonably necessary to enable such arrangements to be made for the person’s release as the Secretary of State considers to be appropriate.

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• (b) in sub-paragraph (4), for “17 to 18A” substitute “17, 18, 18A”.

• (3) In section 10(9) of the Immigration and Asylum Act 1999 (application of Schedule 2 to the Immigration Act 1971 in relation to persons unlawfully in the United Kingdom)—

• (a) in paragraph (b), for “16(2) to (4)” substitute “16(2) to (2B), (3) and (4)”;

• (b) after paragraph (c) insert—

(ca) paragraph 17A (period for which persons may be detained);

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• (4) In section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State)—

• (a) after subsection (2M) (inserted by section 11(6)), insert—

(2N) A person liable to be detained under this section may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the decision to be made, the removal or examination to be carried out, or the directions to be given. (2O) Subsections (1) to (2A) apply regardless of whether there is anything that for the time being prevents the decision from being made, the removal or examination from being carried out, or the directions from being given. (2P) Subsections (2N) and (2O) are subject to— (a) paragraph 18B of Schedule 2 to the Immigration Act 1971 (limitation on detention of unaccompanied children), as applied by subsection (3); (b) subsections (2B) to (2E) (limitation on detention of pregnant women); (c) subsection (7A) and section 60 of the Immigration Act 2016 (limitation on detention of pregnant women). (2Q) Subsection (2R) applies if, while a person is detained under this section, the Secretary of State no longer considers that the decision will be made, the removal or examination will be carried out, or the directions will be given within a reasonable period of time. (2R) The person may be detained under this section for such further period as, in the opinion of the Secretary of State, is reasonably necessary to enable such arrangements to be made for the person’s release as the Secretary of State considers to be appropriate.

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• (b) in subsection (3), in the opening words, after “under that Schedule” insert “, other than paragraph 17A,”.

• (5) In section 36 of the UK Borders Act 2007 (detention relating to deportation), after subsection (1) insert—

(1A) A person liable to be detained under subsection (1) may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the decision as to whether section 32(5) applies, or the deportation order, to be made. (1B) Subsection (1) applies regardless of whether there is anything that for the time being prevents the decision or the deportation order from being made. (1C) Subsections (1A) and (1B) are subject to subsection (2A) and section 60 of the Immigration Act 2016 (limitation on detention of pregnant women). (1D) Subsection (1E) applies if, while a person is detained under subsection (1), the Secretary of State no longer considers that the decision or the deportation order will be made within a reasonable period of time. (1E) The person may be detained under subsection (1) for such further period as, in the opinion of the Secretary of State, is reasonably necessary to enable such arrangements to be made for the person’s release as the Secretary of State considers to be appropriate.

• (6) In regulation 32 of the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052) as it continues to have effect following its revocation (person subject to removal), for paragraph (1) substitute—

(1) If there are reasonable grounds for suspecting that a person is someone who may be removed from the United Kingdom under regulation 23(6)(b), that person may be detained under the authority of the Secretary of State pending a decision whether or not to remove the person under that regulation. (2) A person liable to be detained under paragraph (1) may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the decision to be made. (3) Paragraph (1) applies regardless of whether there is anything that for the time being prevents the decision from being made. (4) Paragraph (5) applies if, while a person is detained under paragraph (1), the Secretary of State no longer considers that the decision will be made within a reasonable period of time. (5) The person may be detained under paragraph (1) for such further period as, in the opinion of the Secretary of State, is reasonably necessary to enable such arrangements to be made for the person’s release as the Secretary of State considers to be appropriate. (6) Paragraphs 17, 18 and 18A of Schedule 2 to the 1971 Act apply in relation to detention under paragraph (1) as they apply in relation to detention under paragraph 16 of that Schedule.

Powers to grant immigration bail

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Disapplication of duty to consult Independent Family Returns Panel

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Electronic devices etc

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Unaccompanied children

Accommodation and other support for unaccompanied migrant children

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Transfer of children from Secretary of State to local authority and vice versa

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Duty of local authority to provide information to the Secretary of State

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Enforcement of local authorities’ duties under sections 17 and 18

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Extension to Wales, Scotland and Northern Ireland

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Transfer of children between local authorities

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Modern slavery

Provisions relating to removal and leave

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Provisions relating to support: England and Wales

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Provisions relating to support: Scotland

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Provisions relating to support: Northern Ireland

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Suspension and revival of sections 22 to 25

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Procedure for certain regulations under section 26

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Amendments relating to sections 22 to 25

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Disapplication of modern slavery provisions

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• (1) Section 63 of the Nationality and Borders Act 2022 (identified potential victims of slavery or human trafficking: disqualification from protection) is amended as follows.

• (2) In subsection (1)—

• (a) for “may” substitute “must”, and

• (b) after paragraph (b) insert—

This is subject to subsection (2A).

• (3) After subsection (2) insert—

(2A) A competent authority may not determine that subsection (2) is to apply to a person if the competent authority considers that there are compelling circumstances which mean that subsection (2) should not apply to the person.

• (4) In subsection (3)—

• (a) for paragraph (f) substitute—

(f) the person— (i) is not a British citizen, (ii) has been convicted in the United Kingdom of an offence, and (iii) has been sentenced to a period of imprisonment for the offence;

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• (b) after paragraph (f) insert—

(fa) the person is liable to deportation from the United Kingdom under section 3(5) or (6) of the Immigration Act 1971 (deportation for the public good etc or as a result of recommendation following conviction); (fb) the person is liable to deportation from the United Kingdom under any provision of, or made under, any other enactment that provides for such deportation;

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• (5) After subsection (5) insert—

(5A) In subsection (3)(f)— (a) “British citizen” has the same meaning as in section 3(5) of the Immigration Act 1971 (and section 3(8) (burden of proof) applies), and (b) the reference to a person who has been sentenced to a period of imprisonment— (i) does not include a reference to a person who receives a suspended sentence (unless a court subsequently orders that the sentence or any part of it is to take effect), and (ii) includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders). (5B) For the purposes of subsection (3)(f) a person subject to an order under section 5 of the Criminal Procedure (Insanity) Act 1964 (insanity etc) has not been convicted of an offence.

• (6) An amendment made by a provision of this section applies in relation to a person whether a positive reasonable grounds decision or a positive conclusive grounds decision within the meaning of Part 5 of the Nationality and Borders Act 2022 was made in relation to the person before or after the coming into force of the provision making the amendment.

Entry, settlement and citizenship

Entry into and settlement in the United Kingdom

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Persons prevented from obtaining British citizenship etc

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British citizenship

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British overseas territories citizenship

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British overseas citizenship

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British subjects

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Disapplication of sections 32 to 35

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Amendments relating to sections 32 to 36

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Legal proceedings

Suspensive claims: interpretation

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Serious harm suspensive claims: interpretation

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Meaning of “serious and irreversible harm”

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Relationship with other proceedings

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Serious harm suspensive claims

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Removal conditions suspensive claims

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Appeals in relation to suspensive claims

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Permission to appeal in relation to suspensive claims certified as clearly unfounded

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Suspensive claims out of time

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Suspensive claims: duty to remove

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Upper Tribunal consideration of new matters

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Appeals in relation to suspensive claims: timing

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Procedure for Tribunal Procedure Rules

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Finality of certain decisions by the Upper Tribunal

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Judges of First-tier Tribunal and Upper Tribunal

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In section 5(1) of the Tribunals, Courts and Enforcement Act 2007 (judges and other members of the Upper Tribunal), after paragraph (c) insert—

(ca) is a judge of the First-tier Tribunal,

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Special Immigration Appeals Commission

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Interim remedies

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Interim measures of the European Court of Human Rights

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Legal aid

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Age assessments etc

Decisions relating to a person’s age

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Age assessments: power to make provision about refusal to consent to scientific methods

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Inadmissibility of certain asylum and human rights claims

Inadmissibility of certain asylum and human rights claims

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