What will implementation of the Illegal Migration Bill look like in practice?

An ever-growing perma-backlog if it doesn’t work, a grim and violent detention and removal regime if it does.

The purpose of the Illegal Migration Bill is supposed to be to “stop the boats”. An Act of Parliament cannot by itself physically prevent boats from crossing the Channel. Although it is not actually that hard to imagine former Minister for Immigration Compliance Chris Philp investigating whether a paper mache barrier made from printed copies might work, given his various other ideas.

The legal effect of the Illegal Migration Bill is to deny anyone arriving illegally the possibility of asylum in the United Kingdom. The law will prevent any such person from ever being granted legal status, give the government an almost unchallengable power of detention and put the Home Secretary under a duty to remove every asylum seeker to a third country, meaning a country other than their own. I’ve written a full explanation of the ins and outs over on Free Movement if you want the gory details.

The idea is that this will deter any asylum seekers from making the journey to the United Kingdom. Will it work? Only time will really tell us, I guess, but there are multiple reasons to think that it will not have the intended effect and might even prove counter-productive.

How might a deterrent policy work?

Deterrent policies have an instinctive appeal to many people.

For the public, it is something they feel they can understand. It’s one half of the carrot and stick aphorism. For authoritarians, of whom there are many, its the effective half.

For politicians, it is something they can control and which makes them feel powerful rather than powerless. Domestic policies are fully under their control and easy to pass laws about, unlike international agreements. Such laws can then be showcased as if they were concrete achievements. Whether or not they actually work or not.

For institutions like the Home Office and for many policy makers, deterrent policies are familiar. They are known or thought to work, at least to some extent, in other contexts, such as crime and public health.

When it comes to immigration, though, a deterrent policy would have to do two things in order to be effective. There is no evidence that either has ever happened before.

First of all, refugees would need to know about the policy in question in the destination country. There is little evidence to show that they do. Their information sources are informal: friends, families, communities, social media, agents, smugglers, fellow travellers. These are not accurate and reliable sources.

At the time they set off on their journeys, many do not even know what country they will end up in. So the information would somehow need to reach them during their journey.

Worse, agents and smugglers may actively mislead in order to drum up business. As any Facebook user will know, friends, families and communities tend to highlight their successes rather than their failures.

Secondly, if they were to know about it, they would have to care about it. There is also little evidence on this front. It is not hard to imagine why.

We are talking about a group of people who may have crossed deserts, put themselves in small boats already, dodged gangs and border guards alike and lived through unimaginable hardships on their journeys. They have sometimes watched friends, family members and fellow travellers die on these journeys. Over 26,000 have drowned trying to cross the Mediterranean since 2014.

If they were not deterred by all that, it seems unlikely there is anything the British government could do to deter them.

What do we know about refugee decision making?

The evidence on refugee decision-making is limited. Ascertaining the motives of such a disparate group of people from such a wide range of regions, countries and backgrounds is challenging. Refugees are in no way a homogenous group, although they are routinely treated as if they are.

There is some research available, though. There’s an interesting very recent study of refugees in France hoping to travel to the UK available on the JCWI website. Sherine El Taraboulsi McCarthy from IPPR is currently running some research on this subject. There is some slightly older research available on asylum seeker ‘destination preferences‘ by Heaven Crawley and Jessica Hagen-Zanker as well. If you want to go way back, there is even a Home Office research report dating back to 2002.

A lot of this was well summarised in a recent Home Office research report from September 2020 entitled Drivers and impact on asylum migration journeys. Basically, deterrent policies don’t work. For example:

Economic rights do not act as a pull factor for asylum seekers. A review of the relationship between Right to Work and numbers of asylum applications concluded that no study reported a long-term correlation between labour market access and destination choice. Very few migrants have any experience of a welfare state such as exists in the UK and imagine that they will be able to (if not expected to) work and support themselves upon arrival.

Incidentally, the rather optimistic motto for the research team responsible is “Informing Decisions Through Evidence”.

This evidence tells us that motivations are mixed, chance plays a significant role, agents and smugglers play a significant role, the ‘imagined destination’ plays a significant role and that awareness of the treatment of asylum seekers in countries of destination is limited.

Will refugees even know about the Illegal Migration Bill?

Smugglers aren’t likely to tell them. There won’t be any refugees being returned to France to spread the word in the makeshift camps there. But perhaps some will access news reports and perhaps those ‘processed’ into our new detention camps will warn others by means of WhatsApp and social media.

It seems likely that some sort of rumours will spread. The content of those rumours will depend to some degree on what is actually happening on the ground, though.

If the new legislation works exactly as intended, any new asylum seeker will be taken immediately into detention on arrival. They will have a brief chance to argue from detention that they should not be removed to Rwanda through an extremely curtailed legal process. The grounds for succeeding in such a challenge will be incredibly narrow; if the government has its way and the courts agree Rwanda is safe, almost no-one will win any such challenge. Once the legal challenge is complete, the person will be forced onto a flight and removed to Rwanda.

There are some significant ‘ifs’ in the preceding paragraph. The Court of Appeal is likely to reach its decision on the legality of removals to Rwanda quite soon. Whoever loses is likely to take the case to the Supreme Court and quite probably Strasbourg. There would have to be very considerable detention capacity available and the government would have to be capable of forcing thousands of people onto planes to Rwanda in a short space of time.

If the legislation is not working as planned, how will that look in practice and what information will refugees feed back via their networks? This question will be absolutely critical, and I’ll return to it at the end.

How might refugees react to the Illegal Migration Bill?

Let’s imagine that at least some refugees do find out about the basics of the Illegal Migration Bill. What they find out will depend on how it is working in practice. How it is working in practice depends on what refugees find out. So this is all rather difficult to predict.

Some might be deterred. They might decide to stay in France instead. Or not to travel as far as northern France. But there’s no research or evidence to suggest this might happen. They are already desperate and they drift through Europe from pillar to post. That’s not likely to change.

We do know from experience and research that shutting down one route of entry will lead to other, often more dangerous, routes being attempted. That has happened time and time again here and in many other parts of the world.

We can expect some refugees and perhaps other migrants will seek to enter by clandestine means and not claim asylum at all. At the moment most of those arriving by lorry and small boat want to claim asylum. They want to be detected. They want to be rescued. That might change. Refugees might try to cross the whole Channel undetected, which will be more dangerous. Others might go back to seeking entry by lorry, which allows them to get out undetected once within the UK.

Trying to reach the UK unrescued and undetected might well lead to an increase in deaths. If use of sealed container lorries increases, that might also lead to more deaths.

This might actually look like government success, though. Fewer people visibly arriving and fewer asylum claims being made would look like the deterrent effect was working. But the real world impact might be that people were still coming, just without being detected and without claiming asylum, and more people might die. That would be a lot worse for them and it would also be a lot worse for us.

Might asylum claims actually increase?

At the moment, the vast majority of people who claim asylum in the United Kingdom are genuine refugees. The Home Office granted asylum in 76% of asylum decisions in 2022, and that is before appeals are taken into account. There is very little abuse of the asylum system, basically.

That might change because the Illegal Migration Bill may accidentally create a perverse incentive for people to make a false asylum claim in order to avoid removal to their home country.

Under the regime established by the Bill, people from EEA countries and Albania can be removed to their home country. Everyone else cannot be removed to their home country, only a safe third country.

Think that through. If you are an overstayer from, say, India or Brazil or anywhere else in the world, if you make an asylum claim you will no longer be removable back to your home country.

If the Home Office is managing to remove lots of people to Rwanda, you might well decide you’d prefer to be sent home and not make that asylum claim. But if removal to Rwanda is a remote prospect, making an asylum claim will mean you stay in the UK. The Home Office cannot detain you for very long if there is no prospect of removal; they’ll have to let you go.

If removals to Rwanda prove as difficult as many of us expect, the Illegal Migration Bill might end up looking like a charter for illegal migration. Lots of people might falsely claim asylum in order to avoid being removed anywhere.

What might implementation of the Illegal Migration Bill look like in practice?

Let’s assume the Illegal Migration Act 2023 is on the statute book. The government will at that point be committed to removing all asylum seekers who arrived since 7 March 2023 AND all asylum seekers who arrive in future.

How many people are we talking about? The Home Office itself estimates 3,000 per month will need to be detained. Some within the Home Office think the estimate is “demented” in the sense that it is far too low. On average about 7,500 people were arriving per month over the last year. There’s no reason to think that number is going to go down a great deal for the reasons we’ve already explored.

That’s a LOT of people to detain and remove. Unless output (removals) matches input (arrival and detention) then the number of people in detention is going to grow, potentially very rapidly. Either we end up with huge prison camps or people get released. If people get released, they’ll probably disappear because they have no incentive at all to stay in touch with the Home Office. They will never get asylum and they just risk being removed to Rwanda.

The most people the British government every managed forcibly to remove was just about 21,000 in 2005, or on average around 1,750 per month. Most of those removals were Eastern Europeans to Eastern Europe. Levels of resistance were fairly low in that context. Ramping up the machinery of forced removal to over double that level would be extremely difficult.

Personally, I think it’s impossible as well as undesirable and unnecessary.

In the last year, only 3,860 people were forcibly removed, the majority of whom were foreign criminals. These were people being removed to their home countries. They probably weren’t very happy about being forced to go (the clue is in “forced”) but it will usually have been to a country they knew fairly well and to which they had real connection. Rwanda is a country to which those facing removal have no connection at all and in which they have no realistic social or economic future. Levels of resistance to removal will be extremely high. Use of force will therefore have to be correspondingly high. People will be injured. Some may die. Others may feel so hopeless as to self harm.

It will be grim.

I’m sorry to put it like this, but how are the government and private security contractors responsible going to hire enough thugs to carry this out? It’s not like being a prison or normal detention centre guard; there’s nothing therapeutic or even necessary about these detentions and removals. The ongoing inquiry into abuse at Brook House detention centre tells us what happens when people with the wrong motivation are recruited for something like this. What could possibly be the “right” motivation here?

But it seems highly unlikely that the government can detain everyone who arrives in future, never mind all the people it has committed to remove who arrived on or after 7 March 2023. It seems even less likely that the government can physically force them all onto flights to Rwanda, even if it gets the go-ahead from the courts.

The result will be lots of people being released from detention and disappearing into the community. Their cases will still show in the backlog, though, which will grow and grow and grow.

If this is what happens, there would be little deterrent effect. The failure will be self-reinforcing.

Just yesterday, Immigration Minister Robert Jenrick announced that the government is abandoning the centrepiece policy of the Nationality and Borders Act 2022 less than a year after it was implemented. Not only that, but he is having to pull caseworkers off dealing with the asylum backlog to grant proper status to the refugees affected by the now-abandoned policy.

The government was warned that policy was not just pointless but counterproductive. They’re being given the same warnings about the new legislation. The whole thing will have to be undone and corrected very quickly if implemented, yet again distracting ministers and officials from whatever new issues have arisen.

Hope is hard to kill

Refugees are motivated by fear of what lies behind and hope for what lies ahead.

Hope is notoriously hard to kill, although Braverman, Jenrick, Sunak and co are certainly doing their best. The reason refugees choose to keep moving is because, against all the evidence, they hope things will get better. Sherine McCarthy talks about “cognitive migration” and the “imagined destination”; refugees feel like things will be better when they get where they are going. Like all of us, they can also be overly optimistic about how they personally will perform in their imagined new environment. “If I can only get there, then I’ll…”

This is not necessarily irrational. If your situation is already abysmal, taking even big chances might be worthwhile.

By definition, the group of refugees we are talking about have reached northern France, they have no secure status right now and never will, they are living rough in tents with no water or toilets and under constant pressure from the semi-militarised French police. If removal to Rwanda is a remote prospect, as many of us think, how, exactly, will they be worse off if they manage to reach the United Kingdom?

The refugees targeted by the Illegal Migration Bill quite literally have nothing to lose.

Finally, some context. This chart is from the Home Office’s own quarterly immigration statistics, released on 25 May:

The United Kingdom still receives far, far fewer asylum applications than our European neighbours.