Ten concerns about the Illegal Migration Act every social worker should know

Published by Professional Social Work magazine, 9 August, 2023

The Illegal Migration Act passed the UK Parliament in July 2023, which makes major changes for asylum seekers coming to the UK through what the Government considers an “illegal route”.

While the courts have yet to reach a verdict, it seems likely that the act breaches international law, the Refugee Convention and the rights of children. There are a number of clauses that are particularly relevant to social work practice, especially for those working with unaccompanied asylum-seeking children.

1. An unaccompanied asylum-seeking child who arrived in the UK “illegally” will be deported when they are 18 and are ineligible for settlement or registration as a British citizen

The Act details that any person who travels to the UK via an “illegal route” (which primarily refers to small boats) will be deported. Illegal routes can also mean any route which is not explicitly a designated safe route for asylum seekers, such as the Homes for Ukraine scheme. This applies to children who arrive in the UK before they are 18, and as soon as they turn 18, plans will be made for them to be removed from the UK. This increases the risk that an unaccompanied child may go missing ahead of turning 18 to avoid deportation.

2. The Home Secretary has the power to deport an unaccompanied child even though they are under 18

The act gives the power to the Government to detain and deport unaccompanied children for the purposes of family reunion and/or removing them to a safe third country of origin. There is no clarity on the circumstances around family reunion and whether it would be in the best interests of the child to be reunited with those family members, and it is the decision of the Government whether the country of origin is safe. For context, the UK Government views Rwanda as safe, despite many concerns about the conduct of Rwandan authorities.

3. A child could be deemed to be 18 or over if they do not consent to dental x-rays or MRIs to assess age and therefore liable to deportation

Age assessment is a key responsibility of social workers. The Nationality and Borders Act 2022 allows the Home Secretary to make regulations specifying “scientific methods” that may be used for the purposes of age assessments. Subsequently, the Age Estimation Scientific Advisory Committee (AESAC) advised that dental x-rays and magnetic resonance imaging (MRI) scans might aid age assessment.

The act gives the Home Secretary powers to make regulations that if a person refuses to consent to a ‘scientific method’ they will automatically be deemed an adult and therefore subject to deportation.

This element of the act undermines long-standing rights that medical interventions should be done only with consent and without duress. There may be good reasons why an asylum seeker may not want to undergo medical assessment. For younger children it raises issues relating to Gillick Competency and for social workers it raises issues of parental responsibility and consent.

4. The Home Secretary will have the power to provide or arrange accommodation for unaccompanied children – and to remove a child from local authority care

The act gives the Home Secretary the power to provide or arrange accommodation for unaccompanied children “where deemed necessary”. Following legal challenges, this seems to be the Home Office giving itself permission to accommodate children in hotels or camps if needed. However, a High Court ruling last month found the Home Office did not have the power to “systematically or routinely” use this power “as a substitute for local authority care”. It has taken many years for local authorities to build the capacity and capability to accommodate children, and there are concerns about the Home Office’s ability to provide appropriate care and accommodation from scratch.

The act gives the Home Office the power to order a local authority to cease providing accommodation for an unaccompanied child, which would enable the transition of children back to the Home Office accommodation. It seems possible that this arrangement is to facilitate the movement of under-18s prior to deportation at 18.

5. The Home Secretary will be able to require information from the local authority about an unaccompanied child

The act places a duty on local authorities to provide the Home Office with information that they request to support decision-making about an unaccompanied child. If a local authority does not comply and does not provide a reasonable excuse, the Secretary of State may make an order declaring that authority to be in default with respect to that duty. There are ethical considerations in this situation, as information provided by the local authority could indirectly result in harm to the child if they are subsequently deported.

6. Appropriate adults and search powers

People detained under the act can be be searched – along with their property – for electronic devices on which information could be stored. Where the immigration officer carrying out the search believes the person they are searching is under 18 years of age, an appropriate adult must be present. Social workers are listed as one ‘appropriate adult’ in the act that could be present when a child is being searched by an immigration officer.

7. Detaining children

The act strengthens government powers for the detention of asylum seekers. This includes children. The only assurance given by the Government is that it will be “for the shortest possible time” in appropriate detention facilities. There is a longstanding expectation in the UK that children are detained only for the most serious crimes and to protect the community. This act allows for the routine detention of possibly thousands of young people up to and beyond 18.   

8. Disapplication of modern slavery

The act removes the protections of the Modern Slavery Act from those who are subject to the Illegal Migration Act. If a child has been trafficked to the UK, they are still to be detained once they reach 18 years old (or earlier for the purposes of family reunion or removal to a safe country of origin). This means that children trafficked from countries such as Albania will be sent back as the UK Government has determined that it is a safe third country, even if the child was a victim of trafficking from that country in the first place.

9. The removal of rights for asylum seekers and refugees

The act makes a bogus distinction between “genuine” asylum seekers (those who travel by “official routes”) and those who travel by “illegal routes”. The reality is that the vast majority of asylum seekers have no choice about how they travel to the UK.

10. The removal of rights for children

The act removes a series of rights to asylum seeking children that apply to all other children in the UK. This includes protections around the type of accommodation provided, medical intervention, and detention. The Home Secretary has given herself the power to deport asylum-seeking children and the duty to do so once they reach 18. 

Kerri Prince can be contacted at kerri.prince@basw.co.uk