Ruth Brittle is a lecturer in Law at the University of Leicester. Specialising in family law, her research interests focus on the impact of the asylum process on education rights of young people seeking sanctuary and the impact of Age Assessment processes on the rights of young people to access the asylum process. 

Introduction

On Thursday 20th July 2023, the illegal Migration Bill became an Act of Parliament. As this unspeakably cruel, regressive, and unworkable piece of legislation becomes law, it marks a low point for the UK’s refugee protection record by making all forms of irregular migration to the UK illegal and effectively introduces an asylum ban. The United Nations High Commissioner for Refugees (UNHCR) stated that it will ‘undermine a longstanding, humanitarian tradition of which the British people are rightly proud’ (UNHCR 2023a). This insight will provide a brief overview of the new Act and consider the impact it will have on the education rights of children and young people who arrive here after this legislation comes into force. As Alf Dubs said, ‘[The] UK’s Illegal migration bill is a nasty piece of work. So is the cruelty inflicted on refugee children’ (The Guardian, 16th July 2023).

The Illegal Migration Act – Cruel, Regressive and Unworkable

This new law is cruel because it will deny anyone arriving irregularly in the UK after 20th July 2023 a right to seek and enjoy asylum – a fundamental right in the Universal Declaration on Human Rights 1948 (UDHR) which underpins the Convention Relating to the Status of Refugees 1951 and the 1967 Protocol (Refugee Convention) and a right which the UK has recognised since it ratified the Refugee Convention in 1954. Anyone arriving in the UK by irregular means (eg. small boat) will not be able to make a claim for asylum and if they do it will be declared inadmissible. The Home Secretary has a duty to remove anyone who comes to the UK ‘illegally’ provided 4 conditions set out in s2 of the Act are satisfied. Those 4 conditions are:

1. the person has arrived ‘illegally’
2. the person arrived after 20th July 2023
3. the person did not come directly from the place where their life and liberty was at risk (if they pass through a safe country such as France they have not come ‘directly’)
4. the person does not have permission to enter the UK

The Home Secretary does not have a duty to remove an unaccompanied asylum seeking child, but will have the power to do so in exceptional circumstances, for example, for reunion purposes with a parent (who is in a safe third country). The Illegal Migration Act (IMA) will not only strip asylum seekers (including children and young people) of their right to make a claim for asylum, but will remove their basic rights and essential support whilst in the UK. In addition, it puts the lives of people seeking sanctuary at even greater risk, either by returning the individual to their country of origin or exposing them to the risk of trafficking here in the UK (Cantor, 2023). Additional cruelty is heaped upon survivors of modern slavery as people travelling irregularly will be exempt from modern slavery protections, which up until now would have prevented their removal from the UK.

Secondly, the IMA is regressive because it rolls back the progress the UK has made on human rights protection since the introduction of the Human Rights Act 1998 (HRA) and undermines the UK’s reputation for humanitarianism, tolerance and respect for human rights. During IMA’s passage through Parliament, the Home Secretary was unable to make a statement of compliance with the HRA, which is very rare.

Finally, this legislation is unworkable because the Act places a duty (or power) on the Home Secretary to declare asylum claims by people arriving irregularly (‘illegally’) inadmissible and to detain and remove everyone who arrives in the UK by small boat – this will include children and young people under 18. Since 2018 around 89,000 people have arrived by small boat and sought asylum here. A majority of them have had positive refugee status decisions. But if people continue to arrive by small boat, how is the UK going to accommodate or detain them all before removal? The government has not built new facilities in the numbers required to accommodate refugees arriving here and, apart from the Rwanda deal (more on this later), the UK has not reached an agreement with any safe third country to receive people whose claims are inadmissible in the UK. People will continue to arrive by small boat, because there is no safe or legal alternative to reach the UK. With the asylum backlog getting worse (Yeo, 2023), the IMA is going to add pressure on the government to find accommodation to detain increasing numbers of asylum-seekers arriving by boat at huge public expense. In the short-term, these people cannot be removed to a safe third country or their countries of origin and they cannot settle or work or make a life for themselves in the UK. This Act is unworkable, but the Government has ignored these arguments.

How does the IMA impact on children’s education rights?

Education Rights are firmly established in international law (Article 26 UDHR, Article 13 International Convention on Economic, Social and Cultural Rights (ICESCR) and Articles 28 and 29 CRC) and the UK government recognises a right to education for all children in the UK, whatever their status (protected in the Protocol 1, Article 2 of the European Convention on Human Rights (ECHR) and the HRA). All refugee or asylum seeking children are entitled to a school place and where they are unaccompanied, they are treated as ‘looked after’ children (s17 and 20 Children Act 1989) with all the local authority support (including accommodation) which goes with that. Although the Act does not change this fundamental right, there are a number of provisions, which are going to impact children arriving via small boats after 20th July 2023 and fundamentally undermine their education rights. The Committee on the Rights of the Child (UNCRC) and the UNHCR have both urged the UK government to repeal the provisions which violate children’s rights (UNCRC 2023, para 50; UNHCR 2023b, paras 128-139).

1. Inadmissibility of claims: The Home Secretary confirmed in the Child Rights Impact statement (Home Office, 2023) that asylum claims by children will be inadmissible if they meet the 4 conditions in s2 of the Act – this is to ‘avoid creating a perverse incentive for people smugglers to prioritise unaccompanied children and families with children for dangerous crossings’. They are likely to be detained in Home office accommodation whilst awaiting removal. It is not clear whether they will be able to attend a school local to the Home Office accommodation or if they are in a detention facility, they receive education whist they are there. The government has given no indication about education provisions in detention centres. Children travelling with their families will be subject to the same removal duty as adults – and they will be detained in adult facilities with their parents. Again, it is not clear what access child will have to education provision whilst they are being detained.
2. The power to detain and remove: The risk of detention and removal will be hugely disruptive to their education and make it much harder for schools and local authorities to support the child’s educational needs. The disruption will impact on their access to quality education, exams and ultimately qualifications to enable them to have a future of work.
3. Accommodation: There is insufficient accommodation for young refugees. Housing children in hotels has been hugely problematic, which has created a legal vacuum in which unaccompanied children have no statutory parent and are not ‘looked after’ under the Children Act 1989. The charity Article 39 urged the High Court to exercise its inherent wardship jurisdiction to look after children housed in hotels. But the High Court rejected the argument and reminded local authorities of their duties under the Children Act 1989 for looked after children. Whilst the government is committed to ending the use of hotels for unaccompanied children, the Home Office gives little notice of children being moved to an area and little time to prepare local authorities to accommodate and look after these children. The disruption to the child’s education is devastating (Hill, 2023).
4. Age Assessment: If A child is subject to an age dispute, the young person is treated as an adult and accommodated in adult centres without access to school places/education. Research by the Helen Bamber Foundation reveals that in 2022, over 850 children were wrongly ‘assessed’ to be adults by border officials and sent to adult accommodation/detention before being referred to local authorities whose social workers found them to be children. The right to challenge age assessments has been severely curtailed under this Act and even if the child can challenge the decision, the Home Secretary has retained the power to remove the child whilst waiting for an appeal. A child who refuses to consent to scientific tests (which have been condemned by medical professionals for wide margins of error – BASW et al, 2023) is presumed to be an adult. The government says this is necessary to stop adults pretending to be children and to safeguard children from harm (Home Office, 2023), but does not acknowledge the harmful impact on children who are treated as adults and miss out on months of vital education.
5. In Limbo: This Act will leave children in a state of uncertainty for years and they are highly likely to age-out before any decision is made on their case. Although refugee children may have access to school places, there will be few incentives to engage, if there is a significant risk they will be removed from the UK once they reach 18. The stress of waiting for a decision leads to a rise on drop out rates from school and disengagement with other social and recreational activities (UNHCR, 2019). Children nearing their 18th birthdays more are likely to go missing from care or Home Office accommodation to avoid being detained and removed.
6. Ineligibility to settle in the UK: Children arriving via irregular routes will be permanently ineligible for leave to remain or citizenship under IMA. Thus, when they turn 18, they will be denied access to higher education, vocational training and work. It is highly likely that young people in this situation will be forced into destitution or exploitative and illegal work or modern forms of slavery.

What about Rwanda?

The Rwanda Migration and Economic Development Partnership (2022) is a UK-Rwanda deal to allow for the transfer of asylum seekers to Rwanda and to process their claims, but without hope of being allowed to return to the UK. The deal has been challenged in the UK courts, the latest of which was heard by the Court of Appeal in June 2023. The Court held that Rwanda is not a safe third country because of its inadequate asylum process and there is a real risk that genuine refugees will be returned to their home countries to face persecution or inhuman treatment. This would breach the prohibition on torture and inhuman or degrading treatment under Article 3 ECHR and thus the Rwanda policy is unlawful. However, this legal challenge is not over, as the government intends to appeal the decision to the Supreme Court to enable it to start sending irregular arrivals to Rwanda.

CONCLUSION

The key aim of this Act is the ‘stop the boats’, but people fleeing for their lives with no knowledge of the system in the UK are not going to stop seeking sanctuary here. There are many reasons why people want to come to the UK to seek sanctuary (language, colonial links, family reunion and respect for human rights). Instead of acting as a deterrent this Act is going to provide a perverse incentive for refugees, who are in the UK, to disappear into the shadow economy and into deeper and more dangerous forms illegality, rather than make themselves known to the authorities. Young people on the cusp of adulthood are at the greatest risk and more likely to drop out of education and disappear out of sight, leaving them exposed to exploitation and criminality. This Act is the result of pandering to an ideology which sees refugees as a threat to so-called ‘British values’ and will do nothing to address the causes of refugee movements around the world and will not ‘stop the boats’.

References

British Association of Social Workers (BASW), British Medical Association (BMA), Refugee Council and the Royal College of Paediatrics and Child Health (2023) Joint Parliamentary briefing: the Illegal Migration Bill and its impact on children (11th & 25th May 2023).
Cantor, D (2023). ‘Illegal Migration Bill: helping force refugees into illegality and danger’ Free Movement Blog 14th April 2023
Hill, J (2023) ‘How Hostile Immigration policies are “piling misery onto children”’ Schools Week 11th July 2023.
Home Office (2023) Children’s Rights Impact Assessment on the Illegal Migration Bill.
UK-Rwanda Migration and Economic Development Partnership (2022); Memorandum of Understanding and Note Verbale (Rwanda policy)
UNHCR (2019) Refugee and Then: Participatory Assessment of the Reception and Early Integration of Unaccompanied Refugee Children in the UK.
UNHCR (2023a) Statement on UK Asylum Bill.
UNHCR (2023b) Legal Observations on the Illegal Migration Bill.
UNCRC (2023), Concluding Observations on the UK, 2nd June 2023; CRC/C/GBR/CO/6-7, para 50;
Yeo, C (2023) Briefing: the state of the UK Asylum system, Free Movement Blog, 20th June 2023

CASELAW:

Article 39 v Secretary of State for the Home Department [2023] EWHC 1398 (Fam)[ Hotel accommodation case].
R (AAA & others) v Secretary of State for the Home Department [2023] EWCA Civ 745)[ Rwanda Policy case].