Government embraces ‘immigration exceptionalism’

Lee Marsons

June 13, 2023

In immigration law, the modern democratic state regularly enacts powers, processes and systems that would be regarded as intolerable elsewhere. Coercive and intrusive executive power with meagre judicial and parliamentary oversight is run of the mill. Part of this pattern has been called “crimmigration”, or the fusion of immigration administration with criminal law – where employers, landlords and migrants themselves are regulated with the sharpest of the state’s tools.  

With its indefinite powers of internment, its near total abolition of protection for victims of human trafficking, and its gutting of procedural justice, the Government’s Illegal Migration Bill exemplifies this immigration exceptionalism. The effect of the Bill is to ban almost all refugees and victims of human trafficking – from North Korean defectors to LGBT Ugandans to trafficked children from Vietnam – from seeking protection in the UK. 

Indefinite detention 

The Bill grants the Home Secretary the power to detain anyone she intends to remove. There are no time limits, there is no requirement for judicial approval, and there are no exceptions for children, pregnant women, disabled people, or the sick. The power applies even when there is no realistic prospect that she can remove the person – because, for example, she has no agreement with the country she wants to send them to. Worse, for the first month, the Bill prohibits people from seeking judicial review of their detention. 

As the former Independent Reviewer of Terrorism Legislation, Lord Anderson of Ipswich, shows, in this Bill immigration exceptionalism beats even terrorism exceptionalism (Column 1510). A person arrested for being a terrorist can be detained for only 14 days before charge. And even then, the police are required to seek judicial approval periodically. But for a refugee fleeing terrorism, there is no time limit and no requirement for judicial approval.  

Powers rejected even for the most serious criminal offences are acceptable in immigration.

Ignoring victims of modern slavery 

Moreover, the Bill removes all protection that victims of human trafficking have under the Modern Slavery Act 2015. This includes children and women subjected to sexual violence. This means that – even if the Home Office accepts that someone is a victim of trafficking – they will be given no time to recover from their abuse and trauma before being removed.  

The one exception is when the victim’s presence is necessary to give evidence in criminal proceedings. But even then, the Bill makes the Home Secretary presume that a victim’s presence is not needed for that purpose. 

Between 2018 and 2022, only 7 per cent of people who arrived via small boats were referred as potential victims of trafficking. Of that number, 85 per cent successfully proved that they were victims. As such, this is a policy that consciously denies victims protection and puts them in danger. As the Council of Europe has argued, being returned to their country will put victims at risk of being re-trafficked, facing revenge attacks by their kidnappers, and rejection by their family or community, especially where there has been sexual exploitation. 

Unfair decisions and appeals 

Further, the Bill creates an unfair system of decision-making and appeals, which disregards basic natural justice. The only way for refugees and trafficking victims to avoid removal is by making what the Bill calls a “suspensive claim”. These must be made within 8 days of being informed of removal and the person must provide “compelling evidence” that they will suffer “serious and irreversible harm” by being removed. After that, the Home Office has only 4 days to consider that evidence.  

If there is an appeal, from start to finish the parties have only 23 days to put together their case, argue it before the court – called the Upper Tribunal – and have the Tribunal reach a judgment. In almost all cases, there is no possibility of extension and the Upper Tribunal’s decision is final. 

A rushed court decision which follows a rushed Home Office decision is the last word on people’s lives and safety. 

The Government has plucked these numbers from thin air. There is no evidence that the Home Office can deal with complex evidence in 4 days. Caseworkers regularly take more than 6 months for decisions. More likely is poor quality, inaccurate, identikit decisions that fail to engage with individual risks and circumstances, through no fault of the judges and caseworkers involved. 

Challenging immigration exceptionalism 

The disregard of procedural fairness, the hollowing out of judicial supervision, the regular granting of extraordinary coercive power to ministers, the total abolition of legal protections, regulating the minutiae of judicial processes to favour the state, would rarely be tolerated in any other area – especially when all done at the same time to the same group of people. But all are made acceptable – because they are done in the name of immigration restrictions.   

Fortunately, an increasingly diverse range of political voices are challenging this immigration exceptionalism. The Adam Smith Institute, for example, has been strong in arguing for a more humane and moral outlook towards migrants. 

As others have argued – including on this blog – this Bill will not stop the boats. Domestic policy has only a modest effect on refugee flows. People flee to where they think they can most easily build a temporary base – because of shared language or family connections – in the hope of returning home when their country is safe. In any event, the UK is 16th on the list of European countries in terms of asylum applications – below average. 

Instead, the Bill will create a long-term population of detained refugees and trafficking victims, because the Government does not have enough safe countries to remove people to. Banned from having their applications processed, never able to receive leave to remain or citizenship, and banned from working, the Refugee Council estimates that the Bill will cost £9.6bn in detention or accommodation expenses alone in the first three years.  

The Illegal Migration Bill typifies the regressive view that the more powerful, intrusive and coercive the state’s immigration apparatus, the more wilfully it disregards basic due process and human rights, the more effective it is. That is rarely true – and there is scant evidence that it will turn out to be true for this Bill.  


Written by Lee Marsons

Lee is a Research Fellow at the Public Law Project

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