Illegal Migration Act is 'ticking time bomb' in Scotland

JustRight Scotland, a charity set up by human rights lawyers, issued a plea for the Government to take action following the release of a report from the Equalities, Human Rights and Civil Justice Committee on Tuesday.

The report laid out a series of recommendations for the Scottish Government on issues relating to the rights of asylum seekers after taking evidence from legal experts and third-sector organisations – such as the Scottish Refugee Council and JustRight Scotland.

JustRight Scotland said in a statement published on Thursday that it is “very concerned at the lack of concrete action by the Scottish Government to respond to the threats posed by the Illegal Migration Act 2023”.

The UK Government’s Illegal Migration Act was first published as a bill on March 7 and the Scottish Government has pledged to bring in measures to mitigate its impact in Scotland.

The Sunday National understands that the Scottish Government’s next white paper in its Building A New Scotland series will focus on migration policy.

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Speaking to the Sunday National, Andy Sirel, legal director and partner at JustRight Scotland, said the report by the Equalities, Human Rights and Civil Justice Committee was a very “thorough inquiry that took the views of the statutory sector, law enforcement, the third sector, and of course, people who are in the asylum system themselves”.

He said: “It was a pretty comprehensive inquiry, and the report came out with some really clear key themes around concerns relating to how asylum seekers are accommodated in Scotland, gaps in terms of access to legal advice, health care, education.

“But also, it focused on some of the real key emergencies that we're seeing if the Illegal Migration Act comes into force, particularly around unaccompanied minors and how to safeguard them, and victims of trafficking in Scotland.

“And the report zeroed in on where those issues are within the devolved competence of the Scottish Parliament and therefore where there’s space to manoeuvre.”

The charity has highlighted the impact the act will have on unaccompanied minors who arrive in Scotland via irregular routes – such as by crossing the Channel in small boats – as a major concern.

Sirel said: “So right now, unaccompanied minors are looked after by local authorities, social work departments – just like any other child would be in Scotland who is in the care system.

“What the Illegal Migration Act does is it gives the Home Office the power to say to those local authorities: ‘Nope, you're no longer looking after them, give them to us’ and it gives the Home Office the power to accommodate them and become their what's called ‘corporate parent’. And that's ultimately with a view to removing them from the UK when they turn 18 years old.”

Currently, the measures in the Illegal Migration Bill allowing for those who enter the UK illegally to be sent to Rwanda are being challenged in the UK Supreme Court.

The measures would see asylum seekers sent to the African country to have their asylum claim processed there, instead of in the UK.

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But even if the legal challenges in the Supreme Court fail, Sirel said that there are “too many people” to realistically send to Rwanda.

He said: “The idea that everybody is going to be removed to Rwanda is obviously not going to happen. It’s impossible.

“So what happens instead is just sort of indefinite purgatory – you know, not being allowed to access leave to remain but you can't be removed from the country either. So there's no incentive to hang around then.”

He said the fact the Illegal Migration Act would cut off the prospect of having asylum claims processed in the UK means asylum seekers facing potential deportation to Rwanda will no longer be likely to stay in their temporary accommodation and comply with rules – as the incentive structure for doing so will no longer exist.

He added: “If the Illegal Migration Act comes into force, it creates a kind of a ticking time bomb situation whereby unaccompanied minors, as they approach their 18th birthday - which is the point at which the Home Office must remove them from the UK - there's a very high risk they go missing.

“And that's a really difficult one for local authorities because they'll be going missing from local authority care.

“So these are the things that are foreseeable, and we need to plan in order to try and head these risks off.”

The charity said that while it wishes more had been done by now, the Scottish Government is in an “unenviable position” of trying to navigate its obligations under the European Convention on Human Rights as well as the limits of devolved power.

Sirel said: “On the one hand, there are constitutional complexities. But the thing about that is that is, immigration is a reserved issue, but the impact on people's lives goes far beyond just immigration.

“It looks at health care, it affects the justice system, it affects victim care, it looks at education. Immigration might be reserved, but every other aspect really of a person's life in Scotland is devolved.

“The Scottish Government is in an unenviable situation where it knows that providing support to victims of trafficking is an obligation. But you've got that on your left hand and then on your right hand, you've got the UK Government compelling the Scottish Government to violate the rights. So they're caught between a rock and a hard place.”

He added: “And [the Illegal Migration Act] is also particularly perverse because in the most disingenuous way possible, the UK Government's aim of the average is to break the model made by human traffickers, but the consequence of the act itself is a trafficker’s dream – it only helps the model.”

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A Home Office spokesperson said: “The unacceptable number of people risking their lives by making these dangerous crossings is placing an unprecedented strain on our asylum system.

“Our priority is to stop the boats, and thanks to the work of the Small Boats Operational Command alongside our French partners, crossings are down by more than 20% compared to the same point last year.

“The Government is going even further through our Illegal Migration Act which will mean that people arriving in the UK illegally are detained and promptly removed to their country of origin or a safe third country.”

A Scottish Government spokesperson said: "The Scottish Government has been clear in our opposition to the UK Government's Illegal Migration Act since it was introduced. At a summit hosted by the Scottish Government in June, partners raised a number of concerns including around the potential impact of this legislation on efforts to tackle human trafficking and commercial sexual exploitation.

“There is limited information from the UK Government about the planned implementation of the Act which makes it challenging for the Scottish Government and our partners to consider what action it may be possible to take.

“We are continuing to work across government to assess all available mitigations, within our devolved powers and within the law, and will continue to engage with stakeholders as we have done since this legislation was introduced."