Border Security, Asylum and Immigration Bill

Written evidence submitted by the Law Society of England and Wales to Border Security, Asylum and Immigration Bill Committee (BSAIB08)

Introduction

1. The Law Society of England and Wales is the independent professional body that works globally to support and represent 200,000 English and Welsh solicitors, promoting the highest professional standards and the rule of law.  

2. The Law Society welcomes the Border Security, Asylum and Immigration Bill as an improved asylum initiative and a move away from recent legislation which undermined the rule of law and posed real problems for access to justice. The Bill repeals some of the measures brought in by the previous government that the Law Society opposed as unconstitutional and unworkable. In particular, the Bill reverses some of the most damaging policies of the Illegal Migration Act 2023 and repeals the Safety of Rwanda (Asylum and Immigration) Act 2024.

3. However, the Law Society believes that the Bill should go much further. As it stands, repealing the Rwanda Act and much of the Illegal Migration Act will leave the Nationality and Borders Act 2022 the default directive in many places, which itself was a detrimental piece of legislation. We believe that the Bill should also address and repeal deficiencies in the Nationality and Borders Act 2022 to avoid defaulting to those provisions.

4. There are several clauses in the Bill that look to crack down on people smugglers. However, these clauses are written in such a way that they could inadvertently be used to criminalise asylum seekers, contrary to the aims of the Bill. We advise that these clauses be redrafted to safeguard against their application to asylum seekers.

5. The current lack of legal aid providers is preventing people from accessing legal representation and immigration legal representatives from carrying out their role effectively. This is in turn preventing the asylum system from working efficiently and effectively. It will continue to undermine any attempts at improvement in this area if it is not addressed.

Repealing the Safety of Rwanda (Asylum and Immigration) Act 2024

6. The Law Society welcomes the repeal of the Safety of Rwanda (Asylum and Immigration) Act 2024, having consistently opposed the Act throughout its passage. It set a dangerous legal and constitutional precedent by legislating to overturn an evidence-based finding of fact by UK courts that Rwanda is an unsafe country to send asylum seekers to. It had serious implications for both the rule of law and human rights. 

7. We also welcome the repeal of large parts of the Illegal Migration Act, having similarly opposed those provisions when the Act was going through Parliament. The Illegal Migration Act effectively prevented most people from being granted asylum and created a duty to remove individuals without appropriate mechanisms to do so. It served to increase the asylum backlog, breached our international obligations and undermined the rule of law. Indeed, many of the provisions in the Illegal Migration Act were not ultimately enacted due to their unworkability.  

8. The repeal of the Safety of Rwanda Act and provisions of the Illegal Migration Act will hopefully lead to a more effective asylum system that is able to operate with more consideration to rights frameworks of which the UK is a part. 

Repealing certain provisions of the Illegal Migration Act 2023: Clause 38

9. The Bill repeals large parts of the Illegal Migration Act 2023, which the Law Society also welcomes. However, although we welcome the positive changes that the Government has made in this Bill, it should go further and repeal the whole of the Illegal Migration Act, including the damaging provisions on detention and modern slavery. 

10. Section 12 of the Illegal Migration Act would remain in force, which grants wide powers of detention to the Secretary of State and removes the oversight of the courts over how long a person can be detained for. We have concerns over how this provision will interact with clause 41 of this Bill which are addressed later in this submission.

11. While the vast majority of provisions relating to modern slavery in the Illegal Migration Act are to be repealed by this Bill, section 29 will remain. Section 29 strengthens the disqualifications from modern slavery protections in section 63 of the Nationality and Borders Act on the grounds of public order. 

12. Modern slavery protections have a vital part to play in the fight against people smuggling as identifying victims enables investigation of the perpetrators. However, neither provisions in the Nationality and Borders Act or the Illegal Migration Act account for forced criminality. This is where a person has been compelled to commit crimes as part of their exploitation and has subsequently been convicted. Failing to account for this risks genuine victims of modern slavery – who have already been wrongfully punished for a crime they were forced to commit – being punished again by subsequently being disqualified from protections. Beyond this, it means that opportunities to pursue and prosecute people smugglers are routinely being missed.

13. Research on the impact of the modern slavery provisions in the Nationality and Borders Act has shown that a high proportion of those disqualified were acknowledged to have had an element of criminal exploitation in their case. [1] Keeping section 29 of the Illegal Migration Act, and section 63 of the Nationality and Borders Act, will see this trend continue.

14. There is also very limited ability to challenge these decisions, which can only be done by judicial review as there is no formal route to appeal or request reconsideration. 

15. We encourage the Government to go further and repeal the Illegal Migration Act in its entirety, including in particular sections 12 and 29 and the human rights elements of section 59.  

Repealing detrimental parts of the Nationality and Borders Act

16. While the Law Society supports the repeal of the Safety of Rwanda Act and provisions of the Illegal Migration Act, we are concerned about what policy will be left in their place. As it stands, in several places, the Nationality and Borders Act 2022 will become the default directive, which itself was a detrimental piece of legislation.

17. The Law Society remains concerned about damaging provisions in the Nationality and Borders Act and believes that the Government should consider amending or repealing parts of the Act including: 

 

· Creation of a ‘two tier’ refugee system (section 12) – this allows for differential treatment between different groups of refugees depending on how they arrived in the UK.

· Inadmissibility criteria (sections 15-17) – these rules mean that asylum claims may be declared inadmissible and not substantively considered in the UK if the claimant was previously present in or had another connection to a safe third country.

· Accelerated detained appeals and expedited appeals following priority removal notices (sections 20-28) – these provisions essentially remove stages of appeal or fast-track certain cases.

 

· Standards of proof (section 32-35) – this provision changed the required standard of proof for important parts of the test of whether a person is a refugee.

 

· Criminalisation of asylum seekers (sections 40 and 41) – asylum seekers who arrive outside of official routes in the UK and people who facilitate arrivals are committing an offence under this Act and are liable to prosecution.

 

· Modern slavery provisions (sections 59, 60 and 63) – these have prevented the identification of victims, excluding vulnerable people from protections and missing opportunities for investigation and prosecution of people smugglers.

 

· Fines on solicitors and legal representatives (sections 80 and 81) – solicitors are already subject to an extremely rigorous regulatory regime by the Solicitors Regulation Authority, which includes duties to the court and duties relating to integrity. Overlapping and potentially duplicative regulatory requirements is unnecessary and risks undermining the effectiveness of current regimes, while adding complexity.

18. We encourage the Government to go further and repeal or amend detrimental parts of the Nationality and Borders Act, including the sections referenced above.

Detention provisions: clause 41

19. Clause 41 of this Bill allows the Secretary of State to detain a person while considering whether to make a deportation order against them. This, alongside the retained provision in the Illegal Migration Act (section 12), will mean that even more people could be detained for long periods, and the court’s ability to decide for itself whether the detention of a person for the purposes of removal is for a reasonable period remains limited – raising serious questions for the rule of law.

20. Practical questions arise as to where these people will be detained, how long they can be detained, whether it will be possible to obtain legal advice and representation, and if detention facilities will be accessible to lawyers. The detention environment can present serious barriers to seeking representation and ensuring communication with legal representatives.

21. Clause 41 would also apply retrospectively. As a general principle of the rule of law, laws should not be applied retrospectively unless there is a strong justification. No justification has been provided, as it is not mentioned in the accompanying explanatory notes and is only referred to in the human rights memorandum as a "clarificatory measure".  

22. Where retrospective law negatively impacts fundamental rights, as expanding detention powers does, the presumption against retrospectivity should be taken even more seriously and we urge the Government to reconsider this measure.

23. As this provision would apply retrospectively, we ask the Government to detail the lawfulness of the Secretary of State being able to detain a person when detention would not have been in accordance with a procedure prescribed by law at the time, ultimately undermining the rule of law. We also seek clarity on whether there is any upper limit to how long someone can be detained for.

Offences relating to immigration crime: clauses 13-15

24. Clauses 13-15 create new offences, including supplying or handling "relevant articles for use in immigration crime." The term "relevant articles" is defined in clause 15. The Law Society is concerned that, rather than only targeting people smugglers, the above clauses may criminalise asylum seekers who are forced to help the people smugglers whilst en route to the UK and therefore are made to "handle" such relevant articles, such as a rubber dinghy. 

25. Powers brought in by the Nationality and Borders Act 2022 mean that people seeking asylum can already be subject to prosecution for entry and facilitating entry. These additional measures within this Bill may further disincentivise asylum seekers from promptly presenting to state authorities upon arrival in the UK if they believe that they are committing a crime in doing so. It will frustrate the ability of people to rightfully seek asylum in the UK.

26. We are also concerned that the provisions could risk incompatibility with Article 31 of the Refugee Convention which prohibits penalties being imposed on refugees who enter or are present in a country without authorisation for the purposes of seeking asylum. 

27. The scope of the defences and intended impact of these new offences needs to be clarified and the Government must ensure that the offences do not apply to asylum seekers.

Endangering another during sea crossing to United Kingdom: clause 18

28. Clause 18 sets out that it is an offence for a person to carry out an act that caused, or created a risk of, the death or serious personal injury to another person in the course of any unauthorised entry or arrival by water from France, Belgium or the Netherlands.

29. The Law Society is concerned that parents or guardians could be prosecuted for taking their children on these journeys. The human rights assessment produced by the Government for this Bill states that parents who bring their children on these types of journeys will be excluded from prosecution under this offence in almost all circumstances, but the phrasing does not rule out prosecution in all circumstances. There is a concern that this could result in families being split up.  

30. The Government should clarify if this provision is intended to apply to asylum seekers in some circumstances, or amend it to ensure it does not in practice.  

Ongoing funding issues

31. There remain serious problems with access to justice for immigration issues across England and Wales. The issue is particularly acute outside of London and the other major metropolitan areas where there is little or no access to legal advice and representation for immigration matters, and legal aid is increasingly difficult for individuals to access.

32. This is largely due to unsustainable fee levels which have not increased since 1996, and as a result the number of legal aid providers has declined to a level where demand far outstrips supply. This continues to frustrate the Government’s plans to clear the asylum backlog.  

33. This problem has been recognised in the Government’s Review of Civil Legal Aid and, as a consequence, the Ministry of Justice (MoJ) is currently consulting on proposals to increase legal aid fees by an average of 30% across the immigration sector. This is a welcome development, but the new fees will not come into effect until the end of 2025, and whilst this may stem the decline in the number of immigration legal aid providers, it is unclear to what extent the new fees will enable providers to expand their capacity to see more clients, and what the timeframe for achieving this might be.  

34. We urge the Government to detail how it will meet the demands of legal representation and legal aid for immigration matters.  

24 February 2025