Illegal entry and asylum-seekers

The previous Conservative Government introduced some very draconian laws in its Illegal Migration Act 2023, which imposed severe penalties on asylum-seekers who came to the UK illegally (i.e. most of them). Such people might not be able to acquire British citizenship or settlement or indeed any sort of status at all. 

The new Labour Government repealed some of this legislation, but anybody who thought that they were going to be much softer on asylum-seekers than the Conservatives has been at last partly disillusioned. 

On Monday 10 February some new words appeared in the Home Office policy guidance about “good character” and British citizenship applications; this policy guidance document tells Home Office caseworkers how to process applications. 

One part of the new words states that “A person who applies for citizenship from 10 February 2025 who has previously arrived without a required valid entry clearance or electronic travel authorisation, having made a dangerous journey will normally be refused citizenship.”

Another part of the new words clarifies thus: “A dangerous journey includes, but is not limited to, travelling by small boat or concealed in a vehicle or other conveyance. It does not include, for example, arrival as a passenger with a commercial airline.”

So this tells us that a journey by airliner is not deemed to be dangerous, but yet another part of the new words states that “Any person applying for citizenship from 10 February 2025, who previously entered the UK illegally will normally be refused, regardless of the time that has passed since the illegal entry took place.”

This goes somewhat further and broader, but somebody who made a “dangerous journey” to get to the UK will presumably have entered the UK illegally in any case, so this looks like a case of tautology or double-counting. 

But the analysis here has to go deeper. A person who arrives at an airport on an airliner is not deemed to have made a dangerous journey but it is surely not necessarily the case that they will be coming to the UK legally. Suppose that they are travelling on false documents (as sometimes happens)? And supposing that the false documents are detected at the airport (as also sometimes happens)? Surely such a person will have come here illegally and the new policy will apply to them? But this is not as clear as it might be.

We need more clarification about this, and hopefully some may come from the Home Office or the courts at some point. 

And a couple of funny things have come up about this. It is remarkable how a Home Office civil servant can, with a mere stroke of the pen (or more accurately a stroke of the computer keyboard), make such a big change in the law, or at least in how the law is operated. 

And, another thing, the Prime Minister Kier Starmer is supposed to be, or at least was, a famous human rights lawyer. But many have pointed out (and with some logic) that this new policy flies right in the face of the Refugee Convention, to which the UK is signed up and which highly arguably renders these new policies contrary to international law.  

So anyway there we are: some things in the new parts of the policy guidance are clearer than others and we will have to see how things develop. We hope that as time goes by we will be able to provide fuller advice to our clients and potential clients. We note the use of the discretionary word “normally” in the new parts of the guidance but nonetheless this is likely to make a big change in Home Office practice re asylum and refugees.

Oliver Westmoreland

Senior Immigration Lawyer