Policy paper

Illegal Migration Bill: Legal proceedings factsheet

Updated 20 July 2023

© Crown copyright 2023

This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: psi@nationalarchives.gov.uk.

Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.

This publication is available at https://www.gov.uk/government/publications/illegal-migration-bill-factsheets/illegal-migration-bill-legal-proceedings-factsheet

What are we going to do?

  • The Illegal Migration Bill will introduce an expedited process for the consideration of claims based on a real risk of serious and irreversible harm or a mistake of fact (‘suspensive claims’) and any related appeals.
  • In line with the UK’s international obligations, removal to a safe third country may only proceed after the claims and appeal process is concluded. All other legal challenges will not prevent removal.
  • This will limit the ability to bring late, spurious and last-minute legal challenges in order to frustrate removal from the UK.

How are we going to do it?

  • Where a person is subject to removal to a safe third country, they will have a limited time to make a claim that their removal to that country would result in a real risk of serious and irreversible harm (a “serious harm suspensive claim”) or that a factual mistake has been made in determining they were an illegal entrant subject to the duty to remove in the bill (a “factual suspensive claim”).

  • Where a suspensive claim is rejected, there will be a right of appeal to the Upper Tribunal. Where a claim is certified as clearly unfounded, there will be no automatic right of appeal; instead, it will be possible to apply for permission to appeal to the Upper Tribunal. Removal will not proceed until any appeal against a suspensive claim is concluded.

  • Late claims will only be accepted where there are compelling reasons.

  • All other legal challenges to removal, whether on human rights grounds or other grounds will not suspend removal and will be considered by the UK’s domestic courts following a person’s removal.

Frequently asked questions

What does ‘serious and irreversible harm’ mean?

  • The ‘risk of serious and irreversible harm’ test reflects that applied by the European Court of Human Rights when considering whether to indicate interim measures (similar to an administrative court injunction) under Rule 39 of its Rules of Court (see the factsheet on interim measures).

  • Serious and irreversible harm is a high threshold. ‘Serious’ indicates that the harm must meet a minimum level of severity, and ‘irreversible’ means that the harm would have a permanent or very long-lasting effect.

  • Where a person cannot be returned to their home country, they will be removed to a safe third country, such as Rwanda, and their asylum claim will be considered there.

  • Legal challenges which raise a real risk of serious and irreversible harm will be considered before a person is removed to a safe third country. If the claim is upheld, they will not be removed to that country.

How long will the process take to consider and resolve any suspensive claims?

  • Once an illegal entrant has been notified of their removal to a safe third country, they will have 7 days to seek legal advice and make a suspensive claim.

  • The Home Office must decide the claim within 3 days.

  • Where the claim is refused or certified as clearly unfounded there will be 6 days to lodge an appeal or to apply for permission to appeal.

  • The Upper Tribunal must decide a permission to appeal application within 6 days. An appeal against the refusal of a suspensive claim must be determined within 22 days.

Back to top