Bishop of Durham asks about status of migrants under the proposed Illegal Migration Bill

The Bishop of Durham received the following written answers on 16th May 2023:

The Lord Bishop of Durham asked His Majesty’s Government when a child is under the care and accommodation of the Home Office, due to the Home Secretary’s duty to detain and remove under clause 2 of the Illegal Migration Bill, what international or domestic legislation the Home Office is required to meet.

Lord Murray of Blidworth (Con, Home Office): The duty to make arrangements for the removal of an illegal migrant who meets the conditions in clause 2 of the Illegal Migration Bill does not apply to unaccompanied children, although clause 3(2) of the Bill confers a power to remove them in the circumstances set out in clause 3(3).

Clause 15 of the Bill further provides the Home Office with the power to provide or arrange accommodation and support for unaccompanied children. This power relates to non-detained accommodation.

The intention is to only provide accommodation and support to these children on a temporary basis before being transferred to a local authority.

We expect local authorities to continue to meet their statutory obligations to children from the date of arrival and for the Home Office to only step in sparingly and temporarily. The best place for these young people is and will remain within a local authority care placement.

The Home Office is not currently in the position of corporate parent to any unaccompanied child. There is nothing in the Bill which changes this position and it will continue to be for the local authority where an unaccompanied child is located to consider its duties under the Children Act 1989.

Detention powers in the Bill, including in relation to children, are set out in clause 10.


The Lord Bishop of Durham asked His Majesty’s Government

  • following a section 35 report being issued for a child and detention still being maintained for 28 days under the provisions of the Illegal Migration Bill, whether the child will be able to Judicial Review the decision.
  • further to the Illegal Migration Bill providing that individuals who are declared inadmissible are not able to secure bail until a 28-day period has elapsed, how they plan to operate Short Term Holding Units in the event that the Bill becomes an Act.

Lord Murray of Blidworth: The purpose of rule 35 of the Detention Centre Rules 2001 is to ensure that people in detention who are particularly vulnerable are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention. Rule 35 is a reporting mechanism, and where a report is completed, it does not automatically mean that the person should be released.

The Bill creates new detention powers which will allow the Home Secretary to detain a person pending a decision as to whether the new duty to remove applies, and thereafter to detain pending their removal.

For the first 28 days of detention, those who are detained under the new detention powers within the Illegal Migration Bill will be prevented from challenging their detention during this period by way of judicial review. An individual will be able to apply to the Home Secretary for bail during this period, although that decision may not be challenged by way of judicial review during the first 28 days. An individual may make an application to the High Court for a writ of habeas corpus (or the equivalent in Scotland) to seek release at any time.

Where people are detained for the purpose of removal, they will usually be detained in Immigration Removal Centres. Short-term Holding Facilities are usually used to detain individuals on arrival to the UK, for the purpose of initial examination, which would include an assessment of whether the new duty to remove applies.



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