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Summary: The Illegal Migration Act 2023: Leave to Remain and British Citizenship for Children

Note: The Government introduced a regulation which applies from 24 July 2024, which puts the Illegal Migration Act on hold indefinitely. This means it will not apply at all.

KIND UK still strongly recommends that the Illegal Migration Act is repealed in its entirety. Without repeal, it is possible that the Government (or a future Government) could in future change its approach and apply part or all of the Illegal Migration Act. 

In this briefing, we try to explain in relatively simple terms how the Illegal Migration Act 2023 affects children’s eligibility for leave to remain in the UK and British citizenship. There is a more detailed version of this briefing here.  

Summary 

The Illegal Migration Act (‘IMA’ or ‘the Act’) became law on 20 July 2023. Some parts of the IMA, including the sections that relate to leave to remain and British citizenship, came into force immediately on that date.1 As of 16 November 2023, some other provisions had also come into force, but many sections of the Act do not yet apply. 

If Section 2 of the IMA comes into force, it will require the Government to remove people who have irregularly entered the UK, if they have not come directly from a country where their ‘life and liberty were threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion’.2 Removal will be permanent and to a country the Secretary of State considers to be safe (but which might not really be safe).3 Asylum claims by people subject to removal under the Act will not be admissible in the UK4 – this means the UK Government will not make a decision about whether the person is or is not a refugee or in need of humanitarian protection. The IMA also allows the Government to detain people who are subject to removal under the Act.  

Leave to remain in the UK and British citizenship 

“Leave to remain” means permission to stay in the UK. It can be limited leave to remain (for a specific amount of time) or it can be indefinite leave to remain (which means there is no time limit on how long the person can stay in the UK; this is sometimes also called permanent residency).  

Citizenship is usually a permanent bond between a person and a country, which entitles them to a passport, the right to live and work in the country without any restrictions, the right to vote in all elections, and other rights and duties. Children born in the UK are not necessarily British citizens at birth – it depends on their parents’ immigration status or citizenship.   

These are some key things about how the IMA affects leave to remain and British citizenship: 

  1. Adults and children who entered the UK in the care of an adult, who entered irregularly on or after 7 March 2023  and who did not come directly from a country where their life and liberty were threatened, are permanently denied leave to remain in the UK, unless an exception applies. They are also permanently denied some routes to British citizenship,  unless an exception applies.5
  1. Children who entered the UK unaccompanied (not in the care of an adult), irregularly and who did not come directly from a country where their life and liberty were threatened, on or after 7 March 2023 can be granted leave to remain in the UK in some circumstances. But if Section 2 removal provisions come into force, unaccompanied children may be removed under the Act in certain circumstances.6 
  1. There is a limited exception to being barred from leave to remain  for children (and adults) who are victims of slavery or human trafficking, who were brought to the UK on or after 7 March 2023. They can be granted leave to remain for a limited time while they are cooperating with the police or other authorities in connection with an investigation or criminal proceedings, if their presence in the UK is necessary, and there is a public interest in their co-operation.7
  1. Exceptions to the provisions barring leave to remain and citizenship can also be made on human rights grounds; and for limited leave to remain, also for reasons relating to other relevant international agreements, or exceptional circumstance.8
  1. Some  routes to British citizenship, for children and adults, are directly barred by the IMA. Some children will be barred from British citizenship because their parents are not granted indefinite leave to remain in the UK or British citizenship or because they are removed from the UK.  

Examples of how the IMA may affect children [These are hypothetical examples]: 

  1. Sophia was born in the UK. Her parents were teachers and women’s rights activists who fled persecution in Afghanistan. They entered the UK hidden in a lorry. There was no way for them to get to the UK on an authorised route, and they passed through several countries during their journey. They hoped to join Sophia’s aunt, who already had refugee status in the UK.  
    After the IMA: if Sophia’s parents entered the UK on 7 March 2023, and Sophia was born in the UK in August 2023, her parents’ application for asylum would be ‘admissible’ in the UK and should be decided; but Sophia’s parents will never be granted leave to remain or British citizenship, unless an exception is applied in their favour. Sophia’s parents are not subject to the removal provisions of the IMA, because they are not in force (as of 16 November 2023) and the relevant date of entry into the UK for removal considerations under the IMA is currently 20 July 2023 (but this might change). As far as we are aware, the Home Office has not published guidance about how it will treat people in this situation. Sophia would not be a British citizen at birth because neither of her parents had been granted indefinite leave to remain or British citizenship when she was born. Under the Immigration Rules, Sophia would be eligible for leave to remain after she has lived in the UK for 7 years, at which point, as a child born in the UK, she would likely be eligible for indefinite leave to remain. If Sophia lives in the UK continuously for 10 years, she would likely have an entitlement to British citizenship at age 10. But even if Sophia is granted leave to remain or British citizenship, unless an exception to the IMA is applied, her parents will not ever be granted any form of leave to remain or citizenship. They will not be allowed to work or access welfare benefits such as Universal Credit. Sophia would very likely suffer many years of living in poverty and instability.  
  1. Vera entered the UK irregularly at 11 months old, with her 19-year-old mother. Vera and her mother are from an EU country and suffered domestic violence at the hands of Vera’s father. They passed through several other countries on their way to the UK. Once in the UK, Vera’s mother left her with some friends and then disappeared in worrying circumstances. Vera was taken into care. No suitable family members could be found to take care of Vera.  
    After the IMA: If Vera entered the UK on or after 7 March 2023, she would be barred from any form of leave to remain in the UK and from British citizenship on the discretionary route, unless the Secretary of State applies exceptions in her favour. She was in her mother’s care when she entered the UK, so the IMA’s unaccompanied child exception for leave might not apply to her. We hope that an exception to the bars on leave to remain and citizenship would be granted on another basis or that Vera might be adopted by a British citizen (in which case she could automatically become a British citizen upon the adoption order being issued). But unless some such solution is found, Vera may remain in care without any immigration status or British citizenship. If she is placed with a foster carer, she would not be able to travel abroad with them, because she has no leave to remain in the UK. She would face other difficulties as she gets older, for example, if she wants to work or go to university, because she has no immigration status. She may face removal from the UK to her country of origin after leaving care. She probably won’t have been to that country since she was a baby, won’t  know anyone there, and won’t speak the language.  
  1. Ali is a 17-year-old stateless Palestinian from Gaza who entered the UK irregularly, unaccompanied, and having travelled through several countries on his way to the UK, where he has cousins.  
    After the IMA: If Ali entered the UK on or after 20 July 2023 and requested asylum, as things stand at 16 November 2023, his claim would be admissible and should be decided (because the inadmissibility provisions of the IMA are not yet in force). He should be granted some form of leave to remain, because he entered the UK as an unaccompanied child, but it is unclear under the terms of the Act what form of leave that will be.  His fate after any initial period of leave to remain is unclear. He might remain in the UK in limbo without any status, or he may face removal to an allegedly safe country if the removal provisions of the IMA have come into force and apply to him; or the Secretary of State may, in his discretion, decide to grant him further or indefinite leave to remain, under one of the exceptions of the Act. He will not be eligible to naturalise as a British citizen, ever, unless an exception is applied.   

Conclusion 

There are still a lot of things we don’t know about how the Illegal Migration Act will affect people. Children and adults who entered the UK irregularly on or after 7 March 2023 who may be affected by the Act should apply to remain in the UK, if they are seeking asylum or have another legitimate reason for wanting to stay in the UK. They need good legal advice to find out if and how the Act applies to them and if it may be possible to obtain an exception to the bars on leave to remain and citizenship. Local authorities need to ensure that they obtain competent legal advice for any children in care who may be affected by the Act.  

Where to get immigration and asylum help if you are a child affected by the Illegal Migration Act 

Listed below are some of the charities and other organisations that provide free legal assistance and/or other support to children who have immigration, asylum, and citizenship issues:  

Asylum Aid: provides free legal representation to children and adults throughout the asylum process; also has projects for stateless people and people from Ukraine. Based in London.  

Barnardo’s: mental health and other support for children and adults seeking asylum; and a searchable database of where to get help in your area. 

Coram Children’s Legal Centre: The Migrant Children’s Project provides free one-to-one legal advice on immigration and asylum issues affecting children. Based in London. 

Greater Manchester Immigration Aid Unit (GMIAU): provides free legal advice and representation on all issues of immigration, nationality, asylum and human rights. Also assists children going through an age assessment process. Based in Manchester.  

JustRight Scotland: provides a free, child-centred legal service for people in Scotland, focusing on areas where refugee and migrant children find it difficult to realise their rights.   

Kids in Need of Defense (KIND UK): provides free legal advice to children and young people (on their own or with families) who need help with non-asylum immigration and citizenship issues. Operates throughout the UK, in partnership with Central England Law Centre, GMIAU, Coram, MICLU, and JustRight Scotland.  

Law Centres: provide free legal assistance to children and adults with a range of immigration, asylum, nationality, and other issues. Find a law centre here.  

Local authorities: provide support to children in need whose families are not eligible for asylum support or mainstream public welfare benefits. Find your local authority here.  

Migrant and Refugee Children’s Legal Unit: provides direct, specialist legal representation to migrant and refugee children in asylum and immigration matters, including a project for Albanian children seeking asylum in the UK. Based at Islington Law Centre, London.  

Project 17: provides free advice on housing and financial options for families with no recourse to public funds. Based in London. 

Project for the Registration of Children as British Citizens: provides free legal advice for children with applications for British citizenship. Based in London. 

Refugee Council: assists unaccompanied children seeking asylum, providing impartial and independent information, advice and guidance to help them to navigate the asylum and looked after children’s systems. 

Right to Remain: provides information for children and young people seeking asylum.  

Social Workers without Borders: prepares best Interests and Human Rights Assessments where individuals are facing detention, removal, or deportation; supports people who are in the asylum process or who have irregular immigration status to access services where there is no other service provider involved.  

University of Liverpool Law Clinic: provides free legal advice to children and adults with issues relating to statelessness, British citizenship, and some other immigration matters. Based in Liverpool.  

We Belong:  assists 16–25-year-olds who migrated to the UK as children with immigration and education matters.  

This briefing was drafted by Joseph Kelen (Covington & Burlington LLP) and Cynthia Orchard (Consultant Policy Advisor) for KIND UK. Thanks to KIND UK and external colleagues who kindly provided comments on a draft. 

If you have any questions or comments about this briefing or would like your organisation to be added to or removed from this list, please email: Cynthia.orchard@centralenglandlc.org.uk.  

  1. Illegal Migration Act 2023 (IMA), https://www.legislation.gov.uk/ukpga/2023/37/contents.   ↩︎
  2. In this briefing, ‘irregular’ entry means that the person needed permission to enter the UK but didn’t have it, or they used deception to enter. According to the Act, ‘directly’ means that if a person has, on their journey to the UK, passed through a country where their life and liberty were not threatened, they will be subject to removal. Where we say in this briefing ‘life and liberty were threatened’, we mean for the reasons set out in section 2 of the Act.  ↩︎
  3. The Government had planned to send people subject to removal under the IMA to Rwanda. The UK Supreme Court found on 15 November 2023 that this plan was unlawful, because Rwanda is not a safe country. There will likely be further developments on this. ↩︎
  4. IMA, section 5(2).  ↩︎
  5. IMA, sections 6, 30-36.  ↩︎
  6. IMA, section 4. These circumstances are, roughly, where: 1) The child is being reunited with a parent in another country; or 2) the child is being removed to a country that is designated as “safe” and they are a national or have a passport or ID from that country (this currently includes all EU countries, Switzerland and Albania, but the Secretary of State has the power to amend this list); or 3)The child has not made an asylum or human rights claim in the UK and removal is to their country of nationality, country where they have a passport or ID, or country from which they came to the UK; or 4) in other circumstances set out in regulations.  ↩︎
  7. IMA, sections 22(3), 30(3) , amendment to Immigration Act 1971, 8AA(2).  ↩︎
  8. IMA, section 30(3), sections 5, 30(3), amendment to Immigration Act 1971, 8AA(4). The “Human Rights Convention” means the European Convention on Human Rights.   ↩︎