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

This briefing explains how the Illegal Migration Act 2023 affects children’s eligibility to be granted leave to remain in the United Kingdom or British citizenship.

We also have a shorter version of this resource intended for young people, parents, and adults working with children who aren’t legal professionals.

Summary

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

A key provision of the IMA is Section 2 (which is not yet in force). If it comes into force, Section 2 will require the Government to remove people who have entered the UK irregularly, 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 UK after the relevant provisions come into force4 – 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. There are some limited exceptions to the removal provisions, but some of the exceptions may be very difficult to access. The IMA also empowers the Government to detain people who are subject to removal under the Act. This briefing will not discuss detention; however, on principle, KIND UK’s position is that children should not be subject to immigration detention.

This briefing focuses on the provisions of the IMA that relate to leave to remain and British citizenship and how they affect children. We do not know exactly how some parts of the Act will operate. However, some things are known:

  1. Adults and children who entered the UK in the care of an adult, who entered irregularly on or after 7 March 2023, not coming 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 British citizenship, unless an exception applies.5
  2. Children who entered the UK irregularly on or after 7 March 2023, unaccompanied, not in the care of an adult, not coming directly from a country where their life and liberty were threatened, 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
  3. The IMA confirms that the Secretary of State has the power to decide who is a child (through an age assessment).7 This provision is not yet in force as of 16 November 2023, and this briefing will not discuss age assessment; however, we have serious concerns about the accuracy and appropriateness of Home Office age assessments.

Leave to remain

“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).

The IMA says that any child who has entered the UK irregularly after 7 March 2023, and who has not come directly from a country where their life and liberty was threatened for specified reasons, will never be granted leave to remain, unless the Secretary of State decides they should be granted leave to remain.8 There are three exceptions that might apply so that the child will be granted leave to remain:

The first exception is for unaccompanied children, who are generally to be granted limited leave to remain.9 The Act does not explain how to apply or any details of this leave to remain. We expect new rules about this will be added to the Immigration Rules at some point. We are aware that some children who entered the UK between 7 March 2023 and 20 July 2023, irregularly and unaccompanied, and not having come directly from a country where their life and liberty was threatened, have been granted asylum (with 5 years leave to remain);but we are not aware of any published guidance relating to this.

Under the Act, a child who entered the UK in the care of an adult, even if they are not related to the child, might not be considered ‘unaccompanied’.10 The relevant date is the date of entry or arrival in the United Kingdom. If, for example, an adult enters with a child they are caring for but later abandons the child, the child might not qualify for the ‘unaccompanied child’ exception (but arguments should be made that the child should be granted leave to remain based on an exception on human rights or exceptional circumstances grounds — more about this below).11 As noted, the IMA gives the Secretary of State some discretion about whether to grant limited leave to remain to unaccompanied children.12

The second exception to being barred from leave to remain is for children (or adults) who are victims of slavery or human trafficking. If Secretary of State is satisfied that the individual is cooperating with the police or other authorities in connection with an investigation or criminal proceedings, that their presence in the UK is necessary, and that there is a public interest in their co-operation, then they can be granted leave to remain while the investigation or proceedings are taking place. After their limited leave comes to an end, they will be subject to removal from the UK.13 This briefing will not discuss trafficking further, but in general, victims of trafficking should be protected and supported, regardless of whether they feel able or safe enough to cooperate with investigations.

The third exception applies where the Secretary of State considers that a failure to grant limited leave to remain would not comply with the UK’s obligations under the Human Rights Convention or any other relevant international agreement, or the Secretary of State considers that some other exceptional circumstance applies;14 or, for indefinite leave to remain, if denial of leave to remain would result in a violation of the Human Rights Convention.15 

British Citizenship

Like the provisions relating to leave to remain, the IMA denies many routes to British citizenship to children who enter the UK irregularly on or after 7 March 2023.16 Key points relating to the citizenship provisions include:

First, the relevant date of entry to the UK for the citizenship provisions, is, like the leave to remain provisions, on or after 7 March 2023.17

Second, the relevant territory to consider is expanded to include the Channel Islands, the Isle of Man, and British Overseas Territories.18

Third, there are some possible exceptions to the bars on British citizenship under the IMA. The Secretary of State can still grant British citizenship if she considers that barring the person from citizenship would not comply with the UK’s obligations under the Human Rights Convention.19 For the citizenship provisions, there are no explicit exceptions for unaccompanied children, victims of modern slavery or trafficking, or children in care; but these groups may fall within the human rights exception.

Fourth, some children’s routes to British citizenship are directly barred by the IMA; other children will be ineligible for British citizenship because their parents cannot be granted indefinite leave to remain in the UK or British citizenship or because they are otherwise affected by the IMA. Some examples include:

  1. Born in UK + parent already settled or British: Under the British Nationality Act 1981 (“BNA”),20 children are automatically British citizens at birth if a parent has settled (been granted indefinite leave to remain or an equivalent status) or been granted British citizenship before the child was born. Under the IMA, many refugee and other parents will not be eligible for leave to remain or British citizenship, so their children, even if born in the UK, will not be British citizens at birth.
  2. Born in the UK + parent later settles/becomes British: Under the British Nationality Act 1981,21 children born in the UK have an entitlement to British citizenship if a parent settles or acquires British citizenship after the child’s birth. Many refugee and other parents will not be eligible for leave to remain or citizenship under the IMA, so this route to citizenship will not be available to their children.
  3. Born in UK + first 10 years: Under the British Nationality Act 1981,22 children become eligible for British citizenship if they were born in the UK and were continuously living in the UK for the first 10 years of their life. The IMA does not directly bar this route to citizenship, but if the child is removed from the UK before age 10 (for example with parents who entered the UK irregularly before the child’s birth), then the child will likely not become eligible for British citizenship under this route because they are no longer living in the UK.
  4. Born outside the UK to certain cohorts of British parents: under section 3(2) and 3(5) of the British Nationality Act 1981, a child born outside the UK to a parent who is a British citizen by descent is eligible for British citizenship, if certain other criteria are met. However, the IMA denies these children British citizenship if they enter the UK irregularly on or after 7 March 2023 (as discussed above).23
  5. Stateless children born in UK: Under the British Nationality Act 1981,24 children who were born in the UK, who are and always have been stateless, and who were continuously resident in the UK for the past 5 years (and meet other requirements) are eligible for British citizenship, up to age 22. The IMA does not directly bar these children from becoming British citizens; but if such children are removed from the UK before they acquire British citizenship, then they may be permanently denied this route to citizenship; and potentially, they will be condemned to a life without any nationality, depending on the laws of the country to which they are removed and whether they can acquire a nationality there.
  6. Discretionary route: Under the British Nationality Act 1981,25 the Secretary of State has wide powers to grant British citizenship to any child if he thinks fit. This provision has allowed many children who have strong connections to the UK to acquire British citizenship. However, the IMA says that children who entered or arrived in the UK irregularly on or after 7 March 2023 (as discussed above) cannot be granted British citizenship under this provision of the BNA, unless the Secretary of State applies an exception in their favour.26

These are not all the relevant provisions, but a sample of some of the ways that children may be affected by the IMA.

What other impacts will these provisions of the IMA have?

Even if children potentially subject to the Act remain in the UK and are granted leave to remain or British citizenship, they will likely live in poverty and instability for extended periods if their parents are barred from leave to remain and prohibited from working. If the IMA provisions relating to removal come into force, then some (possibly many) children will be removed from the UK with their parents, to as yet unknown circumstances. 

If the removal provisions of the IMA come into force, the threat of removal from the UK may motivate some children who have been granted leave to remain until age 18 to disappear as they approach age 18, because they fear being removed from the UK. They will likely be vulnerable to exploitation and other harm.  

UNICEF and others raised various concerns when the Illegal Migration Bill was being considered, including that it may contravene Article 2 of the United Nations Convention on the Rights of the Child (“UNCRC”), which requires the UK to take all appropriate measures to ensure that children are not punished or discriminated against based on their parents’ status or activities.27 Implementation of the IMA will not comply with Article 3 of the UNCRC (and section 55 of the Borders, Citizenship and Immigration Act 2009) if the best interests of the child are not taken into account as a primary consideration in all decisions relating to the child, through an individual and appropriate assessment.28 The IMA, as applied to refugee children, may also contravene Article 22 of the UNCRC, which requires the UK to take ‘appropriate measures’ to provide ‘appropriate protection and humanitarian assistance’ to children who are seeking asylum or who are refugees, whether they are with family members or are unaccompanied. In addition, UNICEF noted that some children affected by the Act may develop a strong private life in the UK by the time they turn 18. Denying them leave to remain after age 18 may violate their right to private life under the Human Rights Convention (Article 8).29

Examples of how the IMA may affect children

  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. They passed through several countries during their journey. They hoped to join Sophia’s aunt, who already had refugee status in the UK.  
    Before the IMA: If Sophia’s parents entered the UK in 2015, they should have been granted refugee status due to their fear of persecution in Afghanistan. After 5 years with refugee status, they would be eligible for indefinite leave to remain. If Sophia was born in 2022, after either parent had been granted indefinite leave to remain or British citizenship, she would be a British citizen at birth. Or, if neither parent was granted indefinite leave to remain or British citizenship before Sophia was born, they could apply for Sophia to be granted ‘leave in line’ with their refugee status, and then to register Sophia as a British citizen after either parent obtained indefinite leave to remain. Sophia would also be entitled to British citizenship if she lived continuously in the UK from birth to age 10.  
    After the IMA: if Sophia’s parents entered the UK in the same circumstances but on 7 March 2023, and Sophia was born in the UK in August 2023, the family’s situation would be different. As of 16 November 2023, her parents’ application for asylum is admissible – the inadmissibility provisions of the IMA are not in force; 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 (not yet in force), because 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 published no guidance about how it will treat people in this situation. Sophia would not be a British citizen at birth if neither of her parents had been granted indefinite leave to remain or British citizenship. 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 will very likely suffer many years of living in poverty and instability.  
  2. 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 by Vera’s father. They passed through several 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 guardianship of Vera.  
    Before the IMA: If Vera entered the UK in November 2022, she could be granted leave to remain in the UK under provisions of the Immigration Rules relating to children in care. She could also be granted British citizenship at any time, under the discretionary provisions of the British Nationality Act (Section 3(1)) – this would most likely occur after she has lived in the UK for 10 years, but it could happen sooner, if the Secretary of State wished.  
    After the IMA: If Vera entered the UK in the same circumstances but 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 to remain does not obviously 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 would 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 if they go abroad, 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 won’t have been to that country since infancy, may have no connections there, and may not speak the language.  
  3. 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.  
    Before the IMA: if Ali entered the UK in February 2023, he should have been granted asylum (if he feared persecution or met the requirements of Article 1D of the Refugee Convention) or humanitarian protection for 5 years, due to the conditions in Gaza (which were dire even before 7 October 2023 and the subsequent humanitarian catastrophe). After 5 years with asylum or humanitarian protection, he could have been granted indefinite leave to remain, and after another year, naturalisation as a British citizen.  
    After the IMA: If Ali (still age 17) entered the UK in the same circumstances but on or after 20 July 2023 and requested asylum, as of 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.  

[These are hypothetical examples].

Conclusion

The IMA provisions discussed in this briefing will likely have a significant and harmful impact on many children, barring many from ever acquiring leave to remain in the UK or British citizenship, forcing them to live in poverty and instability for extended periods, and potentially pushing some into exploitative situations and other harm. If the removal provisions are brought into force, some children will face removal from the UK, to as yet unknown circumstances. Some stateless children could be condemned to a life without any nationality. Many refugee children and other children face very uncertain futures.  

Despite the barriers and various unknowns, 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. Children and adults affected by the IMA need competent legal advice to try to obtain exceptions to the leave to remain or citizenship provisions of the IMA. Where children are in care, local authorities need to ensure that they obtain competent legal advice for them.  

The harm the IMA poses for children could be prevented. Charities, local authorities, and legal advisers can and likely will bring legal challenges if the IMA is implemented in ways that violate children’s rights. The Government could avoid harming children and facing numerous legal challenges by issuing further guidance which confirms that children’s best interests must be taken into account as a primary consideration in all decisions relating to them in relation to the IMA, through individual and appropriate assessments, and confirming that children, and their parents (where applicable), should be granted leave to remain and British citizenship under the exceptions built into the IMA in all circumstances in which failure to grant leave to remain or citizenship to a child or an adult would not be in a child’s best interests, or where barring leave to remain or citizenship would otherwise harm a person who was born in the UK or entered the UK as a child. This guidance should also confirm how the Government will adequately protect children who are seeking asylum (both those who are unaccompanied and those living with family members), and confirm the UK’s adherence to all provisions of the UN Convention on the Rights of the Child, the 1951 Refugee Convention, the Convention against Torture, the International  Covenant on Civil and Political Rights, the 1954 and 1961 Statelessness Conventions, the European Convention on Human Rights, and other relevant international and British law, including the Children Act (England) and similar legislation in other regions of the UK. This guidance would need careful monitoring to ensure that it is being implemented properly to protect children who are born in the UK or who enter the UK as children, whether on their own or with family members.  

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), section 68(3)(a). To see which sections of the Act are in force, go to https://www.legislation.gov.uk/ukpga/2023/37/contents. Under ‘What version’ (left side of screen), click ‘latest available’; then click on a section of the Act. If it did not come into force on 20 July 2023, it will say ‘Status: This version of this provision is prospective.’ If there is also a section about ‘changes to legislation’, click that to see if that section has come into force. At the end of each section, there is also a note about whether that section came into force at commencement (20 July 2023). ↩︎
  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 any country where their life and liberty were not threatened, they will be subject to removal. Where we say later 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. ↩︎
  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, section 57. For immigration and nationality purposes in the UK, a child is a person under the age of 18. ↩︎
  8. IMA, section 30(3), amendment to Immigration Act 1971, section 8AA. ↩︎
  9. IMA, sections 5, 30(3), amendment to Immigration Act 1971, 8AA(2). ↩︎
  10. IMA, section 4(5). The Act does not define ‘care’. ↩︎
  11. IMA, section 4(6). ↩︎
  12. The IMA section 4(3) allows the Home Office  to remove an unaccompanied child from the UK in certain circumstances (but these provisions were not yet in force as of 31 October 2023), 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 which the Secretary of State can set out in regulations. ↩︎
  13. IMA, sections 22(3), 30(3) , amendment to Immigration Act 1971, 8AA(2). ↩︎
  14. 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. ↩︎
  15. IMA section 30(3)(4)(a) and 30(3)(5). ↩︎
  16. IMA, section 31(1). ↩︎
  17. IMA, section 31(3). ↩︎
  18. IMA, sections 31(4), (7). ↩︎
  19. IMA section 36(2). ↩︎
  20. BNA, section 1(1). ↩︎
  21. BNA, section 1(3). ↩︎
  22. BNA, section 1(4). ↩︎
  23. IMA, section 32(1). ↩︎
  24. BNA Schedule 2, Para 3-3A. ↩︎
  25. BNA, section 3(1). ↩︎
  26. IMA, section 32(2)(i). ↩︎
  27. Written Evidence by the UK Committee for UNICEF (IMB0034), 6 April 2023; UNCRC, Article 2, https://committees.parliament.uk/writtenevidence/119953/html/. We note that some provisions of the Bill changed before it was enacted; however, the Act still punishes or discriminates against some children due to their parents’ status or activities, and therefore, it is not compatible with the CRC. ↩︎
  28. UNCRC, Article 3(1); Borders, Citizenship and Immigration Act 2009, section 55. ↩︎
  29. Written Evidence by the UK Committee for UNICEF (IMB0034), 6 April 2023; European Convention on Human Rights, Article 8(2). ↩︎
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