Criminalising Asylum Beyond Prosecution: Exclusionary Law and Policy in the UK

Criminalising Asylum Beyond Prosecution: Exclusionary Law and Policy in the UK

Written by Professor Sarah Singer, University of London. Originally published in Laws by MDPI

13 April 2026

• This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license https://creativecommons.org/licenses/by/4.0/ .

Cite this article: Singer, S. Criminalising Asylum Beyond Prosecution: Exclusionary Law and Policy in the UK. Laws 2026, 15, 28. https://doi.org/10.3390/laws15020028 . [Submission received: 13 February 2026 / Revised: 24 March 2026 / Accepted: 1 April 2026 / Published: 11 April 2026]

Abstract
1. Introduction
2. Criminalising Asylum Through Prosecution
3. Criminalising Asylum Beyond Prosecution: The Penal Nature of Administrative Processes
3.1. Exclusion from Protection via Inadmissibility Regimes
3.2. Removals and Relationships with Third States
3.3. Precarity in the UK: Temporary Stay and Restrictions In-Country
4. Conclusions

Abstract

This paper explores the 'criminalisation' of asylum in recent UK law and policy, most notably the 2022 Nationality and Borders Act (NABA) and 2023 Illegal Migration Act (IMA), and the ways in which this framework has fed through into recent legislative and policy measures. Whilst the development and expansion of criminal offences relating to irregular entry and arrival may be considered the most overt form of 'criminalising' people on the move, in this paper it is argued that the criminalisation of asylum in the UK today should not only be understood through the prism of crimmigration measures which are expressly penal in nature, but also through an array of measures which, although framed as administrative and civil, are similarly punitive in character and serve the criminal punishment rationale of retribution and deterrence. The legislative framework of the NABA 2022 and IMA 2023 has paved the way for this progressive 'criminalisation' by sanctioning those arriving irregularly to the UK to claim asylum. This trend has been continued in recent law and policy, and progressively expanded in a manner that increasingly sanctions refugees for the very fact of having claimed asylum in the UK.

1. Introduction

The increasing trend towards 'securitization' of state borders, particularly in the post-9/11 era, has seen the development of border control regimes which seek to prevent the movement of migrants and refugees (Guild 2009; Léonard and Kaunert 2019). The introduction of carrier sanctions, restrictive visa regimes, and other non-entrée measures in the late 20th and early 21st centuries has been buttressed by a security rhetoric that frames asylum seekers as potential threats to national security and social cohesion (Davies et al. 2025). In the UK, this securitization trend appeared starkly in the periods following the 9/11 terrorist attacks on the United States and the 7/7 London terror attacks (Singer 2019b), and more recently in the debates surrounding the UK's Brexit referendum and the campaign to 'take back control' of the UK's borders (Saenz Perez 2023). As Saenz Perez (2023) argues, this securitized approach to migration is now permeating the UK's asylum sphere. In recent years, successive government campaigns to 'Stop the Boats' have targeted asylum seekers travelling irregularly to the UK—most notably via small boats across the English Channel—and framed such movements as a national crisis demanding a militarised response (Saenz Perez 2023, pp. 309–10).

This securitized approach to migration has underpinned the progressive 'criminalisation' of immigration and asylum law in the UK and elsewhere. Authors such as Stumpf (2006) have described the interaction between criminal and immigration law, or 'crimmigration' law, which has 'created parallel systems in which immigration law and the criminal justice system are merely nominally separate' (Stumpf 2006, p. 276). Stumpf observes how this 'crimmigration' merger has taken place on three fronts: (1) the substance of immigration law and criminal law increasingly overlaps; (2) immigration enforcement has in many respects come to resemble criminal law enforcement; and (3) the procedural aspects of prosecuting violations of immigration law have taken on many of the earmarks of criminal procedure (ibid.). Indeed, there is now extensive literature on this increased intertwining of criminal law and immigration control across a variety of jurisdictions (see, e.g., Mitsilegas 2014; Billings 2019; Gatta et al. 2021; Stumpf 2023; Bosworth et al. 2024; Vavoula et al. 2025). This research focuses on the range of coercive measures stemming from the criminal justice system and their deployment in immigration enforcement. This includes significant research on the development and implementation of an array of criminal offences for breaches of immigration law as one of the most overt manifestations of the 'criminalisation' of migrants (Aliverti 2012, 2013). Research has also centred on the expansive use of immigration detention, deportation of migrants convicted of criminal offences, and other coercive measures of control such as electronic tagging and surveillance (Bosworth 2014; De Bruycker and Tsourdi 2016; Turnbull and Hasselberg 2016; Bosworth and Vannier 2019; Brouwer 2020; Platt 2021). Some have suggested that crimmigration has become the paradigmatic model for governing migration in the age of globalisation (Rosenberg-Rubins 2023) and that criminal law has overtaken immigration law to such an extent that the notion of 'crimmigration' is entrenched in our legal systems (Dauvergne 2025).

These examples point to domestic immigration systems which are increasingly centred upon the traditional aims of criminal punishment: retribution and deterrence (Banks 2008, p. 44). As Cavender (2004) identifies, criminal policies today 'entail a condemnatory stance with respect to criminals and also a punitive approach to sanctions' (Cavender 2004, p. 336). These measures predominantly focus on 'expressive' deterrence through sanctions rather than the rehabilitative qualities of a criminal justice system: 'a form of 'acting out' more than the sorts of measures that might actually reduce crime' (ibid.). Similarly, the 'performative' rationale of measures that criminalise breaches of immigration rules has been highlighted in jurisdictions such as the UK and Italy. The development of criminal offences in these jurisdictions has been described as largely symbolic, exemplified by low and discretionary enforcement in practice (Aliverti 2013; Minetti 2022). Rather, it is argued that the development of such crimmigration offences is motivated primarily by a perceived need to appease the electorate and the media, and framed as tools of deterrence; a principle central to criminal law (Bloomfield 2016, p. 34). The punitive nature of these measures sits alongside securitized political rhetoric, which frames asylum seekers and migrants as potentially dangerous deviants, criminals, and threats to society (Bhatia 2015).

In this paper, I explore the criminalisation of asylum specifically, as a particularly pertinent example of this broader trend towards the criminalisation of immigration law. In the development and framing of asylum legislation and policy, one can observe the punitive and deterrent underpinnings of executive measures that parallel the aims of criminal justice even more starkly. As will be explored in this paper, the legislative framework embodied in the 2022 Nationality and Borders Act (NABA) and 2023 Illegal Migration Act (IMA) is explicitly centred on a rationale of deterrence through penalisation, the aim being to 'Stop the Boats' and deter new irregular arrivals to the UK through punitive measures which sanction individuals for their mode of arrival. I argue that this 'criminalisation' of asylum extends beyond 'crimmigration' measures, which are expressly penal in nature, to an array of measures which, while framed as administrative, are experienced as punitive by those subject to them (Spalding 2024) and similarly serve the criminal justice rationale of deterrence and retribution. As McConnachie (2026) notes, '[i]ncreasingly, policies adopted to deter irregular migration are not limited to penalties in the form of criminal prosecutions but seek to deny access to state territory and asylum determination by other means, including first country of asylum, safe third country and inadmissibility regimes' (McConnachie 2026, p. 121). I argue this array of civil and administrative penalties should themselves be understood as an aspect of the broader drive to 'criminalise' asylum through measures which extend beyond crimmigration.

This 'criminalisation beyond crimmigration' is evident in measures which sanction individuals for their irregular mode of entry to the UK through various means, including denial of access to the UK's asylum system and exposure to third country removal processes, restricting or denying access to core rights and benefits in-country, and imposing precarious, temporary forms of legal status which maintain an overarching focus on removals. At the most extreme, these measures penalise refugees for the very act of seeking asylum. I explore how the 2022 NABA and 2023 IMA provide the foundations for this approach, and furthermore trace how this has been developed in the recently enacted 2025 Border Security, Asylum and Immigration Act (Border Security Act) and government policy.

This paper will first examine the development of new immigration-related criminal offences in recent legislation, which overtly criminalise asylum seekers in a manner that is incompatible with the 1951 Refugee Convention (Section 2). Section 3 examines the criminalisation of asylum seekers beyond prosecution, with a particular focus on exclusion from the UK's asylum system via inadmissibility regimes (Section 3.1); focus on removals of asylum seekers to third states (Section 3.2), and; increasingly punitive in-country measures which sanction asylum seekers and refugees by restricting their access to core rights and benefits (Section 3.3). Whilst it is beyond this scope of this paper to engage in detailed analysis of the legal compatibility of these measures with the UK's domestic law and international obligations, tracing the progressive development of these measures serves to expose, in startling relief, the ways in which criminal, civil and administrative processes converge around an overarching deterrent rationale to 'criminalise' asylum in the UK. As explored in Section 3.3, what results is a punitive and also unworkable system, which risks overburdening an already creaking asylum and immigration framework.

2. Criminalising Asylum Through Prosecution

In the UK, the criminalisation of those seeking asylum has been particularly apparent in the expansive development of immigration-related offences relating to irregular entry and arrival to the UK (Christie 2016; Sato et al. 2017; Holiday et al. 2018), including those which have been specifically enacted to target those arriving via small boat or other irregular means. Recent research has exposed the breadth of the new offences created under the 2022 NABA and how they are being used to prosecute asylum seekers (V. Taylor 2024; Wolfe 2024; V. Taylor et al. 2025). As will be explored in this section, the reach of such immigration-related offences is expanding even further under the 2025 Border Security Act.

In order to lodge an asylum claim, a person must be physically in the UK's territory, as it is not possible to claim asylum from abroad except in the case of very limited schemes for certain nationalities (NABA 2022, sct. 14). [1] The progressive severity of carrier sanctions on travel providers and the expansion of visa restrictions on nationals of 'refugee-producing countries' mean that, in practice, there is a lack of legal routes for many seeking protection. Currently, claims from persons who entered the UK via regular routes such as work or study visas account for 39% of asylum claimants, a number which is likely to decrease as progressive restrictions on such visas are imposed on nationals of certain countries. [2] Where no legal routes are available, individuals are forced to travel irregularly. Given the geographical location of the UK, this is commonly clandestinely via the Channel Tunnel from France or, more recently, via a small boat across the English Channel. As will be explored further below, new criminal offences relating to illegal arrival to the UK, and an absence of refugee-relevant defences to prosecution, have been enacted under the NABA 2022 and developed further under the 2025 Border Security Act specifically to target those travelling irregularly or facilitating such journeys to the UK. This is despite the fact that the majority of those making these journeys are protection seekers and claim asylum on arrival (Home Office 2025a, sct. 3). These measures target asylum seekers in a manner arguably in contravention of the 1951 Refugee Convention, Article 31(1) (see below).

The development of immigration-related criminal offences is not a new phenomenon in the UK. Such offences—which provide for criminal sanctions for breaches of immigration rules—appeared with the introduction of the first immigration legislation in 1905, but have expanded rapidly since the late 1990s. Aliverti (2016) explains that from 1999 to 2009, new legislation created 84 new immigration offences, more than double the number of offences that had been created between 1905 and 1998. The pace of change has, unfortunately, not abated. The range of such offences is broad, and may include offences such as employing someone who does not have legal permission to work, [3] entering the UK without a passport, [4] knowingly entering the UK without leave, [5] assisting unlawful immigration, [6] to name but a few. While some of these offences may be committed by UK citizens or non-citizens, some can only be committed by those subject to immigration control. Many of these offences can significantly impact those seeking protection. For example, the 2004 Asylum and Immigration (Treatment of Claimants, etc.) Act introduced 50 new immigration-related criminal offences, including the offence of entering the UK without a valid immigration document (sct. 2). Within a year of its implementation, 230 asylum seekers had been arrested and 134 convicted for failing to produce a passport upon arrival (Bhatia 2015, p. 100). [7] Similarly, as considered further below, the criminal offences of knowingly entering the UK without leave, and facilitating illegal entry into the UK under Sections 24 and 25 of the 1971 Immigration Act have led to increased prosecutions of asylum seekers arriving clandestinely to seek protection in the UK. This is despite the protection against penalisation which should attach to refugees who enter or are present in the territory of a host state without authorization, provided they 'present themselves without delay to the authorities and show good cause for their illegal entry or presence', under Article 31(1) of the 1951 Refugee Convention, as examined further below.

The range and breadth of offences relating to irregular arrival to the UK have increased significantly under the current legislative framework. Indeed, a key pillar of the 2022 legislative deterrent strategy to 'Stop the Boats' is centred on the prosecution of those entering the UK irregularly, through the creation of new immigration-related criminal offences which target those travelling irregularly across the Channel. The new offences of 'illegal arrival' and 'assisting illegal arrival' were introduced by Sections 40 and 41 of the NABA 2022, amending Sections 24 and 25 of the 1971 Immigration Act. These make it an offence to 'arrive' in the UK without a valid entry clearance, and to facilitate the unlawful arrival of another, and increase the penalties for the existing offences of entry with leave and overstaying. These offences were specifically designed to enable the prosecution of 'small boat' arrivals, in particular to subvert the distinction between irregular 'arrival' and 'entry' to the UK that had previously been made by the Court of Appeal. [8]

Prior to the NABA 2022, faced with convictions of a number of asylum seekers who had helped to steer dinghies across the Channel and had been charged with the pre-existing offence of assisting unlawful immigration contrary to Section 25 of the 1971 Act, the Court of Appeal had maintained that there was a distinction between 'arrival' and 'entry' to the UK. [9] Section 24 of the 1971 Act prohibited illegal 'entry' to the UK. The Court held that a person was deemed not to have unlawfully 'entered' the UK if they were intercepted or rescued at sea, and then taken to an approved area within the port where they then claimed asylum. Thus, the court overturned the convictions on the basis that the asylum seekers in the boat had not 'entered' the UK at the time they were intercepted, and by extension, there had also not been the related crime of facilitating entry. [10]

In response to this, Sections 40 and 41 of the NABA 2022 were enacted. These expand the Sections 24 and 25 offences of the Immigration Act 1971. Section 24 was expanded to create the new offence of illegal 'arrival' to the UK without valid entry clearance [11] alongside the existing offence of illegal entry. Similarly, Section 25 was amended to include the offence of facilitating irregular 'arrival'. [12] As explained in the accompanying guidance, 'These offences will cover all asylum claimants who arrive without the necessary [entry clearance]…As a matter of law, refugees will be in scope of the offence but decisions on prosecutions remain a matter for the Crown Prosecution Service'. [13] These new offences attract significant potential penalties. The offence of illegal arrival has a maximum penalty of 4 years imprisonment, whilst the offence of facilitation of illegal arrival has a maximum penalty of life imprisonment. The penalties for breach of the pre-existing offences were also significantly increased in line with this. [14]

Since these offences came into force on 28 June 2022, over 600 people have been convicted of illegal arrival after arriving on a small boat, including at least 30 children who were tried and convicted as adults (V. Taylor 2026). Taylor notes that '[m]ost, if not all, of those convicted had ongoing asylum claims' (ibid.). This is unsurprising, as most people crossing the Channel irregularly via small boat claim asylum on arrival (95%), and are from countries which have typically high refugee-grant rates. For example, the top five most common nationalities arriving on small boats in the year ending September 2025 were Eritrean, Afghan, Iranian, Sudanese, and Somali—these accounted for almost three-fifths of all small boat arrivals in that period (Home Office 2025c, sct. 2). [15] Those being prosecuted under the facilitation offence are also predominantly asylum seekers rather than criminal smugglers or human traffickers acting for profit. Research by V. Taylor et al. (2025) reveals that it is most commonly those steering small boats that are charged with the 'facilitation' offence, yet 'those imprisoned for steering dinghies to the UK did so either under duress, because they do not have enough money to pay for a full fare, as a volunteer to mutually assist others seeking asylum in the UK, or under threat of violence' (V. Taylor et al. 2025, p. 3).

Despite the recognition that most people crossing the Channel irregularly do so in order to claim protection in the UK, the government has nevertheless justified this approach by defining small boat arrivals through the lens of securitization (Wolfe 2024, p. 216). Political rhetoric has increasingly conflated 'criminal smugglers' with 'criminal migrants', and the phenomenon of small boat crossings has been framed explicitly as a national security threat (Davies et al. 2025, pp. 19–20). This conflation of asylum and security concerns was exemplified in the appointment of a 'Clandestine Channel Threat Commander' in 2020 to tackle irregular migration across the English Channel (Home Office 2020a) and the 2024 appointment of a Minister for 'Border Security and Asylum'. A Border Security Commander with 'enhanced powers' to coordinate law enforcement and intelligence agencies to address illegal migration and criminal smuggling gangs has been supported by the 2025 Border Security, Asylum and Immigration Act (Prime Minister's Office 2024), legislation which takes an overtly anti-terrorist approach to irregular migration.

The trend of expanding the range and scope of immigration-related criminal offences has continued in this more recent legislation. The 2025 Border Security Act includes a range of new criminal offences ostensibly intended to address people smugglers and trafficking, but which are so broadly drawn that they can attach to much broader groups of persons. These include broadly framed smuggling and facilitation offences such as 'handling, supplying or disposing of items that are for use in immigration crime', [16] and 'collecting information that is of use to those planning an illegal crossing'. [17] The Crown Prosecution Service has confirmed that such activities can include looking at weather reports or tide times to identify a favourable time to launch (Crown Prosecution Service 2026, cited in V. Taylor 2026). UNHCR has raised concerns that while there are some exemptions for those working for charities and other organisations supporting refugees and migrants, [18] there is no corresponding defence for a person who is themselves being smuggled to the UK who assists a fellow migrant along the way (UNHCR 2025b, p. 11). Asylum seekers may potentially be caught by such offences. Concerningly, certain offences are specifically designed to attach to those on the move rather than people smugglers.

Section 21 of the Border Security Act further amends Section 24 of the 1971 Immigration Act to create the new offence of 'Endangering another during sea crossing to United Kingdom' (sct. 24E). Under this offence, those on small boats who endanger the lives of others [19] while on the water can be punished with up to six years in prison. Because this offence can only be committed by someone who also commits the pre-existing offence of knowingly entering the UK without permission, it clearly targets people undertaking journeys themselves rather than people smugglers or traffickers. It is also notable that, unlike the other new facilitation offences in the Border Security Act, this offence does not include any defences or exceptions. [20] The lack of clarity around what would constitute 'an act that caused, or created a risk of, the death of, or serious personal injury to, another person' and the nature of the conduct that would fall within its scope, has been heavily criticised as criminalising acts carried out by those on the move, potentially in fraught and life-threatening circumstances (UNHCR 2025b, p. 12). This recent legislation has continued the pernicious trend of criminalising those seeking protection in the UK via irregular routes.

The prosecution of asylum seekers for irregular modes of travel is particularly problematic given the lack of legal migration routes available to most seeking protection in the UK. The fact that refugees are often compelled to pursue irregular routes to seek protection was recognised by the drafters of the 1951 Refugee Convention, who included in the Convention a provision to protect refugees from penalisation for their irregular entry. Article 31(1) of the Convention prohibits states from imposing penalties for unlawful presence on refugees who 'coming directly from a territory where their life or freedom was threatened…enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.' The prosecution of asylum seekers and compatibility with Article 31(1) of the 1951 Convention was considered previously by the High Court in Adimi, which led to the adoption of a limited defence for refugees under Section 31 of the Immigration and Asylum Act 1999 for certain specified offences, provided certain criteria were met. [21] This statutory defence is more limited than the Article 31 protection established in the UK Courts jurisprudence (McConnachie 2026, p. 115) and has been critiqued as having 'restricted domestic effect' (Christie 2016) in that it does not prohibit the prosecution of refugees but provides only a statutory defence to certain listed offences. There, furthermore, appears to be a widespread lack of understanding of the availability of the defence among criminal lawyers, which has led to large numbers of wrongful convictions of refugees for offences such as possessing false passports and attempting to obtain travel services by deception (Sato et al. 2017; Holiday et al. 2018).

The NABA 2022 further limited the scope of the Section 31 defence by providing a very narrow interpretation of 'coming directly' to mean the defence does not apply if the individual stopped in another country outside the UK, unless they can show that they could not reasonably be expected to have sought protection in that country (sct. 37). Given the geographic location of the UK and the acceptance of European countries as 'safe' (see Section 3 below), this is intended to deny the Section 31 defence to the vast majority of those travelling to the UK via European countries. This domestic interpretation of Article 31(1) has been strongly criticised in scholarship and practice. As highlighted by the UNHCR, refugees 'coming directly' within the meaning of Article 31(1) 'include those who come straight from such territory, but may also include those who have merely transited through an intermediate country or countries, as well as those who have stayed in an intermediate country or countries' (UNHCR 2024, p. 10). The strict interpretation of 'coming directly' employed by Section 37 of the NABA 2022 is contrary to the established interpretation of the term as a matter of international law (see, e.g., Costello and Ioffe 2021, p. 923), and serves to deny the benefit of Article 31(1) to the majority of persons it was intended to protect.

In any case, it is notable that the offences of unauthorised entry and arrival, facilitating unauthorised entry or arrival, and endangering another under Sections 24 and 25 of the 1971 Act are not included in the listed offences that can benefit from the Section 31 defence. This means there are no defences to prosecution for these offences, even if the person is seeking protection. [22] Given the limited scope of defences and exceptions available, offences which criminalise modes of arrival have been heavily criticised as incompatible with Article 31(1) of the 1951 Convention. As Wolfe (2024) explains, '[i]t is precisely because there are no effective safe and legal routes available, and there is no mechanism by which the refugee or presumptive refugee can rely on rights contained in the Refugee Convention to enable lawful travel between countries, that refugees require protection from penalisation for their illegal entry or presence as provided for by art 31' (Wolfe 2024, p. 230). Despite this, the new offences created by the NABA 2022 and Border Security Act 2025 do not attract corresponding protection against prosecution for refugees, and indeed, in many cases appear to be intentionally designed to target those seeking protection. The deliberate exclusion of these offences from the refugee-relevant defence to prosecution demonstrates the underlying intent is to prosecute those seeking protection, rather than addressing irregular migration more broadly.

These measures criminalise asylum seekers in the most direct way, through prosecution. The impact on protection seekers is profound. Not only will criminal justice processes and periods of incarceration be highly traumatising for those fleeing persecution, but such prosecution can also have an ongoing impact on an asylum claim lodged in the UK, [23] and future employment and integration prospects. Prosecution for these offences can make an individual liable for automatic deportation. [24] Given the current crisis of overcrowding in prisons, it is unclear what public interest is served by pursuing such prosecutions, particularly as they are not having a deterrent effect on small boat crossings (V. Taylor 2024; V. Taylor et al. 2025). As argued by Davies et al. (2025, p. 24),

'Criminalising small boat crossings has not reduced arrivals, but has expanded backlogs, placed thousands in precarious hotel accommodation, and created a new flashpoint for far-right racist mobilisation in the UK. The emphasis on 'smashing the gangs' ignores the fact that smuggling is a by-product of border fortification itself.'

Seen in this context, such measures appear unnecessarily punitive and resource intensive. However, as considered in the following sections, the 'criminalisation' of asylum in the UK through broader measures of civil and administrative control extends much further.

3. Criminalising Asylum Beyond Prosecution: The Penal Nature of Administrative Processes

The prosecution of refugees and asylum seekers for illegal arrival and other immigration-related offences is perhaps the most overt form of the criminalisation of asylum we see in the UK today. However, I argue that the legislative framework of the 2022 and 2023 Acts represents a much broader shift in UK asylum law by adopting wide-reaching forms of legal control that, although not expressly penal, are similarly punitive in nature and serve the criminal law aims of deterrence and punishment. In this sense, these measures 'criminalise' asylum seekers. They penalise refugees for their mode of entry to the UK, and in some circumstances for the act of seeking asylum itself, through measures such as exclusion from the UK's asylum system via inadmissibility regimes, restrictions on rights in-country, and exposure to third-country removal processes. Approaches to regulating asylum seekers in-country are increasingly predicated on a progressive denial of rights and entitlements, in a manner that seeks to restrict integration and eventual settlement. What results is a large number of protection seekers in the UK, living in progressively more precarious conditions, at great economic and social cost to the state.

3.1. Exclusion from Protection via Inadmissibility Regimes

A key feature in the recent development of UK asylum law has been the increasing exclusion of asylum claimants from access to the asylum system via 'safe country' and inadmissibility rules. The use of inadmissibility and safe country rules in the UK is not entirely new, and has been applied to nationals of countries considered to be 'safe'. For example, since 2015, the UK participated in the European Union's common asylum system, and asylum claims from EU nationals were considered inadmissible on the basis that EU states were considered safe countries of origin. Under Section 94 of the 2002 Nationality, Immigration and Asylum Act (NIAA), an asylum claim from a national of a non-EU listed country could be certified as 'clearly unfounded', which removes the right of appeal in the UK. [25] The NABA 2022 and IMA 2023 expanded these concepts significantly and set out in legislation changes that had been made to the Immigration Rules in 2021, following the end of the UK's Brexit transition period and the end of the UK's participation in the EU common asylum system. This included new rules under which asylum claims from nationals of EU countries must be declared 'inadmissible', [26] and the power for the Home Secretary to add non-EU countries to the list of safe countries by regulations. [27]

However, by far, the most sweeping changes to the inadmissibility regime were the introduction of new inadmissibility processes in the NABA 2022, which could be applied to nationals of conspicuously 'unsafe' countries where they were earlier present in or had merely passed through 'safe' countries on route to the UK. Again, these set out in legislation changes that had been brought in under the Immigration Rules in 2021, following the end of the Brexit transition process. The Home Secretary can now declare a claim 'inadmissible' if the person has a 'connection to a safe third State' (sct. 80B 2002 NIAA, inserted by sct. 16 of 2022 NABA). The meaning of 'connection' with a safe third state is drawn very broadly in Section 80C. [28] Someone can be considered to have a 'connection' with a given country if they previously applied for asylum there or could reasonably have been expected to. A list of 'safe' countries is included in Part 2 of Schedule 3 to the 2004 Asylum and Immigration (Treatment of Claimants, etc.) Act. This lists 31 European countries (all 27 European Union countries, as well as Iceland, Norway, Switzerland, and Liechtenstein). Because of the geographical location of the UK, those travelling irregularly are highly likely to have travelled to the UK through one or more European 'safe' countries. Thus, this inadmissibility regime enables most asylum claimants arriving irregularly to the UK to be considered inadmissible. [29] This regime thus penalises refugees for their mode of arrival to the UK, with the express aim to 'deter illegal entry into the United Kingdom' (NABA 2022, Explanatory Notes, 1). Significantly, these rules allow an inadmissibility decision to be taken on the basis of a person's earlier presence in or connection to a safe third country, even if that particular country will not immediately agree to the person's return. Indeed, the legislation envisages that the person can be removed to another country entirely. [30]

The Illegal Migration Act 2023 took this regime even further, and envisaged it would be a mandatory duty on the Secretary of State to bar anyone who arrived in the UK irregularly from access to the asylum system (sct. 5), and included a duty on the Secretary of State to remove such persons from the UK (sct. 2). Again, the deterrent rationale of the legislation was made explicit. Section 1(1) of the Act explains that 'The purpose of this Act is to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by requiring the removal from the United Kingdom of certain persons who enter or arrive in the United Kingdom in breach of immigration control'. The stated intention of the government was that those whose asylum claims were deemed inadmissible would be sent to Rwanda (Home Office 2023), and to this end, a Memorandum of Understanding had been concluded with Rwanda (Home Office 2022). Under this arrangement, asylum-seekers in the UK would be transferred to Rwanda to have their asylum claim considered there and remain in Rwanda, regardless of the outcome of their asylum claim. [31] The UNHCR described this as an 'asylum ban' in 'clear breach' of the Refugee Convention (UNHCR 2023). When brought into force, these provisions proved unworkable. Many thousands of asylum claims were declared inadmissible and left in legal limbo whilst the UK sought to pursue the removal scheme to Rwanda. Persistent legal challenges to removing people to Rwanda raised concerns regarding insufficient asylum determination procedures and reception conditions in Rwanda, and the risk that persons would be subject to onward refoulement (Tan 2026). No persons had been removed under the scheme by the time of the country's general elections in 2024. [32] Following the general election, the new Labour administration abandoned the scheme entirely, and those claims were readmitted to the asylum system.

These most pernicious and unworkable sections of the IMA, which imposed mandatory duties of inadmissibility and removal, have now been repealed by the 2025 Border Security Act. However, the inadmissibility regime introduced by the NABA 2022 is still currently in force, and is being used to enable the Secretary of State to declare inadmissible and return to France a select number of persons under the new UK–France Agreement on the Prevention of Dangerous Journeys, as considered in the following section.

Excluding people from access to the asylum system in this manner has been criticised as a 'dereliction of the core Convention obligation to determine status' (Cantor 2023) and in breach of the Article 31(1) obligation not to penalise certain refugees for their manner of entry to the host State's territory (McConnachie 2026). The stated aims of this regime are to deter future irregular migration by penalising individuals for their mode of arrival to the UK, through measures which, although they sit outside the criminal justice system, nevertheless similarly serve the penal goals of deterrence and punishment. This pursuit of criminal policy goals through broader administrative processes can be understood as a method of 'criminalising' asylum seekers; punishing individuals for their mode of access to the UK territory despite the protections that should attach to those who have 'good cause' [33] for such irregular entry or presence (1951 Refugee Convention, Article 31(1)). As will be explored in the following section, this inadmissibility regime also creates significant practical and policy issues. In the absence of significant removal or readmission agreements with third states, those subject to inadmissibility processes are most often not removed, but face significant periods of uncertainty and instability whilst they are held in limbo without their claim being considered. In turn, this puts significant pressure on the country's asylum hosting capacity.

3.2. Removals and Relationships with Third States

Legal developments to exclude individuals from the UK asylum system via the above-described inadmissibility regimes are premised on the expected removal of persons to have their asylum claim considered elsewhere. Removing asylum seekers is problematic, however, as those with valid protection claims cannot be removed back to their home country since to do so would risk breaching the UK's non-refoulement obligations, as well as often raising significant practical challenges. For example, the individual may allege that their life will be at risk, they will suffer inhuman or degrading treatment, unlawful detention, or an unfair trial on return. For those claiming asylum on the basis of persecution and serious human rights violations in their home country, these human rights barriers to removal are likely to be particularly pertinent (Ginés Martín 2025, pp. 37–66). Such persons may therefore be unreturnable to their home country on account of protection risks in their home state. As explored in this section, seeking removal or return agreements with third states can be equally challenging.

Since the UK's withdrawal from the EU, one of the key challenges in removing asylum seekers has been the absence of returns agreements with the European states through which most irregular migrants will have passed on their way to the UK (York 2024, p. 153). [34] A key feature of the NABA 2022 and IMA 2023 legal architecture has therefore been to expand the power of the Secretary of State to remove asylum seekers to other countries, whether or not they have transited through them. Under this legal framework, the country of removal does not need to be the country to which the person has a 'connection', i.e., the country the person travelled through to reach the UK, nor one with which they have a pre-existing relationship of residence or similar (NIAA 2002, sct. 80B(6)). [35] As Pulverenti (2025) argues in this Special Issue, this strategy indicates a shift of responsibilities to 'fourth countries'; a special category of 'safe third country' where the refugees had never transited (Pulverenti 2025, p. 62).

Despite these greatly enhanced powers, the fundamental flaw with this plan is the lack of available and willing countries to receive such persons. The most prominent but ultimately unrealised third country arrangement of recent years was with Rwanda, considered in Section 3.1 above. The Supreme Court ultimately found the scheme as a whole to be unlawful due to the risk of onward refoulement from Rwanda. [36] Despite the enactment of a controversial Safety of Rwanda (Asylum and Immigration) Act 2024 to override the Supreme Court's ruling, the persistent legal concerns and controversy surrounding the arrangement led to it being discontinued when the new Labour administration came to power later in 2024. [37] However, the focus on removals has continued under the new Labour administration.

Since coming into power in 2024, the Labour government has put removals at the heart of its immigration and asylum policy (Hymas 2024). Whilst the most visible group subject to removals have been foreign national offenders serving prison sentences, 'this also includes people who have crossed the Channel to claim asylum, often blurring the distinction between the two' (Davies et al. 2025, p. 23). Under the recently concluded UK-France Agreement on the Prevention of Dangerous Journeys, 'those who arrive in the UK by small boat can now be detained and sent back to France (Foreign, Commonwealth & Development Office 2025). In their place, a security-checked migrant arrives via a safe and legal route in the UK' (Home Office 2025e). Although this 'one in, one out' arrangement has been welcomed by UNHCR as opening up a safe and legal route for asylum seekers to enter the UK (UNHCR 2025a), there have been concerns that the selection of those being returned from the UK to France under the agreement is arbitrary (D. Taylor 2026), and lacks appropriate recognition of the special vulnerabilities of those targeted for removal, for example whether they have been a victim of trafficking. [38] There have also been concerns that those removed back to France under the Agreement are not being provided the opportunity to claim asylum in France (Humans for Rights Network 2025). Ultimately, the Arrangement does not seem to be having the deterrent effect on small boat crossings that was intended (Dale 2026). Beyond this arrangement with France, although there are indications that the UK is seeking to conclude asylum agreements with further states to receive asylum seekers (Home Office 2025e, Part II), none have materialised as yet.

Indeed, despite the significantly expanded powers granted under this legislative framework, inadmissibility processes have not resulted in large numbers of removals. McKinney et al. (2025, pp. 18–19) outline that between the introduction of the expanded inadmissibility rules in January 2021 and June 2025, although 103,000 people were considered for inadmissibility and 46,000 of these were served with a notice of intent that their claim was potentially inadmissible, this resulted in very few inadmissibility decisions and removals in practice. Of these, 142 had their claims declared inadmissible, and 38 people were removed as a result. As they note, '[t]he lack of functioning third country arrangements until August 2025 has meant that the inadmissibility process has not resulted in large-scale removals in recent years.' With the conclusion of the UK-France agreement, these numbers are increasing slightly. Since the scheme was introduced in August 2025, 281 people have been removed, back to France, under the agreement (Nevett 2026). [39] However, this represents a tiny proportion of small boat Channel crossings, which stood at over 41,000 people in 2025 (Dale 2026).

The predominant focus on removals of asylum seekers and other non-nationals has continued, and is a key pillar of the recently announced 'Restoring Order and Control' asylum policy statement (Home Office 2025e, Part II 'Increasing removals'). This is detailed under the heading 'Removing failed asylum seekers', but a quick perusal immediately reveals it is not only failed asylum seekers that are being targeted. The UK-France Dangerous Journey's agreement, which applies not to 'failed' asylum seekers but to individuals who have not had their asylum claim determined, is highlighted as the first example of such a measure. The second example given, under the ambiguous title 'Resuming removals to certain countries', concerns increased use of cessation powers to regularly review recognised refugees' home country situations, with the aim of revoking refugee status and targeting them for removal. The statement advises that 'We are now exploring resuming enforced returns to countries where we have not routinely carried out such removals in recent years, including to Syria' (ibid., Part II(1)). Such operations would include the removal of families with children. Throughout the 'Increasing Removals' section of the policy statement, the Home Office outlines a range of measures to increase removals of asylum seekers, foreign national offenders, and migrants without leave to remain in the UK, often blurring these concepts. Yet, conflating migrants and refugees with criminals in this way is a dangerous pathway to dehumanising some of the most vulnerable people in society.

Targeting asylum seekers with removal to third countries forms a core part of the deterrence apparatus erected under the 2022 NABA and the 2023 IMA, and is premised on the punitive denial of access to the asylum system for those arriving irregularly to the UK described in Section 3.1 above. Threatening new arrivals with the prospect of deportation is a further penalty that such persons are exposed to. Although framed as an administrative measure, deportation is often experienced as punitive by those it is applied to (Spalding 2024). Indeed, the penal nature of deportation has now been recognised by UK authorities in the context of early release and removal schemes for foreign national offenders. As stated in the explanatory guidance to the Sentencing Bill (now the 2026 Sentencing Act) to justify the legitimacy of early release and removal schemes for foreign national offenders as soon as possible (or even immediately) after they are convicted, 'deportation itself constitutes the main form of punishment for criminality' (Ministry of Justice 2025). This recognition that administrative deportation and removal processes can themselves be considered a form of criminal punishment underlines the penal nature of the measures that irregularly arriving asylum seekers are being targeted with, despite their characterisation as administrative in character.

Ultimately, despite this overarching focus on removal and deportations, given the significant legal and practical challenges to removing asylum seekers to their home state, and in the limited returns agreements with third states, most asylum seekers will remain in the UK and subject to evermore precarity.

3.3. Precarity in the UK: Temporary Stay and Restrictions In-Country

Refugees and asylum seekers in the UK are subject to increasing precarity. Immigration detention is the key short-term 'solution' envisaged for those targeted for removal, and is given prominence in the IMA 2023, which expands the power of the Secretary of State to detain. The detention of asylum seekers and other non-nationals in Immigration Removal Centres (IRCs) and other short-term holding facilities has been highlighted as an archetypal example of 'crimmigration' (Banks 2008) as it shares key features of pre-trial detention and imprisonment and entails total control over the physical liberty of the detainees (Vavoula et al. 2025, p. 18). The securitized framing of immigration detention policies poses such measures as a 'legitimate response to protecting national interests and securing national security' (Bloomfield 2016, p. 35). The employment of immigration detention in this manner and as a tool of deterrence, rather than a purely administrative measure, is indicative of its penal nature in practice (Majcher and de Senarclens 2014, p. 4). In the UK, the dramatic increase in the use of immigration detention from the late 1990s onwards has led to a huge industry, with seven IRCs currently operated primarily by private sector companies Serco and Mitae, and four Short-Term Holding Facilities (STHF) operated by the Home Office, holding approximately 1800 people at any one time (Griffiths and Walsh 2024). While IRCs are not classed as prisons, they are often conceived as akin to prisons by both detainees and staff (Singer 2019a). The UK is unique in Europe in not placing an explicit time limit on immigration detention. The Government currently has the power to detain individuals for an indefinite period of time pending their deportation and removal from the UK. With the exceptions of children and pregnant women, [40] there are no statutory time limits on immigration detention.

The power to detain in the UK is covered by the Immigration Act 1971 and set out broadly. Individuals are most often detained for the purpose of effecting removal. However, they may also be detained to establish their identity or basis of claim, where there is reason to believe they pose a risk of absconding or there is a risk of harm to themselves or the public. These grounds are set out broadly, and their lack of clarity is compounded by the absence of an express time limit on immigration detention, or automatic judicial oversight of the detention process. Previously governed by the common law ' Hardial Singh principles', [41] which required that the power to detain be narrowly understood and limited to such a period as is 'reasonably necessary' for that purpose to be achieved, the power to detain has been expanded considerably under recent legislation.

Section 12 of the IMA 2023 modified the common law position and provides that it is for the Secretary of State, rather than the courts, to determine what constitutes a reasonable period of detention. This obstruction of judicial oversight has been heavily criticised as incompatible with the right to liberty under Article 5 of the European Convention on Human Rights (ECHR) (UNHCR 2023). The executive's powers were expanded even further under the 2025 Border Security Act. Section 44 of the 2025 Act retrospectively empowers the Home Office to detain people 'while the Secretary of State considers whether to make a deportation order'. [42] This is arguably not permissible under Article 5 ECHR, which sets out an exhaustive list of circumstances in which a person can be deprived of their liberty. Detention for immigration purposes would normally fall under Article 5(f): 'the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.' The expansion of the Home Secretary's powers to extend to consideration of whether action should be taken would appear to go beyond the scope of this provision. Together, these amendments in the 2023 and 2025 Acts mean that the power to detain comes into effect earlier, operates retrospectively, and lacks judicial scrutiny.

However, as highlighted by Yeo (2024), 'the number of detention spaces is never likely to be sufficient to remove all those the government in theory wishes to remove' (Yeo 2024, p. 250). Given this, and the limited scope for removals in practice, most asylum seekers live in the community. Many are accommodated in facilities which are not formally classed as IRCs, but appear increasingly close to quasi-detention facilities, and in sometimes appalling conditions. The facilities at Manston in Kent are a case in point. These facilities were opened in 2022 for the purpose of processing small boat arrivals. It is classed by the government as a 'Residential holding room', the only facility in the country falling into this category, rather than an IRC, and those held there are not counted in the official immigration detention statistics (Griffiths and Walsh 2024). The facility is currently subject to a public enquiry following concerns of significant overcrowding, deplorable conditions, including outbreaks of disease, and mistreatment of thousands of asylum seekers who were unlawfully detained there (Home Office 2025b).

More broadly, the government has taken an increasingly punitive approach to the housing of asylum seekers. Asylum seekers in the UK are generally not permitted to work and so rely on government support whilst their claim is assessed, a process that can take many months or even years. In an aim to reduce controversial reliance on housing asylum seekers in hotels, the government announced in 2022 its intention to use what it terms 'large sites' for asylum accommodation, such as ex-military facilities, and waterborne vessels such as barges, ferries, and cruise ships. The use of the 'Bibby Stockholm' barge to house large numbers of single male asylum seekers was quickly discontinued following concerns of poor conditions and the death of one person (Cridland 2026). Former military barracks have also been highlighted as large-scale 'solutions' to asylum housing. At present, Cameron Barracks (Inverness) is being considered as temporary accommodation for asylum seekers, and Crowborough Training Camp (East Sussex) recently became operational. Whilst these are not classed as detention centres, and individuals housed there are theoretically free to leave whenever they wish, this accommodation has clearly been selected with an eye to detention-like isolation from the local population. As explained in the government factsheet, 'Asylum seekers at the site are not detained, however the site is self-contained as essential services are provided on site to reduce the impact on local services through reducing the need for asylum seekers to leave the site' (Home Office 2026a, sct. 4). It is particularly concerning that these sites have been highlighted as potential 'solutions' to asylum accommodation, given that the housing of asylum seekers in similar infrastructure was recently found to be unlawful due to poor accommodation conditions and restrictions on liberty. [43] Asylum seekers are thus increasingly being held in detention-like settings which are far removed from local communities, at immense cost to the taxpayer (National Audit Office 2025). The parallels to the incarceration of those in the criminal justice system are striking, without, however, the commensurate due process protections that attach to those in the criminal sphere.

In tandem with this focus on detention and other restrictions on liberty, underpinning the UK's new legislative framework is a systematic approach to reducing the rights of refugees in a manner which in punitive and intended to have a deterrent effect on future asylum claimants. A central part of the NABA 2022 was the introduction of a 'two tier' system of refugee status (sct. 12). This allows differential treatment of refugees based on their mode of arrival to the UK, employing a distorted interpretation of Article 31(1) of the 1951 Convention. Under this scheme, those who 'have come to the United Kingdom directly from a country or territory where their life or freedom was threatened…and…have presented themselves without delay to the authorities' would be classed as a 'Group 1' refugee. However, this excludes any who 'stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country' (sct. 37). Under this regime, anyone not considered to have 'come directly' to the UK is entitled only to 'Group 2' refugee treatment. This formulation is intended to catch those arriving irregularly to the UK via European countries and acts as a further form of penalisation by directly restricting the range of rights and benefits such persons are entitled to as a 'punishment' for their mode of arrival.

The primary way in which the treatment of Groups 1 and 2 is differentiated is in relation to permission to stay, route to settlement, and eligibility for family reunion (sct. 12(5)). When this was brought into force in 2022, 'Group 1' refugees were normally granted refugee permission to stay for five years, after which they could apply for settlement, whereas 'Group 2' refugees were normally granted temporary refugee permission to stay for 30 months only, on a 10-year route to settlement (Jenrick 2023). This regime has been heavily criticised as unfair, in unduly penalising refugees for their mode of entry to the UK, and unworkable in practice (Saenz Perez 2023). Indeed, a year after it was implemented, the scheme was paused, and it was announced that individuals who had previously received a classification as a Group 2 refugee would have their conditions aligned with those assigned as Group 1 refugees (Jenrick 2023). Although it has not been relied on since, this legislation has not been repealed and remains potentially applicable to refugees in the UK.

Despite the demonstrated unworkability of this scheme, this approach has been expanded in current policy measures, which intend to similarly restrict the rights of all refugees, regardless of their method of arrival in the UK. Central to the 2025 'Restoring Order and Control' asylum policy paper is the intention that 'Refugee status has become temporary, and not permanent' (Home Office 2025e, p. 8). Under the proposed 'Core Protection' scheme, 'Refugees will instead [of 5 years leave] receive 30 months of leave to remain, which can only be renewed if they are still considered in need of protection. Where protection is no longer needed the person will become liable for removal from the UK' (p. 13). [44] This envisaged regime of short periods of leave replicates the approach that was being taken in respect of 'Group 2' refugees under the NABA 2022, and places individuals on a limited form of leave for short periods of time that is frequently reviewed with an eye to the potential for removal. As noted above in Section 3.2, a core aspect of the removals strategy set out in the asylum policy paper is regularly reviewing recognised refugees' home country situations, with the aim of revoking refugee status and targeting them for removal where possible. In this sense, the threat of deportation has been extended to all refugees, regardless of their mode of entry to the UK.

Further restrictions on integration and barriers to settlement are proposed and in-motion. In February 2025, Home Office rules were revised to provide that people who entered or arrived in the UK illegally will normally have their applications for British citizenship refused on 'good character' grounds, regardless of how long ago the entry occurred (UK Visas and Immigration 2025). This restriction on access to what was otherwise a core entitlement of recognised refugees has been continued in the government's statement and consultation on Earned Settlement, released later in 2025. This proposes increasing the baseline qualifying period for settlement for most migrants from 5 to 10 years (Home Office et al. 2025). For refugees, the starting qualifying period would be a startling 20 years. As explained in the statement, 'refugees will never be in a better position than those coming to the UK on recognised migration routes (such as workers), who are subject to the usual standard settlement qualifying period of 10 years' (ibid., p. 20). This in itself would appear to be a penalty applied to refugees for the fact of being refugees, as compared to other migrants.

Under the Earned Settlement proposals, a number of criteria might reduce the period for settlement, notably if the individual has significant earnings or if they have been resident on special 'talent' schemes for highly skilled workers. [45] However, it is proposed that a number of criteria would increase the route to settlement beyond 10 years, including having arrived to the UK illegally by small boat/clandestinely (increase up to 20 years), overstaying a visitor or other limited visa (increase up to 20 years) or being in receipt of public funds (increase 5–10 years) (ibid., p. 23). The punitive and deterrent nature of these sanctions is made clear in the Home Secretary's explanatory statement accompanying the proposal, which described the extended period to settlement for irregular arrivals as a 'long penalty' which aims 'to strongly discourage entering the country via these routes' (ibid., p. 4). [46] Such penalties would also attach to those who have been in receipt of public benefits. This is likely to disproportionately impact refugees, as refugees are the largest cohort of immigrants that are eligible to access public funds, and are often forced to rely on public benefits during the process of seeking asylum when prohibited from working. Even before such further periods of time are imposed, if this scheme is brought into force, recognised refugees will have a starting point of 20 years to settlement from the point they are first recognised as refugees. Given the significant delays in asylum processing, this may be many months or years after they first arrived and claimed asylum. In the meantime, they will be required to apply for permission to stay every 30 months, with their claim scrutinised with an eye to removal. These proposals are intended to make the asylum system harsher, with seemingly little thought to the human or administrative costs entailed.

The public interest in maintaining recognised refugees on such a punitively limited form of leave is unclear. Such measures will not affect levels of immigration to the UK. As noted by Yeo, there is no real-world experience or research to suggest deterrent policies actually work in practice (Yeo 2024, p. 245). And indeed the Home Office's own research has shown that deterrence policies play little, if any role, in refugees' decisions to migrate (Home Office 2020b). However, these measures will make life much more difficult for those in the UK, even following recognition of refugee status. The effect of this ongoing precarity will be enforced reliance on the State, as such limited forms of leave can significantly impact an individual's ability to secure employment and accommodation. This will increase the financial cost to the UK and prevent these people from becoming contributing members of society. The resource implications would appear to make this system unworkable from a policy perspective. If, as is expected, these proposals are brought into force, the 'criminalisation' of refugees and their treatment as second-class humans will be firmly cemented in UK law and policy.

4. Conclusions

This paper has argued that the 'criminalisation' of asylum in the UK today should not only be understood through the prism of measures which are expressly penal in nature, such as criminal prosecution. Rather, this trend also manifests through an array of measures which, although framed as administrative and civil in nature, are similarly punitive in character and serve the criminal punishment rationale of retribution and deterrence. In an attempt to 'Stop the Boats', the legislative framework of the NABA 2022 and IMA 2023 has paved the way for the progressive 'criminalisation' of asylum by sanctioning those arriving irregularly to the UK in ways beyond prosecution, through denial of access to the asylum system via inadmissibility regimes, and maintaining an overarching focus on deportation and removal. This trend has been continued in recent law and policy, and progressively expanded in a manner that increasingly sanctions all refugees for the fact of having claimed asylum in the UK. Expansive powers of detention have been accompanied by an increased focus on housing asylum seekers in detention-like settings. Restrictions on core rights and benefits that were initially targeted at irregular arrivals under the NABA 2022 'two tier' system of refugee status are now being expanded to all refugee claimants under the new 'Core Protection' asylum scheme. Restrictions on access to settlement for irregular arrivals are expected to become embedded for all refugees under the new Earned Settlement proposals. Together, criminal, administrative, and civil processes converge around a central logic of deterrence and punishment to criminalise the very fact of seeking asylum in the UK today.

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Footnotes

[1] For example, the UK currently has a Hong Kong British Nationals (Overseas) scheme and a Ukraine visa scheme. See Benson et al. (2024).

[2] For example, the UK has recently announced an end to sponsored study visas for nationals from Afghanistan, Cameroon, Myanmar and Sudan, and skilled worker visas for Afghan nationals, following a surge in asylum claims from individuals on those legal migration routes (Home Office 2026b).

[3] Immigration, Asylum and Nationality Act 2006, section 21.

[4] Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, section 2.

[5] 1971 Immigration Act, section 24.

[6] 1971 Immigration Act, section 25.

[7] For further details on the most commonly prosecuted UK immigration offences, see Crown Prosecution Service (CPS), "Immigration". (updated 13 February 2026). Available online: https://www.cps.gov.uk/prosecution-guidance/immigration#a07 (accessed on 17 March 2026).

[8] R v Kakaei [2021] EWCA Crim 503 and R v Bani and others [2021] EWCA Crim 1958.

[9] As per s 11 of the Immigration Act 1971, 'a person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer'.

[10] See e.g., Bani (n 15) per LJ Edis [71]: 'As the law presently stands an asylum seeker who merely attempts to arrive at the frontiers of the United Kingdom in order to make a claim is not entering or attempting to enter the country unlawfully. Even though an asylum seeker has no valid passport or identity document or prior permission to enter the United Kingdom this does not make his arrival at the port a breach of an immigration law.'

[11] Section 24(D1) Immigration Act 1971.

[12] Section 25(2) Immigration Act 1971. The Nationality and Borders Act 2022 also amended Section 25A of the Immigration Act 1971 by removing the 'for gain' of the previous offence of '…a person knowingly and for gain facilitates the arrival or attempted arrival (or entry/attempted entry) of an asylum seeker, or someone they have reason to believe is an asylum seeker, into the UK'.

[13] Nationality and Borders Act 2022, Explanatory Notes, para 395. Available online: https://www.legislation.gov.uk/ukpga/2022/36/pdfs/ukpgaen20220036en.pdf (accessed on 17 March 2026).

[14] The penalties for the existing offences of entry without leave and overstaying increased from 6 months to 4 years imprisonment. The penalty for entering the UK in breach of a Deportation Order also increased from 6 months to 5 years imprisonment. The penalties for the existing offence of assisting unlawful immigration increased from 14 years to life imprisonment.

[15] For a longer trajectory, see Cuibus and Walsh (2026), who observe that '[b]etween 2018 and 2024, citizens of six countries—Iran, Afghanistan, Iraq, Albania, Syria, and Eritrea–have made up 70% of people crossing in small boats'. Albanian nationals previously made up a high percentage of small boat arrivals, but this number has fallen dramatically since 2022.

[16] Offenders face up to 14 years in prison on conviction for such offences.

[17] Punishable with up to five years in prison.

[18] There is a limited defence of having a reasonable excuse for providing an 'article'. The reasonable excuse includes carrying out a rescue or acting on behalf of an organisation that aims to assist asylum seekers and does not charge for its services. Staff of charities assisting asylum seekers for humanitarian purposes would therefore not commit the offence, but a private individual going to try and help out independently (short of a rescue) might well do.

[19] 'at any time during the relevant period,…did an act that caused, or created a risk of, the death of, or serious personal injury to, another person'.

[20] Though a defence may be available under s 45 Modern Slavery Act 2015, where a person commits an offence as a result of compulsion attributable to their exploitation.

[21] Separate statutory defences are also available for specific offences. E.g., There is a defence of having a 'reasonable excuse' to the Section 2 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 offence of a person not having an immigration document at a leave or asylum interview upon entering the UK.

[22] R v Mohamed & Ors [2023] EWCA Crim 211 confirmed that the fact that a passenger is (or may be) a refugee is not relevant to the question of whether someone is guilty of the Section 25 offence and would not provide a defence.

[23] It is unclear whether such offences are being considered as potential grounds of exclusion from protection status under Section 72 of the NIAA 2002, but any sentence of 12 months or more would technically fall within the scope of that provision.

[24] Under Section 32 of 2007 UK Borders Act, which provides for automatic liability for deportation for anyone sentenced to at least 12 months imprisonment (unless deportation would breach their rights under the ECHR or 1951 Convention).

[25] Countries can be added or removed from the list, and may also be listed as safe only for certain types of people (e.g., a country may be designated as 'safe' for 'Men only').

[26] New Section 80A of the 2002 NIAA Act, introduced by NABA 2022 Section 36 as amended by IMA 2023 Section 59.

[27] 2023 IMA, Section 59. This power has already been used to expand the inadmissibility regime by extending the list of 'safe countries' to include non-EU states such as Albania, Georgia, and India.

[28] A 'connection' can be shown where (1) is where the claimant has been recognised as a refugee in a safe third state and can still access this protection; (2) is whether the claimant has been granted another form of protection in a safe third state that would prevent them from being sent from that state to another state, and they can still access this protection; (3) is where the claimant has already made a claim for protection in a safe third state, but that claim has not yet been determined or has been refused; (4) the claimant was previously present in a safe third state where they could have made a claim for protection, and that it is reasonable to expect them to have made a claim, but they failed to do so; or (5) where, in the claimant's particular circumstances, it would be reasonable to expect them to have made a claim for protection in a safe third state, instead of making a claim in the UK.

[29] Section 12 of the NABA 2022 also brought into force the controversial 'two-tier' asylum system, considered below in Section 3.3.

[30] NIAA 2002, s 80B (6): 'The fact that an asylum claim has been declared inadmissible under Subsection (1) by virtue of the claimant's connection to a particular safe third State does not prevent the Secretary of State from removing the claimant to any other safe third State.'

[31] The parties also agreed to make arrangements for the United Kingdom to resettle a portion of Rwanda's most vulnerable refugees.

[32] Although four people were removed to Rwanda voluntarily on a separate basis.

[33] As noted by Costello and Ioffe (2021, p. 924), being a refugee is, in itself, a sufficiently 'good cause' for the purpose of Article 31(1).

[34] Whilst the UK was a member of the EU, it was possible for many asylum seekers to be returned to the EU state through which they had entered the common European territory, under the EU's 'Dublin' arrangements (though it has been noted that this power was not utilised to a great extent at the time. In fact, The UK received more asylum seekers under the Dublin system than it removed from 2016 to 2020). See Yeo (2021).

[35] See n 37 above. The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 Schedule 3 lists countries currently presumed 'safe' for a person to be removed to. This includes the 30 European Economic Area countries, and Switzerland, whilst other countries can be specified as safe by statutory instrument or on a case-by-case basis if the Home Secretary is satisfied the person is not a citizen of that country and would not be persecuted there nor sent on to a country where they would be persecuted.

[36] R (AAA and others) v Secretary of State for the Home Department [2023] UKSC 42, 15 November 2023.

[37] The Safety of Rwanda (Asylum and Immigration) Act 2024 was recently repealed by the 2025 Border Security Act; however, the power of the Secretary of State to declare asylum claims inadmissible and remove individuals to third states remains in force.

[38] The Home Secretary amended the modern slavery guidance to exclude those being removed to countries that are signatory to the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT) and the European Convention on Human Rights (ECHR) (Home Office 2025d, para. 14.216 (inserted in September 2025)).

[39] A total of 350 people have come to the UK from France through the pilot scheme's approved route.

[40] There is a time limit of 24 h for detaining unaccompanied children in a short-term holding facility (Immigration Act 1971, Schedule 2, paragraph 18B). There is a 72-h time limit, or not more than seven days, where a longer period of detention of a is authorised personally by a Minister of the Crown, for pregnant women (Immigration Act 2016, sct. 60) and accompanied children and their families in pre-departure accommodation (Immigration Act 2014, sct. 6).

[41] Drawn from the case, which set out important principles concerning the use of powers to detain a person for immigration purposes. R(Hardial Singh) v Governor of Durham Prison [1983] EWHC 1.

[42] Section 44(2), amending Paragraph 2 of Schedule 3 to the Immigration Act 1971. Emphasis added.

[43] R (NB) v Secretary of State for the Home Department [2021] EWHC 1489 concerning housing at Napier Barracks, a former military camp in Kent.

[44] Also announced is a 'Protection Work and Study route': 'A person granted protection will be eligible to apply to move into this route if they obtain employment or commence study at an appropriate level and pay a fee. Once on this route, they will become eligible to 'earn' settlement sooner than they would under core protection alone.' (pp. 13–14). However, it is unclear what this route entails, and there are concerns that this would exclude those with caring responsibilities, disabilities, and others who cannot comply with the conditions.

[45] Including the Global Talent worker and Innovator Founder schemes. Special rules are also proposed for those on the Hong Kong British Nationals (Overseas) scheme, and those who are immediate relatives of a British citizen and meet the core family requirements.

[46] There is an exception: 'Resettled refugees who have been granted protection and moved to the UK through official resettlement programmes are intended to start at 10 years, bringing them in line with other arrivals on planned migration routes' (p. 20).

About the author

Sarah Singer is a Professor of Refugee Law at the Refugee Law Initiative, School of Advanced Study, University of London. She is an internationally recognised expert on criminality and asylum.

This article was originally published in the Laws journal published by MDPI (Multidisciplinary Digital Publishing Institute) and is reproduced here under the terms of the Creative Commons Attribution (CC BY) license https://creativecommons.org/licenses/by/4.0/.

© 2026 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license.

Cite this article: Singer, S. Criminalising Asylum Beyond Prosecution: Exclusionary Law and Policy in the UK. Laws 2026, 15, 28. https://doi.org/10.3390/laws15020028

Any views expressed are those of the author and do not necessarily represent the views of EIN. Posts in the EIN guest blog are for informational purposes only and do not constitute legal advice.

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