Education

Asylum processing to resume as new regulations allow grants of leave to be made

Published on July 26, 2024

The Illegal Migration Act 2023 (Amendment) Regulations 2024 have ended the prohibition on grants of leave for people who have claimed asylum. The effect of the regulations is to consolidate the inadmissibility backlogs as broken down by me previously. All cases currently sitting in the inadmissibility process will now be dealt with under the Nationality and Borders Act 2022.

These new regulations mean that all asylum claims (and human rights and trafficking claims from those affected by the Illegal Migration Act) will start to be processed again. Some of the new regulations are already in force, others will hopefully never be needed. An explanatory memorandum and impact assessment have also been published.

The impact assessment estimates the benefits of this change:

to be between £6.2 billion and £27.1 billion, with a central estimate of £11.3 billion. The range reflects uncertainty over the proportion of asylum cases that will now be processed, the proportion supported, and the nightly rate of supporting individuals over 10 years.

Background

Previously, the Illegal Migration Bill and Illegal Migration Act cohorts were prohibited from a grant of leave. The Home Office had stopped processing these cases because of the difficulty in resolving them with nowhere to send people whose cases were deemed inadmissible, combined with the lack of a ministerial direction as to the circumstances in which they could be granted leave.

The Home Secretary said this week that as the Home Office did not have an effective triage process in place, the effect of these provisions was to prevent processing of all asylum claims made since March 2023, not just those affected by the Illegal Migration Act:

The Home Office estimates that around 40% of asylum cases since March 2023 should be covered by those Illegal Migration Act conditions. The remaining 60%, under the previous Government’s policy, should still have been processed and cleared in the normal way. However, even though previous Ministers introduced this new law 12 months ago, they did not ever introduce an effective operational way for the Home Office to distinguish between the cases covered by the Illegal Migration Act and the other cases where decisions should continue—that is, between the 40% and the 60%. As a result, decisions cannot be taken on any of them.

What has changed?

The section 2 duty to make arrangements for removal was never brought into force, but section 2(3) has been amended by these regulations so that the duty to make arrangements for removal no longer applies to those who arrived on or after 20 July 2023 (the date of Royal Assent for the Act). Instead, the duty would apply to people who arrive on or after “the day on which this section came into force in relation to the person”.

Other sections not yet in force have also been amended, including parts of section 5 (mandatory inadmissibility), section 6 (removal) and section 22 (disapplication of modern slavery protections) so that they will no longer apply restrospectively if brought into force.

The important changes are at regulation 3(5) onwards. The retrospective effect of the ban in section 30 and 31 of the Illegal Migration Act on grants of limited leave to remain, indefinite leave to remain and British citizenship has been lifted through consequential amendments at regulation 3(5) and 3(7)(b). This means that the ban on granting leave and citizenship is no longer in place, unless and until the duty to remove is brought into force (this is not expected to happen under this government).

Although there were exceptions available in section 30 to enable grants of limited leave to remain, the explanatory memorandum states “This position resulted in an ongoing risk that the Home Office was acting inconsistent with the legislation, by granting leave ultra vires to those who should be subject to the bans on obtaining an immigration status.”

The use of a statutory instrument to make these changes

These changes were made by using the regulation making powers in section 3(1) of the Illegal Migration Act and the consequential changes are permitted under section 3(2). I have explained before how these changes could have been made without the need for any legislation, however the potential problem with this approach appears to be hinted at in the impact assessment:

The complexity was further exacerbated because although the bans, and their retrospective effect, were commenced on Royal Assent of the Act they were not implemented operationally. This position resulted in an ongoing risk that the Home Office was acting in an unlawful manner, by granting an immigration status to those who should be subject to the bans on obtaining an immigration status.

So it appears that the Home Office may have been granting leave to people despite the ban and there was concern about whether these grants of leave had been made lawfully. Hence the need for legislative amendments.

The explanatory memorandum states that:

6.3 The use of primary legislation to amend the dates was considered as an alternative approach. However, it was not considered to be an appropriate use of Parliamentary time, given the existing powers available in the Act.

These regulations are tinkering around the problem. It may be useful tinkering for now but the Act remains otherwise intact. The duty to make arrangements for removal could still be brought into force through the use of regulations, with little parliamentary scrutiny. These regulations were published the day after they came into effect and it would presumably be just as easy for a government to turn the duty to remove back on and throw the system back into chaos. A responsible government would ensure that this cannot happen.

Conclusion

These regulations cannot be the end of the story, not least because the provisions of the Illegal Migration Act amended by these regulations so not directly correlate with the provisions disapplied in Northern Ireland recently.

There are also other provisions of the Act that continue to cause damage, including the harmful detention provisions. The government should formally repeal the Act via primary legislation and will shortly have parliamentary time to do so with the upcoming Border Security, Asylum and Immigration Bill. This must be used to put the Illegal Migration Act and the Safety of Rwanda Act to a conclusive end.