Beginning of the end of ‘lamentable’ Illegal Migration Act welcomed by Lords scrutiny committee

HOUSE OF LORDS

Secondary Legislation Scrutiny Committee
2nd Report of Session 2024–25

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Ordered to be printed 3 September 2024 and published 5 September 2024
Published by the Authority of the House of Lords
HL Paper 4

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Illegal Migration Act 2023 (Amendment) Regulations 2024 (SI 2024/815)

Date laid: 23 July 2024
Parliamentary procedure: negative

These Regulations are intended to remove certain retrospective elements from the Illegal Migration Act 2023 ("the Act"). The Home Office states that the complexity resulting from the current arrangements creates a barrier that prevents the Home Office from processing some asylum claims. The Home Office believes the resumption of processing these claims will save significant amounts of public money that would otherwise be spent on asylum seeker support.

We welcome that steps are being taken to sort out this issue. However, it should not have arisen in the first place: it is lamentable that the Home Office put forward an Act of Parliament that it has simply not been able to implement. We also wonder how much public money has been wasted on efforts to implement the Act to date. This is not the first time that we have raised serious questions about the Home Office's policymaking processes. In this light, the House may wish to explore further how this situation arose and what steps are being taken to prevent further recurrence. The issues with the Act also illustrate the need to take the time to get legislation right rather than rushing it through Parliament, particularly in complex policy areas.

The Home Office appears to have given reasonable consideration to, and taken some steps to address, the wider implications of the changes; for example, a possible increase in homelessness due to more cases exiting the asylum backlog. The House may wish to explore how the Home Office intends to monitor and report on the outcomes in practice.

These Regulations are drawn to the special attention of the House on the ground that they are politically or legally important or give rise to issues of public policy likely to be of interest to the House.

Background

54. These Regulations are intended to remove a barrier that is currently preventing the Home Office from processing some asylum claims, by removing certain retrospective elements and complexity from the Illegal Migration Act 2023 ("the Act"). The Home Office states that the resumption of processing will save significant amounts of money being spent on support for asylum seekers prior to their claims being decided; for example, on accommodation.

55. The relevant measures in the Act, which were intended to deter illegal immigration to the UK, include:

• A Duty to Remove, which would require the Home Secretary to remove migrants who arrived via irregular means promptly to either their home or a safe third country, where any protection claims raised would be processed.

• Permanent bans against obtaining lawful immigration status ("the bans"), which prevent irregular arrivals who meet the conditions of the Duty to Remove from obtaining immigration status in the UK.

56. Asked to clarify the interaction between the two measures, the Home Office said that:

"Rather than being a reason to remove an individual, the bans were intended to deter irregular arrival by being a consequence that severely limited the ability of irregular arrivals from being able to remain in or return to the UK.

There is clearly an interaction between the Duty to Remove and the bans, but their intended purpose supported the principle of a Duty to Remove rather than being a reason to remove in and of themselves."

Coming into force dates and effective dates of the measures

57. The issues that the Home Office is trying to address arise from the different coming into force and effective dates of the above measures.

58. The Act received Royal Assent on 20 July 2023. The bans came into force on the same date, but were retrospective so that they applied to anyone who arrived in the UK from 7 March 2023, the date on which the Illegal Migration Bill (which became the Act) was introduced to Parliament.

59. The Duty to Remove is currently not in force. It is required to be brought into force by regulations, which have not been brought forward. However, if brought into force, the Duty would have retrospective effect from 20 July 2023, the date of Royal Assent of the Act.

60. Asked why these various different dates were included in the Act, the Home Office told us that the aim had been to "maintain an element of the intended deterrent effect whilst also ensuring that the new system for removing individuals from the UK did not start to operate with an immediate backlog of cases".

Issues with implementation of the Act

61. In its Explanatory Memorandum (EM), the Home Office explains that the differing dates in the Act have meant that it has not been able to implement the bans, despite their being in force:

"The retrospective effect of the Act, and the differing dates underpinning their effect, created complexity for the operation of the immigration system. It resulted in the creation of different cohorts, who were subject to some or all of the measures in the Act depending on date of arrival. As a result, different operational processes would have been required to process these cohorts in line with the legislative provisions they were subject to. The complexity was further exacerbated because although the bans, and their retrospective effect, were commenced on Royal Assent of the Act they were not able to be implemented."

62. In response to our questions on precisely why the bans could not be implemented, the Home Office expanded further:

"As part of the attempt to operationalise the legislative provisions of the Act, it was identified that systemic change at all levels of the Home Office was needed. This included necessary changes to policies, guidance, processes, training, organisational structures, and systems. The scale of the changes required meant that work to deliver was ongoing, but immediate or quick delivery of the bans was not possible.

As a result, it was not possible to assess and record whether irregular arrivals met the four conditions of the Duty to Remove from the point of commencement of the bans; and therefore, whether individuals should be subject to the measures contained within the Act at that time."

63. The Home Office stated that, because it has not been able to implement the Act in its internal processes, if it attempted to process asylum claims for those arriving after 7 March 2023 it risked reaching decisions that were contrary to the Act. For example, it might grant leave to remain to someone who should be subject to the bans. To avoid the risk of acting illegally, the Home Office says that it has had to "pause decision-making across a number of immigration routes".

64. The effect of the Regulations would be to change the coming into force date of both the Duty to Remove and the bans, including removing the retrospectivity, so that they both come into force at the same time, on the date that the Duty to Remove comes into force. The intention is to remove the complexity and the legal risks, so that asylum processing can recommence on the basis of the provisions in place prior to the Act's passing.

65. It is welcome that steps are being taken to sort out this issue. However, it should not have arisen in the first place: it is lamentable that the Home Office put forward an Act of Parliament that it has simply not been able to implement. We also wonder how much public money has been wasted on efforts to implement the Act to date.

Effectiveness of wider preparations

66. If the Regulations have their intended effect, there will be a significant increase in the number of asylum cases processed. While this is welcome, concerns have been expressed that it could lead to knock-on issues; for example, increased homelessness because those granted asylum must leave their previous accommodation, provided by the Home Office while a claim is being processed, within 28 days. [18] We therefore asked the Home Office what preparations it had made for the impact of the changes. The Home Office replied:

"All individuals who have received a positive decision on their asylum claim remain on support and in their accommodation for at least 28 days from when their decision is served. Individuals should make plans to move on from asylum support as soon as they are served their asylum decision.

Once an asylum seeker is granted refugee status, they are able to work and become eligible to receive mainstream benefits. They may also be eligible to receive housing assistance from their local authority.

Following notification of a service of decision, accommodation providers notify LAs [Local Authorities] within two days, thereby giving LAs as close to a minimum of 26 days to begin their own processes for accommodating those who may seek this. We are working with accommodation providers to ensure that this is applied consistently and in a timely manner across all areas.

We offer support to all individuals through Migrant Help or their partner organisation in doing this. This includes providing advice on accessing the labour market, on applying for Universal Credit and signposting to local authorities for assistance with housing. Newly recognised refugees entitled to housing assistance from their local authority are treated as a priority need if they have children or are considered vulnerable. Moreover, individuals do not need to wait for their Biometric Residence Permit to make a claim for benefits and are encouraged to do so as early as possible, if they require them.

We are also testing a role of Home Office Liaison Officers (HOLOs) for asylum applicants, to replicate part of the Afghan resettlement move on process in targeted areas, supporting service users with 'move on' and supplementing the support Migrant Help provide.

Finally, the Home Office regularly engage with LAs, LGA [the Local Government Association] (and Devolved Government counterparts) to share experience and explore issues with Move On. We have increased data shared with LAs to help then plan effectively. Heatmap data on outstanding asylum cohorts are shared with LAs via the Place Based Visibility Tool (PBVT). The Discontinuation Prediction Tool (DPT) is also shared weekly which provides a real time view of discontinuation notices likely to be served in the next 4-6 weeks and the volume of people (including whether it is families, single males or single females) who may seek LA assistance following a positive decision."

67. It is encouraging that the Home Office appears to have considered the wider implications of its changes. Initiatives such as HOLOs appear potentially helpful. The House may wish to explore how the Home Office intends to monitor and report on the outcomes in practice. An overview of the steps being taken should also have been included in the EM as these are important aspects of the overall policy.

Breach of the 21-day rule and lack of consultation

68. The Regulations breach the convention that a negative instrument should be laid in Parliament at least 21 days before it comes into effect: indeed, due to an "administrative error", they came into force even before laying.

69. The Home Office told us that in its view, the breach was justified by the need to ensure the department was operating in a lawful manner, and that this view was supported by legal advice. The Home Office also referred to the need to resume asylum decision-making as soon as possible to avoid adding further cases to the backlog, to provide legal certainty to affected persons and to reduce support costs.

70. We accept the need for the Government to be operating lawfully as an explanation for the breach of the 21-day rule, although this should have been more clearly explained in the relevant section of the EM. There is, however, no excuse for an "administrative error" such as described above. The Home Office has assured us that it has conducted a "lessons learned review" and reminded relevant teams of the requirements; in light of which, we hope not to have to return to this subject.

71. In the EM, the Home Office gave no credible explanation for the absence of a consultation. In response to our further questions, the Home Office again cited the need to bring the changes into force as soon as possible to avoid acting unlawfully, which a consultation would have hindered. Again, this reasoning should have been explained in the EM, along with any measures the Home Office has taken to mitigate the risks of not consulting with interested parties and practitioners outside government.

72. We asked the Home Office whether, having rectified the issues with the Act, it now intends to bring the Duty to Remove and the bans into force. The Home Office replied that it "is considering all the options and implications associated with ending the partnership with Rwanda and the future of the Illegal Migration Act". The House may wish to explore further the Home Office's actual intentions in this area.

Impact of the Regulations

73. In its Impact Assessment (IA) for the Regulations, the Home Office states that the main financial implication is a reduction in accommodation costs and other elements of support for asylum seekers before their claims are processed. It estimates the overall net present value of the changes to be £7.7 billion over a ten-year period.

74. The IA also states that 126,106 people made asylum applications between 7 March 2023 and 16 July 2024. Some of these claims have been decided, but there are additionally cases in the backlog from prior to 7 March 2023. As a result, the overall backlog of cases at 16 July 2024 stood at 89,985 cases relating to 125,385 people.

Conclusion

75. This instrument is intended to allow the resumption of processing of certain asylum claims, an outcome that we welcome. However, the need for the Regulations only arises because the Home Office cannot implement provisions of its own Act, passed just last year. This raises serious questions about the Home Office's policymaking processes, an issue we have raised before. [19] The House may wish to explore further how this situation arose and what steps are being taken to prevent a further recurrence.

76. More generally, we note this as an example of how rushing legislation in complex policy areas can lead to sub-optimal outcomes. It is important to take the time to get legislation right to avoid the need for later clarifications and corrections.

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[19] For example, see 21st Report (Session 2023–24, HL Paper 98), paras 80–89.