Immigration and asylum stuff in the King's Speech
There are two key bills proposed and one bonus bill. Some of the contents look necessary. Some, not so much.
There are two key proposed bills in the King’s Speech relevant to immigration and the Home Office. One is the Border Security, Asylum and Immigration Bill. The other is described in the notes as the Hillsborough Bill but I’m describing here as the duty of candour bill, as that’s what it is about. There’s also the Skills England Bill which is relevant to immigration.
I have written before here on Substack on the very extensive legal powers already enjoyed by the Home Secretary over all things immigration. Major changes can be made to the asylum and immigration system without any primary legislation because most of that system is not statutory in nature. There are some parts that are embedded in Acts of Parliament, though, including in the three most recent ones, the Nationality and Borders Act 2022, the Illegal Migration Act 2023 and the Safety of Rwanda Act 2024. Some statutory changes are therefore necessary to scrap the Rwanda scheme formally and work through the asylum backlog. However, the proposed bill looks like it probably goes beyond that, as we’ll see in a moment.
There is little detail available on the duty of candour bill. On the one hand, getting civil servants to be candid about their work is basically a matter of management and leadership. That is true whether a formal legal duty is imposed or not. If the bill goes beyond trite words and creates a cause of action and ground for compensation, that would be a potentially useful legal development, though.
The quotes below are from the King’s Speech itself and from the accompanying background briefing notes.
Border Security, Asylum and Immigration Bill
This is what the King said:
“My Government will seek to strengthen the border and make streets safer. A Bill will be introduced to modernise the asylum and immigration system, establishing a new Border Security Command and delivering enhanced counter terror powers to tackle organised immigration crime.”
This is what the notes say the purpose of the bill is:
Strong and effective border security is vital to protect our national security. Small boat crossings are undermining our border security and costing lives. Existing policies have failed to deter crossings or prosecute the people smugglers responsible, and our current asylum system is broken.
The Bill will support our priority of secure and stronger borders and a properly controlled and managed asylum system by launching a Border Security Command to bring criminal people smugglers to justice, tackling criminal gangs who exploit migrants and fuel the small boats crisis, and clearing the asylum backlog to end hotel use and increase returns.
This is how the notes say the purpose will be achieved:
The Bill will enable stronger borders and a properly controlled and managed asylum system by:
giving the new Border Security Command and wider law enforcement the tools and powers they need to crack down on criminal gangs by building on the success of robust powers to counter terrorism and including stronger powers for law enforcement officers to investigate involvement in organised immigration crime for example in stopping and searching at the border.
providing a strong deterrent and penalty for criminals involved in organised immigration crime (OIC), ensuring there are stronger penalties in place against a range of OIC and border criminality, including preparatory offences such as enabling the advertising the services of a migrant smuggling group and precursor offences such as relating to the supply of materials needed to facilitate organised crime gangs.
fixing the broken asylum system, making it more efficient and effective to ensure the rules are properly enforced by ending hotel use through clearing the asylum backlog, ensuring fast-track returns for individuals coming from safe countries and ending the failed and incredibly costly Migration and Economic Development Partnership to redirect money into the Border Security Command.
And this is the justification and context put forward in the notes:
The Migration and Economic Development Partnership (MEDP) with Rwanda has failed to deter boat crossings. After two-and-a-half years, no enforced relocations to Rwanda have taken place, and crossings in the first half of the year reached record highs.
Rwanda has to date received £290 million under the MEDP, with only four volunteers transferred. Withdrawing from the MEDP now will save over £100 million in future payments to Rwanda, alongside tens of millions of pounds of additional payments for a small number of individuals to be relocated.
Under the previous government’s Illegal Migration Act, the vast majority of those claiming asylum after arriving via small boat since March 2023 have been stuck in a backlog, eligible for accommodation with no realistic prospect of removal even for those from safe countries. This has led to a new backlog of claims.
In the last financial year, total asylum support costs exceeded £5 billion, resulting in a Reserve Claim of £4 billion above forecast spend, driven by the use of asylum hotels which cost the taxpayer almost £8 million per day.
Analysis
It’s hard to say at this point whether some of the proposed changes are necessary or merely performative.
I’ll start with what looks necessary.
On one level there is no need to scrap the in-force Safety of Rwanda Act 2024 if no flights to Rwanda are proposed. It’s just redundant legislation as it stands. But it is highly desirable as a matter of principle and it should be done at some point. Now is definitely better than later.
It is arguably necessary to scrap the Illegal Migration Act 2024. The previous government only ever brought some sections of it into force, so most of it does not need scrapping as it has no legal effect. But the sections that are in force make it difficult or perhaps impossible to process outstanding applications in the asylum backlog. And the rest of it should be scrapped on principle because the whole point of it is to close down the UK asylum system and require the removal of all asylum seekers to Rwanda. That is not the policy of the new government so scrapping it all makes sense.
There is probably none of the Nationality and Borders Act 2022 that needs scrapping. But there are several parts of it that complicate the asylum system without achieving any useful objective (i.e. controlling entry or facilitating integration or departure). The standard of proof section and the changes to the trafficking system spring to mind. The stuff on differential treatment of refugees should in principle be scrapped but it was always an enabling power and the policy has already been abandoned anyway by the previous government. I’d be (pleasantly) surprised to see this feature in the new legislation as it doesn’t seem as urgent as a lot of other stuff.
New powers are proposed for the new Border Security Command. New legal powers for officers and officials generally requires an Act of Parliament. It’s hard to say how necessary these are without knowing what is proposed. Counter-terrorism powers are suggested but I’m not sure which ones. I can say that almost all, or perhaps all, of the activities of the smuggling gangs targeted here takes place abroad, outside the jurisdiction of UK officers and officials. It’s not clear how new powers are really going to make a difference here, so this looks pretty performative on the face of it. What is needed is co-operation abroad. And it is not clear that would make much difference either, frankly.
There’s a line about fast track removals to safe third countries. There are already powers in place to conduct such removals dating back to 2004. The initial attempted Rwanda flight back in 2022 was conducted under those powers, in fact. So it’s not clear that new powers are needed nor what they might be.
The King’s Speech itself and the purpose part of the notes propose the establishment of a new Border Security Command. There is no need for a statutory foundation for such a thing, as its actual establishment on 7 July goes to show. It’s a matter of internal organisation, job titles and allocation of resources within the Home Office. So that looks performative, on the face of it.
The line about stronger penalties is definitely performative. The maximum sentence for assisting unlawful immigration is already 14 years. If that doesn't deter anyone — and it doesn’t — then no higher penalty will. Similarly, criminalising “precursor offences such as relating to the supply of materials needed to facilitate organised crime gangs” sounds very unlikely to have any significant impact on anything at all. It is Priti Patel-level rhetorical flummery. They’d be better off focussing on something that might have some impact somewhere rather than ratcheting up expectations with announcements that will do nothing to meet those expectations.
So, there’s definitely some good stuff. Scrapping the Rwanda plan and clearing the asylum backlog are very important. But domestic legislation isn’t likely to have an impact on smuggling activities carried out abroad.
Final thoughts on this. It’s not clear to me why “immigration” is included in the title of the Bill. There’s nothing here on addressing the appeals backlog or a statutory migrants’ commissioner. That’s not necessarily a bad thing. The appeals backlog might be manageable with existing legal powers given it’s mainly a matter of resource allocation. And we’d hope for some consultation on the migrants’ commissioner.
Duty of candour bill
In the notes this is described as the “Hillsborough Bill”. This is what the King said:
“My Government will take steps to help rebuild trust and foster respect. Legislation will be brought forward to introduce a duty of candour for public servants”
This is what the notes say the purpose of the bill is:
This Bill delivers our manifesto commitment to implement a ‘Hillsborough Law’ which will place a legal duty of candour on public servants and authorities.
It will address the unacceptable defensive culture prevalent across too much of the public sector - highlighted by recent reports such as Bishop James Jones’s report into the experiences of the Hillsborough families and the recent Infected Blood Inquiry report. It is part out our wider efforts to create a politics of public service.
This is how the notes say these purposes will be achieved:
The Bill will be the catalyst for a changed culture in the public sector by:
improving transparency and accountability where failure in the provision and delivery of public services is the subject of public investigation and scrutiny.
reducing the culture of defensiveness in the public sector.
helping ensure that the lack of candour uncovered in recent reports is not repeated, such as in the case of the Hillsborough and Infected Blood Inquiries.
Alongside the legislation, we will take action to improve assistance for bereaved persons and core participants at inquests and public inquiries, to ensure families are able to fully participate. This includes delivering the Government’s manifesto commitment to provide legal aid for victims of disasters or state-related death.
And this is the justification and context put forward in the notes:
Recent reports have highlighted the defensive culture and lack of candour in parts of the public sector and the current codes and rules in place across the public sector vary in their nature, legal basis and ability to enforce the right behaviours when things have gone wrong.
Bishop James Jones in his report on the experiences of the Hillsborough families wrote: “The experience of the Hillsborough families of ‘the patronising disposition of unaccountable power’ calls for a substantial change in the culture of public bodies.”
Sir Brian Langstaff in the recently released Infected Blood Inquiry report wrote: “It is plain that the objective of those who support a statutory duty is the same as those in government who do not – that there needs to be a change of culture to one which values personal candour and rejects defensiveness.”
Analysis
I was quite excited about this when I first saw it. Over on Free Movement we’ve repeatedly written up cases in which the Home Office has breached its duty of candour to the courts even where that duty is active and applies. The Home Office is an incredibly closed and defensive institution and a duty of candour could be an important part of real culture change.
However, there are several provisos.
A former government adviser has suggested to me that the duty might only be triggered in the context of a statutory inquiry. The language does suggest that might be the case:
…where failure in the provision and delivery of public services is the subject of public investigation and scrutiny.
There have been statutory inquiries in an immigration law and policy context, as with the Brook House inquiry. But there’s already a duty of candour applicable there, albeit non-statutory. It’s the duty to the court. Giving the existing duty statutory force sends a signal and adds clarity but it’s not obviously that big a deal.
Even if the duty were a wider one that applies outside a specific context, imposing a legal duty and respecting it are two different things. The institutional culture at the Home Office would be resistant to change. The Home Office has been defiant of freedom of information legislation, for example, frequently giving spurious grounds for refusing requests. Leadership and some actual, effective management would be necessary for real change to take effect.
There’s also the question of teeth. Legal rights are only effective if they are enforceable. How would this duty of candour be enforced? Would a new cause of action be created? A legal basis for compensation? There’s no detail here.
So perhaps there’s less reason to get excited than I initially thought…
Skills England Bill
Finally, there’s a skills bill. This is relevant to immigration policy in the wider sense but not to immigration law as such. The purpose of the bill is to establish a new statutory agency to co-ordinate a new skills policy for England.
The underlying idea is to “ensure we have the highly trained workforce that England needs” and that “regional and national skills systems are providing the skilled workforce needed to enable businesses to thrive and to contribute to the Industrial Strategy at the heart of our growth mission”.
This will include working with “industry, the Migration Advisory Committee, unions and the Industrial Strategy Council to build and maintain a comprehensive assessment of current and future skills needs” and will inform the Department for Education’s policy priorities.
If you want to reduce reliance on foreign labour and the shortage occupation list, this is one way to attempt to do that. It’s very much a long term strategy by the sounds of things. Whether it will work is very much open to question. Governments aren’t necessarily very good at identifying actual gaps in the market nor at addressing them. It shows willing, at least, which is something. There’s no doubt that simply issuing all sorts of new visa types on demand hasn’t worked.
I’d gently suggest that requiring employers to pay the costs of recruiting workers from abroad — the employer pays principle — might encourage those employers to think twice about it and have more impact.