What can an incoming government quickly accomplish in immigration policy and how?
What can an incoming government quickly accomplish in immigration policy and how?
Any Home Secretary has massive power to control immigration policy with little need for further legislation
Immigration law is complex, badly drafted and it is spread out across multiple legal instruments in piecemeal fashion. That said, it collectively gives the government of the day extremely wide-ranging powers to control all aspects of immigration. Almost any legal rule the Home Secretary wants to change can be changed virtually at will — subject to a parliamentary majority — using immigration rules or secondary legislation. Constraints on the powers of the Home Secretary and immigration officials tend to be real-world or resource issues rather than legal ones.
The criteria for entry, ongoing residence, settlement or expulsion on all immigration routes, the very existence of those immigration routes, the level and structure of application fees, the composition of the Migration Advisory Committee, the resourcing of workplace inspections or criminal investigations and more can all be changed with ease. Whether such changes will achieve the intended policy outcome will depend on how well designed, managed and implemented the changes were.
Some, perhaps much, of the immigration legislation now on the statute book has found its way there as a matter of form and politics rather than necessity. When officials are under pressure to explain perceived failings in their department, they may find it useful to blame perceived legal constraints which in truth have little if any relevance. Politicians under similar pressure from the public have been known to do the same. This tendency may be reinforced by campaign and lobby groups, which sometimes use an Act of Parliament as a focal point for a campaign.
Role of primary legislation
The key piece of primary immigration legislation is the Immigration Act 1971. This Act gives the Home Secretary the power to make immigration rules subject only to the negative resolution procedure in Parliament. It sets out the scheme of permission to enter, remain and settle in the UK. It imparts a power to deport even settled non-nationals should the Home Secretary consider it ‘conducive to the public good’ to do so. It also sets out a series of criminal offences imposed on migrants and others for non-compliance or breach of immigration law. It also grants the Home Secretary extensive powers to make secondary legislation: rules, regulations and orders.
Other relevant primary legislation, parts of which are still operative today, include legislation from 1999, 2002, 2004, 2005, 2006, 2008, 2009, 2014, 2016, 2022 and 2023. Several of these introduced major changes at the time they were passed into law but parts have been superseded and replaced by further powers introduced later while other parts remain in force.
One of the reasons that immigration law is complex is because there is little consistency of approach in the legislation. Criteria for entry, residence, settlement and expulsion are normally contained in the Immigration Rules (see below). But there are examples of such criteria being incorporated into primary legislation. This is the case with deportation. The Immigration Act 1971 gave the Home Secretary extremely wide powers to deport non-citizens but subsequent legislation in 2006 and 2014 sets out constraints on that discretion by imposing a duty to deport certain individuals subject only to very narrow exceptions. Most of the criteria for deportation can therefore only now be changed by primary legislation. The only formal discretion remaining is whether to pursue deportation action against a person who has been convicted of no criminal offences or who has been sentenced to less than 12 months in prison.
Currently operative primary legislation includes the following Acts of Parliament, all of which have been heavily amended by subsequent legislation:
Immigration Act 1971: system of permission (“leave”) to enter and remain in UK, most but not all the relevant criminal offences, most but not all the enforcement powers for immigration officers (search, seizure, arrest, detention).
British Nationality Act 1981: rules on acquisition and transmission of British citizenship and other forms of British nationality, definition of parent and related matters, power of citizenship deprivation. Access to the qualifying criteria for citizenship is to some extent managed by the Immigration Rules, however.
Asylum and Immigration Appeals Act 1993: requires that immigration rules do not ‘lay down any practice which would be contrary to the Convention’ (but is silent on other forms of legislation).
Immigration and Asylum Act 1999: maintains the system of carrier liability for lorry drivers and airlines, the existence of the Office of the Immigration Services Commissioner (the immigration advisor regulator), the powers and obligations to support asylum seekers awaiting a decision (and their exclusion from mainstream benefits), the asylum support tribunal, the management of detention centres and numerous technical immigration law matters.
Nationality, Immigration and Asylum Act 2002: legal basis for asylum accommodation centres, right and grounds of appeal to the immigration and asylum tribunal, provision for removals, statutory asylum inadmissibility procedure, statutory human rights considerations for officials and judges.
Asylum and Immigration (Treatment of Claimants, etc) Act 2004: statutory asylum credibility presumptions.
Immigration, Asylum and Nationality Act 2006: legal basis for civil penalty regime for employers, extends remit of HM Inspector of Prisons to immigration detention centres.
UK Borders Act 2007: overlays regime of duty of so-called “automatic” deportation of foreign criminals onto power of deportation in 1971 Act (includes an exception on human rights grounds), legal basis for Chief Inspector of Borders and Immigration.
Tribunals, Courts and Enforcement Act 2007: legal basis for existence of two-tier tribunal system, including the immigration tribunal (rights and grounds of appeal remain in 2002 Act), legal basis for onward appeals into the court system.
Borders, Citizenship and Immigration Act 2009: uncommenced major changes to naturalisation process, imposes duty on immigration officials to have regard to welfare of children.
Legal Aid, Sentencing and Punishment of Offenders Act 2012: ousts Rehabilitation of Offenders Act 1974 for purpose of immigration decision making so that criminal offences are never considered spent for migrants. Effectively abolished legal aid for immigration (but not asylum) applications and appeals.
Crime and Courts Act 2013: enables diversion of applications for judicial review from High Court to Upper Tribunal.
Immigration Act 2014: statutory basis for various wide ranging hostile environment powers applying to employers, landlords, banks and building societies, taxi drivers and firms, marriage registrars, DVLA and the National Health Service and also statutory basis for immigration health surcharge.
Modern Slavery Act 2015: criminal offences related to trafficking (and a defence to criminal charges for victims), statutory basis for Anti-Slavery Commissioner.
Immigration Act 2016: additional hostile environment measures relating to employers, landlords, banks and building societies, statutory basis for Director of Labour Market Enforcement, criminalises driving without leave and working without permission, introduced new system of immigration bail.
Nationality and Borders Act 2022: various changes to refugee law including increasing the standard of proof. Various changes to modern slavery protections and differential treatment of refugees have already been reversed but remain on statute book. Other changes not commenced or remain unused, including introduction of age assessment appeals, priority removal notices, maritime pushback powers. Little impact.
Illegal Migration Act 2023: scraps domestic asylum system and replaces with removal to a safe third country or, for designated nationalities, removal to their own country, subject only to a single tier of appeal on extremely limited grounds. Also considerably weakens possibility of challenges to use of immigration detention. Mainly not yet in force.
Role of the Immigration Rules
The Immigration Rules set out the criteria for entry, residence, settlement and also general grounds for refusal for all immigration categories. The rules are not strictly speaking secondary legislation in the normal sense and are not statutory instruments, but they are very similar. Legally they can be adjusted at any time and with no notice by means of the negative resolution procedure in Parliament (see Immigration Act 1971, section 3(2)). It has become customary to make sets of changes four times a year unless a change is particularly urgent. Usually a future date is specified when new rules will come into effect. If no date is specified or if the new rules explicitly state they start immediately, they start immediately, even for applications which have already been made but have not yet been decided.
This means that it is straightforward as a matter of law to change the criteria for the entry, residence, settlement or expulsion of family members, skilled workers and all other migrants. This includes not just changing the criteria, periods of permission to stay and eligibility for settlement but also creating and scrapping entire immigration routes. For example, scrapping the investor visa route was straightforward, as was creating the graduate visa route.
The only legal constraints are compatibility with human rights obligations (entirely abolishing the spouse and partner route would likely be incompatible, for instance) and other international law obligations. For example, the General Agreement on Trade and Services requires the UK to maintain certain immigration routes, although the criteria are potentially flexible to some degree. Domestic workers and intra-company transfers for international corporations are two such examples, I believe.
Role of secondary legislation
Secondary legislation is a law made by the Secretary of State under authority delegated to them by Parliament by means of an enabling power in an Act of Parliament. The resulting legislation will usually be called rules, regulations or an order. Secondary legislation is made using either the negative or affirmative resolution procedures (only the latter requires a vote) depending on the terms of the specific enabling provision under which the legislation is made.
For example, the level of fee charged for immigration applications is controlled by secondary legislation. Section 68 of the Immigration Act 2014 starts by saying
The Secretary of State may provide, in accordance with this section, for fees to be charged in respect of the exercise of functions in connection with immigration or nationality
The rest of the section then provides detail as to how this works in practice. Section 69 (unusually) states that a fees order or regulation may only be made with the consent of the Treasury. Section 74 goes on to specify that a draft of the instrument must be ‘laid before each House of Parliament and approved by a resolution of each House of Parliament’.
There are many such enabling provisions spread across the Immigration Acts. Secondary legislation plays an important role in wide ranging aspects of the day to day technical operation of the immigration system. For example, the level of immigration application fees and immigration health surcharge, the level of financial penalty imposed on defaulting employers and landlords, granting of leave to passengers entering through the Channel Tunnel, operation of the Common Travel Area, validity of immigration applications, obligation to provide biometric details (photos and fingerprints), the lodging of appeals and more are all governed by pieces of secondary legislation, some of which are decades old and heavily amended.
Role of policy documents
There are almost countless Home Office policy documents. These exist below the level of legislation and can be changed at any time. The policy instructions cover all manner of situations, from assessing the credibility of asylum seekers to interpreting and applying the rules on exclusion from the UK. Officials are expected to follow the guidance, although their sheer volume is likely to make this impossible in practice. Some are published. Policy documents sometimes give rise to legal challenges on the basis that it may be unlawful not to follow a policy, at least without giving reasons for departure from that policy.
Formerly known at the Immigration Directorate Instructions, Entry Clearance Guidance, Operational Guidance Instructions, Asylum Policy Instructions and Nationality Instructions, then to some degree as Modernised Guidance and now as Visa and Immigration Operational Guidance and other designations, these were first published in the public domain in the 1990s and 2000s. Some policy guidance remains unpublished but is disclosed in litigation from time to time under the duty of candour or a Freedom of Information request.
The asylum system
The basic shape of the UK asylum system was established in the late 1990s and early 2000s and has remained broadly constant since then. Every effort is made to prevent spontaneous asylum seekers from arriving in the United Kingdom. Asylum decisions are made by a government department and subject to an independent two-tier appeal system. Asylum seekers are excluded from mainstream benefits and in general prevented from working. Instead they are supported directly by the Home Office through a privately contracted system of accommodation and extremely low levels of financial support (less than half of full income support). Few asylum seekers are detained for substantial periods and few failed asylum seekers are removed; whatever the outcome of the protracted and expensive asylum process, the person is generally allowed to remain in the UK in any event.
The criteria for asylum are set out in primary legislation (Nationality and Borders Act 2022) and therefore require primary legislation to change. They are derived from the Refugee Convention and EU law on asylum.
Recognised refugees are granted five years of leave and are then eligible to apply for settlement. The initial period was one year until 1999 and settlement was immediate between 1999 and 2005. Very few if any refugees are refused if they apply for settlement but some fail to apply and become unlawfully resident. Where refusals do occur this will usually be because of criminal offending. However, deportation laws are so powerful that a settled person sentenced to more than 12 months in prison must be deported in any event, unless they are still entitled to refugee status.
The Illegal Migration Act 2023 effectively abolishes the UK asylum system other than for a small number of individuals. It achieves this by
Excluding the vast majority of asylum seekers from the asylum system and prohibiting them from being granted asylum; and
Placing the Home Secretary under a duty to make arrangements to remove them to a safe third country.
The first part of this twin-track approach has already been brought into legal effect but the second part has not, at the time of writing.
In the last few years a much higher proportion of asylum seekers have been recognised as refugees than when the asylum system was designed. Positive asylum decisions pose far less severe operational consequences for government than refusals; the rise in the grant rate has meant fewer appeals to contest and fewer failed asylum seekers to remove. The massive upcoming bulge in the number of refusals will therefore pose significant management, resourcing and political challenges.
Deputised immigration controls: the ‘hostile environment’
The principle of deputising or co-opting non-Home Office parties to enforce immigration controls is not new but it was very considerably expanded in the early 2010s. There are three principal dimensions to the ‘hostile environment’ system.
Firstly, persons without proof of immigration status are excluded from accessing normal government services by primary and secondary legislation.
Secondly, primary legislation has created a system of financial penalties backed by criminal offences which strongly encourages certain private parties to refuse to contract with those who cannot prove their immigration status.
Thirdly, a system of non-statutory conditional permission to contract with foreign nationals, called sponsorship, is also deployed in respect of employers and educational institutions. Should the employer or educational institution fail to comply with Home Office expectations, the conditional permission can be revoked, which can be an existential matter for many employers and almost all educational institutions.
Concerns have arisen that the system is discriminatory. It is not a universal system of checking identity but rather a system incentivising discretionary checking of immigration status. Relying on a layperson to decide whether to check immigration status is likely to lead to discrimination; the white person with no accent is a ‘safe bet’ who need not be checked whereas a person perceived as being potentially foreign because of their colour, name or accent must be checked. Alternative approaches are available but primary legislation combined with substantial system change would be required.
Role of international law
International law imposes some degree of constraint on governments and ministers. The most obvious constraint is that it is United Kingdom government policy to comply with international law. There is potentially a degree of “wiggle room”, however. International law is not always clear and there is often no enforcement court or tribunal, meaning that there is no body to adjudicate or declare if or when a breach has occurred.
Other constraints are less obvious. There is a good reason why international law prohibits return of a refugee into a situation of persecution, for example. International law, like human rights law, can act as a moral compass or at least as a guide to minimum acceptable conduct by governments. Further, compliance with international law facilitates and underpins international co-operation; non-compliance with international law may well make international co-operation impossible. International borders have two sides and their effective management requires international co-operation facilitated by international law.
International human rights law (Refugee Convention, European Convention on Human Rights, Convention Against Torture, International Covenant on Civil and Political Rights, etc) is not the only form of international law relevant to immigration. For example, trade agreements, including the General Agreement on Trade in Services (GATS), require the United Kingdom to maintain some immigration routes.
Simplification of immigration law
A project to simplify and consolidate immigration law was begun in 2009 but abandoned. The Law Commission are undertaking a simplification project but the status is unknown. Their brief is to maintain the status quo but simplify the framing and operation of the legislation; this may be difficult given that much of the complexity is as a result of deliberate policy choices, such as spelling out exhaustive mandatory requirements for many immigration categories as well as imbuing officials with various levels of discretion.
There are numerous straightforward ways in which immigration routes could be simplified and shortened, with the effect of reducing demand for Home Office decision-making and bureaucracy. Such simplification could be achieved by means of changes to the Immigration Rules. For example, since 2012 spouses and partners have had to apply three times before they achieve settlement: on entry, after 2.5 years and after 5 years. This could easily be reduced to two applications (on entry and after 2.5 years) or, depending on the state of the digital immigration status project, settlement could even be achieved by default after a specified period of time with no need for an application to be made. Something similar is being done with EU citizens with pre-settled status. Or the final application could be a straightforward and affirmative one akin to EU settlement scheme applications.
The incoming Australian government of 2022 commissioned a major root and branch review of its immigration system which reported in 2023 and has informed the government’s migration strategy. A similar review could be undertaken at speed here in the United Kingdom to look at some or all of issues of visa types, criteria and migrant integration (e.g. time to settlement and access to citizenship).
Previous successful immigration reformers
Theresa May appears to have understood the very considerable extent of the existing powers available to her. This may have been a matter of necessity rather than choice given the internal politics of the Coalition Government. Her first immigration primary legislation came four years after her appointment. Prior to that, she made major, long-lasting and highly significant changes to the immigration system. I hope it need not be said that this should not be read as an endorsement of the policy, intent or effect of the changes.
To achieve this transformation she and her team deployed secondary legislation, the Immigration Rules and cross-governmental co-operation. Most of the issues experienced by the Windrush generation were arguably caused by a combination of prior legislation, higher levels of enforcement (i.e. resource allocation within the Home Office) and new secondary legislation rather than by the Immigration Act 2014.
The other Home Secretary to have made major and durable changes to the immigration system was David Blunkett. The situation in which he found himself was very different to that of Theresa May. In particular, the asylum system was in a mess. Blunkett deployed a combination of primary legislation (the 2002 Act remains the legal bedrock of the current asylum system), changes to the Immigration Rules and international co-operation. Between 2001 and 2004, he rebuilt the entire asylum system, introduced external borders, launched the first safe and legal routes for resettling refugees, established the paradigm of “brightest and best” open but selective skilled immigration policy to which all politicians have publicly subscribed since then and significantly reformed British citizenship acquisition.
No need for more laws, except one
A huge amount can be achieved with existing powers. Want to introduce new immigration routes or abolish existing ones? Just change the Immigration Rules. Want to shorten periods to achieve settlement? Just change the Immigration Rules. Want to change immigration criteria like the minimum income rule for spouses? Just change the Immigration Rules. Want to adjust the level of fines for employers or landlords or the level of asylum support or the structure and level of immigration fees? All of that is controlled by secondary legislation.
There are some changes that require primary legislation, though. Changes to citizenship rules will sometimes require primary legislation, for example. But, even there, access to citizenship could be substantially improved by making settlement easier to achieve and reducing fees. And any major changes to citizenship law should be considered long and hard. Labour’s intended reforms passed in to law in 2009 and never implemented were widely derided as pointless or even counterproductive.
There are other significant changes that could usefully be made to primary legislation which also fall into the “consider long and hard” category. A replacement for the Immigration Act 1971 is long overdue but is a major undertaking. The means by which the Immigration Rules are passed into law could perhaps be reformed to involve other departments and require consultation. The Refugee Convention could be properly incorporated into domestic law. The hostile environment could be replaced with an alternative system of universal identity checks that is not so explicitly linked to immigration status. Some Home Office responsibilities could be reallocated to local authorities or other departments. For example, the current system of immigration enforcement could be replaced with one of local labour market regulation.
None of these ideas are really candidates for immediate legislation. The Illegal Migration Act is different, if it has been brought into effect by the time of the next election, as seems likely. It probably will require primary legislation to undo. And it will almost certainly need to be undone, irrespective of one’s views of the morality of forcibly sending refugees to Rwanda. Unless there is a massive and almost immediate drop in detected arrivals once flights to Rwanda begin, the scale of forced removals required by the legislation looks impossible to achieve in practice. If this proves so, we would see a spiraling asylum backlog full of people who cannot legally be granted status but will probably never be removed to Rwanda. There are potential work arounds for a future government, for example by changing key dates through secondary legislation powers conferred by the Act itself and introducing regulations that exclude at least some asylum seekers from the duty to remove. But these workarounds might potentially be subject to legal challenge.
No incoming government likes to imply undo the legislative work of its predecessor, no matter how bad that legislation may be. There are normally very good reasons for that reticence. But the Illegal Migration Act may need to form an exception to the rule. It would no doubt be politically desirable to wrap up abolition with some positive legislative changes. But there is no legal need for immediate immigration legislation of any other sort. And we know from experience that repeatedly passing immigration legislation merely creates expectations while doing nothing to satisfy them.
Priti Patel’s Nationality and Borders Act 2022 stands as a counter example to the changes wrought by Theresa May and David Blunkett. The 2022 law affects almost nothing in the real world. The much-vaunted changes to trafficking protection and differential status for refugees have largely been reversed by the Home Office. The criminalisation of refugees arriving in the United Kingdom has had zero deterrent effect but has absorbed considerable Home Office, police and court time and valuable prison space. It was vanity legislation. Not only did it not achieve its desired objectives but it was actually counterproductive because it represented a huge opportunity cost for ministers and the Home Office as an institution.
Given Labour is committed to abandoning the Rwanda scheme, a simple and symbolic abolition of the Illegal Migration Act may be the least worst course of action.