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Article: Lifting the Ban on Asylum Processing: Amendments to the Illegal Migration Act 2023

The UK government has introduced the Illegal Migration Act 2023 (Amendment) Regulations 2024, significantly altering the previous framework by lifting the prohibition on granting leave to asylum seekers.

The previous framework, known as the ‘Illegal Migration Bill’, introduced in parliament in March 2023, aimed to stop people from crossing the English Channel in small boats, by introducing a plan that would mean anyone who arrives irregularly to the UK will have their asylum claim deemed ‘inadmissible’, i.e. the Home Office will not consider their claim and they will be detained indefinitely, either removed to their own country or to a ‘safe third country’.

This change introduced by the Illegal Migration Act 2023 (Amendments) Regulations 2024, enables the processing of asylum, human rights, and trafficking claims to resume, addressing substantial backlogs and legal uncertainties.

Regulation Changes

The amendments target various sections of the Illegal Migration Act, specifically regulations 3(5) onwards, effectively lifting the retrospective ban on granting limited leave, indefinite leave, and British citizenship. The prohibition on granting leave is no longer in place unless the duty to remove is activated, a scenario which is not anticipated under the current Labour government.

Section 2(3) has been modified to ensure 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, this duty will now apply to individuals arriving on or after the specific day this section comes into force for them.

Other sections not yet in force, including parts of section 5 (mandatory inadmissibility), section 6 (removal), and section 22 (disapplication of modern slavery protections), have also been amended to ensure they do not apply retrospectively if brought into force.

Background and Issues

The Home Office had previously halted the processing of asylum claims due to difficulties in distinguishing between cases impacted by the Illegal Migration Act and those that were not. It was estimated that around 40% of asylum cases since March 2023 fell under the Act’s conditions, while the remaining 60% should have been processed normally. However, the inability to effectively differentiate between these cases led to a standstill in decision-making.

Legal Adjustments

The new regulations were made using powers within the Illegal Migration Act itself, thus avoiding the need for primary legislation. This approach addresses concerns about the Home Office potentially acting unlawfully by granting leave contrary to the Act.

Future Implications

Despite these regulatory changes, the Illegal Migration Act remains largely intact. The duty to remove could be reactivated, potentially causing further disruptions. There is a strong call for the government to repeal the Act entirely through forthcoming legislation to ensure a more stable and humane immigration framework.

Conclusion

The Illegal Migration Act 2023 (Amendment) Regulations 2024 represent a significant step in addressing the backlogs and legal uncertainties that have plagued the UK’s asylum processing system. While these changes are a positive move towards a more functional system, the underlying legal framework remains problematic. There is a clear need for comprehensive legislative reform to ensure the protection of human rights and the effective management of asylum claims in the UK.

If you think this may affect you, please feel free to get in touch.

By Jenny Comani

30:07:2024