Fortieth Report Contents

Instruments drawn to the special attention of the House

Statement of Changes in Immigration Rules (HC 1043)

Date laid: 10 December 2020

Parliamentary procedure: negative

The principal function of these Changes in Immigration Rules is to clarify the places and circumstances in which an asylum application may be properly made, and to enhance the UK’s capacity to treat as inadmissible claims made by those who have passed through a safe third country. The changes took effect on 31 December 2020. The Home Office states that its intention is to discourage clandestine journeys across the Channel. But, in our view, effective enforcement will be key. The House may therefore wish to ask the Minister for details of how the “robust returns” policy is to be delivered and the deterrent effect promulgated.

These Changes in Immigration Rules are drawn to the special attention of the House on the grounds that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation and that they may imperfectly achieve their policy objectives.

1.This instrument, laid by the Home Office, amends the Immigration Rules that are used to regulate people’s entry into, and stay in, the UK. It is accompanied by an Explanatory Memorandum (EM). As well as changing the asylum rules, this instrument allows international drivers to perform cabotage operations (collecting and delivering goods and passengers within the UK as part of an international journey).

The changes

2.The principal function of these Changes in Rules is, with effect from 31 December 2020, to clarify the places and circumstances in which an asylum application may be properly made and enhance the UK’s capacity to treat as inadmissible claims made by those who have passed through a safe third country.

3.The EM states that the Immigration Rules do not presently set out an exhaustive list of the places and circumstances in which asylum claims can be properly made. This instrument sets out a list of designated places of claim (thereby making inadmissible claims made elsewhere, for example, at sea):

(a)an asylum intake unit;

(b)an immigration removal centre;

(c)a port or airport;

(d)a location to which the person has been directed by the Secretary of State to make a claim for asylum; or

(e)any other location where an officer authorised to accept an asylum application is present and capable of receiving the claim.”

4.In addition, these changes separate the re-admission requirement from the inadmissibility decision, allowing the Home Office to treat applicants as inadmissible based solely on whether they have chosen to pass through one or more safe countries in order to come to the UK. The EM states that this will allow the Home Office to pursue avenues for an asylum seeker’s removal not only to the particular third countries through which the applicant has travelled, but to any safe third country that may agree to receive them.

Enforcement of the changes

5.The first change appears largely to restate accepted asylum practice — this leads us to presume that the Home Office (and Border Force) intends to enforce it differently in 2021. However, the enforcement guidance was not available alongside the instrument. We were told it would not be published on the gov.uk website until 31 December 2020 at 23:00, when the existing guidance ceased operation. We regard this as poor practice — where the manner of enforcement is likely to make a significant difference to the outcome of the legislation then the House should be given adequate information alongside the instrument. Subsequent checks after 1 January found pages that said - unhelpfully: “The Brexit transition period has ended and new rules on claiming asylum in the UK now apply. This page is currently out of date.”1 This is equally poor practice

6.We asked the Home Office for more specific details about how these Rules changes would operate. We were told it would vary on a case by case basis:

“When an individual makes an asylum claim, we will gather any evidence, verbal or documentary, of claimants having spent time in or having connections to a safe country. This could include biometric evidence, passports, legal papers, employment papers, bank statements, invoices, receipts and other similar documents (this list is not exhaustive). An account of the individual’s immigration history will be taken as part of their asylum screening interview to fully understand the chronology and detail of how the person came to the UK. Evidence of a person’s method and place of entry to the UK and their known or probable place of embarkation by Home Office officials or another person in an official capacity will be taken into consideration.”

The policy objective

7.We asked what the Home Office regarded as the policy objective of these changes. The Home Office responded:

“The policy objective is to operate a deterrent against migrants choosing to pay large sums of money to people smugglers and criminal facilitators, and undergo dangerous journeys across Europe and across the Channel. It is hoped, in the near future, to conclude robust returns agreements with EU states in order to support our Rules change. For now, with the UK leaving the Dublin Regulation, we must demonstrate to migrants that dangerous clandestine journeys to the UK rather than claiming in safe countries on the way will not result in immediate entry to the UK system via an asylum claim, and the UK will seek to continue the EU principle of discouraging such secondary movements once safety has been reached.”

8.To be an effective deterrent, those considering clandestine entry to the UK need to see a change in the outcome of other attempts. We asked the Home Office what it expected the outcome of these changes to be: would more people fail to gain asylum or would the same number be rejected but at an earlier stage (thus achieving administrative benefits)? The Home Office replied:

“The full deployment of the Rules will deliver a significant uplift given that a person’s travel through a safe country to the UK makes them liable to inadmissibility, rather than the possibility of their return to that country. The system is intended to discourage secondary movements within Europe once a migrant has reached safety — including those dangerous journeys across the Channel.”

Deportation

9.The policy relies heavily on the UK’s ability to deport anyone whose claim is deemed inadmissible on these grounds. We therefore asked the Home Office what would happen to these people. The Home Office replied:

“A person will be regarded as an asylum seeker up to the point of being deemed, formally, to be inadmissible. At that point they would be a failed asylum seeker. Both asylum seekers and failed asylum seekers can access support to prevent against destitution (in accordance with our obligations under the ECHR.) Our powers to detain are linked closely to an ability to remove within a reasonable period of time. If that is possible, therefore, detention is an option. If not, we are looking at different accommodation models for our asylum intake generally.”

We also asked what would happen if no third country was willing to take this possibly larger number of individuals. The Home Office replied:

“If returns are not, ultimately, possible within a matter of months, a person will be admitted into the asylum system.”

These Rules changes use imprecise terms —what is “ a reasonable period of time” in this context or “a matter of months”? It appears that in some cases the applicant will simply experience a delay in being processed, which leads us to question the effectiveness of this policy in deterring “inappropriate” asylum seekers.

Conclusion

10.These changes in the Rules may alter an individual’s status to failed asylum seeker more quickly or perhaps limit their ability to have the decision reviewed, but it is not obvious how, in the absence of a clear enforcement policy, it will deter secondary movements. The House may therefore wish to ask the Minister for details of how the “robust returns” policy is to be delivered and the deterrent effect promulgated.


1 For example: HM Government, ‘Claim asylum in the UK: Eligibility’: https://www.gov.uk/claim-asylum/eligibility [accessed 5 January 2021].




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