Illegal Migration Act 2023 (Amendment) Regulations 2024

Date Legislation considered: 2 August 2024

Date Legislation in force: 23 July 2024 (subject to regulation 1(3))

Relevant Withdrawal Agreement/EEA EFTA Separation Agreement Right(s): Residence

What does the legislation do?

The Explanatory Memorandum to the Illegal Migration Act 2023 (Amendment) Regulations 2024 (“the Regulations”) states that the Regulations amend “the date of application of the Duty to Remove in section 2 of the Illegal Migration Act 2023. As a result, instead of the Duty to Remove having retrospective effect, meaning that it applies to any person who arrived on or after the day on which the Act received Royal Assent (20 July 2023), the date of application now refers to the day on which section 2 will come into force.”

Whilst section 2 of the Illegal Migration Act 2023 (“the Act”) was never brought into force, it prevented the processing of some asylum claims made on or after 20 July 2023.

The Explanatory Memorandum further states that the Regulations also make “consequential amendments to other provisions of the Act to link them to the date from which the Duty to Remove applies.”

One of those consequential amendments is to remove the ban on granting lawful immigration status or citizenship to persons who arrived on or after 7 March 2023 and who meet the conditions of the Duty to Remove in section 2 (see Regulation 3).

Comments

Whilst the IMA raises no issues of concern with the Regulations, it considers that there may be some EU and EEA EFTA citizens who were permitted entry into the UK  on or after 7 March 2023 and who were given immigration status under Appendix EU before 23 July 2024 (when the Regulations came into force) who nevertheless met the conditions of the Duty to Remove in section 2 of the Act.  In such circumstances, the Act would have operated to prohibit the Home Office from granting such status. This could cause doubts about the validity of the immigration status granted to this cohort. For those citizens with rights under the Withdrawal Agreements, they will be able to rely on their rights which are directly effective (i.e. they do not need domestic legislation to be enforced) notwithstanding any such prohibition. Home Office officials have confirmed that no EU or EEA EFTA citizens were refused status because of the prohibition.

Whilst the IMA acknowledges that the prohibition has been removed, it is concerned where the directly effective nature of the Withdrawal Agreement is relied upon to override conflicting domestic laws. Officials at the Home Office have however provided assurance to the IMA that this issue will be resolved at the earliest legislative opportunity. The IMA will monitor this legislation in accordance with its legislation monitoring work.

UPDATE: On 30 January 2025, the Border Security, Asylum, and Immigration Bill (“the Bill”) was introduced to the House of Commons. Clause 38(2) provides that section 8AA of the Immigration Act 1971 as inserted by section 30(3) of the Act is to be treated as never having been in force. The effect of this is that any leave which was granted when the Home Office did not have the power to do so will be valid. If this provision becomes law, the IMA raises no issues of concern. The IMA will be reporting separately on any other relevant provisions with the Bill.

Any citizen experiencing difficulties in exercising their rights are encouraged to report a complaint through the IMA Portal.

Further information about the IMA and guidance on how to report complaints can also be found on the website.