Navigating asylum law

On his inaugural day as prime minister, Keir Starmer scrapped the Conservative government’s controversial plan to send refugees and migrants who had entered the UK in breach of immigration law to This article gives an update on the development of asylum law and policy since then and the challenges the new government faces.

Border Security, Asylum and Immigration Bill

The Home Office has that it is in the process of progressing new primary legislation with the aim of tackling people-smuggling gangs. Posed as an alternative to the Rwanda plan to reduce small boat crossings, the Bill installs a new Border Security Command equipped with broad counter-terror powers. Wider law enforcement officials will also benefit from these extended powers, which Labour has previously stated will include the right to search suspected people smugglers, live-monitor their finances and apply for court orders mandating the handover of financial information. Stronger penalties will also be established for a range of offences relating to facilitating people smuggling.

The Government has also stated that the new Bill will clear the asylum backlog, thereby ending the use of hotels to accommodate asylum seekers, as well as ensure the expedited return of individuals from ‘safe countries’ who claim asylum in the UK. As of yet, no further information has been provided as to how these aims will be achieved.

Illegal Migration Act (IMA) Regulations

Introduced to Parliament on 23rd July 2024, the IMA Regulations end the ban on claiming asylum in the UK for those who enter the UK irregularly.

Section 2 of the IMA mandated the Home Secretary to make arrangements for the removal of certain migrants, notwithstanding the fact that these people may have claimed protection in the UK. This group mainly consisted of those who had entered the UK without leave to enter or with leave attained by way of deception and who had also passed through a ‘safe country’ on their journey to the UK – that is, a country in which they were not subject to persecution per the definition outlined in the 1951 Refugee Convention. Section 2(3) of the IMA confirmed that this duty would apply to those who had arrived in the UK on or after 20th July 2023. Although Section 2 had yet to be implemented prior to the change in government, other sections of the IMA which had been brought into force effectively eliminated the right to be granted leave of many people who arrived in the UK to claim asylum.

Regulation 3(5) of the IMA Regulations removes the ban on persons falling within the definition of Section 2 of the IMA from being granted leave to remain in the UK, until such time as the duty to remove set out in the same section is brought into force. Regulation 3(7)(b) similarly removes the ban on the same group of people being granted citizenship, as previously implemented by Section 31 of the IMA.

The IMA Regulations have also removed the retrospective application of certain provisions of the IMA. For example, Section 2 of the IMA Regulations amend Section 2(3) of the IMA so that the duty to remove would apply to people who had arrived in the UK following the implementation of Section 2 of the IMA, rather than the date on which the IMA received royal assent.

The explanatory memorandum of the IMA Regulations details the rationale behind the decision for the regulations to come into effect immediately and without prior parliamentary scrutiny. It should be borne in mind that it would be open to any future government to issue a statutory instrument with immediate effect implementing an effective date for the duty to remove outlined in Section 2 of the IMA.

Outstanding challenges

Under the previous government, the Home Office had ceased progressing the vast majority of asylum claims intimated after 7th March 2023. Now that the IMA Regulations have resumed the processing of these claims, the Home Office has a newly created asylum backlog to contend with. This backlog will need to be progressed in addition to the backlog of claims lodged after 28th June 2022 that continue to be subject to the inadmissibility process as set out in the Nationality and Borders Act 2022.

During the latter half of 2023, there was a surge in the number of asylum claims being withdrawn. Home Office statistics confirm that over three-quarters of these withdrawals were issued by the Home Office where a claim was considered to have been implicitly withdrawn by the applicant – for example, where the Home Office considered that the applicant has not maintained contact. It is inevitable that the majority of the people affected by these decisions will re-engage with the asylum system in the future, further increasing the case load of the Home Office.

The Home Office will also have to contend with an exponential increase in the number of asylum appeals being handled by the Immigration and Asylum Chamber of the First-Tier Tribunal.

The ‘hostile environment’ has bred a myriad of other issues pernicious to those claiming international protection in the UK, particularly those who are victims of human trafficking. The coming months will provide further insight into the extent to which Labour will choose to address these problems.

Written by Anna Knox, solicitor at Latta & Co. Solicitors