Chapter 1 Updates - September 2021

History and Sources of Immigration Law

One further legal development should be mentioned here. Following a series of legal challenges, the Detained Fast Track system of processing asylum claims was suspended by the government in July 2015. The system had been shown in numerous ways to be placing vulnerable people at risk. An interim instruction permits detention of asylum seekers only on normal detention grounds (see chapters 11 and 14). A replacement scheme, entitled ‘accelerated detained appeals’ has been proposed in the Nationality and Borders Bill 2021. Under the proposals, detainees will have 5 days to lodge and appeal and the First-tier Tribunal will have 25 days from the point of an appeal being lodged to determine it. This has yet to be brought into law but critics argue that it has not adequately been explained how an expedited system on such timescales can be operated fairly.

Brexit has formed a centerpiece of political discussion over immigration since the referendum in 2016. The UK left the EU on 31 January 2020 but EU free movement law remained applicable in its entirety until the end of the transition period, at 11pm on 31 December 2020. The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 ended the free movement of persons in the UK, law which would otherwise have been retained in UK law by the EU (Withdrawal) Act 2018 (as amended by the EU (Withdrawal Agreement) Act 2020). It makes citizens from the EU, the EEA and EFTA states of Iceland, Norway and Liechtenstein, and from Switzerland, and their family members, subject to UK immigration controls. This means they require permission to enter and remain in the UK. EEA nationals who enter on or after 1 January 2021 will be subject to a new points-based system, applicable to all nationalities seeking to pursue economic activity or study in the UK. EEA nationals who were already resident in the UK before the end of the transition period are subject to the more generous provisions of the EU Settlement Scheme as discussed in chapter 4.

Following a short period of consultation, on 6 July 2021 the Conservative government introduced to Parliament the Nationality and Borders Bill. Its provisions are highly controversial, a centrepiece of which is to make inadmissible asylum applications where the applicant has a ‘connection’ to a safe third country. It also contains provisions on detention, including the re-introduction of accelerated detained appeals, as discussed above, and expanding criminal powers. The Government argues in its policy statement on the ‘New Plan for Immigration’ that the measures are aimed at deterring the smuggling and trafficking of human beings, promoting a fair and efficient system and making it easier to remove those without a right to remain from the UK. Critics, however, argue that the proposals would criminalise many genuine asylum seekers and conflict with the UK’s international obligations under the Refugee Convention.