Nationality And Borders Act 2022

Policy background

2. The United Kingdom’s legal immigration system has been reformed by the ending of free movement and the introduction of a new points-based immigration system. This Act is intended to tackle illegal migration, reform the asylum system and control the UK borders.
3. Under new proposals, how someone enters the United Kingdom will impact on how a claim progresses through the system and the type of status granted in the UK if that claim is successful. The asylum framework will be streamlined, ensuring cases and appeals are dealt with more effectively, while improving the Home Office’s ability to remove those with no right to remain, including Foreign National Offenders (FNOs). At the same time, the Government’s aim is to strengthen safe and legal routes, offering protection to refugees fleeing persecution, and fixing historical anomalies in British nationality law.

New Plan for Immigration

4. On 24 March the Home Secretary published the New Plan for Immigration and opened a public consultation which ran from 24 March to 6 May 2021.
5. The results of the consultation were published on 22 July 2021 and have been used to inform measures in this Act.

Ending Anomalies in British Nationality Law

6. This Act will introduce new registration provisions for children of British Overseas Territories citizens, who were unable to acquire that status under earlier legislation, either because women could not pass on citizenship at the time of their birth, or because their parents were not married. The Act will also introduce a provision for children to acquire their father’s citizenship where they were unable to do so because their mother was married to someone else. The Act will also create a new time-limited route for the descendants of those born on the Chagos Islands, now known as the British Indian Ocean Territory, to apply to register as both British Overseas Territories citizens and British citizens.
7. A new adult registration route will allow the Secretary of State to grant citizenship where, in the Secretary of State’s opinion, a person failed to become a British citizen and/or British Overseas Territories citizen because of historical legislative unfairness, an act or omission by a public authority; or other exceptional circumstances relating to the person’s case.
8. This Act also removes the requirement to have been in the United Kingdom at the start of the five (or three) year residential qualifying period for naturalisation in exceptional cases. This will mean that people will not be prevented from qualifying if there are good reasons why they could not have been in the United Kingdom at that time.
9. The Act will allow the Secretary of State to disapply the requirement to give notice of a decision to deprive a person of their nationality where notice of the decision would be impractical or a threat to national security.
10. The Act will amend the existing provisions for the registration of a stateless child as a citizen, adding a requirement that a child aged 5-17 will not qualify if they could reasonably acquire another nationality. This means that a child cannot benefit if their parents could, but choose not to, acquire their own nationality for their child.

Illegal Migration and Reforming the Asylum System

11. Prior to the COVID-19 pandemic, the numbers of those seeking asylum in the United Kingdom was rising. In 2019, the United Kingdom received 35,700 new asylum claims, a 21% increase on the previous year. 1 At the end of 2020, there were 109,000 asylum claims being progressed in the asylum system with 73% of these having been in the system for over one year. 2 This includes cases that are being worked towards initial or final decision, as well as cases that have reached a conclusion where the individuals are due to be removed from the United Kingdom.
12. As a result, the asylum system costs approximately £1 billion per year. 3
13. The Government wants to improve its ability to provide protection to those who would be at risk of persecution on return to their country of nationality. To that end, this Act consolidates a test against which an asylum claim will be assessed, with a clear framework to set the standard for testing what amounts to a "well-founded fear of persecution". The Act also clarifies the definition of "persecution" to make clear the requirements for qualifying for protection, in line with the 1951 Refugee Convention.
14. This Act also reduces the criminality threshold so that those who have been convicted and sentenced to at least 12 months’ imprisonment can be considered for removal in line with Article 33(2) of the Refugee Convention.
15. In the 12 months ending September 2019, around 62% of asylum applicants to the United Kingdom had entered the country irregularly (40% clandestinely, 22% without relevant documentation) with the remainder largely thought to have arrived regularly (e.g. on a visa), before subsequently applying for asylum. 4
16. Methods of irregular entry can be unsafe, dangerous and leave migrants open to exploitation by organised crime groups. One such method of entry is across the English Channel via small boats, which saw a significant increase in 2020 and 2021.
17. This Act introduces a comprehensive set of measures to discourage irregular entry and improve the Home Office’s ability to remove those with no right to remain in the United Kingdom. This is aimed at reducing the rapid intake of cases into the asylum system to improve the speed at which asylum seekers receive a decision, benefitting both the UK taxpayer and the asylum seekers themselves.
18. The sections in this Act will create a differentiated approach: how someone arrives in the United Kingdom will have an impact on the type of status granted in the United Kingdom if their asylum claim is successful. Under the framework created by this Act, people who enter the United Kingdom and engage the United Kingdom’s protection obligations under the Refugee Convention may be granted temporary protection status where they do not meet certain conditions (aligned with those set out in Article 31(1) of the Refugee Convention). This includes circumstances where an individual does not come directly from a territory where their life or freedom was threatened, does not claim asylum without delay or, where relevant, does not show good cause for their illegal entry or presence
19. Temporary protection status will not include a defined route to settlement in the United Kingdom, but individuals may be eligible to apply for long residency settlement after 10 years if the necessary requirement are met. It will restrict family reunion rights and may only allow recourse to public funds in cases of destitution. People granted temporary protection status will be expected to leave the United Kingdom as soon as they are able to or as soon as they can be returned or removed, once no longer in need of protection.
20. The current asylum accommodation estate will be expanded to include basic full board accommodation centres. These centres may accommodate particular cohorts of asylum seekers and failed asylum seekers who are in need of support, in order to resolve their immigration status more efficiently and facilitate their removal where their claim has been refused. Examples include, but are not limited to, asylum seekers whose claims are being considered, and failed asylum seekers who fall to be removed from the United Kingdom once the practical arrangements are completed.
21. This Act also contains provisions that allow individuals to be removed to a safe third country before their asylum claim has been considered, providing opportunity for extraterritorial processing models to be developed in the future in line with the United Kingdom’s international obligations. This is likewise aimed at removing any incentives which may attract economic migrants to the United Kingdom and to incentivise people to claim asylum in the first safe country.
22. In 2019, around 1 in 6 asylum seekers to the United Kingdom had already made an asylum claim in another European country. 5 Following the end of the Transition period, changes to the Immigration Rules were brought into effect which amended legal powers to treat cases as inadmissible (i.e. the United Kingdom does not take responsibility for assessing the asylum claim) where individuals have passed through safe countries or have connections to a safe country where they could have made a claim for asylum.
23. Through this Act, inadmissibility rules have been clarified and placed into primary legislation. This is aimed at encouraging asylum seekers to claim asylum in the first safe country they reach and to deter onward travel to the United Kingdom – often at the hands of criminal facilitators.
24. Since 2015, the United Kingdom has received, on average, more than 3,000 unaccompanied asylum-seeking children per year. Where age was disputed and resolved from 2016-2020, 54% were found to be adults. 6 There are safeguarding risks if people over 18 are treated as children and placed in settings, including schools, with children.
25. This Act seeks to strengthen the framework for determining the age of people subject to immigration control, including those seeking asylum. This includes establishing a decision-making function in the Home Office to allow the Secretary of State to conduct age assessments. The measures also create a right of appeal against age assessment decisions and look to establish a framework for the use of scientific technology in decisions about age.

Streaming Asylum Claims and Appeals

26. Under the current appeals system it can take years to conclude an asylum appeal. As of May 2020, 32% of asylum appeals lodged in 2019 and 9% of appeals lodged in 2018 did not have a known outcome. 7
27. Currently, if a person’s asylum claim is refused, they have an automatic right to appeal the decision to the First-tier Tribunal (Immigration and Asylum Chamber). Nearly everyone who has their asylum claim rejected chooses to make this appeal. If the decision is upheld the person claiming asylum has a further route of appeal to the Upper Tribunal. If at that point they are not satisfied with the result, a decision can in some circumstances be appealed again at the Court of Appeal and Supreme Court. It is possible for a person, having exhausted all the above processes, to then make a new claim, in effect, starting the whole appeal process again.
28. A judicial review may also be brought against a Home Office decision at various points in the process of someone seeking to prevent their removal from the United Kingdom or when refused a right to remain in the United Kingdom. In 2019, there were 8,000 judicial reviews against Home Office immigration and asylum decisions. 8 Judges concluded 6,063 cases on paper, of which 90% were dismissed or refused, with around 17% being deemed by the judge to be "Totally Without Merit". 9 These figures illustrate that a large percentage of cases taken to judicial review are not well-founded, taking up judicial and administrative time and delaying legitimate cases.
29. The measures outlined in this Act seek to streamline the appeals process by introducing an expanded ‘one-stop’ process to ensure that asylum and human rights claims, referrals as potential victims of modern slavery and any other protection matters are made and considered together, ahead of any appeal hearing. Improved access to legal advice is intended to help people raise such matters as early as possible and avoid last minute and repeat issues being raised.
30. This Act aims to reduce the volume of sequential claims, appeals or legal action, while ensuring access to justice and upholding the rule of law. The envisioned outcome is to ensure swift access to justice, stop parallel and sequential litigation on different grounds and ensure an effective and efficient judicial system. A key part of this is the introduction of a Priority Removal Notice. People who are liable for removal and can be subject to an enforced return within a reasonable timescale will, on receipt of this, be able to access legal advice for a fixed number of hours, funded by legal aid, which is non-means and non-merits tested, on any aspect of their immigration status and claim(s) for remaining in the UK, including modern slavery matters. This will require recipients to bring forward any such grounds within a set time period. If a person raises a late claim, without good reason, outside of this period and that claim is refused, any right of appeal will be direct to the Upper Tribunal rather than the First-tier Tribunal. This will ensure that any appeals following a late claim will be dealt with in the most expeditious manner possible, while maintaining judicial oversight from the Tribunal.
31. The introduction of a new accelerated appeal process will ensure that cases which are deemed to be unfounded, or new claims which are raised late, are dealt with swiftly

Supporting Victims of Modern Slavery

32. The Government remains committed to ensuring the police and the courts have the necessary powers to bring perpetrators of modern slavery to justice, while giving victims the support they need to rebuild their lives. The United Kingdom is a signatory of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), which sets out signatory states’ international obligations to identify and support victims of modern slavery.
33. When it is deemed that there are Reasonable Grounds (RG) to believe an individual is a victim of modern slavery, that individual is protected from removal (unless an exemption applies) for the 30-day recovery period or until they have received a Conclusive Grounds (CG) decision regarding whether they are a confirmed victim of modern slavery, whichever is longer. While individuals are protected from removal, they are also entitled to support in line with their needs.
34. Most potential victims of modern slavery receive a positive decision. In 2020, the Single Competent Authority (SCA) made 10,608 reasonable grounds decisions, of which 92% (9,765) were positive. They also made 3,454 conclusive grounds decisions, of which 89% (3,084) were positive.
35. The most common nationality of all referrals to the National Referral Mechanism (NRM) in 2020 was United Kingdom nationals, accounting for 34% (3,560) of all potential victims. This was followed by Albanian and Vietnamese nationals, that made up 15% (1,638) and 6% (653) of NRM referrals respectively. United Kingdom dual nationals made up 2% (231) of all NRM referrals in 2020.
36. The Government wants to ensure that victims are identified and provided with support, and that any gaps in the system which allow for the NRM to be misused are addressed. This will avoid resources being diverted away from victims who need support and unnecessary impacts on removal actions. In 2021, the NRM system is estimated to have cost at least £80m.
37. The measures outlined in this Act seek to ensure victims are identified as quickly as possible, while enabling decision makers to distinguish more effectively between genuine and non-genuine accounts of modern slavery and enabling the removal of serious criminals and people who pose a threat to United Kingdom national security.
38. There are concerns about the potential for a referral to the National Referral Mechanism to be used to frustrate Immigration Enforcement action or gain access to support inappropriately.
39. Of the individuals released from detention following being detained in the United Kingdom for immigration offences, 1,005 were referred to the NRM while in detention in 2020.
40. NRM referrals from Foreign National Offenders and foreign nationals held on remand are rising, with an average of 85 per month in the first five months of 2021 (compared to 19 per month in 2018). In 2019, only 6% of FNOs referred to the NRM from detention were returned.
41. FNOs were less likely to receive a positive RG decision (73%) compared to RG decisions for all referrals (90%) in 2019 . The CG decision data between all NRM referrals and FNO referrals from detention are harder to compare due to the time lag to a conclusive decision and the number of outstanding decisions.
42. This raises concerns that some referrals are being made late in the process to frustrate immigration action and that legitimate referrals are not being made in a timely way.
43. The modern slavery measures in this Act aims to set out the rights and entitlements of possible victims and to bring clarity to victims and decision-makers as to how decisions should be taken to ensure individuals are identified and supported as quickly as possible.
44. This package of measures is enhanced by non-legislative changes.

Disrupting Criminal Gangs Behind People Smuggling

45. Illegal migration causes significant harm and endangers the lives of those undertaking dangerous journeys. In the summer of 2020, a record number of 8,500 people crossed the English Channel in small boats. 10 This is a dangerous crossing which the Government aims to make unviable.
46. The Government is already working with partners in Europe, especially France and Belgium, to prevent migrants attempting to make their way illegally to the United Kingdom. This includes work funded through overseas development aid and activities of law enforcement and intelligence partners including the National Crime Agency (NCA). The Government intends to continue working with these partners and all operational partners and agencies to tackle the upstream causes of illegal immigration.
47. This Act will introduce tougher criminal offences for those attempting to enter the United Kingdom illegally or found to be facilitating illegal immigration.
48. Border Force powers and capabilities to deal with maritime threats will be expanded through this Act. Border Force will be given strengthened powers to divert vessels they suspect are being used to facilitate illegal entry to the United Kingdom out of United Kingdom territorial seas and enable enforcement action to take place outside UK waters. The Act will set out how and where asylum claims must be made, expressly excluding claims from being made at sea.
49. A significant number of people entering the United Kingdom illegally arrive through concealment in vehicles travelling into the United Kingdom by tourist and freight transport routes. This Act gives Border Force Officers the power to search unaccompanied containers which have been removed from the ship or aircraft for the purpose of satisfying themselves whether there are any people they want to examine.
50. The Act will strengthen powers to allow migrants who arrive on small boats to be treated in line with arrivals at port. This section will allow Officers to examine those who have crossed the Channel via small boat at the location they are being processed for immigration purposes, away from port and border areas or location of entry. This will ensure that Counter-Terrorism Police are able to identify and examine individuals for the purpose of determining involvement in terrorist activity under the same power as if those individuals had passed through conventional border controls.
51. This Act will introduce a new civil penalty regime alongside the existing Clandestine Entrant Civil Penalty scheme. Under the current scheme, vehicles coming into the United Kingdom must be secured in order to stop clandestine entrants. Where a clandestine entrant is found on board a vehicle on arrival in the United Kingdom and the responsible person has failed to operate a system that prevented their entry, a civil penalty may be imposed. The additional regime will firstly create a new civil offence, whereby a civil penalty may be imposed if there has been a failure to adequately secure a commercial goods vehicle and to take the actions specified in regulations in relation to the securing of the vehicle against unauthorised access, regardless of whether a clandestine entrant is found within it. These actions will include a requirement to check the goods vehicle on an ongoing basis for signs of possible clandestine entry, to report any unauthorised access and to keep records that confirm the actions specified in regulations have been taken. The Immigration and Asylum Act 1999 will be amended to remove section 33 and the Prevention of Clandestine Entrant: Code of Practice.
52. Instead, the Secretary of State will specify in regulations the actions to be taken to secure the vehicle against unauthorised access. Secondly, the Act will also amend the regime so that liability to a fine will arise in all cases where a clandestine entrant is found on board a vehicle, save where there is evidence of duress. While the Secretary of State will have discretion to reduce the level of fine charged, the steps taken to secure the vehicle would no longer be relevant to liability to a fine. The regime is also amended so that train operators must comply with regulations made under section 34(3B). The regulations will specify the actions that a rail operator must have taken to secure a rail freight wagon against unauthorised access, in order to raise a defence, where it would be unsafe to stop the train on discovering a clandestine in a rail freight wagon.
53. A deportation order requires the subject to leave the United Kingdom and prohibits the subject from entering the United Kingdom. It invalidates any leave to enter or remain in the United Kingdom given to the subject before the order was made or while it is in force. The majority of those who receive deportation orders are Foreign National Offenders.
54. The current maximum sentence for entering in breach of a deportation order under section 24 of the Immigration Act 1971 is 6 months imprisonment which does not reflect the seriousness of this offence.
55. Increasing the maximum sentence from six months to five years’ imprisonment will disrupt those who are subject to a deportation order who are also involved in organised criminal networks, including those involved in organised immigration crime.
56. Broadly, non-visa nationals visiting the United Kingdom for up to 6 months currently arrive at the United Kingdom border with limited prior checks by the Home Office. This presents a gap in border control and the ability to count people in and out of the United Kingdom.
57. The introduction of an Electronic Travel Authorisation (ETA) Scheme will assist with the ongoing digitization of the United Kingdom’s border. This will mean, in the same way as for countries like the United States, Canada, Australia and New Zealand, before a person travels to the United Kingdom for a visit, they will need to apply for permission where aspects of any criminality must be provided through self-declaration. The Carrier Liability Scheme will be extended to incentivise carriers to check permission to travel before they bring an individual to the United Kingdom.

Enforcing Removals

58. Enforced returns refer to instances where the Home Office makes arrangements to remove immigration offenders or persons subject to a deportation order who do not intend to depart voluntarily from the United Kingdom. Voluntary return refers to any non-enforced departure of an individual with no right to remain.
59. There has been a gradual long-term reduction in enforced returns from the United Kingdom. In 2019, enforced returns fell to 7,192 - 22% lower than the previous year, and continuing a downward trend since 2013, when there were 14,900 enforced returns. 11
60. This Act creates a power for the Secretary of State to impose visa penalties on nationals of particular countries which do not co-operate with removal of their nationals who have no right to be in the United Kingdom.
61. As of 2020, there are 10,000 Foreign National Offenders living in the community who are subject to deportation action; around a quarter of whom were released from prison more than 5 years ago. 12 And around 42,000 failed asylum seekers are still living in the community. 13 While there are various contributing factors to these trends, repeated legal challenges impede the Home Office’s ability to enforce immigration laws, contributing to a downward trend in the number of people, including Foreign National Offenders, being removed from the United Kingdom.
62. In 2019, new claims, legal challenges or other issues were raised by 73% of people who had been detained within the United Kingdom following immigration offences, resulting in release from immigration detention in 94% of cases instead of removal from the United Kingdom. On full evaluation, very few of these claims amounted to a valid reason to remain in the United Kingdom. For all issues raised during immigration detention in 2017, 83% were ultimately unsuccessful. 14
63. Foreign National Offenders serving prison sentences in the United Kingdom, where deportation is being pursued, become subject to the provisions of the Early Removal Scheme (ERS). This Scheme provides a window at the end of the custodial part of their sentence for offenders who are subject to a determinate sentence (a sentence with a defined length) during which they can be removed from prison for the purpose of immediate deportation.
64. This Act will increase the removal window from 9 months to 12 months, subject to the individual serving at least half of the requisite custodial period in prison. Expanding the removal window increases the opportunity for deportation, thereby reducing the numbers of Foreign National Offenders in prison.
65. The introduction of a "stop the clock" provision will pause a Foreign National Offender’s sentence following their removal and reactivate it should the Foreign National Offender return to the UK. This section makes changes to the regime in the Criminal Justice Act 2003 relating to the early removal of prisoners, enabling them to be removed at an earlier point in their sentence and while on recall, and providing that if they return to the UK their sentence continues where it left off.

Non-Legislative Programme

66. This Act is supplemented by a programme of non-legislative reform within the New Plan for Immigration. This includes strengthening resettlement routes and enhancing support to victims of modern slavery.

Resettlement

67. Many of the measures contained within the Act are intended to reduce illegal migration and the criminality associated with it. In parallel, the Government intends to enhance resettlement routes to continue to provide pathways for refugees to be granted protection in the UK.
68. Between 2015 and 2019, around 25,000 15 refugees were resettled and a further 29,000 16 close relatives through refugee family reunion. Over the last 5 years, the UK’s resettlement efforts have been focused on resettling people from countries hosting large numbers of refugees, such as Lebanon, Jordan and Turkey in response to the Syrian conflict.
69. Following the passing of China’s National Security Law, which restricts the rights and freedoms of the people of Hong Kong, the UK introduced an immigration route for British Nationals (Overseas) status holders. This route provides the opportunity for such individuals and their family members to live, work and study in the United Kingdom. In the first quarter of 2021, approximately 34,300 individuals 17 submitted an application for this route to citizenship.
70. Going forward, the Government intends to broaden the scope of the United Kingdom’s protection offer to encompass persecuted refugees from a broader range of minority groups. Under the New Plan for Immigration, refugees who are resettled into the United Kingdom will be granted indefinite leave to remain and receive enhanced integration support.
71. The United Kingdom’s commitment to resettling refugees will continue to be a multi-year commitment with numbers subject to ongoing review guided by circumstances and capacity at any given time.

Modern Slavery

72. Alongside the suite of legislative measures relating to modern slavery contained within the Act, a range of non-legislative provisions were announced in the New Plan for Immigration to provide enhanced support to victims. This includes commitments to ensure that victims’ overall support packages are more tailored to individual need from the outset, and that they have ready access to specific mental health provision. The Government also wishes to improve the support given to child victims of modern slavery, including those involved in county lines exploitation.
73. The Government intends to provide increased support to First Responders to enable them to identify victims as early as possible. Alongside this, a new way of identifying child victims of modern slavery is being piloted, enabling decisions to be taken within existing safeguarding structures by local authorities, police and health workers, who have a duty to work together to safeguard and promote the welfare of children.
74. In addition to the funding we are providing to the police to improve the response, the Home Office is providing further funding to support work to increase modern slavery prosecutions, including by ensuring victims have the support they need to engage with the criminal justice system (CJS).
75. As well as reforming the current system, a new fund to pilot interventions by non-governmental organisations and stakeholders will aim to prevent modern slavery upstream.
76. To ensure the United Kingdom’s approach continues to meet the threat the 2014 Modern Slavery Strategy will be reviewed. The Government will seek to bring forward further legislation to support the wider NRM Transformation Programme and underpin any future changes to the system when Parliamentary time allows.
77. The Government also recognises that the United Kingdom cannot tackle this crime alone and must work with international partners to deliver progress. The United Kingdom continues to demonstrate international leadership, including at the G7 and G20, driving action towards the long-term ambition of eradicating modern slavery. The United Kingdom government has committed to investing up to £200m of United Kingdom aid to combat modern slavery across the globe.

Windrush

78. The Government published a comprehensive improvement plan in response to the Windrush Lessons Learned Review and has expressed its commitment to transformative change across the entire Home Office. This includes ensuring work on the New Plan for Immigration is progressed transparently, while engaging meaningfully with stakeholders and ensuring equalities impacts are assessed. The Government is also committed to upholding its international obligations, including the European Convention on Human Rights, the Refugee Convention and the UN Convention on the Law of the Sea (UNCLOS).