Prior to the General Election there was a great deal of new policy regarding the way the UK dealt with Asylum Claims. The Illegal Migration Act received Royal Assent in July 2023, and a number of key sections were brought into force, in particular those which prevented refugee status (asylum) being granted to anyone who arrived through irregular means. This was particularly at those directed at those arriving on small boats.
However, no regulations were brought into force indicating how those claimants, including children, should be processed. It was clear that it would not be possible to send all arrivals to Rwanda, and so a backlog of claims held in limbo developed.
With the new government came hopes for a new approach to asylum and so this briefing note considers the developments since July 2024.
The Illegal Migration Act (Amendment) Regulations 2024 were brought in towards the end of July 2024 and restarted the processing of asylum claims. It did this by amending the date at which the bans in sections 30 and 31 of the Act come into force, meaning that it will not come into force unless the duty to make arrangements for removal (section 2) comes into force, which is not anticipated to happen under this government. This essentially means that asylum processing can begin as it was prior to the Act.
However, it is important to note that the Act remains on the statute books, and the above changes can be reversed as quickly as they were made. There has been no change to the expanded detention powers brought in by the Act. The spectre of the Act will continue to loom over the asylum system until it is repealed – which there are currently no plans to do.
In terms of how these developments affect children, the most impact will be on those who claimed asylum as children but are now aged over 18. Invitations to interview started being sent very quickly after the changes, which also included the possibility to submit a Statement of Evidence Form (SEF) and Statement if this had not been done previously. Unfortunately, while the Home Office may be extending its procedures to those who have been caught up in the delays, Legal Aid has not followed suit. R (Alhasan) v Director of Legal Aid Casework & Anor [2024] EWHC 2031 confirmed that it was not discriminatory for the funding provided to allow legal representatives to attend children’s asylum interviews to not be provided to those young people who were over 18. However, support persons – such as Personal Advisers can still attend with young people.
This means that it is even more important that Local Authority staff supporting young people at their asylum interviews are properly trained to know what to expect and what rights the young people have. It also means that the work immediately after the interview – checking the transcript with the young person and submitting additional representations must be done without the benefit of the representative’s notes.
Hopefully, this will only be an issue for the cohort caught by the problems caused by the Illegal Migration Act, though it will take some time for their cases to be completed and it is currently unclear whether the Tribunal will place any weight on a lack of legal representation at interview stage should issues of credibility arise at appeal.