Wales and the UK’s changing immigration system

The UK Nationality and Borders Bill passed its third and final reading in the House of Commons. The Bill forms part of the UK Government’s plans for a new immigration system. The UK Government intends the Bill to deter illegal entry to the UK and change the way asylum claims are processed. It has attracted much attention, particularly from those who are concerned it would breach human rights law.

Immigration and asylum are reserved matters which means there is very little devolved governments can do to challenge aspects of the Bill. Despite this, the Welsh Government plays an important role in the delivery of immigration policy, particularly for asylum seekers and refugees.

This article explains the UK’s changing immigration system and the Welsh Government’s focus on measures to help people integrate into Welsh life.

A changing immigration system

When the UK left the EU, the free movement of people within the EU (as well as Iceland, Liechtenstein and Norway) ended, Many commentators, including the Migration Policy Institute say this represents the biggest change to the UK’s immigration system since the 1981 Nationality Act.

European citizens living in the UK before the end of 2020 had until 30 June 2021 to apply to the EU Settlement Scheme (EUSS) to continue living and working here. Our latest article shows that over 86,000 citizens were granted permission to stay in Wales by the deadline. The EUSS remains open for late applications.

In January 2021, the Home Office introduced a new points-based immigration system which sets out requirements for anyone coming to the UK to work. The UK’s system no longer differentiates between EU and non-EU citizens.

To qualify for a visa, applicants need a total of 70 points. They have to meet the following criteria:

• they have a job offer from a Home Office licensed sponsor;
• the job offer is at the required skill level – RQF 3 or above (A Level and equivalent); and
• they speak English to the required standard.

Developing a distinctive Welsh approach to immigration

Although immigration policy is not devolved, the Welsh Government, local authorities and other public sector bodies play an important role in its delivery, particularly for asylum seekers and refugees.

Despite the contribution to a UK-wide response, the Welsh Government’s approach to immigration, and the support offered to migrants has sometimes been at odds with the UK Government. In 2020 the Welsh Government called on the UK Government to stop using the former army barracks at Penally to accommodate asylum seekers, a decision which was later reversed by the Home Office. The Welsh Government must ensure its actions do not contravene UK Government legislation relating to refugees and asylum seekers or the UK’s international obligations.

Nationality and Borders Bill

The UK Government’s Nationality and Borders Bill will shortly make its way through the House of Lords.

The Bill covers a broad range of matters which includes:

• Nationality (Part 1);
• Treatment of refugees and asylum seekers (Part 2);
• Enforcement of immigration law (Part 3);
• Modern slavery (Part 4); and
• Miscellaneous provisions (Part 5) such as, age assessments for children.

The Bill has three key objectives:

• Increase the fairness of the system to better protect and support those in need of asylum;
• Deter illegal entry into the UK, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger; and
• Remove those with no right to be in the UK more easily.

The Bill has attracted much criticism. The United Nations’ Refugee Agency (UNHCR) warns that the Bill ‘undermines the 1951 Refugee Convention, the agreement which has protected refugees for decades and of which the UK is a signatory’. The UN’s legal opinion says the Bill:

‘is fundamentally at odds with the Refugee Convention and with the UK’s long-standing role as a global champion for the refugee cause’

One of the key concerns is the Bill aims to create a two-tiered system, where those who did not come to the UK via an agreed route (e.g. resettlement programme) may have their rights to seek asylum curtailed. They may be denied access to family reunion and applications could be deemed “inadmissible” if the person has connections to a country deemed safe by the UK.

Welsh Government's view and Senedd consent

The Welsh Government has expressed its concerns about the Bill. Welsh Ministers fear the Bill will ‘severely undermine’ its vision of Wales as a Nation of Sanctuary.

The Bill makes provision in both reserved and devolved areas and so the Senedd’s consent is sought. If passed, the Bill will impact on the operation of devolved responsibilities.

On 6 December, the Welsh Government laid a ‘Legislative Consent Memorandum’ (LCM). The Minister for Social Justice, Jane Hutt MS says she ‘cannot recommend the Senedd gives its consent’ to the Bill.

The key issue is around the age assessment process.

Currently, age assessments of unaccompanied asylum seeker children are carried out in line with Part 6 of the Social Services and Well-being (Wales) Act 2014. The Welsh Government argues that the proposed establishment of a National Age Assessment Board does not appear to have considered the ‘full devolvement of social services functions to Wales’.

The Senedd’s Health and Social Care Committee, Children, Young People and Education Committee and Legislation, Justice and Constitution Committee will now consider and report on the LCM by 10 February 2022.

You can read more about the LCM process in our new quick guides to the Welsh constitution and in our recent article.

Article by Claire Thomas and Sara Moran, Senedd Research, Welsh Parliament