The Nationality and Borders Act 2022 was signed into law on 28 April 2022. But there is a difference between a law being “on the statute books” after being passed by Parliament and it actually being “in force”. As we explain below, some of the Act came into force on 28 April and some on 28 June. But it is not quite so simple as that. Some of the powers in the Act are to make regulations and the regulations are not yet made. And other provisions only come into effect for asylum claims made on or after 28 June, so they do not take immediate effect in existing asylum cases.
Still further sections of the Act are not yet in force in any shape or form, and await Home Office regulations to bring them on stream.
From 28 April 2022
The commencement provisions are found in section 87 of the Act. Section 87 provides that a handful of provisions came into force straight away, on 28 April:
- Section 10(1) and (6) to (8) (effect of past failure to give notice of citizenship deprivation)
- Sections 70, 71 and 73 (visa penalties)
- Part 7 of the Act (financial provisions and other boilerplate, including section 87 itself)
Some other sections of the Act also came into force on the day it became law, insofar as they allow the Home Secretary to make or consult on regulations:
- Section 14 (requirement to make asylum claim at “designated place”)
- Section 27 (accelerated detained appeals)
- Section 42 and Schedule 5 (fines for lorry drivers)
- Section 43 (working in United Kingdom waters)
- Sections 50, 52 and 53 (on age assessments)
- Section 69 (interpretation of Part 5, on modern slavery)
- Section 82 (pre-consolidation amendments of immigration legislation)
From 28 June 2022
Then there are a bunch of provisions which, by virtue of section 87(5), come into force at a known date in the future. This is after “two months beginning with the day on which this Act is passed” — so 28 June 2022. Those provisions are:
(a) section 28 (claims certified as clearly unfounded: removal of right of appeal);
(b) paragraphs 5 to 19 of Schedule 4, and section 29 so far as it relates to those paragraphs (removal of asylum seeker to safe third country);
(c) section 30(1), (2) and (4) to (6) (Refugee Convention: general);
(d) sections 31 to 36 and 38 (interpretation of Refugee Convention);
(e) section 39 (interpretation of Part 2);
(f) section 44 (power to search container);
(g) section 49(1) to (4) (interpretation of Part 4);
(h) sections 72 and 74 (visa penalties in relation to uncooperative countries);
(i) section 78 (counter-terrorism questioning of detained entrants away from place of arrival).
Section 30(5) states that the provisions on the interpretation of the Refugee Convention (section 30(1) and (2) and sections 31 to 36) only come into effect for decisions made on or after 28 June 2022; in appeals decided on or after 28 June 2022, the new provisions only apply if the decision under challenge was made before 28 June 2022.
Some of these provisions, in particular those on removing asylum seekers to a “safe third country” (Rwanda), are accompanied by changes to the Immigration Rules which also came into force on 28 June.
All other provisions will come into force on dates specified in commencement orders. The first commencement order is the Nationality and Borders Act 2022 (Commencement No. 1, Transitional and Saving Provisions) Regulations 2022 (SI 2022 No. 590).
Schedule 1 of the Commencement Order No. 1 lists the sections that took effect on 28 June 2022. They include the two-tier refugee status, inadmissibility and third country removal rules at the heart of the Act; the outlandish new or toughened criminal offences in section 40; and the power to require people who don’t need a UK visa to get an electronic travel authorisation. Schedule 1 in full:
Provisions of the 2022 Act coming into force on 28th June 2022
1. Section 1 (historical inability of mothers to transmit citizenship).
2. Section 2 (historical inability of unmarried fathers to transmit citizenship).
3. Section 4 (sections 1 and 2: related British citizenship), except to the extent that section 4K(1)(a) of the British Nationality Act 1981(1), inserted by section 4(2) of the 2022 Act, refers to section 17H of the British Nationality Act 1981.
4. Section 5 (period for registration of person born outside the British overseas territories).
5. Section 6 (disapplication of historical registration requirements).
6. Section 7 (citizenship where mother married to someone other than natural father).
7. Section 8 (citizenship: registration in special cases).
8. Section 9 (requirements for naturalisation etc) and Schedule 1 (waiver of requirement of presence in UK etc), except for paragraph 3(4)(d) of that Schedule.
9. Section 11 (citizenship: stateless minors).
10. Section 12 (differential treatment of refugees).
11. Section 13(1) and (3) (accommodation for asylum seekers etc).
12. Section 14(1), (2), (6) and (7) (requirement to make asylum claim at “designated place”), so far as not already in force.
13. Section 14(3) and (5), for the purposes of section 15 (asylum claims by EU nationals: inadmissibility) and section 16 (asylum claims by persons with connection to safe third State: inadmissibility).
14. Section 15 (asylum claims by EU nationals: inadmissibility).
15. Section 16 (asylum claims by persons with connection to safe third State: inadmissibility).
16. Section 17 (clarification of basis for support where asylum claim inadmissible).
17. Section 29 (removal of asylum seeker to safe third country), so far as not already in force, and paragraphs 1 to 4 of Schedule 4.
18. Section 30(3) (interpretation of Refugee Convention).
19. Section 37 (Article 31(1): immunity from penalties).
20. Section 40 (illegal entry and similar offences), save in so far as it relates to the insertion of section 24(E1) into the 1971 Act.
21. Section 41 (assisting unlawful immigration or asylum seeker).
22. Section 45 and Schedule 7 (maritime enforcement).
23. Section 46(6) (amendment to section 10(10) of the Immigration and Asylum Act 1999).
24. Section 47 (prisoners liable to removal from the United Kingdom) and Schedule 8 (prisoners returning to the UK: modifications of Criminal Justice Act 2003).
25. Section 48 (matters relevant to decisions relating to immigration bail).
26. Section 75 (electronic travel authorisations).
27. Section 77 (Special Immigration Appeals Commission).
28. Section 79 (references to justices of the peace in relation to Northern Ireland).
29. Section 82 (pre-consolidation amendments of immigration legislation), so far as not already in force.
There are some transitional provisions in Schedule 2 of the Order. Importantly, section 12 on “differential treatment of refugees” does not apply to anyone who lodged their claim before 28 June. So those who got their claim in before the axe fell should, if successful, be entitled to proper refugee status rather than at risk of being put in Group 2 and getting “temporary refugee permission”.
We are updating our training course on the Nationality and Borders Act (available now to paying members) to reflect commencement orders as they are made. The course contents are below.
|Module 1||Introduction and commencement|
|Module 2||Citizenship reforms (Part 1)|
|Unit 2||British Overseas Territories Citizenship|
|Unit 3||British citizenship|
|Unit 4||Discretionary adult registration|
|Unit 5||Naturalisation for Windrush victims|
|Unit 6||Deprivation of citizenship|
|Unit 7||Registration of stateless children|
|Module 3||The asylum process (Part 2)|
|Unit 1||Differential treatment of asylum seekers|
|Unit 2||Accommodation for asylum seekers|
|Unit 3||Place of claim|
|Unit 4||Treating asylum claims as inadmissible|
|Unit 5||Priority Removal Notices|
|Unit 6||Late evidence and weight|
|Unit 7||Credibility and good faith|
|Unit 8||Fast track and out of country appeals|
|Unit 9||Offshore processing|
|Module 4||(Re)interpreting the Refugee Convention (Part 3)|
|Unit 2||Translating EU asylum law|
|Unit 3||A new split standard of proof|
|Unit 4||Changing the test for "particular social group"|
|Unit 5||Removing protections against penalising refugees|
|Unit 6||Lowering the “particularly serious crime” threshold|
|Module 5||Criminalising asylum (Part 3)|
|Unit 1||Criminalising seeking asylum|
|Unit 2||Criminalising assisting asylum seekers|
|Unit 3||Maritime enforcement|
|Module 6||Immigration enforcement (Part 3)|
|Unit 1||Working in UK waters: offshore workers|
|Unit 2||Lorries and containers|
|Unit 3||Removal notice periods|
|Unit 4||Immigration bail decisions|
|Module 7||Age Assessments (Part 4)|
|Unit 2||Who will conduct age assessments and when?|
|Unit 3||How will age assessments be conducted?|
|Unit 4||Appeals and new information|
|Module 8||Modern Slavery (Part 5)|
|Unit 2||Slavery or trafficking information notices (STINs)|
|Unit 3||Restricting protection for victims of trafficking|
|Unit 4||Restrictions to recovery period|
|Unit 5||Assistance, support and leave to remain|
|Module 9||Miscellaneous provisions (Part 6)|
|Unit 1||Visa penalties|
|Unit 2||Electronic travel authorisations|
|Unit 3||National security|
|Unit 5||Immigration Act consolidation|
|Unit 6||Final quiz|
|Unit 7||Feedback form|
This article was originally published on 17 May 2022 and has been updated so that it is correct as of the new date of publication shown.