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Quietly passing statutory instruments is no way to legislate on migrants’ rights

Quietly passing statutory instruments is no way to legislate on migrants’ rights

A new law preventing migrants from using their residence permits to prove their right to rent or work in the UK is coming into force without robust parliamentary debate. 

From 6 April 2022, no migrant in the UK will be able to use their biometric residence permit or card as valid proof of their lawful immigration status. Instead, immigration status will only be proved digitally, presenting real risks to those without the internet or digital devices.

Despite the fact that this change will have significant consequences for thousands of migrants in the UK, the government is choosing to implement it using delegated rather than primary legislation — meaning it could bypass important scrutiny by Parliament.

The law in question, laid before Parliament in March 2022, is a statutory instrument: the Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc., Regulations 2022 (SI 2022 No. 242). It extends the requirement to prove immigration status digitally for right to work and rent purposes from EU citizens with pre-settled and settled status to all non-Irish migrants in the UK. 

This instrument has two concerning aspects, one procedural and one substantive.

From a procedural perspective, the important point is that this is a “negative procedure” statutory instrument. That means that the presumptive position is that it is not debated and comes into force automatically. This is particularly problematic because this is a significant change in the way that non-EU migrants in the UK can prove their lawful migration status.

Policy changes are not supposed to be conducted via secondary legislation. The traditional distinction is that “matters of policy and principle” are dealt with in primary legislation, whereas delegated legislation is for “the regulation of administrative procedures and technical areas of operational detail”. The rationale is that policies that will have significant impacts on the public at large, or on minority groups, deserve full parliamentary scrutiny and debate. They will not receive that when placed in delegated legislation, which as the courts have said is “subject to much briefer, if any, examination by Parliament”.

The second concern is practical. There are already problems with the digital status system for EU citizens. It is strange that the government has chosen to roll out digital proof of status across the board at a time when the issues with digital status for EU citizens have not yet been ironed out. We know that the system disproportionately impacts certain groups.

For example:

  1. The system will be inaccessible to those without internet access or digital devices. An estimated 13% of the elderly population has never used the internet, and around a third of people with disabilities do not use the internet, including 37% of severely visually impaired people.
  2. There are significant limitations with the Home Office support system, known as the Settlement Resolution Centre, set up to provide assistance to those having difficulty with the digital system. In the 12 months to October 2021, over half of calls to the Resolution Centre were abandoned. In July 2021, the first month that people had to rely on their digital-only status, only 31% of calls were handled. 
  3. The existence of a wide variety of problems with digital-only status that must be addressed before its wider application. The3million’s reporting tool, in place since December 2020, has identified issues including the system showing someone else’s status, wrongly showing someone’s status as pending when it had already been granted, or showing an error message instead of their status. 

All this calls into question the democratic legitimacy of an instrument which seeks to make a major change in the lives of non-EU migrants in the UK without any debate in Parliament.

Alexandra Sinclair is Fellow in Brexit, Parliament and the Rule of Law at the Public Law Project. She has an LLB(hons) from Victoria University of Wellington, New Zealand and an LL.M from Columbia Law School where she studied as a Fulbright Scholar. Alexandra has worked as a judges’ clerk at the New Zealand High Court and as a barrister in Auckland, New Zealand. She was awarded the Cleary Memorial Prize by the New Zealand Law Foundation in 2015 for showing outstanding promise in the legal profession.