The latest statistics from the Home Office break down the “flow” backlog (i.e. asylum claims made on or after 28 June 2022) into three separate groups. It is important to understand the different ways that they are treated, all of which involve the inadmissibility process in some way.

Taking them in chronological order and ignoring the 4,537 legacy cases which are currently being processed, we have the Nationality and Borders Bill backlog, the Illegal Migration Bill backlog, and the Illegal Migration Act backlog. Below, we look at why each of these backlogs exist and what is happening with them.

Nationality and Borders Act backlog

Size of backlog

At 28 December 2023 the size of this backlog was 38,529 applications. This is a reduction from its peak which was in March 2023 (when the Illegal Migration Bill backlog was created) and was 54,459 applications.

Legal framework

Prior to the Nationality and Borders Act 2022, the inadmissibility process was set out in the immigration rules. This was removed from the rules when the 2022 Act passed. We have a full briefing on the inadmissibility process under the 2022 Act. It is set out at section 80B of the Nationality, Immigration and Asylum Act 2002 and provides that the Home Secretary “may” declare an asylum claim inadmissible where a person has a “connection” to a “safe third country”. Where a claim is deemed inadmissible it can still be considered where there are exceptional circumstances or as otherwise provided for in the immigration rules.

The guidance sets out the process that is followed. First, the Home Office will consider whether it appears that a case is suitable for the inadmissibility process. If it is, then the case is sent to the Third Country Unit. If the Third Country Unit does not agree that the case is suitable, they will return it to the asylum team that referred the case to them.

If the Third Country Unit does consider that the case may be considered inadmissible, they will issue a “notice of intent” to the person, which will mention the country of possible “return”. In practice these usually just say Rwanda as there are no other third country returns agreements in place, even though the Rwanda agreement is not functional and could not in any event accept all of the people who have been issued with such a notice. As there are no functional third country returns agreements in place and nowhere to send people, nothing then happens with these cases.

Under timescales, the guidance states:

There are no rigid timescales within which third countries must agree to admit a person before removal. However, the inadmissibility process must not create a lengthy ‘limbo’ position, where a pending decision or delays in removal after a decision mean that a claimant cannot advance their protection claim either in the UK or in a safe third country.

If, taking into account all the circumstances, it is not possible to make an inadmissibility decision or effect removal following an inadmissibility decision within a reasonable period, inadmissibility action must be discontinued, and the person’s claim must be admitted to the asylum process for substantive consideration.

The previous version of the guidance stated that “If within six months of the date of claim a third country has not agreed to admit the person, the case must be referred to NAAU to be admitted for substantive consideration”. With the removal of that time limit, claims are being left in limbo considerably longer.

A Freedom of Information response I have seen showed that in the period July to September 2022 88% of cases were waiting longer than six months in the inadmissibility process before being admitted into the asylum system. There is no reason to believe that things have improved since then.

What happens next?

Over the period July 2022 to September 2023 there have been 48,361 people identified for consideration under the inadmissibility process (all data from tables Asy_09a and 09b published November 2023). Of those, 15,995 have been issued with a notice of intent (the nationality who have received the highest number of these, 4,714 since January 2021, are Afghans). Zero inadmissibility decisions have been made during this period and two people have been removed, presumably based on inadmissibility decisions made before 28 June 2022. No one has been removed under this process since the period April to June 2022. Since July 2022 34,995 asylum applications in the inadmissibility process have been subsequently admitted to the asylum system (again, some of these will be claims made before 28 June 2022).

So after sitting in the inadmissibility process for several months with a vanishingly tiny prospect of the cases ever being deemed inadmissible, cases in this backlog will be admitted into the asylum system and processed. On current grant rates, the vast majority of them will ultimately be recognised as refugees and granted leave to remain in the UK.

Illegal Migration Bill backlog

Size of backlog

In the recent statistics the Home Office also reports a separate category of “Illegal Migration Bill” cases which comprises applications from people who arrived from on or after 7 March 2023 and before 20 July 2023. This backlog comprised 22,448 applications at 28 December 2023.

Legal framework

Initially, the duty to remove in the Illegal Migration Act 2023 was going to apply to this group too, however at a relatively late stage in the Bill the government amended this “arrivals date” to cover people who arrived from the date of Royal Assent (20 July) and also made provision for that date to be further amended if needed.

Following that change, we can see from the statistics that a very small number of these cases in this backlog have been subsequently decided. At its peak in July 2023, there were 22,974 cases in this backlog, this was down to 22,448 at 28 December 2023. Most of these applications are likely to still be sitting in the inadmissibility process as described above.

It seems most likely that the 500 or so people in this backlog who have had their claims decided are children.

As far as what happens to this group after they exit the inadmissibility process, I have written this up previously and not much has changed since then. Section 30 of the Illegal Migration Act 2023 inserted new section 8AA to the Immigration Act 1971, which states as follows:

(1) This section applies in relation to a person who has ever met the four conditions in section 2 of the Illegal Migration Act 2023 (conditions relating to removal from the United Kingdom), reading subsection (3) of that section as if it referred to a person entering or arriving in the United Kingdom as mentioned in subsection (2) of that section on or after 7 March 2023.

(2) Subject to subsections (3) to (5), the person—

(a) must not be given leave to enter or leave to remain in the United Kingdom, unless it is—

(i) limited leave given under the immigration rules to a person within section 4 (1) of that Act (unaccompanied children), or

(ii) limited leave to remain given under section 65 of the Nationality and Borders Act 2022 (leave to remain for victims of slavery or human trafficking) as it has effect by virtue of section 22 of the Illegal Migration Act 2023 (provisions relating to removal and leave),

…

(4) The Secretary of State may give the person limited leave to remain in the United Kingdom if—

(a) the Secretary of State considers that failure to do so would contravene the United Kingdom’s obligations under the Human Rights Convention or any other international agreement to which the United Kingdom is a party, or

(b) the Secretary of State has exercised the power in subsection (3) in respect of the person, and the Secretary of State considers that there are other exceptional circumstances which apply in relation to the person which mean that it is appropriate to give the person limited leave to remain.

This means that anyone who has arrived in the UK on or after 7 March 2023 and who meets the other conditions in section 2 of the Illegal Migration Act 2023 cannot be granted leave unless the Home Secretary considers that failing to do so would be a breach of human rights or there are other exceptional circumstances that mean they should be granted leave.

There is additional provision at section 30(4) which states that, while the duty to remove is still not in force, leave can also be granted “in any other circumstances” although it is currently unclear how this would be different or more beneficial than provisions at sub-sections 8AA(4)(a) and (b).

What happens next?

Despite this section being in force for almost six months now, the Home Office has not published any guidance on how it should work, or where they would agree that a failure to grant leave would amount to a breach of human rights or exceptional circumstances, or what “any other circumstances” could include. In October, UNHCR published recommendations relating to the Illegal Migration Act 2023, one of which was that the immigration rules are amended to provide for a discretionary grant of leave to this group of people who are recognised as refugees.

In the meantime, the inadmissibility process as above is being applied to this group. We wait to see how long the Home Office will leave them in that process before taking steps to resolve their claims and grant leave.

The government knows that it cannot leave this group here forever without any intention of granting them leave (as, for example, it operates a restricted leave policy for foreign national offenders who are excluded from asylum and cannot be removed) but it is clearly delaying making what will no doubt prove to be a politically difficult decision for them. Perhaps they are waiting for the issue to be litigated, as blaming “lefty lawyers” and the courts may be considered the easier way out of this.

Illegal Migration Act backlog

Size of backlog

The statistics show that at 28 December 2023 there were 33,085 applications for asylum that had been made since 20 July 2023, the date when the Illegal Migration Act 2023 received Royal Assent, and the current date from which the duty to remove will apply.

Legal framework

The current legal framework for this group is the very similar to that of the Illegal Migration Bill backlog, except that this group has the potential of the duty to remove and mandatory inadmissibility being applied to them.

The duty to remove has not been brought not into force. It is set out in full at section 2 of the 2023 Act, but in broad terms it applies to people who meet the four conditions of: entering the UK without permission, on or after 20 July 2023, having travelled through a third country where they were not at risk, and does not have leave to enter or remain. Not everyone seeking asylum will meet all four of those conditions, however the statistics show that since July 2023 there have been 18,004 people who have arrived via the Channel. The duty to remove is likely to apply to all of them.

Section 5 of the 2023 Act has also not been brought into force, this section sets out the inadmissibility provisions under the 2023 Act. This is essentially that instead of there being a discretion as there is under the Nationality and Borders Act where the Home Secretary “may” treat a claim as inadmissible, here asylum and human rights claims “must” be deemed inadmissible.

The other difference in the legal framework for this backlog is that the provisions for leave to be granted under section 30(4) “in any other circumstances” would not prevent the duty to remove applying to this group at a later date (section 30(7)), so it would be more important for them to granted leave under sub-sections 8AA(4)(a) and (b) of the Immigration Act 1971 as described above.

What happens next?

Whereas the Illegal Migration Bill backlog has shown a slight decrease since July 2023, there is no sign of any caseworking being done for this backlog, as the number of applications shows a steady and substantial increase since then.

Given that much of the legal framework that may apply to this backlog has not been brought into force, and the “arrivals” date may yet be amended again (which surely it will be), what happens next is slightly hypothetical. However it is currently difficult to see this playing out in any other way than the following. There is not and will not be anywhere else that this group of 33,085 and counting can be sent. They cannot be left without leave indefinitely and at some point they will be granted some form of leave under the same provisions as the Illegal Migration Bill backlog, in line with UNHCR’s recommendations.

The problem is that it is currently unclear how and when we will get to that stage and the government shows no inclination to tackle the issue, preferring instead to pretend that the Rwanda Bill is a solution.

Conclusion

The government claims to be concerned about the costs of asylum accommodation and proposes the Rwanda scheme as a way to resolve this. A far more realistic approach to reducing those costs would be to abolish the use of the inadmissibility process, which is currently achieving nothing but human misery and financial waste.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

Buy now