Lords committee raises concerns over Home Secretary’s power to change immigration rules with no parliamentary scrutiny

In a report published last week, the House of Lords Secondary Legislation Scrutiny Committee has raised concerns about the Home Secretary's power to make changes to the application of the Immigration Rules with no parliamentary oversight.

You can download the 18-page report here.

The Committee examined the use of section 3(1)(b) of the Immigration Act 1971 after an error in March 2026's statement of changes to the Immigration Rules inadvertently removed the transit without a visa (TWOV) provisions by deleting Appendix Visitor: Transit Without Visa Scheme. The Home Office interprets the section as giving the Home Secretary wide discretion over the grant of leave to enter or remain, including the ability to make concessionary arrangements affecting how the Immigration Rules are applied.

Unlike formal statements of changes, concessions made under section 3(1)(b) do not require parliamentary approval or formal notification to Parliament. The Secondary Legislation Scrutiny Committee said it was therefor not clear how Parliament could practically challenge or overturn such a concession.

The Committee's report further notes that Parliament may not even be notified of the use of section 3(1)(b) and it was not notified of its use in March. In response to a question by the Committee on how many times section 3(1)(b) has been used in recent years, the Home Office could not say as "due to the nature of their usage, we do not keep records of every concession".

The Committee observed: "It is not clear why a power for the Secretary of State to counteract the effects of legislative errors, effectively by decree, exists in this area, while it does not (presumably for sound constitutional reasons) across the statute book more widely. While this power is undoubtedly convenient for governments, the House and the Home Office may wish to consider whether it remains appropriate as currently defined."

It also said the Home Office should explain more fully why any generalised concession is appropriate, particularly in light of limits identified by the Supreme Court in the judgment of R (Munir) v Secretary of State for the Home Department [2012] UKSC 32

While the Home Office had cited Munir in support when explaining the Secretary of State's power to use section 3(1)(b), the Committee stated: "However, we note that while the judgment confirms the Secretary of State's 'wide discretion', it does not provide her with unfettered scope in the making of concessionary policies. Instead, the Court found that whether a policy constitutes a rule change, and therefore should be laid before Parliament under Section 3(2) of the 1971 Act, depends on the precise form of the change and in particular the degree of flexibility it contains for individual cases."

The report criticised the circumstances that led to the TWOV error. The Home Office described it as an administrative drafting error in a process "where content is added, removed and edited as requirements evolve, often at pace." It said it had now introduced stronger internal controls to mitigate risks of future errors. These include clearance procedures, error tracking, post-publication reviews, and maintaining a clearer strategic summary document.

Notably, the Home Office also said it is moving to a programme of four scheduled sets of immigration rule changes each year rather than more frequent and ad hoc changes.

The Committee welcomed those measures but said the deletion of a significant section of the rules indicated significant shortcomings in the previous system. It said it would closely monitor the Home Office's handling of future statements of changes.

It observed: "We understand that administrative and drafting errors can occur, although sufficient checks should be in place to prevent them from ever reaching finalised legislation. However, the unintended deletion of a complete, and significant, section of the rules goes beyond a mere administrative error and suggests more serious issues around quality control."