Home Office to notify Parliament of future immigration rules concessions, but Lords Committee says scrutiny remains ‘unsatisfactory’

In a report published last week, the House of Lords Secondary Legislation Scrutiny Committee welcomed a commitment by the Home Office to notify Parliament whenever changes to immigration policy are made through 'published concessions' outside the Immigration Rules.

Last month, the Committee raised concerns over the Home Secretary's wide-ranging power to change the Immigration Rules without parliamentary approval or formal notification to Parliament. The power was used to restore the transit without a visa (TWOV) provisions after Appendix Visitor: Transit Without Visa Scheme was inadvertently deleted.

In a response to a letter by the Secondary Legislation Scrutiny Committee outlining its concerns, Home Office minister Lord Collins of Highbury acknowledged that there is no specific statutory mechanism for Parliament to annul or overturn a published concession. He said concessions could be challenged through parliamentary questions, debates, committee reports and correspondence with ministers, which would enable Parliament to "press the Government to amend, withdraw, or place a concession into the Immigration Rules".

The Committee found this position "unsatisfactory". It stated: "It is unsatisfactory that Parliament can do no more than 'press' for changes. In practice, in the absence of a formal mechanism, Parliament's ability to challenge government decisions is limited. This provides further support for our view that generalised changes should subsequently be formalised in the Rules, so that they go through the standard parliamentary procedure for Statements of Changes."

Lord Collins agreed, however, that Parliament should be notified whenever a new generalised concession is introduced and confirmed that concessions would be published on GOV.UK. He also offered to notify the committee directly of future concessions. The Committee accepted the offer and said it welcomed the Home Office's commitment to notify Parliament in the future.

On whether generalised concessions should subsequently be incorporated into the Immigration Rules, the minister said decisions would depend on the circumstances and whether the need for a concession continued. He confirmed he had asked officials to review all existing generalised concessions and assess whether they should be formalised in the Rules.

The Committee said: "We … welcome that the Home Office will review all existing generalised concessions to assess whether they should be formalised in the Rules. We would be grateful for an update when that work is concluded, or by the end of March 2027, whichever is sooner. The Home Office has stated that such assessments will be made on a case-by-case basis. We consider that, for both existing and future concessions, the role of Parliament should be a central factor in deciding whether the concession should subsequently be formalised in the Rules, and that the Home Office should provide full reasons in any cases where it does not intend to do so."

The minister defended retaining the power to introduce concessions, citing the Ukraine schemes as a response to an urgent crisis and the TWOV concession as necessary to restore landside transit arrangements after the provisions were mistakenly deleted. The minister said the use of the power was "clearly justified" in both cases.

However, the Committee's report questioned the Home Office's justification for using the concessions power in the TWOV case, given limitations identified in the Supreme Court's 2012 Munir judgment. It said the department had cited the judgment in support of the Home Secretary's wide discretion without addressing the Court's finding that the power was not unfettered, and that whether a change should be made through a formal Statement of Changes depends on the nature of the policy and the flexibility it allows in individual cases.

In his letter to the Committee, Lord Collins did not directly address why the TWOV changes did not require a formal change to the Immigration Rules. Instead, he acknowledged that there might be "good reasons why these provisions should go back into the Rules", adding that no final decision had been taken. The Committee said: "We regret that the Home Office's initial response did not refer to this part of the judgment, thus providing an incomplete view of the legitimacy of its approach in the TWOV example."