Britain’s ILR Emergency
Published last week, the latest ONS migration figures show that immigration to Britain has topped 1.2 million for the third year in a row - with a net figure of more than 700,000 for 2024.
This is one of the most consequential changes in our nation’s recent history - the largest wave of migration to this country since records began. If, as the Prime Minister says, our migration policy constitutes “a different order of failure”, then the Government must reform immigration rules to reflect the real needs of our economy and the expressed will of the British people. The principle of “quality over quantity” is instructive here - as outlined in our recent Selecting The Best research paper. The overall level of migration will need to come down; fewer restrictions on domestic training and the removal of blockers to automation will be needed to help the UK’s workforce adapt to this new lower-migration environment.
But even if rules for new migrants are reformed, we are still left with a conundrum. Migrants resident in the UK under the Work or Family visa route will be eligible to apply for Indefinite Leave To Remain (ILR) status after a qualifying period of legal stay in the UK - in most cases, this will be five years. ILR status conveys a right to remain in the UK for an unlimited period of time. ILR status holders have access to the National Health Service, social housing, and universal credit. After ten years of National Insurance Contributions (however small), ILR status holders will also have access to the UK state pension.
Each year, more and more of the people who came to the UK since 2021 will become eligible for ILR. Given the sheer number of visas handed out in recent years, ILR eligibility could climb into the millions by the time that new immigration rules are implemented; our system was not designed to cope with long-term settlement at such scale and pace.
At a time when HM Treasury’s fiscal burden continues to increase year-on-year, this poses profound challenges to the UK’s balance sheet. After just five years of work here, however low-skilled and low-paid, ILR holders will be eligible for a lifetime of support from the British state. They also have a right to bring dependents to this country, meaning that a single five-year stint of work could see the British taxpayer burdened with the cost of an entire family - benefits, social housing, healthcare, pensions, and more.
According to figures produced by the OBR, the average “low-wage migrant worker” will cost the British taxpayer £465,000 by the time they reach 81 years of age. According to analysis conducted by Karl Williams, from the Centre for Policy Studies, just 5 percent of all visas in 2022-23 were given to high-skilled migrants who are likely to be net contributors - fully 72 percent of skilled work visas went to migrants likely to be earning less than the average UK salary. Against this backdrop, it is clear that opening the ILR door to millions of new migrants will impose a considerable and unwanted fiscal burden on the British taxpayer, for decades to come.
The case for scepticism is not merely a fiscal one. In a democratic society, the will of the people must be paramount - and yet this change has happened against the wishes of the British public. According to November 2024 figures from YouGov, 68 percent of Britons believe that immigration has been too high over the past ten years; just 5 percent say that it has been too low. In every YouGov poll conducted on this issue since July 2019, a plurality of those polled have expressed the view that immigration has been too high over the past ten years. In all but two of these polls, this opinion has been expressed by an absolute majority. Even if the migrants of the past few years proved to be net positive contributors to the Treasury, they came to this country against the explicit wishes of the British people. Can it be right that British citizens should have to live with the consequences of policy failure which they did not ask for?
As such, the Government should reform existing rules around Indefinite Leave To Remain, to limit the long-term harms of the so-called ‘Boriswave’. Given the scale of democratic discontent with the scale of immigration over the past few years, and the Prime Minister’s own admission that this policy has been a failure, it would be both possible and just to create new, emergency rules to restrict long-term settlement of visa holders who arrived in the UK over the past few years.
In doing so, the Government would achieve two things. First, it would give itself greater control over the question of whether to reissue visas to those who arrived over the past few years. If the Government determines that it was mistaken in handing out visas to particular individuals or to particular categories of person, then it could reasonably refuse to reissue those visas; this process is made easier without the addition of a ‘ticking clock’, namely the five-year ILR threshold for many visa holders. Secondly, it would mitigate the long-term fiscal burden of low-skilled migrants who are unlikely to be net contributors to the public purse, as already explained.
There is already precedent for such a change - in 2006, the period of time required to obtain ILR was extended to five years, an extension which applied retroactively to those already actively pursuing ILR. At that time, ILR was granted after four years of residence - then-Home Secretary Charles Clake issued HC1016 of 2005-06, laid before Parliament under s. 3(2) Immigration Act 1971. This instrument changed ILR eligibility criteria from four years to five. This instrument provides a clear precedent, and a useful legal framework, for another such reform of ILR. Under s. 3(2) of the Immigration Act, the Secretary of State “shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating entry into and stay in the United Kingdoms of persons required by this Act to have leave to enter.” However, “if a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days…then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances.” In other words, to change the rules for ILR eligibility, the Home Secretary should lay a statement before Parliament which outlines their plans for reform, and these changes should not be disapproved of by a resolution of either House of Parliament. These powers are granted under the Immigration Act 1971, and allow the Home Secretary to change UK immigration policy by issuing a Statement of Changes in Immigration Rules.
There are additional such precedents found elsewhere in Europe. As of September, the Dutch government updated its own immigration rules, extending the waiting period for naturalisation from 5 to 10 years. In Sweden, rules have been amended to allow revocation of residence permits - the local equivalent of ILR -, as of February 2023.
However, the UK should put safeguards in place to ensure that it remains an attractive destination for a small number of high-quality, compatible migrants. 2019-20 data published by HMRC on the tax contributions of non-UK nationals noted that nationals of countries such as the United States, Australia, and Canada were disproportionate net contributors to HM Treasury. Many of these migrants work in high-skilled professions, and play an important role in supporting sectors such as technology and financial services.
Building an immigration system which depends upon the migration policies of other countries is unwise in the long-term. Extended periods of migration liberalism in other developed countries could result in undesirable second-order migration to the UK. As such, in general, assessments on whether or not to grant the right to settle in this country should be conducted on a case-by-case basis.
In the short term, the existing ILR rules should continue to apply to nationals of the United States, Canada, Australia, New Zealand, Singapore, Japan, South Korea, Taiwan, the British Overseas Territories, and the EEA. Of the 4.584 million visas handed out under the ‘Family’, ‘Study’, ‘Work’, and ‘Other’ groups (excluding Visitors) since 2021, migrants from these countries constitute less than 12 percent of the total. 49 percent of the migrants who came to the UK from these countries came here on work visas; on the other hand, less than a third of migrants who came from other countries did so. Migrants from these countries are disproportionately likely to be employed, net positive tax contributors, who do not rely on significant support from the state.
This would not mean an open door for nationals of these countries - they would still be subject to existing ILR rules. However, this carve-out would help to ensure that Britain remains a competitive destination for genuinely high-quality talent while it reviews and reforms its broader immigration policy environment.
Naturally, determining propensity to contribute by reference to nationality is necessarily a broad-brush approach. The existing rules for Innovator Founder and Global Talent visa holders should thus be retained, irrespective of nationality.
The mechanical process by which ILR rules should be reformed is as follows:
STATEMENT OF CHANGES IN IMMIGRATION RULES
The Home Secretary has made the changes hereinafter stated in the rules laid down by them as to the practice to be followed in the administration of the Immigration Acts for regulating entry into and the stay of persons in the United Kingdom and contained in the statement laid before Parliament on 23 May 1994 (HC 395) as amended. The amending statements were laid before, or presented to, Parliament on 20 September 1994 (Cm 2663), 26 October 1995 (HC 797), 4 January 1996 (Cm 3073), 7 March 1996 (HC 274), 2 April 1996 (HC 329), 29 August 1996 (Cm 3365), 31 October 1996 (HC 31), 27 February 1997 (HC 338), 29 May 1997 (Cm 3669), 5 June 1997 (HC 26), 30 July 1997 (HC 161), 11 May 1998 (Cm 3953), 7 October 1998 (Cm 4065), 18 November 1999 (HC 22), 28 July 2000 (HC 704), 20 September 2000 (Cm 4851), 28 August 2001 (Cm 5253), 16 April 2002 (HC 735), 27 August 2002 (Cm 5597), 7 November 2002 (HC 1301), 26 November 2002 (HC 104), 8 January 2003 (HC 180), 10 February 2003 (HC 389), 31 March 2003 (HC 538), 30 May 2003 (Cm 5829), 24 August 2003 (Cm 5949), 12 November 2003 (HC 1224), 17 December 2003 (HC 95), 12 January 2004 (HC 176), 26 February 2004 (HC 370), 31 March 2004 (HC 464), 29 April 2004 (HC 523), 3 August 2004 (Cm 6297), 24 September 2004 (Cm 6339), 18 October 2004 (HC 1112), 20 December 2004 (HC 164), 11 January 2005 (HC 194), 7 February 2005 (HC 302), 22 February 2005 (HC 346), 24 March 2005 (HC 486), 15 June 2005 (HC 104), 12 July 2005 (HC 299), 24 October 2005 (HC 582), 9 November 2005 (HC 645), 21 November 2005 (HC 697), 19 December 2005 (HC 769), 23 January 2006 (HC 819), 1 March 2006 (HC 949), 30 March 2006 (HC 1016), 20 April 2006 (HC 1053), 19 July 2006 (HC 1337), 18 September 2006 (Cm 6918), 7 November 2006 (HC 1702), 11 December 2006 (HC 130), 19 March 2007 (HC 398), 3 April 2007 (Cm 7074), 4 April 2007 (Cm 7075), 7 November 2007 (HC 28), 13 November 2007 (HC 40), 19 November 2007 (HC 82), 6 February 2008 (HC 321), 17 March 2008 (HC 420), 9 June 2008 (HC 607), 10 July 2008 (HC 951), 15 July 2008 (HC 971), 4 November 2008 (HC 1113), 9 February 2009 (HC 227), 9 March 2009 (HC 314), 24 April 2009 (HC 413), 9 September 2009 (Cm 7701), 23 September 2009 (Cm 7711), 10 December 2009 (HC 120), 10 February 2010 (HC 367), 18 March 2010 (HC 439), 28 June 2010 (HC 59), 15 July 2010 (HC 96), 22 July 2010 (HC 382), 19 August 2010 (Cm 7929), 1 October 2010 (Cm 7944), 21 December 2010 (HC 698), 16 March 2011 (HC 863), 31 March 2011 (HC 908), 13 June 2011 (HC 1148), 19 July 2011 (HC 1436), 10 October 2011 (HC 1511), 7 November 2011 (HC 1622), 8 December 2011 (HC 1693), 20 December 2011 (HC 1719), 19 January 2012 (HC 1733), 15 March 2012 (HC 1888), 4 April 2012 (Cm 8337), 13 June 2012 (HC 194), 9 July 2012 (HC 514), 19 July 2012 (Cm 8423), 5 September 2012 (HC 565), 22 November 2012 (HC 760), 12 December 2012 (HC 820), 20 December 2012 (HC 847), 30 January 2013 (HC 943), 7 February 2013 (HC 967), 11 March 2013 (HC 1038), 14 March 2013 (HC 1039), 9 April 2013 (Cm 8599), 10 June 2013 (HC 244), 31 July 2013 (Cm 8690), 6 September 2013 (HC628), 9 October 2013 (HC 686), 8 November 2013 (HC 803), 9 December 2013 (HC 887), 10 December 2013 (HC 901), 18 December 2013 (HC 938), 10 March 2014 (HC 1130), 13 March 2014 (HC 1138), 1 April 2014 (HC 1201), 10 June 2014 (HC 198), 10 July 2014 (HC 532), 16 October 2014 (HC 693), 26 February 2015 (HC 1025), 16 March 2015 (HC1116), 13 July 2015 (HC 297), 17 September 2015 (HC 437), 29 October 2015 (HC535), 11 March 2016 (HC 877), 3 November 2016 (HC 667), 16 March 2017 (HC 1078), 20 July 2017 (HC 290), 7 December 2017 (HC 309), 15 March 2018 (HC 895), 15 June 2018 (HC 1154), 20 July 2018 (Cm 9675), 11 October 2018 (HC 1534), 11 December 2018 (HC 1779), 20 December 2018 (HC 1849), 7 March 2019 (HC 1919), 1 April 2019 (HC 2099), 9 September 2019 (HC 2631), 24 October 2019 (HC 170), 30 January 2020 (HC 56), 12 March 2020 (HC 120), 14 May 2020 (CP 232), 10 September 2020 (HC 707), 22 October 2020 (HC 813), 10 December 2020 (HC 1043), 31 December 2020 (CP 361), 4 March 2021 (HC 1248), 10 September 2021 (HC 617), 11 October 2021 (CP 542), 1 November 2021 (HC 803), 14 December 2021 (HC 913), 24 January 2022 (HC 1019), 17 February 2022 (CP 632), 15 March 2022 (HC 1118), 29 March 2022 (HC 1220), 11 May 2022 (HC 17), 20 July 2022 (HC 511), 18 October 2022 (HC 719), 9 March 2023 (HC 1160), 17 July 2023 (HC 1496), 19 July 2023 (HC 1715), 7 September 2023 (HC 1780), 7 December 2023 (HC 246), 15 February 2024 (HC 556), 14 March 2024 (HC 590), 10 September 2024 (HC 217), and 26 November 2024 (HC 334).
Review
Before the end of each review period, the Secretary of State undertakes to review all of the relevant Immigration Rules including any Relevant Rule amended or added by these changes. The Secretary of State will set out the conclusions of the review in a report and publish the report.
The report must in particular:
(a) consider each of the Relevant Rules and whether or not each Relevant Rule achieves its objectives and is still appropriate; and
(b) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
“Review period” means:
(a) the period of five years beginning on 6 April 2017; and
(b) subject to the paragraph below, each successive period of five years.
If a report under this provision is published before the last day of the review period to which it relates, the following review period is to begin with the day on which that report is published.
“Relevant Rule” means an Immigration Rule which:
imposes requirements, restrictions or conditions, or sets standards, in relation to any activity carried on by a business or voluntary or community body;
or relates to the securing of compliance with, or the enforcement of, requirements, restrictions, conditions or standards which relate to any activity carried on by a business or voluntary or community body.
Changes to requirements for indefinite leave to remain
1. In the Skilled Worker Appendix:
i. at SW 21.1, replace “5 years” with “15 years, except for nationals of exempted countries, for whom the period shall remain 5 years”
ii. at SW 42.1, replace “5 years” with “15 years, except for nationals of exempted countries, for whom the period shall be 10 years”
2. In the ECAA Settlement Appendix:
i. at ECAA 3.1(b), replace “5 years” with “15 years”
ii. at ECAA 4.1(b) replace “5 years” with “15 years”
iii. at ECAA 6.2 replace “5 years” with “15 years”
3. In the Private Life Appendix:
i. at PL14.1, replace “5 years” with “15 years, except for nationals of exempted countries, for whom the period shall remain 5 years”
ii. at PL12.3, replace “5 years continuous residence” with “the period of continuous residence stipulated by PL14.1”
iii. at PL12.4, replace replace “5 years continuous residence” with “the period of continuous residence stipulated by PL14.1”
iv. at PL27.3, replace “5 years” with “the period of continuous residence stipulated by PL14.1”
v. at PL27.4, replace “5 years” with “the period of continuous residence stipulated at PL14.1”
4. In the Family Members Appendix:
i. at E-ILRP 1.3, replace “5 years (60 months)” with “15 years, except for nationals of exempted countries, for whom the period shall remain 5 years”
ii. at S-EC 1.4(b), replace “10 years” with “15 years”
iii. at S-EC 1.4(c), replace “5 years” with “15 years”
5. In the Long Residence Appendix:
i. in preamble, replace “10 years” with “10 or 15 years depending on nationality”
ii. at LR 3.1, replace “10 years” with “15 years, except for nationals of exempted countries, for whom the period shall remain 10 years”
iii. at LR 11.1, replace “10 years” with “15 years, except for nationals of exempted countries, for whom the period shall remain 10 years”
6. In Part 11: Asylum
i. at 352ZM, replace “five years” with “15 years, except for nationals of exempted countries, for whom the period shall remain 5 years”
ii. at 352Q(i) replace “ten years” with “15 years, except for nationals of exempted countries, for whom the period shall remain 10 years”
iii. at 352Q(ii) replace “ten years” with “15 years, except for nationals of exempted countries, for whom the period shall remain 10 years”
7. Create new appendix, ‘Emergency Indefinite Leave To Remain Reform’:
EILR 1.1. For the purposes of reforms to indefinite leave to remain instituted by [title of statutory instrument], “nationals of exempted countries” shall include nationals of:
i. The United States of America
ii. Canada
iii. Australia
iv. New Zealand
v. Singapore
vi. The Republic of Korea
vii. Japan
viii. Taiwan
ix. Austria
x. Belgium
xi. Bulgaria
xii. Croatia
xiii. Czechia
xiv. Denmark
xv. Estonia
xvi. Finland
xvii. France
xviii. Germany
xix. Greece
xx. Hungary
xxi. Iceland
xxii. Ireland
xxiii. Italy
xxiv. Latvia
xxv. Liechtenstein
xxvi. Lithuania
xxvii. Luxembourg
xxviii. Malta
xxix. The Netherlands
xxx. Norway
xxxi. Poland
xxxii. Portugal
xxxiii. Romania
xxxiv. Slovakia
xxxv. Slovenia
xxxvi. Spain
xxxvii. Sweden
xxxviii. Switzerland
Given the UK’s increasingly litigious culture, and our increasingly interventionist judiciary, these changes are likely to be subject to some form of judicial review. While the Secretary of State is legally empowered to make these changes, we should not assume that the courts will respect this fact. As such, Parliament should pass a supplementary piece of primary legislation, fast-tracked within the forty day period outlined within the Immigration Act 1971, to clarify the following:
“(1) [Title of statutory instrument] shall have effect notwithstanding any relevant international or domestic law which may be incompatible or inconsistent, and shall be considered to be a legitimate and lawful exercise of the Secretary of State’s powers under s. 3(2) of the Immigration Act 1971.
(2) Regulations or decisions made in order to implement, or in respect of, [title of statutory instrument] are not to be regarded as unlawful on the grounds of any incompatibility or inconsistency with relevant domestic or international law.
(3) No court of tribunal may entertain any proceedings for questioning the validity or lawfulness of [title of statutory instrument] or decisions made by relevant officials which rely upon or give effect to [title of statutory instrument]. This includes any claim for judicial review in relation to England and Wales, any application to the supervisory jurisdiction of the Court of Session in relation to Scotland, and/or any application for judicial review in relation to Northern Ireland.
(4) The period mentioned in each of the following provisions (standard time limits for seeking judicial review), or any corresponding successor provision, may not be extended under any circumstances in relation to a relevant claim or application:
(a) rule 54.5(1)(b) of the Civil Procedure Rules in relation to England and Wales;
(b) section 27A(1)(a) of the Court of Session Act 1988 in relation to Scotland;
(c) rule (4)(1) of Order 54 of the Rules of the Court of Judicature (Northern Ireland) 1980 (S.R.(N.I.) 1980 No. 346 in relation to Northern Ireland.
(5) For the purposes of this Act:
“relevant international or domestic law” expressly includes, but is not limited to, (a) the European Convention on Human Rights, and (b) the Human Rights Act 1998.”
The ‘ouster clause’ featured here is modelled on that found in Clause 47 of the United Kingdom Internal Market Act 2020; this clause would prevent decisions taken on the basis of this amendment from being struck down by judicial review. Given the pressing importance of this issue, it would be entirely inappropriate for the judiciary to subject individual cases of ILR extension - or the legislation itself - to a lengthy and expensive process of review. Immigration control is a matter of political judgment; it is incumbent upon our sovereign, supreme Parliament to make its will crystal clear for the benefit of the judiciary.
Of course, reasonable reform might also go further. There is a strong argument to be made for scrapping Indefinite Leave To Remain status altogether, giving the Government greater control over migration policy by disaggregating temporary work and study visas from the settlement and citizenship process altogether. There is also an argument for the introduction of a ‘golden route’, whereby migrants are eligible to apply for ILR under the existing five-year rule, but at a far higher cost - increasing the fee from the existing £2,885 to a far higher figure, such as £25,000, would create a more nationality-agnostic route for productive migrants. As Legatum Institute’s Guy Dampier has argued, existing migrants could be prevented from bringing dependents to the UK by tightening requirements, including raising the salary cap at which visa holders can bring family members to the UK.
Based on early indicators as to governance style and political priorities, it seems unlikely that this Government will institute the ILR reforms proposed in this short essay. However, this fact alone does not mean that the British people need to live with the mistakes of the past few years for decades to come. A future Government could theoretically revoke ILR status from existing holders, by amending Section 76 of the Nationality, Immigration, and Asylum Act 2002 to introduce a new grounds for revocation (“The Secretary of State may revoke a person’s indefinite leave to enter or remain in the United Kingdom at their discretion, as part of their duties in determining national immigration and settlement policy”). Indeed, the 2002 Act already has a process by which ILR status can be revoked, on three grounds. Once again, this amendment would need to be accompanied by a cast-iron ouster clause, in order to avoid judicial review.
But in the short term, the most urgent step that the Government ought to take is the reform of Indefinite Leave To Remain rules, mitigating the long-term downsides of this short-term policy mistake.
If our experiment with mass migration has, in fact, been a mistake, then why should the British people have to live with the consequences for decades to come? With Britain already facing an enormous fiscal burden, allowing this burden to grow over the next few decades would not only be incautious - it would be unconscionable.
This is an exceptional measure, but these are exceptional times. There is both an available mechanism and an existing precedent for an emergency reform of ILR rules. The only obstacle to such a change is political will - and, given the shape of public sentiment on this issue, any Government brave enough to institute such a change would likely have the support of a clear majority of the population. These changes are more than a technical possibility - they are the democratic duty of any politician who presumes to represent the British people.