20 Upcoming Legislative Changes

This chapter sets out some changes which have been legislated for, but have not yet fully implemented in Scotland.

Local authorities must comply with the law that currently applies, as set out in this guidance.

Local authority officers can stay up to date about these and other changes through COSLA.

20.1 Illegal Migration Act

The Illegal Migration Bill was introduced on 7 March 2023 and was given Royal Assent on 20 July 2023.

The Illegal Migration Act outlines significant reform of the asylum and immigration law in the UK, which will further limit the rights and entitlements of people to seek asylum in the UK.

The Act accomplishes this outcome by distinguishing between people who have entered the UK without prior permission before 20 July 2023, and those who have entered on or after 20 July 2023.

People who have entered the UK on or after 20 July 2023, without entry clearance or some other prior permission to do so, with limited exceptions, will be banned from making an asylum claim or any other form of immigration application. Further, Home Office staff members are directed to make arrangements for their removal from the UK – and this direction stands, even if the person is a potential victim of human trafficking and exploitation.

If the person is a child (under age 18) at the time of entry, the direction is paused until the child reaches the age of 18, but then operates to impose a duty to remove.

Bans on the regularization of status for people arriving after 20 July 2023) without entry clearance or some other prior permission to do so, are likely to increase the numbers of people at risk of destitution presenting to local authorities for assistance. Other provisions of the Act are also likely to have a significant impact for local authorities in Scotland – including provisions which remove powers from Scottish Government to provide support to victims of trafficking and exploitation, and powers to compel local authorities to accommodate or to cease providing accommodation to unaccompanied children and young people in their care, and to hand over care of these children to the Home Office.

Both of these powers are entirely novel, and therefore untested, and it is difficult to say how they will work in practice in Scotland – it is, however, clear that they will have an significant impact for local authorities and what steps they will need to take, and resources they will require, to continue to meet their statutory obligations to vulnerable children and adults, living in their area.

This complex set of challenges create a context in which we anticipate rising destitution, an increase in the numbers of destitute people with NRPF and an even tougher environment for people arriving into the UK going forward.

For more information about the Illegal Migration Act, see UK Parliament – Illegal Migration Act

20.2 UN Convention on the Rights of the Child (Incorporation)(Scotland) Bill

On 16 March 2021, the Scottish Parliament unanimously passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (‘the UNCRC Bill’).

The Bill was a landmark piece of legislation that aimed to incorporate the UNCRC into Scots law, and to empower children and young people in Scotland to claim their rights under the UNCRC from Scottish public authorities, including local authorities.

On 12 April 2021, UK Law Officers challenged the competence of the Scottish Parliament to pass some key provisions of the Bill, and on 6 October 2021, the UK Supreme Court upheld that challenge. As a result, the Cabinet Secretary for Social Justice announced in June 2023, that amendments will be put forward after the summer recess to limit the scope of the UNCRC Bill to only apply to public authorities when delivering duties under powers in an Act of Scottish Parliament (and not when delivering duties under powers in an Act of the UK Parliament in a devolved area).

In practice, it could be complex and difficult for local authorities to determine which of their statutory duties will fall under the heightened standards imposed by the UNCRC Bill; it is anticipated that further guidance and resources will be made available by Scottish Government as part of their programme of implementation in the coming year.

For more information, see Scottish Government – Children’s Rights