The Government’s consultation on its proposed “earned settlement” reforms closed yesterday, drawing what Home Secretary Shabana Mahmood described as a “genuine piece of work” to a close after many tens of thousands of responses. As of last Wednesday, the consultation had received around 130,000 responses, according to the Home Secretary.
The proposals would overhaul the route to indefinite leave to remain (ILR), extending the standard qualifying period from five years to 10 and introducing a system under which migrants “earn” settlement through economic contribution.
Yesterday, the Law Society said the proposals must be applied fairly and not retrospectively, and must avoid undermining the UK’s global competitiveness. Also yesterday, a letter signed by 35 Labour MPs, 17 from other parties, 21 peers and 33 civil society organisations urged the Home Secretary to rule out applying the proposals to migrants already in the UK, warning it would be unfair to workers who have already put down roots and contributed to the country.
The Home Secretary gave evidence before the Home Affairs Committee last week about the consultation, the implementation of the changes, and whether they will apply retrospectively.
Pressed repeatedly on fairness and transitional protections, the Home Secretary emphasised that the consultation was real and open-ended on key design questions. “We are consulting on some of the detail of the proposals,” she said, describing the consultation process as “a genuine piece of work”.
On transitional arrangements for those already in the UK, she said: “In the consultation, we ask a specific question on transitional arrangements… we are genuinely consulting on that.”
She acknowledged that the changes would be significant, telling the Committee: “I recognise that big changes are potentially happening.” She cautioned that some impact on those already here was inevitable: “It is inconceivable that literally nobody who is currently here would be affected by any of these changes, and I think we should be up front about that.”
In several areas, including whether to assess earnings on an individual or household basis, and how to treat children, she stressed that “the consultation is genuinely open on this point” and that the Government would “look at the totality of the responses that we have received before we design the final policy.”
While much of the system’s detail remains subject to consultation responses, Mahmood made clear that some headline changes are already settled and will go ahead as announced.
“We have already announced that we want to go from a baseline five-year qualifying period to 10 years, which we are not consulting on,” she told MPs. The Home Secretary continued: “We have a relatively generous welfare state. Five years is actually quite a short period before people can be permanently settled in the country, with all the benefits that brings. It is therefore right that we extend it.”
The Home Office, she said, routinely makes rule changes twice a year — “usually in April and then in the autumn” — and she did not present implementation as contingent on major new infrastructure. “It is not unusual for us to have rule changes at least twice a year anyway,” she said. “I do not envisage that these changes are going to break the system, as it were.”
On whether the Home Office could administer the reforms swiftly, she was blunt: “I think that’s the job… we are designing a new system, and obviously I have to make sure that the Home Office is capable of delivering it.”
Some elements, she suggested, could move more quickly because decisions had already been taken, including the shift to a 10-year qualifying period and changes to the English language requirement.
The Home Secretary told the Committee: “There are some changes that we will probably be able to do more quickly because we have made some of those decisions much earlier on—in fact, even before I came to the Home Office—surrounding the English language requirement. We are not consulting on the basic idea of the qualifying period moving from five years to 10 years. The consultation is designed to look at exactly how that is done for different cohorts and whether we need to think about transitional arrangements or exemptions or a new way of designing the system to deal with some of the issues that will come up as a result of the consultation. Once we have finalised the policy, then we will be able to do the full impact assessments, specifically on equalities, and at that point we will have to design the system to make sure that it can cope with those new changes, but I am confident that that can be done.”
On the most contentious point of the proposals, namely whether they would operate retrospectively, the Home Secretary was pressed on the position of migrants who had planned their lives around a five-year route to settlement.
Mahmood defended the Government’s right to respond to what she called “an unprecedented level” of migration between 2021 and 2024. “I think what is fair is that a Government and a country should be able to respond to the circumstances that they face,” she said.
Crucially, she reiterated that applications for ILR are assessed under the rules in force at the time of application, not those in place when a person arrived. “The basis on which an application for indefinite leave to remain is assessed is based on the rules at the time that you apply,” she said. “That has always been the case… it has been tested in court and been upheld in case law since 2009.”
When asked what would happen to someone who qualified under today’s rules but could not yet afford the application fee, she again stressed: “An application is assessed based on the rules that were in force at the point at which the application is made, not what the rules were when the person came to the country.”
While she did not characterise this as “retrospective”, she accepted that the changes could affect people already here. “What you are trading off,” she said, “is a set of potential obligations to people who have come to the country, versus your obligations to your citizens and your own long-term residents in the country. There is a choice — and a trade-off — here.”
With regard to the impact on children, the Home Secretary said those in care or who arrived unaccompanied had been taken “out of scope of the consultation”, and that commitments made in last summer’s immigration White Paper to children who had grown up in the UK without status would be “unchanged by these new proposals”. But she made clear that wider questions about how children fit into an earned settlement system were still open. “That is exactly what we are consulting on,” she said when asked when a child might qualify if their parents faced a longer route, adding that ministers would “look very carefully” at how to treat younger and older children under the redesigned system.
With the consultation now closed, ministers will sift the responses before finalising the design. But the broad direction, with a 10-year standard route and a system in which settlement is framed as “a privilege and not a right”, appears firmly set.