Reform UK’s announcements on immigration and asylum have generated a lot of attention of late. While challenges and objections are expected, little has yet been written on what these challenges might be. This post considers some hypothetical scenarios in the context of devolution, reflecting on some recent examples. A point central to this analysis is that while immigration law and policy is fast-moving and complex, so too is devolution. And the two are intertwined.
Reform UK recently revealed their plans in a series of press conferences, building on their 2024 manifesto. On 26 August 2025, the party unveiled ‘Operation Restoring Justice’. Their plans were reiterated at The Next Step conference on 5 September and on 22 September, the party announced their latest policy, ‘Prioritising UK Citizens’. Among other plans, Reform UK proposed abolishing the right to apply for Indefinite Leave to Remain (‘ILR’) under the current system. The system is made up of numerous sources, including a ‘labyrinthine’ set of Immigration Rules (which there has been a call to simplify), numerous statutes, as well as a large volume of secondary legislation and case law. Indefinite Leave to Remain is a status within the system laid out in section 33(1) of the Immigration Act 1971. The routes to, and qualifying period for, ILR can vary. Simply put, where someone is granted ILR, they have a permanent right to reside in the UK after 5 years of residency (though Labour has recently proposed changes to this timeframe). This right is generally without restriction as to the time on a person’s stay or employment in the UK, and a person has access to the same welfare benefits as UK citizens, such as access to the NHS. Revoking ILR would represent a significant change to current immigration law and policy across the UK.
During the Conference on 22 September, Nigel Farage MP (Leader of Reform UK), responded to a question about the possible legal challenges which might emerge from this. He said:
Will we be free from legal challenges, well, of course, having cut out the HRA and the European Court in Strasbourg, British Courts will be free to make judgments that are the right judgments, which they are not at the moment. We are not for a minute pretending that going back through the backlog is an easy thing to do. It will be complex, it’ll come in many forms, but we do intend to address it.
Nigel Farage stressed the scale and complexity of the plans being proposed. Zia Yusuf (Head of Policy at Reform UK) addressed the same question, but his response appeared to have a somewhat different emphasis. Acknowledging the likelihood of legal challenges, he said “Completely agree. I mean, look, will we get legal challenges to Nigel’s entire agenda. Yes…”.
But what are likely to be the location or nature of potential challenges, both legal and political?
Scenario 1
A devolved government could request a transfer from a Reform UK government of powers relating to immigration, which is a reserved or (as the devolution settlement applies in Northern Ireland) excepted matter. In the Scottish example, Devolution Guidance Note 14 states this could be achieved via primary legislation or a Section 30 Order.
The Devolution (Immigration) (Scotland) Bill 2024 – 2025 provides a recent precedent for such a challenge. This was a Private Members Bill introduced by a member of the SNP in April 2025 into the UK Parliament. The Bill proposes to amend the Scotland Act 1998 to grant legislative competence to the Scottish Parliament regarding immigration. Indeed, in July 2025, the Scottish Government signalled its desire that immigration be devolved in response to the UK Immigration White Paper 2025: “…the only way for Scotland and other devolved governments to ensure that the immigration system is reflective of their needs would ultimately be through the devolution of those powers.”
However, the current UK government does not appear likely to consent to such a position. It has also very recently been reported the Scottish Government’s position has changed (see this release following a Freedom of Information Request). The Bill might, therefore, be ‘dropped’ unless it’s carried over to the next Parliamentary session. While the most significant and long term changes to the legislative competence of the Scottish Parliament have been made through primary legislation, it must be remembered only a minority of Private Members Bills become law in any case. Far fewer still do so without the support of the government.
There have also been a number of requests for, and examples of, Section 30 Orders being granted by the UK Government/Parliament which change whether a matter is reserved. However, this process does not reserve specific functions, but instead describes subjects in broad terms, where legislative competence has been reserved by the UK Parliament. The transfer of responsibility for the entire immigration system therefore seems unlikely in practice (as recently debated in Parliament). The procedure is also uncertain, requiring collaboration between the devolved and UK governments and, ultimately, political will. A Reform UK government would be under no legal obligation to grant a Section 30 Order. Whilst modifications via primary legislation only require approval from both Houses of the UK Parliament, a Section 30 Order would additionally require the consent of the Scottish Parliament, with either having a ‘veto’.
For these reasons, this scenario seems unlikely to materialise if a Reform UK government were to gain power.
Scenario 2
We could see a devolution and immigration issue being tested at the Supreme Court if Reform UK were to gain power. A ‘Bill Reference’ could be made to the Court under its devolution jurisdiction by either the UK or one of the devolved government’s law officers under sections 32A and 33 of the Scotland Act 1998. A recent example of this phenomenon was Reference by the Lord Advocate [2022] UKSC 31. In this case the Scottish government in effect asked the Supreme Court to decide whether the Scottish Parliament could legislate for another independence referendum independently of Westminster. The Court ultimately ruled it could not. Consequently, a similar reference could be made if any legislation proposed by a Reform UK or devolved government fell within either the competence of a devolved legislature or was related to a reserved matter. As the Devolution (Immigration) (Scotland) Bill 2024 – 2025 is in its early stages, a Bill Reference is currently precluded as a Bill must have passed all stages short of royal assent. However, this is an example of the kind of Bill we might see challenged. Indeed, any kind of Bill from any one of the devolved governments seeking control or influence over immigration policy might be subject to a challenge. Perhaps, more feasibly, devolved governments politically opposed to a Reform UK government at Westminster might seek to extend the legislative competence of a legislature or clarify the scope of a reserved power of the UK Parliament around the edges of immigration policy with regard to human rights. In this case, we might well expect challenges through the courts to ensue.
Scenario 3
According to the Sewel Convention, the UK Parliament will not normally legislate on a devolved matter without the consent of the devolved legislature. Here, it is important to keep in mind what areas are reserved and devolved. If a Reform UK government introduced draft legislation which made provision for devolved purposes, the consent of a devolved legislature is required. It is unclear, though, whether consent would be required if draft legislation put forward by a Reform UK government related to a reserved matter (immigration) that applied to the whole of the UK (the geographical extent of a Bill), but that also had major practical effects on areas which the devolved parliaments are responsible for (its territorial application).
If a devolved government objected to such a Bill, it would be expected to lodge a legislative consent memorandum declining consent. This can be seen in examples of legislative consent motions from Scotland,Wales and Northern Ireland in the context of the Border Security, Asylum and Immigration Bill 2025 proposed by the UK Government.
However, even assuming any ambiguities around devolved and reserved matters are resolved, the Sewel Convention is only a political convention (R v Miller [2017]). A Reform UK Government could therefore, in the absence of consent, fall back on the doctrine of parliamentary sovereignty if it were to attempt to, for example, repeal the Human Rights Act 1998. Indeed, when responding to a question during annual party conference this year on the legal basis for Reform UK’s plans, Zia Yusuf stressed, “Parliament is sovereign…and with primary legislation that will be the legal basis”.
While the Sewell Convention appears to be on a stronger footing now than it was under previous governments, it seems unlikely the Convention alone would be enough to hold back Reform UK’s immigration plans as they might apply to devolved areas.
Conclusion
As we have seen, various legal challenges could arise against a Reform UK government’s immigration plans in the context of devolution. Legally speaking, the position seems clear – the balance of power in the UK’s constitutional arrangements means any such challenges are ultimately likely to be unsuccessful. However, despite claims to the contrary by party leaders at Reform UK, implementing their immigration plans in the face of opposition from devolved governments is likely to prove anything but straightforward.
Richard Brant.
Dr Richard Brant is a Senior Lecturer in Law at the University of Law and a Barrister (unregistered).
The author would like to thank Dr Dexter Govan at The Constitution Society for helpful comments on drafts of this post.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.