House of Commons - Explanatory Note
Asylum And Immigration (Treatment Of Claimants, Etc.) Bill - continued          House of Commons

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Fees

129.     Clause 20 could result in costs to business. The extent of these costs would depend on the level of charge which will be set by Statutory Instrument. A further Regulatory Impact Assessment will be completed as the proposals develop.

130.     Extending the scope of the existing power to prescribe fees for applications to transfer an indefinite leave stamp into a new passport, so that it will also cover applications to transfer limited leave stamps could result in costs to businesses.

COMMENCEMENT

131.     Clause 26 contains provisions relating to the coming into force of the Bill. Clause 14 (Deportation or removal: co-operation) and Clause 2 (Entering United Kingdom without passport) will come into force two months after Royal Assent. The remaining provisions come into force on such dates as the Secretary of State (or the Lord Chancellor in the case of Clause 10 (Unification of appeal system) or Schedule 1 or 2)) appoints.

132.     The Lord Chancellor has responsibility for bringing into force the provisions for the new Asylum and Immigration Tribunal and regarding the exclusivity and finality of the Tribunal's jurisdiction.

133.     Clause 26(3) takes powers, by subordinate legislation, to make transitional arrangements applying the new procedures to cases pending at the time the new provisions come into force.

134.     Clause 26(4) makes it possible for an appeal not available under the new appeals system to be allowed to be continued. The Lord Chancellor also gains powers to terminate proceedings and make other appropriate provisions.

EUROPEAN CONVENTION ON HUMAN RIGHTS

135.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provision of the Bill with the Convention (as defined by Section 1 of that Act). The statement has to be made before second reading. On 25 November 2003 the Secretary of State for the Home Department made the following statement:

In my view the provisions of the Asylum and Immigration (Treatment of Claimants, etc.) Bill are compatible with the Convention rights.

Offences

136.     Clause 2 creates a new offence of arriving in the United Kingdom without an immigration document (such as a passport or other document designed to serve the same purpose) which is in force and which satisfactorily establishes the person's identity and nationality or citizenship. There is a defence if the person has a reasonable excuse for not being in possession of such a document. Article 6(2) (presumption of innocence) is potentially raised in relation to the defence of reasonable excuse. The clause imposes a legal burden on the defendant which the Government is satisfied is a justified and a proportionate response to the legitimate aim of the statute in accordance with Strasbourg and domestic case law. The clause is therefore compatible with the UK's obligations under the ECHR.

Treatment of Claimants

137.     Clause 7 creates a fifth class of person (failed asylum seeker with family) who are ineligible for support under Paragraph 1 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002. This raises an issue under Article 3 (prohibition of torture and inhuman and degrading treatment) and Article 8 (right to respect for private and family life) in relation to removal of asylum support. However, the provision is aimed at encouraging those who can leave but are not doing so, to leave the United Kingdom. Any potential treatment contrary to Article 3 or Article 8 is therefore avoidable. In any event, there is a saving provision in Schedule 3 which would permit support to be provided to avoid a breach of a person's Convention rights in so far as necessary.

Appeals

138.     Clause 10 substitutes section 81 of the Nationality, Immigration and Asylum Act 2002 and amalgamates the existing adjudicator tier with the Immigration Appeal Tribunal, creating a single tier appeal Tribunal. There will be no onward right of appeal from the decision of the Tribunal, but on application the Tribunal will have the power to review its own decisions. If the Tribunal is satisfied that there was an error in the interpretation of primary legislation so serious that the outcome of the appeal would have otherwise been different, it can overturn the appeal decision. The President of the Tribunal will also have the power to refer novel, complex or important points of law to the appellate courts for its opinion. Beyond this the Tribunal's jurisdiction will be final and exclusive and Clause 10 prohibits any consideration of the Tribunal's decisions by any court with the exception of decisions made in bad faith. Clause 10 raises issues under article 13 of the ECHR in relation to the removal of appeal rights. People may also wish to challenge whether their substantive Convention rights under articles 3 and 8 will be jeopardised by the absence of a further tier of appellate rights. However, article 13 does not require the provision of multiple tiers of appeal. What it requires is access to an independent national authority with powers to provide effective redress. The single tier Tribunal will meet this test. It is wholly independent of the initial decision-making body. The single tier tribunal will provide an effective remedy as article 13 requires and will safeguard appellants' Convention rights including those referred to in articles 3 and 8.

139.     108A(3) limits a person's right to bring a further legal challenge that the tribunal has acted incompatibly with his Convention rights. Because of the elimination of further appeals and judicial review, a person would only be able to challenge a judicial act if the Lord Chancellor chooses to provide in rules for that challenge to be brought before some appropriate tribunal or court. However, the limitation imposed by clause 108A(3) is unlikely to raise ECHR issues. The Article 13 right to an effective remedy in respect of the underlying complaint is satisfied by the right of appeal to the Tribunal.

Removal and Detention

140.     Clause 12 replaces the existing provisions on safe third countries with extended provisions which deem certain countries as safe for ECHR purposes as well as for the Refugee Convention. The effect will be that a person will not be able to challenge removal to such a country as being in breach of ECHR rights because of circumstances of or relating to the third country (including removal from that country). This raises issues about the potential for removal of claimants for asylum in breach of Article 3 ECHR (prohibition of torture and inhuman and degrading treatment). The Strasbourg case law indicates that States have a responsibility to ensure that a person is not, as a result of their decision to expel, exposed to treatment contrary to Article 3 of the ECHR (directly or indirectly). The Government is satisfied that in relation to those countries included on the relevant list it will be meeting its obligations in relation to Convention rights.

141.     Clause 14 introduces an offence if a person fails to comply without reasonable excuse with steps that he/she may be required to take with a view to obtaining a travel document. This raises an issue under Article 6(2) (presumption of innocence) in relation to the defence of reasonable excuse. The burden placed on the defendant is an evidential one which is compatible with Strasbourg and domestic case law.

142.     Clause 15 allows for the electronic monitoring of persons subject to immigration control who are at least 18 years of age where a residence restriction is imposed; where a reporting restriction could be imposed and where immigration bail is granted subject to a recognizance of bail bond (except where bail is granted by a police officer or the Special Immigration Appeals Commission). It raises issues in connection with Article 8 of the Convention (right to respect for private and family life). The Government considers that the interference which the monitoring will entail is necessary in a democratic society (to maintain an effective immigration control) and is proportionate to the legitimate aim pursued. The clause is therefore compatible with the UK's obligations under the ECHR.

Immigration Services

143.     Clause 16 gives the Immigration Services Commissioner a power of entry to the premises of unregulated advisers for the purposes of investigating a criminal offence under section 91 of the 1999 Act. It raises issues under Article 8 (right to respect for private and family life) in relation to entry to residential premises. The Government considers that the interference is necessary because a significant proportion of unregulated immigration advisers work from home. The requirement of a warrant will ensure that the power is only used where it is proportionate to do so. The clause is therefore compatible with the ECHR.

 
 
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Prepared: 27 November 2003