Immigration Bill

Written evidence from Detention Action (IB 14)

About Detention Action

1. Detention Action (formerly London Detainee Support Group) is a national charity established in 1993 that aims to change the way that migrants are treated by immigration detention policy in the UK. Detention Action defends the rights and improves the welfare of people in detention by combining support for individuals with campaigning for policy change. Detention Action works primarily in Harmondsworth and Colnbrook Immigration Removal Centres, near Heathrow Airport in London.

Summary

2. The provisions on residential tenancies would force large numbers of refused asylum-seekers and irregular migrants into street homelessness, making it more difficult for the Home Office to keep in contact with them and arrange their return. Asylum-seekers would be prevented from living with non-home-owning friends or family, so would be forced to live in Section 95 accommodation, at huge public expense. The provisions on appeals and bail give the Secretary of State unnecessary and inappropriate powers to overrule decisions of the judiciary or prejudge cases through certification.

Bail

3. At Part 1, paragraph 3(2), the Bill introduces a requirement that a person must not be released on bail without the consent of the Secretary of State if removal directions have been set for within 14 days from the date of the decision on bail.

4. It is entirely inappropriate for the Secretary of State to be given power to overrule the decisions of an independent court. Independent scrutiny by the courts of decisions to detain is a vital safeguard on the power to detain. The Secretary of State has wide-ranging powers to deprive migrants of their liberty without time limit; the limited scrutiny afforded by the bail process should not be compromised.

5. The First Tier Tribunal already considers all relevant factors at bail applications, and the existence of removal directions will inevitably be a major consideration. No evidence has been produced that the First Tier Tribunal is failing in its duty to give due weight to such factors. It is therefore entirely unnecessary to compromise the independence of the courts in this way.

6. The provision creates potential for abuse. It would be open to the Secretary of State to set removal directions in advance of a bail hearing, and cancel them after bail has been refused. A significant proportion of removal directions are in fact cancelled, for a variety of reasons.

7. The provision would increase the costs to the taxpayer, by generating judicial reviews of the Secretary of State’s refusals to consent to decisions by the Tribunal to grant bail.

Appeals

8. At Part 2, paragraph 12(3), the Bill would grant the Secretary of State the power to certify an appeal on human rights grounds by a foreign ex-offender, allowing removal to take place before the appeals process has been exhausted, provided that the person would not face a "real risk of serious irreversible harm."

9. This is likely mainly to affect foreign ex-offenders who are appealing against deportation on Article 8 grounds of their right to a family and private life. These individuals have already lost access to legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). It is entirely unrealistic to expect them to make appeals without legal advice from their country of origin. This situation was not foreseen by Parliament in passing LASPO, where it was argued that unrepresented individuals would be able to handle appeals to the Tribunal themselves. They would be deprived in practice of their access to justice, in possible contravention of Article 6 of the European Convention on Human Rights.

10. The question of whether deportation would cause serious irreparable harm is likely often to be the principle question at stake in the appeal. It is in contradiction to the principle of equality of arms for one party to an appeal to have the power to prejudge the outcome through certification.

11. The provision will have unintended consequences that will increase costs to the justice system and the Home Office. Appeals will be displaced onto judicial reviews of the decision to certify and remove, at greater cost. The numbers of asylum claims will increase, as appellants will be incentivised to make a parallel asylum claim, in order to avoid removal before their Article 8 appeal is heard.

12. Many ex-offenders making appeals under Article 8 have lived lawfully in the UK for many years. Some have come to the UK as small children, know no-one in their country of origin, and may not even speak the language.

13. Case study: Samuel came to the UK from Zimbabwe at the age of 10, to join his mother who had been granted indefinite leave to remain. He has not been back to Zimbabwe since, and knows nobody there. He was given a deportation order following a criminal offence. With legally aided representation (pre-LASPO) he won his appeal against deportation on Article 8 grounds. The Home Office appealed, but the decision was upheld at the Upper Tribunal. The process took a year from the completion of his prison sentence.

14. UK citizens would be separated from their parent or spouse before they have had the chance to make their case in court. Many foreign ex-offenders are married to and / or are parents of British nationals.

Article 8 of the ECHR: public interest considerations

15. Part 5A of the Bill enshrines in legislation the Secretary of State’s interpretation of Article 8 of ECHR. This is unnecessary and inappropriate. The Secretary of State should and does argue for her interpretation in the courts in individual cases. Legislation should not be used by the executive to seek to dictate to the judiciary the interpretation of international instruments, which inevitably are living documents that evolve over time.

16. The Bill seeks to define the public interest in the context of Article 8 appeals. However, it is by no means clear that the deportation of "foreign criminals" is always in the public interest. It can lead to the separation of families, causing children to lose access to a parent. A single parent separated from their deported spouse is far more likely to be reliant on benefits.

17. Such questions can only be considered on a case-by-case basis. This is the role of the courts. No evidence has been presented that the courts are currently incapable of adequately interpreting ECHR.

Residential tenancies

18. Part 3, paragraph 16 of the Bill disqualifies people lacking leave to enter from occupying premises under a residential tenancy agreement. Paragraph 17(1) provides that "A landlord must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status." Paragraph 16(2) provides that a person "P does not have a "right to rent" in relation to premises if – a) P requires leave to enter or remain in the United Kingdom but does not have it". This definition would include asylum-seekers, refused asylum-seekers and most migrants released from immigration detention.

19. Paragraph 17(3)(c) provides that there is a contravention if a residential tenancy agreement grants a right to occupy to "another adult not named in the agreement who is disqualified as a result of their immigration status." The explanatory notes at paragraph 109 clarify that "a person does not have to be named in a tenancy agreement for these provisions to apply. A landlord is expected to make reasonable enquiries regarding the persons who will take up residence under an arrangement before entering into an agreement and even if the individual is not specifically named in any written agreement, the landlord will be responsible for them if they have authorised their occupation or should have been aware of their occupation, from the making of reasonable enquires."

20. Refused asylum-seekers and former detainees are legally prevented from working or from claiming benefits. Some are entitled to reside in statutory Section 4 accommodation (exempted in Schedule 3 of the Bill), but many are not entitled to Section 4 support. Most live rent-free with friends or relatives. It is likely that the majority of these friends or relatives are themselves living in private rented accommodation. As such, their landlords would be in breach if they permitted the disqualified migrant to occupy their rented accommodation.

21. As a result, these provisions would dramatically increase the destitution of refused asylum-seekers and former detainees. Those not entitled to Section 4 who do not have home-owning supporters would be unable legally to occupy any accommodation. Potentially large numbers of migrants would be rendered street homeless.

22. This would undermine the effective operation of immigration control. Most refused asylum-seekers and former detainees are required to inform the Home Office of their address, in order that they remain in contact with the authorities. If they are street homeless, this will not be possible. Absconding rates are likely to increase, as migrants will have no incentive to keep in contact with the Home Office. The ability of the Home Office to arrange documentation interviews or, where necessary, proceed with removal, will be severely inhibited if the majority of migrants pending removal are street homeless.

23. There will be a substantial impact on community relations. Large numbers of ethnic minority migrants suddenly sleeping rough risks fuelling an increase in racism and community tension.

24. The Bill will undermine the system of bail sureties, a vital element of the system of immigration bail. The First Tier Tribunal frequently requires that a person live with their surety as a condition of release. The Secretary of State would acquire the power effectively to veto grants of bail, by refusing to use her discretion to authorise the applicant to occupy their surety’s rented accommodation. This would be likely to lead to large numbers of judicial reviews.

25. Given that the Secretary of State opposes the great majority of bail applications, it is to be anticipated that she would not use her discretion to authorise bailed migrants to occupy their sureties’ addresses. If it is not intended that the Secretary of State should block bail grants in this way, then she should not be granted the discretion to do so, and migrants granted bail should be automatically exempted.

26. In order to avoid this situation, many more bail applicants are likely to apply for Section 4(1) bail addresses, at public expense. The vast majority are entitled to these addresses, but many currently prefer to use available accommodation with friends or family. If bail applications to such accommodation would be dependent on the Secretary of State’s discretion, they are likely to choose instead to access Section 4(1) bail addresses. This would generate substantial extra costs for the taxpayer. It is unlikely that the Home Office would be able to meet this demand without taking on substantial new contracts for Section 4 accommodation.

27. In addition, the vast majority of asylum-seekers could be forced to live in Section 95 asylum accommodation, at considerable public expense. Asylum-seekers with pending asylum claims would be disqualified from occupying private rented accommodation. At present, many do not seek accommodation from the Home Office, but reside with friends or family. Again, this will often be in private rented accommodation, and they would require discretionary authorisation by the Secretary of State. If it is intended that this authorisation would in practice be given, as indicated in the consultation, then it should not be a discretionary power.

November 2013

Prepared 6th November 2013