Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Written evidence submitted by Amnesty International UK (IB08)

Amnesty International UK is a national section of a global movement of over seven million people who campaign for every person to enjoy all rights enshrined in the Universal Declaration of Human Rights and other international human rights standards. We represent more than 670,000 supporters in the United Kingdom. We are independent of any government, political ideology, economic interest or religion.

 

Introduction

1. This submission is divided into two sections that follow this Introduction:

a The first provides a short analysis of the context in which the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019-2021 is brought before Parliament.

b The second provides an analysis of Clause 4.

2. Amnesty International UK has several concerns regarding the impact of the UK’s immigration system on people’s rights, including their right to family and private life, the best interests of children, people’s right to liberty and the right to asylum. There are many ways in which the immigration system can and does interfere with or violate these and other human rights including:

a Separating partners and children from their parents. [1]

b Expelling people from the country of their home [2] and in some cases the country in which they were born and to whose citizenship they are in law entitled. [3]

c Depriving people of their liberty indefinitely [4] and of the means to secure accommodation, health, sustenance and welfare for themselves and their family. [5]

d Creating and maintaining conditions that cause people to be vulnerable to homelessness, destitution, domestic abuse, trafficking and other exploitation. [6]

e Applying wide exemptions from and curtailment of data protections, [7] equalities duties [8] and access to independent and individual remedy to the exercise of the powers and functions by which these various infringements and violations are done. [9]

3. On the one hand, the Bill is on the face of its provisions silent as to these several matters and their causes. That is a profound failing. On the other, the inclusion in the Bill of a wide and excessive transfer of power from Parliament to the Secretary of State is alarming.

Context

4. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019-2021 is barely changed from the Bill of the same name which fell after its Committee stage upon the prorogation of Parliament for the last general election. [10]

5. This submission is directed to the immigration provisions in the Bill. In respect of these, the Bill is remarkable for two particular features:

a Firstly, it contains in Clause 4 sweeping powers for the Secretary of State to amend primary legislation by regulations with very little if any effective constraint upon the exercise of those powers.

b Secondly, it contains nothing by way of principle or foundation for the new immigration system for which it is said this Bill paves the way. [11]

6. These two features must be considered together. On the one hand, the Secretary of State seeks to be freed from the rigour of parliamentary scrutiny, through Bill proceedings, in the making and changing of laws governing the UK’s immigration system. On the other, the Bill by which she seeks that gives away nothing of her intentions. Still less does it establish any boundaries within which she or any successor may exercise the powers she seeks or any purposes or principles by which she will be guided or constrained in so doing.

7. The Government may argue that there is urgency required to address the impact upon immigration legislation of the UK’s departure from the EU and the ending of the transitional period following that departure. Any such argument must not succeed:

a The Government, and its immediate predecessor, has been on notice since the result of the June 2016 referendum; and created its own timetable when triggering Article 50 of the Treaty of the European Union in March 2017. It really ought to be better placed by now to understand what needs to be done in terms of modifying immigration legislation to accommodate the UK’s departure from the EU.

b If the Government has attained that understanding, then it should be made explicit on the face of this Bill so that Parliament can see what it is said needs to be done and ensure by scrutiny through the Bill’s passage that what is done is either necessary or appropriate.

c If the Government has not attained that understanding, this Bill must be modified to strictly constrain the powers in Clause 4 so that Parliament can be assured that what is done under these powers will be no more than is necessary or appropriate.

8. This Bill has been introduced to Parliament at a juxtaposition of events any one of which should be the cause for profound reflection upon and reform of the UK’s immigration system. The UK’s departure from the EU extends the reach, powers and responsibilities of that system over a vastly increased number of people in the UK and of people who will in future seek entry to the UK. [12] The exposure in April 2018, by what has been termed the Windrush scandal, of decades of racism and injustice done through the UK’s immigration and nationality systems demands reform of culture, practice and policy on a scale that cannot be achieved without legislation. [13] The impact of a global pandemic in 2020 has itself exposed profound deficiencies in the immigration system that have done and are doing grave harm to individuals and families; and which are also damaging to wider society. [14]

9. On 16 April 2018, the then Home Secretary, Rt Hon Amber Rudd, in response to an Urgent Question concerning the Windrush scandal said:

"…the Home Office has become too concerned with policy and strategy and sometimes loses sight of the individual." [15]

10. This was an important, albeit modestly expressed, admission. Its substance is that the Home Office does not adequately or at all consider or care about the impact of its policies and practices upon the people who are subjected to them. This is not new. It has not changed. Moreover, the policy and strategy to which the then Home Secretary referred are in large part set out in immigration legislation. Real change requires legislation; and for all that reform is urgently needed, if it is to respect the rights of the people affected (and to respect the injustices that have been done to so many people to this date), it requires a scrutiny to which the exercise of the powers in Clause 4 are not subject.

11. The remainder of this submission provides a textual consideration of Clause 4, particularly subparagraph (1), and considers certain of the Amendments to this Clause given up to and including 5 June 2020.

Consideration of Clause 4

12. The Clause consists of a general power in subparagraph (1):

"The Secretary of State may be regulations made by statutory instrument make such provision as the Secretary of State considers appropriate in consequence of, or in connection with, any provision of this Part."

13. There are three distinct aspects to this provision that are excessive. The power is exercisable by the Secretary of State on the basis of her considering it to be appropriate as distinct from being necessary. The power may not only be exercised as a consequence of specified provisions in the Bill but may be exercised in any way connected to it. The specified provisions are all the provisions of Part 1, including Clause 4 itself.

14. If the purpose of the power is no more than is necessary to amend immigration and connected legislation to reflect the ending of retained EU law that temporarily preserves free movement and immigration-related rights, none of these aspects is justifiable. This purpose would be achieved by the following wording:

"The Secretary of State may by regulations made by statutory instrument make such provision as is necessary in consequence of Schedule 1."

15. Amendments 2 and 3 address two of these concerns. If Parliament adopts these amendments the concern that subparagraph (1) refers to Part 1 rather than Schedule 1 may fall away or be significantly reduced. It is certainly difficult to conceive how it could be argued that either of Clauses 3 or 4 in themselves necessitated the making of any provisions. Schedule 1 (introduced by Clause 1), however, may necessitate provisions to remove references in other legislation that relate to the rights it will bring to an end – albeit had the Government made good and proper use of the time that has elapsed since 2016 and 2017, it ought to be possible to set now what is necessary in this Bill.

16. If these amendments are not made, the reference to Part 1 is alarming. Clause 4 by subparagraph (1) permits modification to immigration legislation that is connected to any of its own provisions, for it too is within Part 1. This circularity cannot be justified and is on its face dangerously enabling.

17. Nonetheless, substituting "Schedule 1" for "Part 1" in subparagraph (1) will not satisfactorily address the concerns to which Amendments 2 and 3 relate. Even were the power to be limited to making provision that the Secretary of State considers appropriate in connection with Schedule 1, the extent of what is considered connected to ending free movement and other immigration-related rights may be wide. This concern is emphasised by subparagraph (4), which says of the regulations that may be made under subparagraph (1) that these:

"…may (among other things) make provision applying to persons who, immediately before the coming into force of the repeal of section 7(1) of the Immigration Act 1988 by paragraph 1 of Schedule 1, were not entitled by virtue of section 7(1) of that Act to enter or remain in the United Kingdom without leave."

18. Who are such people? They are anyone and everyone who is not exercising (or does not have) free movement rights under retained EU law at the time those rights are ended. Since it is clear that the power in subparagraph (1) applies to the people who are exercising these rights at that time, the addition of the people who are not extends the potential reach of provisions made under subparagraph (1) to everyone. The only limitation upon that is whether any provision that may be made is connected to any provision of Part 1.

19. Parliament may expect that the courts will seek – if any provision made under subparagraph (1) or its application is brought before them – to narrowly construe the power it contains. Nonetheless, Part 1 concerns the UK’s domestic immigration system and the legislation by which it is established and permitted to operate. It concerns that system for it is expressly concerned with removing the exemption from it of a large number of people. It is a question, left open by the current text of the Bill, whether this act of removing that exemption is connected to the system as a whole or vice versa. If so, immigration legislation and all legislation connected to the immigration system is potentially within the compass of the powers in subparagraph (1); and it may be modified [see subparagraph (2)] in a wide manner of ways [see subparagraph (3)] that may apply to anyone, whatever their nationality or immigration status [see subparagraph (4)] including as regards the fees and charges to which they may be subjected [see subparagraph (5)].

20. Immigration legislation includes express provision concerning British citizens. It is section 1(1) of the Immigration Act 1971 that provides the general right of those with the right of abode to enter and stay in the UK without let or hindrance "save as may be required under and in accordance with this Act to enable their right to be established…"; and section 2(1)(a) of that Act that accords the right of abode to British citizens. Are these provisions amenable to the power under subparagraph (1)? Parliament may expect that the courts, if asked, would consider it an affront for such a suggestion to be made; but the term "in connection with" is excessively wide and unclear in equal measure. 

June 2020