Joint Committee On Human Rights Twenty-Third Report

C. Human Rights Implications of the Amendment to be re-introduced on Third Reading

41. The amendment originally moved on Report by Lord Filkin, then withdrawn and intended for re-introduction on Third Reading, would have inserted the following new clause in Part 4 of the Bill.

Liability to detention: interpretation

(1) This section applies to the construction of a reference (in any terms) to a person who is liable to detention under a provision of the Immigration Acts.

(2) The reference shall be taken to include a person if the only reason why he cannot be detained is that-

i.  he cannot presently be removed from the United Kingdom, because of a legal impediment connected with the United Kingdom's obligations under an international agreement,

ii.  practical difficulties are impeding or delaying the making of arrangements for his removal from the United Kingdom, or

iii.  practical difficulties, or demands on administrative resources, are impeding or delaying the taking of a decision in respect of him.

(3) This section shall be treated as always having had effect.

42. This is calculated to allow a person to be detained indefinitely if for one of the listed reasons it would not be lawful or practicable to remove him from the United Kingdom. It also makes the provision retrospective, apparently pre-empting the pending decision of the Appellate Committee of the House of Lords in the case concerning the lawfulness of detaining asylum-seekers at the Oakington reception centre,[45] and also one of the issues in the litigation (currently on appeal from a preliminary ruling by the Special Immigration Appeals Commission) relating to the lawfulness of the detention of suspected international terrorists under the Anti-terrorism, Crime and Security Act 2001. As peers pointed out in the debate on Report in the House of Lords on 10 October, it might authorise detention in breach of the right to liberty of the person under ECHR Article 5, a power which has been taken in the case of suspected international terrorists in the Anti-terrorism, Crime and Security Act 2001 (in respect of which the United Kingdom claimed to derogate from ECHR Article 5), but which would now be retrospectively extended to many other would-be immigrants.[46] As it might retrospectively make people liable to criminal penalties for failing to comply with originally invalid requirements which would have been retrospectively validated by the provision, it could also lead to a violation of the right under ECHR Article 7 to be free of sanctions for conduct which was lawful at the time of its commission.[47]

43. However, in the course of debate on 10 October Lord Filkin made it clear that the Government had not intended the proposed new clause to have those wide-ranging effects. The Government's aim was only to put beyond doubt a point which had been at issue in Hwez and Khadir v. Secretary of State for the Home Department,[48] decided adversely to the Government by Mr. Justice Crane and now under appeal. The claimants in that case were Kurds who had had their applications for asylum rejected, and who were to be removed to the Kurdish Autonomous Area (KAA) of northern Iraq, which the Secretary of State regarded as a safe place in which they would be entitled to reside. But no carrier provides direct transport between the United Kingdom and the KAA, so there is nobody whom the Secretary of State can direct to remove a person from the United Kingdom to the KAA. It was accepted that it would not be safe to return the claimants to Baghdad, and they had no right to reside in any other country. It was also accepted that there was no realistic prospect of a way being found to return the claimants to the KAA in the near future; indeed, it was going to be considerably longer than twelve months before there would be any real prospect of finding a way of getting them safely to the KAA.

44. The Immigration Act 1971 provides that a person who has been refused leave to enter the United Kingdom may be detained pending a decision as to whether to give directions for his or her removal, and (if such directions are given) pending removal pursuant to those directions. While liable to detention, such people may be given temporary admission, subject to such conditions as to residence, employment or occupation, and reporting to police or immigration authorities as may be notified in writing by an immigration officer.[49]

45. In the circumstances of the claimants' cases, Mr. Justice Crane held that—

—  when there was no reasonable prospect of being able to give valid directions to the owners of any ship or aircraft for a person's removal from the United Kingdom to the KAA, it could not be said that they were liable to detention 'pending...the giving of such directions';[50]

—  as the giving of directions for removal, and their implementation, could not be said to be 'pending', there was no power to detain, and consequently no power to grant temporary admission subject to conditions;

—  where this would leave the claimants in limbo (unable to be removed, not liable to be detained or given temporary leave to enter, but not entitled to enter) with no reasonable prospect of the impasse being resolved by arranging for the claimants' removal, it was unreasonable to refuse to give very careful consideration to the possibility of granting exceptional leave to enter, perhaps for a limited period. Exceptional leave to remain in the United Kingdom would have allowed the claimants to obtain income support and other support in cash or in kind, rather than the more limited forms of support available to those granted temporary admission or the absence of support available to those not granted admission at all.

46. One effect of the judgment is to make it likely that the number of people granted exceptional leave to enter will increase considerably, because there will be more cases in which it would be irrational (in the sense in which that term is used in judicial review proceedings) to refuse exceptional leave to people in the position of the claimants in that case. In his article in The Times,[51] the Home Secretary stated his determination to ensure that exceptional leave to remain 'is targeted on those applicants who really need special humanitarian protection. It should not be an alternative form of economic migration which acts as a pull factor to the UK.' It seems that the proposed new clause was intended to advance that aim.

47. As Lord Filkin said during debate on the amendment on Report, 'Although the point made in Hwez and Khadir related specifically to powers under Schedule 2 which relate to arriving passengers, illegal entrants and overstayers, it would apply equally to someone who is the subject of deportation action under Schedule 3.'[52] He went on to note that the ability to impose residence and reporting conditions on people is 'key to the concept of contact management ... [W]e cannot have a position where those people subject to immigration control who do not have leave to be here and whom we may not lawfully detain are able to remain in the UK pending the next stage of the immigration process—for example, removal—without us being able to impose any sort of restrictions on them...'[53] He claimed that the amendment would not authorise detention,[54] and argued that the retrospectivity provision in sub-clause (3) would have the effect of 'validating the authorisation of temporary admission and restrictions imposed.' Retrospective effect was needed because—

    it is simply not possible for the Immigration Service to identify all of those persons who, in the light of Mr. Justice Crane's judgment, may not be subject to any valid restrictions, and to re-authorise temporary admission to such persons, and re-impose fresh restrictions on them on the commencement of this clause on Royal Assent....[I]t is the Government's intention that the retrospective effect of the provision will not operate so as to create any criminal liability...for breach of restrictions validated by it in respect of the period prior to its enactment....Criminal liability would, however, arise if a person whose restrictions had been validated by this clause failed to comply with such restrictions without a reasonable excuse after the clause comes into force.[55]

48. If the new clause were actually to be limited in these ways, it would, in our view, be likely to avoid incompatibility with human rights. However, there is nothing in the clause which would have those effects. In fact, the plain meaning of the words of the clause is to authorise detention of people who were held by Mr. Justice Crane not to be liable to detention, and to impose criminal liability on people for failing to comply with conditions which were held by Mr. Justice Crane not to have been imposed lawfully. In short, the proposed new clause is massively over-broad for the Government's professed purposes. As a result, there is a serious threat of incompatibility with Convention rights to liberty (ECHR Article 5) and to freedom from sanctions for conduct which was not criminal at the time of its commission (ECHR Article 7). In view of the terms in which the new clause is expressed, it would probably be impossible to use the interpretative rule in section 3(1) of the Human Rights Act 1998 to read it down so as to avoid an incompatibility. We draw the attention of each House to this threat, and to the need to avoid the risk of incompatibility by redrafting the clause so that it is narrowly tailored to achieve the effects which the Government desires.

45   This was the view of Lord Renton of Mount Harry and Lord Lester of Herne Hill: HL Debs, 10 October 2002, cc. 450, 451 Back

46   See Lord Renton, ibid. at c. 450, Lord Lester at cc. 452-453, Lord Mayhew of Twysden at cc. 455-456, and Lord Kingsland at c. 460 Back

47   The House of Lords Constitution Committee has reported critically on the compatibility of the amendment with the rule of law and the separation of powers: Select Committee on the Constitution, Seventh Report of 2001-02, HL 173  Back

48   [2002] EWHC 1597 (Admin), 29 July 2002 Back

49   Immigration Act 1971, s. 4(2) and Sch. 2, paras. 8, 16 and 21 Back

50   Crane J. followed the decision of the Judicial Committee of the Privy Council in Tan Te Lam v. Superintendent of Tai A Chau Detention Centre [1997] AC 97, an appeal from Hong Kong Back

51   op. cit., n. 3 above Back

52   HL Debs, 10 October 2002, c. 454 Back

53   ibid., c. 455 Back

54   ibid., cc. 455, 456 Back

55   ibid., cc. 457-458 Back

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