Joint Committee On Human Rights Seventeenth Report

Detention before removal

Detention pending a decision whether to remove

82. Clause 52 of the Bill would allow the Secretary of State to authorise the detention of a person who is liable to removal in certain circumstances. Like immigration officers, the Secretary of State would also have power to grant temporary admission or release from detention. This would give the Secretary of State, who deals with asylum claims, the same powers as immigration officers have in relation to other claims to be permitted to enter the country.[114]

83. The Government considers that detention sometimes has a role to play in immigration control in relation to both immigration offenders and failed asylum-seekers.[115] People would be detained in 'removal centres', as detention centres would be re-designated. This proposed power to detain would be impliedly limited, in that an examination or decision would have to be made within a reasonable time.[116] There is a question whether the power would be compatible with ECHR Article 5(1). That question will probably be effectively determined by the House of Lords in the pending case concerning detained asylum-seekers at Oakington Reception Centre[117] and any subsequent application to the European Court of Human Rights. Until then, we take the judgment of the Court of Appeal as stating the law for current purposes. On that basis, we are satisfied that the provisions would not give rise to any incompatibility, although we may wish to re-examine the matter in due course.

Grounds for authorising detention

84.   Clause 52 would allow a person who is liable to removal from the United Kingdom to be detained under the authority of the Secretary of State (a) pending a decision by the Secretary of State whether to give directions for his or her removal from the United Kingdom, and, after directions have been given, pending removal, and (b) in order to exercise the Secretary of State's power to examine a person or refuse them leave to enter under section 3A of the Immigration Act 1971. Clause 52(7) provides that the power to detain would be exercisable 'where the Secretary of State has reasonable grounds to suspect that he may make a decision' to remove the person, but does not expressly provide that it may be exercised only where the Secretary of State has reasonable grounds. The Department takes the view that the clause as drafted has the effect that a detention without reasonable grounds would be unlawful.[118] We hope that a court would take the same view, but consider that, on a matter of this importance to the right to liberty under ECHR Article 5, it would be preferable to avoid any possible ambiguity, for example by inserting the word 'only' before 'where the Secretary of State' in clause 49(7). We draw the matter to the attention of each House.

85. Because clause 52 is short of safeguards for rights under ECHR Article 5, we asked the Secretary of State whether, in his view, the powers would be subject to implied restrictions, such as limitations on the time for which a person may be detained, and, if so, why they were not expressly stated on the face of the Bill. The Department accepted, in its reply, that it is subject to implied restrictions derived from case-law[119] and the ECHR Article 5.[120] We welcome this clarification, but would have wished that the limitations had been expressed on the face of the legislation in order to make the legal safeguards for human rights as clear and accessible as possible. However, we accept the Department's point[121] that any fixed time limit is likely to be arbitrary and to cause difficulty in practice.

Restriction of release on bail

86. Clause 57 of the Bill would restrict the power to grant bail to a person detained pending removal. After eight days of detention, only the Secretary of State would be able to grant bail; immigration officers would be unable to do so. Furthermore, routine bail hearings would cease. This might engage rights under ECHR Article 5(4) and ICCPR Article 9(4), which gives detainees the right to have the lawfulness of detention decided speedily ('without delay' under the ICCPR) by a court and release ordered if the detention is held to be unlawful. However, once a decision to remove the person has been taken, it would be justified under ECHR Article 5(1)(f), and would be justifiable under ICCPR Article 9 if it were not arbitrary, as long as the requirements of the law were complied with. Although the period of detention is subject to requirements of reasonableness, proportionality and due diligence on the part of the authorities, the lawfulness of detention at this stage can be tested in habeas corpus proceedings, or by an appeal against, or judicial review of, the decision to remove or detain the person. Bail does not form a necessary part of that process. That being so, we do not consider that the changes to the rules on bail would be likely, in themselves, to lead to a violation of Article 5(4) or Article 9(4).

87. However, these safeguards are meaningful and effective only if appropriate legal advice and information are available to detainees. As indicated already, we hope that it will be provided, but evidence from Bail for Immigration Detainees casts doubt on the effective availability of appropriate advice where and when it is needed.[122] In this connection we note that the Department has stated that detainees are advised that they may contact the Immigration Advisory Service and the Refugee Legal Centre for independent, free advice and representation, but no information is available to us as to the ease of obtaining access to them, the speed of their response, and whether the answers are likely to be affected by the location of detainees. We consider that these matters should be carefully monitored, and we draw them to the attention of each House as being relevant to the effectiveness of safeguards for the human rights of detainees.

Removal of members of families

88. Clause 62 would permit the giving of directions for the removal of members of the family of a person whose removal has been ordered. This engages a number of rights of family members. However, the justifiability of removing other members of the family will depend on the circumstances of individual cases. For example, removing them may help to enhance their right to respect for family life under ECHR Article 8(1) if it would allow the parties to continue to enjoy each other's company and to continue a subsisting family relationship, when the alternative would be to split up the family in circumstances where that would be permissible under Article 8(2). The decision would be one for the discretion of a public authority, who would be required under section 6 of the Human Rights Act 1998 to act in a manner compatible with Convention rights. We are confident that decisions will be taken in the light of the individual circumstances of children in each case.[123]

Detention of children

89. The Refugee Children's Consortium[124] points to the fact that the Bill would permit children to be detained pending removal from the United Kingdom. Article 37 of the CRC provides—

'States Parties shall ensure that:...

    (b) No child hall be derived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.'

It might be considered to be arbitrary to detain a child unless there was clear evidence of a risk of the child absconding or in some other way flouting the immigration process. The Government's view is that this sometimes is the case.[125] We asked the Government whether, and, if so, how, it intended to take account of the rights of children under Article 37 when making decisions about the detention of children under powers to be conferred by the Bill. In its reply, the Department drew attention to the desirability of keeping families together, and stressed the very limited periods of detention and the rarity of the detention of children. The interests of the child 'would naturally be an important factor in deciding whether detention should be authorised.'[126] We appreciate the Government's position, but draw attention to the fact CRC Article 3(1) requires the best interests of the child to be treated as a primary consideration. It should therefore be a highly important factor in making the decision.

Removing asylum-seekers to other EU Member States under the Dublin Convention

90. The Dublin Convention, which came into effect in 1997, is intended to provide a streamlined system for deciding asylum claims within the EU. The Member State responsible for admitting an asylum-seeker to the EU is also responsible for deciding the application for asylum in accordance with the Refugee Convention. If the asylum-seeker moves to another country within the EU before applying for asylum, or before a decision on the application has been made, that country can return him or her to the country responsible under the Dublin Convention without itself considering the application.[127] Once the Member State with responsibility has determined the application, the asylum-seeker either settles in that state or, if the application has failed, can be removed from the EU, subject to the need—

    —  under the ECHR to ensure that the asylum-seeker is not sent back to a place where he or she would be subjected to a threat of death, torture or inhuman or degrading treatment or punishment, and

    —  under the Refugee Convention to ensure that the asylum-seeker is not sent back ('refoulement') to a place where he or she would have a well-founded fear of persecution on one of the grounds covered by the Convention.

91. This system faces a number of formidable difficulties. They include achieving agreement on the responsible Member State, securing a consistent interpretation among EU Member States of the terms of the Refugee Convention, and establishing where an asylum-seeker first entered the EU. Disputes about responsibility and differences of interpretation have meant that the Dublin Convention has not eliminated the phenomenon of 'asylum shopping', in which the asylum-seeker makes parallel or sequential applications to several EU Member States.[128] In the United Kingdom, the courts have held it to be unlawful to remove an asylum-seeker to an EU Member State which does not adopt as favourable an interpretation of the grounds for refugee status under the Refugee Convention (well-founded fear of persecution on the ground of race, religion, nationality, membership of a particular social group, or political opinion) as the United Kingdom does.[129] A revision of the Dublin Convention to respond to these issues is under discussion.[130] In the meantime, the Government proposes to enact a new provision governing the removal of an asylum-seeker to another Member State under standing arrangements between Member States within the EU.

92. Clause 68 of the Bill would replace section 11 of the Immigration and Asylum Act 1999. It would provide that a Member State must be regarded as a place where a person's life and liberty will not be at risk by reason of his race, religion, nationality, membership of a particular social group, or political opinion, and from which a person will not be sent to another country in breach of the refugee Convention.[131] An asylum-seeker could then be returned to another Member State which the Secretary of State certified as the responsible State, unless the person was a national of that State.[132] The asylum-seeker would not usually be able to delay removal by appealing. This could interfere with human rights if the asylum-seeker were at risk of a breach of human rights. The proposed new section therefore provides that an appeal against the removal decision is to have suspensory effect if the asylum-seeker has made a claim that the decision violates his Convention rights within the meaning of the Human Rights Act 1998.[133] In our view, this sufficiently protects human rights.


Removing failed asylum-seekers to 'safe' third countries

93. The Bill would amend the law relating to removal of an asylum-seeker to a country other than that from which the person fled or of which he is a national or citizen. At present, section 12 of the Immigration and Asylum Act 1999 provides that a person can be returned to another EU Member State otherwise than under the Dublin Convention, or to another country designated as a 'safe' country by the Secretary of State. In such cases, an appeal is available and would normally have suspensory effect.

94. The Secretary of State's attempt to provide a list of presumptively safe third countries, or to decide whether a state is generally safe without taking account of the likely position of the particular asylum-seeker, have fallen foul of the courts when it has included states which have been held to persecute on grounds covered by the Refugee Convention (as interpreted by our courts)[134] or to threaten to violate human rights.[135]

95. The Secretary of State has power to issue certificates which effectively cut off rights of appeal to an adjudicator. Where an asylum-seeker wishes to argue that removing him would violate Convention rights or the Refugee Convention, the Secretary of State can prevent an appeal by certifying that the claim of a violation or of persecution is manifestly ill founded.[136] A certificate cannot be issued merely because the Secretary of State disagrees with the factual claims which would be the subject of dispute on the appeal.[137]

96. The Bill would cut off certain rights of appeal and extend the power to issue certificates cutting off routes of appeal. Clause 81(1) would normally prevent a person from appealing, while in the United Kingdom, against a decision to remove him to a third country under sections 11 and 12 of the 1999 Act. Only judicial review would be available to a person in the country, and that might not have suspensory effect. An appeal would lie to an adjudicator if the asylum-seeker wished to claim that removal would violate his Convention rights within the meaning of the Human Rights Act 1998, but could be cut off by a Secretary of State's certificate that the claim is 'clearly unfounded'.[138] The certificate could be subject to judicial review.

97. If the Secretary of State wrongly issued a certificate, it could deny an asylum-seeker an effective remedy for a threatened violation of a Convention right, contrary to ECHR Article13. The right to an effective remedy under Article 13 is not one of the Convention rights forming part of national law in the United Kingdom under the Human Rights Act 1998, section 1, but it binds the United Kingdom in international law. The question is whether judicial review of the certificate would provide a remedy which the European Court of Human Rights would regard as effective. Because of the Human Rights Act 1998, the High Court or Court of Session would be able to consider the substance of the claim to a Convention right, and would be able to provide an effective remedy as long as the person has not been removed before the application for review is heard. However, it would not amount to an effective remedy if the person had already been removed before the hearing of the application.

98. We therefore asked the Government to confirm that it would not remove a person before the hearing of an application for judicial review of a certificate issued under clause 81(2) had been finally determined. The Department replied that it would expect that an applicant would, by this stage in the process, have had an opportunity to put forward all grounds, including Convention arguments.[139] However, this might not be the case if the Secretary of State had issued a certificate under clause 81(2)(b) effectively precluding an appeal on the Convention rights ground. In our view, it should not be possible to remove a person before he or she has had the opportunity to challenge, before an independent and impartial tribunal, the Secretary of State's certificate asserting that the person's claim to have had a Convention right violated is clearly unfounded. Removing a person in such circumstances might sometimes give rise to a violation of ECHR Article 13 (the right to an effective remedy before a national authority for an alleged violation of a Convention right). We draw this to the attention of each House.

99. The new provisions would apply to appeals which were already in progress when the provisions came into force. Such appeals would lapse.[140] This could deny an applicant a right to a fair hearing in relation to the determination of a civil right or obligation, violating ECHR Article 6(1), unless judicial review were available. We consider that the considerations to which attention was drawn in the preceding paragraph would be relevant here, and we draw the matter to the attention of each House.

Removing rights of appeal generally

100. Similar considerations apply to clause 76,which would take certain immigration decisions out of the structure for appeals to an adjudicator. These are decisions taken wholly or partly on the grounds that a person—

101. In such cases, the only legal remedy would be judicial review. Similar considerations apply to those noted in paragraph 98, above, in relation to clause 81. We draw this matter once again to the attention of each House.

102. Clause 84 of the Bill would empower the Secretary of State to cut off rights of appeal against immigration decisions on a number of other grounds. These powers would apply generally, not only to asylum-seekers but to all who were refused admission or subject to removal. The purpose is to avoid multiple, unmeritorious appeals which are intended only to delay removal. The Secretary of State or an immigration officer would be able to prevent an appeal, or stop a claimant from relying on a particular ground or matter in an appeal, by certifying that—

103. This could potentially interfere with protection for human rights. There is a risk that the loss of a right of appeal could weaken remedies available to people whose human rights are threatened. This calls for particularly careful scrutiny where, as here, access to an appeal would be controlled by the public authorities against whom the appeal would normally lie. When making a public authority the judge of the merits of the case against it, there is a real danger of compromising the independent scrutiny which lies at the heart of the values of the rule of law. As human rights are founded on the values of the rule of law, the incidental threat to human rights is equally serious.

104. In this case there would be some protections against potential violations of human rights. Specifically—

    —  judicial review of a certificate would be available, and

    —  the Human Rights Act 1998, section 6 would enable the High Court or Court of Session to address the substance and merits of any human rights claim that was made.

However, as noted earlier in this Report,[144] judicial review would provide an effective remedy for any threatened violation of Convention rights (as required by ECHR Article 13) only if the applicant were allowed to remain in the United Kingdom to pursue the application. We therefore asked the Secretary of State to confirm that it would treat an application for judicial review of a certificate on Convention rights grounds as suspending any orders for removal until the application for judicial review had been finally determined. The Department's reply to this point is the same as in relation to similar questions on other parts of the Bill, and we reiterate the comments which we made about this matter in paragraphs 97 and 98 above.

Appeal against removal or refusal of entry deemed to be conducive to the public good

105. Clauses 85 and 86 of the Bill would allow the Secretary of State in person to prevent or stop an appeal to an adjudicator against an immigration decision to exclude or remove person from the United Kingdom on grounds related to the public good. The Secretary of State could certify that the decision had been taken on the ground that the person's exclusion or removal—

The certificate would have to show that the decision had been taken either by the Secretary of State personally, or in accordance with a direction by the Secretary of State in person specifying the person to whom the decision related.

106. Decisions of these kinds are particularly sensitive on human rights grounds, because the reasons for wishing to exclude or remove people can easily engage their rights to freedom of religion and belief, freedom of expression, and freedom of peaceful assembly and association (ECHR Articles 9-11). In addition, decisions may threaten the right to life, the right to be free of inhuman or degrading treatment, the right to liberty, and the right to respect for private and family life (ECHR Articles 2, 3, 5 and 8). One must therefore carefully examine any power to remove a right of appeal to ensure that sufficient safeguards remain to protect human rights effectively, especially where the right of appeal can be blocked by the public authority against whose decision the appeal would otherwise have lain.

107. In relation to certificates on the first three of the grounds listed in paragraph 105, above, the Bill would provide for an appeal to the Special Immigration Appeal Commission instead of an adjudicator.[145] The Commission is capable of hearing and assessing a wide range of evidence, including evidence relating to national security matters. As it is now a superior court of record (following the Anti-terrorism, Crime and Security Act 2001), it is not subject to judicial review, but an appeal lies to the Court of Appeal on a point of law, with the possibility of a further appeal to the House of Lords with leave. The Commission is capable of fully examining the substance of any Convention rights claim. It would therefore be likely to provide an effective remedy for Convention rights, and should offer an adequate safeguard for such rights following the making of a certificate under clause 85.

108. Where a certificate was issued on the last of the grounds listed in paragraph 105 above (a public good other than national security), there would be no appeal to the Commission. However, judicial review would be available. In judicial review proceedings, by virtue of the Human Rights Act 1998 the court could examine the substance of any claim that Convention rights were threatened, and could give an appropriate remedy, including quashing any order for removal. Unlike the Commission, the court could not substitute its own decision on the merits of the case for that of the Secretary of State. It would be therefore possible for the Secretary of State to re-make the same decision after reconsidering the case, with the case bouncing back and forth between the courts and the Secretary of State, with the person affected being under threat of removal, and perhaps in detention in a removal centre, in the meantime. This is intrinsic to the nature of judicial review, and would not in itself normally prevent judicial review from being an effective remedy for a threat to Convention rights. Nevertheless, as noted earlier, judicial review might not be an effective remedy if the applicant had been removed from the country before the determination of the application for review. Once again, we draw attention to our comments on this issue in paragraphs 97 and 98 above.

114   See Explanatory Notes, p. 25, paras. 144-145 Back

115   White Paper, Cm. 5387, p. 66, para. 4.74 Back

116   R. v. Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 at p. 706 per Woolf J; Tan Te Lam v. Superintendent of Tai A Chau Detention Centre [1997] AC 97, PC, at p. 111; R. (on the application of Saadi and others) v. Secretary of State for the Home Department [2002] 1 WLR at p. 382, paras. [13]-[14] Back

117   R. (on the application of Saadi and others) v. Secretary of State for the Home Department [2002] 1 WLR 356, CA. The House of Lords heard argument on 1 and 2 May 2002. Judgment is awaited Back

118   Home Office Memorandum, para. 50, Ev 9 Back

119   See R. v. Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 at p. 706 per Woolf J; Tan Te Lam v. Superintendent of Tai A Chau Detention Centre [1997] AC 97, PC, at p. 111; see also R. (on the application of Saadi and others) v. Secretary of State for the Home Department [2002] 1 WLR at p. 382, paras. [13]-[14] Back

120   Home Office Memorandum, para. 51, Ev 9 Back

121   ibid., para. 52, Ev 9 Back

122   The submission by Bail for Immigration Detainees is reproduced as an Annex to this Report, Ev 16-20 Back

123   Cf. Home Office Memorandum, para. 53, Ev 9 Back

124   Loc. cit. Back

125   White Paper, Cm. 5387, p. 67, para. 4.77 Back

126   Home Office Memorandum, para. 53, Ev 9 Back

127   This is given effect in UK law by Immigration and Asylum Act 1999, s. 11 Back

128   Sub-Committee E of the House of Lords Select Committee on the European Union has been examining these and related matters, and has already published Minimum Standards of Reception Conditions for Asylum Seekers, 8th Report of 2001-02, HL Paper 49; Minimum Standards in Asylum Procedures, 11th Report of 2001-02, HL Paper 59; and Asylum Applications-Who Decides, 19th Report of 2001-02, HL Paper 100 Back

129   R. v. Secretary of State for the Home Department, ex parte Adan [2001] 2 WLR 143, HL (quashing decision to remove asylum-seeker to Germany) Back

130   See White Paper, Cm. 5387, p. 49, para. 4.6 Back

131   Proposed new s. 11(1) Back

132   Proposed new s. 11(2) Back

133   Proposed new s. 11(3), (4) Back

134   R. (on the application of Asif Javed) v. Secretary of State for the Home Department [2001] 3 WLR 323, CA Back

135   See Chahal v. United Kingdom, Eur. Ct. HR, Judgment of 15 Nov. 1996, 23 EHRR 413 Back

136   Immigration and Asylum Act 1999, s. 72(2) Back

137   See, e.g., R. (on the application of Gavira) v. Secretary of State for the Home Department, Times, 15 May 2001, Admin Ct Back

138   Clause 81(2) Back

139   Home Office Memorandum, para. 56, Ev 10 Back

140   Clause 87 Back

141   Clause 84(1) Back

142   Clause 84(2), (4) Back

143   Clause 84(3) Back

144   See para. 97 above Back

145   Clause 100 and Sch. 7, para. 10 Back

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