Joint Committee On Human Rights Seventeenth Report

Penalties, authority to carry schemes, and criminal offences

Authority to Carry Schemes

109. Clause 107 of the Bill would authorise the Secretary of State to introduce a new system of 'authority to carry' schemes by regulations. Such schemes would enable carriers to check with the authorities in the United Kingdom, before allowing people to board ships or aircraft abroad, that the carriers would not be liable to penalties for carrying those people into the United Kingdom. Where a carrier failed to check, or brought in a person after having been refused authorization under the scheme, the carrier would be liable to penalties. We asked the Secretary of State what scheme of penalties would be introduced, bearing in mind that (as noted above) the Court of Appeal in the Roth case has held that a blanket imposition of a substantial fixed penalty under existing legislation, without regard to the blameworthiness of the carrier, violated the right to a fair hearing in the determination of a criminal charge under ECHR Article 6(1).[146] The Department replied that the matter had not yet been decided, but that regulations might make similar provision to those applying to carriers who bring in passengers without proper documentation. We were glad to learn that the Department intends to provide carriers with the same safeguards for rights under ECHR Article 6 as will be provided in respect of charges for bringing in passengers without documentation following the decision of the Court of Appeal.[147] Clause 107 would make this possible, and we look forward to seeing the regulations to be made under the provision in due course.

Penalties for people whose transport is used by asylum-seekers to enter the country

110. In International Transport Roth GmbH and others v. Secretary of State for the Home Department[148] the Court of Appeal held that administrative powers to forfeit vehicles, etc., in which illegal immigrants had entered the country were disproportionate to any legitimate purpose the powers could serve, and violated the right to a fair hearing (ECHR Article 6(1)). During his speech on Second Reading in the House of Commons, the Home Secretary said that the Government would table an amendment to the Bill to take account of the Roth decision.[149] We asked the Government to ensure that we would receive a copy of the proposed amendment early enough to allow us to consider the human rights implications and report to each House before the amendment was considered in Committee. The Department replied that the amendment would not be tabled until Report. The amendments, in the form of clause 108 of, and Schedule 8 to, the Bill, were eventually tabled and approved on Report in the House of Commons on 12 June 2002. They would have the effect of ensuring that the personal blameworthiness of drivers of lorries and other people would be taken into account in fixing the penalty to be paid for bringing into the country a person without proper documentation. It would also provide certain defences for the operators of rail freight wagons, give a discretion to the Secretary of State when fixing the amount of the penalty in any case, and provide for a right of appeal against a penalty. We welcome these amendments, which seem to us to be a measured and proportionate response to the decision of the Court of Appeal in Roth. However, we understand that both sides in Roth are seeking leave to appeal the House of Lords.[150]

New criminal offences

111. Clause 124 of the Bill would substitute new sections 25-25C for the existing section 25 of the Immigration Act 1971 (offence of assisting illegal entry). We asked the Secretary of State why proposed new section 25(2) as originally drafted would have included a law affecting entitlement to travel within the State in the definition of 'immigration law' for the purpose of the offence under section 25(1). The Department explained that it was intended only to cover apply to passengers in transit, and undertook to table an amendment to make this clear.[151] The amended version of proposed new section 25(2)(b) of the 1971 Act, contained in clause 124 of the Bill, clarifies the matter.


112. We reiterate our comments in paragraph 4, above, about the importance of Departments meeting the deadlines for replying to our questions about Bills. Amendments tabled by the Government on Report in the House of Commons go some way towards improving the provisions of the Bill, principally in relation to their impact on asylum-seeking children and the dependants of asylum-seekers. At the same time, we have drawn to the attention of the House a number of important matters which still cause us considerable concern on human rights grounds. They are—

    (b)  the implications of depriving someone of British citizenship, apart from their immigration rights (paragraph 26);

    (c)  the subjectiveness of the conditions for justifying a deprivation of British citizenship (paragraphs 29-30);

    (d)  the arrangements for making residents of asylum centres aware of their rights under national and international law (para. 43);

    (e)  the arrangements for providing effective access to timely legal advice of an appropriately high quality to residents in asylum centres and in removal centres, and the need for the provision of effective legal advice and representation to be carefully monitored (paragraphs 44 and 87);

    (f)  the reluctance of the Government to undertake to take positive steps to secure the rights of children in accommodation centres under CRC, including the right to be free of discrimination, the right to have their best interests treated as a primary consideration in decisions and actions affecting them, the right to education on a non-discriminatory basis, and the right to participate in cultural life (paragraphs 46-62);

    (g)  the right of destitute asylum-seekers or their dependants who have been required to leave accommodation centres without fault on their part to a standard of accommodation and other support which is adequate to their needs (paragraphs 66 and 74);

    (h)  the extent to which NASS can be relied upon to provide adequate support to asylum-seekers in the community (paragraph 68);

    (i)  the lack of clarity in the definition of powers for the Secretary of State to make regulations allowing assumptions to be made about a person's means when deciding whether he or she, or one of his or her dependants, is destitute, and the need for careful parliamentary scrutiny of any regulations made under the Bill to withdraw the 'support-only' option for assisting asylum-seekers (paragraph 76);

    (j)  the reluctance of the Government to recognize the absolute nature of the obligation to avoid treating people in ways that would amount to degrading treatment contrary to ECHR Article 3 (paragraph 78);

    (k)  the lack of flexibility and sensitivity to a person's circumstances in limiting the level of non-accommodation support to asylum-seekers under the Bill to 70 per cent of the level of income support (paragraph 80);

    (l)  the possible ambiguity of the condition for authorising detention of a person who is liable to removal (paragraph 84);

    (m)  the need for the best interests of children to be treated as a primary consideration when deciding whether to remove members of the family of a person whose removal has been ordered (paragraph 88);

    (n)  the need, when the Secretary of State makes a certificate which deprives a person of a right of appeal, to ensure that people are not removed from the United Kingdom before they have had an effective opportunity to seek the assistance of a court in enforcing Convention rights (paragraphs 98, 99, 101, 104 and 108).

We hope that this Report will assist further consideration of the Bill in both Houses.

International Transport Roth GmbH and others v. Secretary of State for the Home Department [2002] EWCA Civ 158, CA Back

147   Home Office Memorandum, paras. 57 and 58, Ev 10 Back

148   [2002] EWCA Civ 158, CA Back

149   HC Deb., 24 April 2002, c. 355 Back

150   Lord Lester of Herne Hill QC was counsel in the case in the Court of Appeal, and took no part in the consideration of this paragraph of the Report. Back

151   Home Office Memorandum, para. 60, Ev 10-11 Back

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