APPENDICES TO THE REPORT
1.
Memorandum from the Home Office
1. This memorandum is submitted by the Home Office
in response to the letter from the Chair to the Joint Committee
on Human Rights to the Secretary of State for the Home Department
dated 29th April 2002, requesting answers to a number
of questions in relation to the Nationality, Immigration and Asylum
Bill. The questions are replicated below along with the Department's
response.
Nationality
The committee asked whether depriving a person
of citizenship would make them more liable to suffer detriment
in circumstances which would put at risk their right to be free
of degrading treatment (ECHR Article 3), their right to liberty
(ECHR Article 5), their right to respect for family life (ECHR
Article 8), their right not to be subjected to the death penalty
(ECHR Protocol No. 6), and the rights of their children under
the Convention on the Rights of the Child (CRC); and, if so, what
steps will be taken to ensure that these matters are taken into
account when considering whether or not to deprive a person of
citizenship?
2. The Department believes that there is a distinction
to be drawn between the removal of a person's citizenship and
their removal from the UK. In some cases the deprivation of British
nationality will result in the loss of a previously acquired right
of abode in the UK. The effect will be to make the individual
subject, once again, to United Kingdom immigration control, and
raises the possibility that he or she might be deported or removed
from the United Kingdom. Deportation or removal following deprivation
of nationality is a separate issue giving rise to a separate
right of appeal. Human rights considerations, including allegations
that removal would breach Article 3 or 8 of the ECHR would, of
course, inform any decision on deportation or removal, and the
affected individual would have the opportunity to raise these
matters on appeal (see clause 68 of the Bill).
3. The power to deprive a person of their citizenship
status contained in new section 40(2) of the British Nationality
Act 1981 (as inserted by clause 4) is subject to section 40(4)
which states that an order may not be made under section 40(2)
if the Secretary of State thinks that the person would become
stateless. Therefore, persons who are deprived under these provisions
will be dual nationals, able to call on the protection of another
State. The Department accordingly does not believe that deprivation
per se would make them more liable to suffer detriment in circumstances
which would put at risk their right to be free from degrading
treatment (Art. 3 of the ECHR) their right to liberty ( Art.5
of the ECHR) or their right not to be subjected to the death penalty
( ECHR Protocol No.6).
4. The Department does not believe that deprivation
of a person's citizenship would put at risk their right to respect
for family life under Article 8 of the ECHR. Common citizenship
is not a necessary component of family life (see Regina ( Montana)
v Secretary of State for the Home Department (2001) 1 WLR
552 CA at 559E).
5. The deprivation of a person's citizenship status
under new section 40 does not affect the citizenship status of
the individual's existing children. The relevant provision in
the Convention on the Rights of the Child in respect of children
not yet born is Article 7. The provisions contained in Schedule
2 of the British Nationality Act 1981 enable a child born in the
UK or in a dependent territory to acquire citizenship if they
would otherwise be stateless and have a sufficient period of residence.
In other respects the right to acquire a nationality set out in
Article 7 is not specific either as to the circumstances in which
the right will exist or as to the State which should bear responsibility
for ensuring that the right is respected. Because of this uncertainty
the United Kingdom continues to maintain a reservation on the
extent to which it agrees to be bound by that Convention in matters
relating to the acquisition and possession of citizenship.
Why do you consider it appropriate that a person
could be deprived of citizenship on the subjective view of the
Secretary of State, without requiring there to be objectively
reasonable grounds for the Secretary of State's view?
6. The idea that it is appropriate for deprivation
of nationality to be based on the view of the Secretary of State
has a long history. The wording of the current provisions in the
British Nationality Act 1981 refer to the Secretary of State being
"satisfied" of certain matters before a deprivation
order will be made. This follows on from similar provisions in
the both the British Nationality Act 1948 and the British Nationality
and Status of Aliens Act 1914.
7. The Department believes that it is entirely appropriate,
in this context, that the Secretary of State should be able to
act on his own view of whether a person has done anything seriously
prejudicial to the vital interests of the UK or a British overseas
territory. In matters relating to national security the Court
of Appeal (endorsed by the House of Lords )have stated that the
Secretary of State is undoubtedly in the best position to judge
what national security requires. (Secretary of State for the
Home Department v Shafiq Ur Rehman (2001) Imm AR 30).
8. The fact that the Bill would facilitate deprivation
of nationality on the subjective view of the Secretary of State
does not mean that the power would be exercised arbitrarily. The
Secretary of State is compelled by new section 40(5)(b) to give
written reasons for the intended deprivation order. A person against
whom it was proposed to make a deprivation order would be free,
on appeal, to raise any issue bearing on either the legality or
the merits of the decision. He or she could, in particular, invoke
common law 'Wednesbury' principles, requiring an analysis of the
reasonableness of the Secretary of State's decision. The Secretary
of State would be prevented from making a deprivation order until
such time as the appeal had been finally determined or, if there
was no appeal, until such time as the deadline for bringing an
appeal had passed. The Department believes that this, coupled
with the requirement in proposed section 40(5)(b) that reasons
must be given with the notice of decision, provides adequate safeguards
against arbitrary deprivation.
Is it thought to be appropriate, and if so why,
to allow the Secretary of State to deprive a person of a right
of appeal in circumstances where the person's human rights may
be affected; and if the decision or the certificate were to be
challenged in judicial review or similar proceedings, would the
Government, as a matter of course, give an undertaking to a court
that no steps would be taken which might put the person at risk
of an infringement of his or her human rights until such time
as the proceedings had been finally determined?
9. The Committee observes that a certificate under
proposed section 40A(2) of the 1981 Act would exclude any right
of appeal against deprivation. The Department disagrees with this
analysis. The effect of a certificate would not be to exclude
a right to appeal. Rather, in such a case, an appeal to the Special
Immigration Appeals Commission is provided for by clause 4(2)
of the Bill. Clause 4(2) inserts a new section (2A) into the Special
Immigration Appeals Commission Act 1997. The provision is similar
to that contained in paragraph 2 of Schedule 6 of the Bill referred
to by the Committee. The Bill proposes no restriction on the issues
which might be raised in such an appeal. Proposed new section
40A(6) of the British Nationality Act 1981, as amended in committee,
would prevent the making of a deprivation order until such time
as an appeal under the 1997 Act had been concluded or the time
for making such an appeal had expired.
What are the reasons for excluding independent,
accessible, high quality, free or affordable legal advice from
the list of services which could be provided under clause 25,
and what other sources of such advice could be made available
to residents in accommodation centres?
10. Clause 25 (now clause 26) does not contain an
express power for the Secretary of State to provide legal advice
to a resident of an accommodation centre. The Department is committed
to providing access to free, independent, quality legal advice
to residents of accommodation centres. It is intended that that
advice will be provided and funded by the Legal Services Commission
by virtue of the Lord Chancellor's existing statutory powers.
There is therefore no need for an express power to provide legal
advice to residents of accommodation centres in what is now clause
26 of the Bill.
11. Legal advice and assistance may be provided to
accommodation centre residents through on site provision, local
supply or a combination of both and will depend on the location
of each accommodation centre. Facilities will be provided within
Accommodation Centres for use by solicitors and advice agencies.
12. In addition, the Department grant funds to the
Refugee Legal Centre, the Immigration Advisory Service and the
Northern Ireland Law Centre to enable them to provide advice to
immigration and asylum appellants. This is currently provided
under section 81 of the Immigration and Asylum Act 1999. Clause
93 of the Bill provides an equivalent power for those with a right
of appeal under Part 5 of the Bill (Immigration and Asylum Appeals).
Subject to geographical constraints, it would be open to accommodation
centre residents who are also appellants to access this advice,
although we expect that most will take advantage of the local
or on-site services provided by the Legal Services Commission.
Does the Government consider that, but for the
reservation to the CRC, the provisions of Part 2 of the Bill (
accommodation centres ) would be likely to violate the rights
arising under the CRC? Does the Government intend to maintain,
and is it satisfied of the legality of, the reservation under
the CRC?
13. The Government intends to maintain the United
Kingdom's reservation and is satisfied of its legality. It is
necessary to maintain the reservation because it preserves the
integrity of our immigration laws. It is needed to make it clear
that nothing in the CRC is to be interpreted as creating further
legal obligations in respect of those subject to immigration control
or to allow entry to be gained to the United Kingdom simply in
order to make use of the rights under the CRC.
14. In general, the Department thinks that Part 2
of the Bill should not have an adverse affect on the rights of
the child and would note that in any event nothing in the United
Kingdom's reservation under the CRC would prevent the Department
from having regard to the rights set out in the CRC even where
the circumstances were within the terms of the reservation. The
Government does consider that its reservation applies to children
in the United Kingdom in accommodation centres. There is a need
to ensure greater contact between the Home Office and asylum seekers
and their dependants and one of the purposes of accommodation
centres is to speed up the time taken in making decisions on claims
for asylum to facilitate the swift integration of those permitted
to remain, and to facilitate the removal of those who do not establish
a right to remain.
15. The Committee drew attention in paragraph 4 of
their letter to Article 3 (1) of the CRC which requires that the
best interests of the child shall be a primary consideration in
all actions concerning children. The Government will take the
best interests of the child into account in relation to accommodation
centres. Children will be able to participate in the activities
provided within the centre, including sports facilities, arrangements
for religious observance, and education.
16. The Committee also drew attention to Article
9 (1) which requires that children should not be separated from
their parents except where that would be in the best interests
of the child. Children will not normally be separated from their
parents in an accommodation centre. Although there is ongoing
consideration into precisely how "child" will be defined,
a dependant child of an asylum seeker will be a class of dependants
to be prescribed in Regulations to be made under clause 18 of
the Bill. If it were in the best interests of the child not be
accommodated with their parents, for example for child protection
reasons, the child would be cared for by the local authority and
would not be placed with their parents in an accommodation centre.
Child protection issues will be fully addressed through liaison
with the relevant agencies. Further, unaccompanied asylum seeking
children will not be placed in accommodation centres.
17. The Committee further drew attention to Article
10 (1) (family reunification). Part 2 of the Bill should not affect
questions relating to family reunification. Part 2 provides for
a system of support for asylum seekers and their dependants. Part
2 of the Bill does not affect the rights under Article 10 (2),
which require the State to respect the right of the child and
his or her parents to enter their own country.
How would the following matters be taken into
account in decision making?
18. The Committee noted that it was concerned that
allowing children to be accommodated in accommodation centres
might risk violating a number of human rights unless account was
taken of those rights in decisions about residence requirements
and allocation to particular centres, but accepted that much would
depend on the regime and facilities in each accommodation centre.
19. The Department can assure the Committee that
families will be accommodated at accommodation centres which have
facilities suitable for families and in deciding whether a child
should be placed in an accommodation centre the Department will
assess whether the centre has the necessary facilities to cater
for the child's needs. Further, as with all other persons in the
United Kingdom, the rights of asylum seekers and their children
guaranteed by the Human Rights Act 1998 will be fully respected.
20. Specifically, the Committee asked for clarification
as to what steps would be taken to safeguard children's rights
in the following respects.
a) The requirement that the best interests
of the children should be a primary consideration (CRC Article
3)
21. The Department will certainly take into account
the best interests of a child in relation to accommodation centres.
Children will be accommodated with their families (unless it was
in their best interests not to do so) and would only be accommodated
in accommodation centres which had facilities suitable to their
needs. Through regular discussions with bodies such as the Refugee
Council the Department considers that it will be able to address
issues of relevance to children which have emerged through the
particular channels available to such groups.
b) Threats from the very nature of communal
life to the right to respect for private and family life (ECHR
Article 8) and the right to privacy and family life (CRC Articles
16 and 18)
22. The Department does not anticipate communal life
having a significant impact upon private and family life. Residential
facilities on site will include accommodation for families separate
from that provided for single adults.
23. To the extent there is any impact upon private
and family life, the Department would expect this to be minimal,
and justifiable under Article 8 (2) ECHR as being in accordance
with the law and necessary in the interests of the economic well
being of the United Kingdom in the sense that accommodation centres
are hoped to play a key part in maintaining an effective system
of immigration control.
24. As regards Articles 16 and 18 of the CRC, a child
in an accommodation centre would not be subjected to arbitrary
or unlawful interference with his or her privacy, family, home
or correspondence. In so far as is relevant, Article 18 obliges
States to use their best efforts to ensure recognition of the
principle that both parents have common responsibilities for the
upbringing and development of the child; and that the best interests
of the child will be their basic concern. Further, States are
required, for the purpose of guaranteeing and promoting the rights
in the CRC, to render appropriate assistance to parents and legal
guardians in their child raising responsibilities and shall ensure
the development of institutions, facilities and services for the
care of children. By accommodating the child with their parents
in an accommodation centre with facilities suitable for families
and their wellbeing and support, it is considered that the rights
in Article 18 would be respected.
c) The right to participate in social, leisure,
recreational and cultural activities available to other children
(CRC Article 31)
25. We intend to ensure that facilities in the accommodation
centre are adequate for the needs of children accommodated there.
There will be facilities for recreation, including sports facilities,
education will be provided, and there will be arrangements for
religious observance.
d) The right to make cultural links and participate
in normal community life, especially if accommodation centres
were in isolated areas
26. The Department intends the accommodation centres
to develop links with local communities in order to further an
understanding of the centres. The Department also wants viable
communities to develop within the centres themselves and is intending
to administer the centres in such a way that there is a limited
number of languages spoken in each centre. Reference has been
made above to the sorts of facilities which will be available
to children in accommodation centres.
e) The right of children to express their
views in all matters affecting them, and the steps that would
be taken to ensure that their views would be given due weight
in accordance with their age and maturity
27. The Department would certainly have regard to
any views a child may express and is considering how best the
views of residents of accommodation centres, including children,
can be made available to the manager of each centre and to the
Secretary of State. At the time of the application for support
the application is likely to be completed by the child's parent
or guardian. However, as with the present form for applying for
support under Part VI of the Immigration and Asylum Act 1999,
there will continue to be space for the person applying for support
to include any other information which might be relevant which
could of course include relevant information about their children.
f) Generally, the right of children to benefit
from appropriate protection for their rights under the CRC and
other human rights instruments, as required by CRC Article 22
28. Although the United Kingdom's reservation from
the CRC will be maintained in order to preserve the integrity
of our immigration laws, nothing in the reservation prevents the
Department from giving effect to the rights set out in the CRC.
The rights guaranteed by the Human Rights Act 1998 certainly apply
to children of asylum seekers in the United Kingdom and will be
respected.
Can you confirm that the Government would exercise
the powers set out in clause 25 of the Bill so as to meet the
United Kingdom's obligations under the CRC Articles 2 and 28 and
the ECHR Articles 14 and 2 of Protocol No.1, and in particular
so as to ensure that adequate and effective educational provision
would be made in every accommodation centre in which any child
of school age was to reside for more than a very few days, and
that the quality of the educational provision and facilities would
be equivalent to those available in maintained schools, despite
the fact that centres would not be treated as schools for the
purposes of the Education Act 1996
What differences do you expect there to be between
the quality of educational provision made for children in accommodation
centres, children of asylum seekers in community and other children
respectively; and if there are such differences, what is the justification
for differentiating between educational provision for children
in accommodation centres, children of asylum seekers in the community
and other children?
29. The Department together with the Department for
Education and Skills will ensure that education will be provided
to children in accommodation centres without discrimination in
accordance with Article 14 of, and Article 2 of Protocol No 1
to, the ECHR. The education provided in accommodation centres
will be of an equivalent quality and will mirror the scope of
that provided in schools.
30. Adequate and effective education, equivalent
to that in maintained schools, will be provided in each accommodation
centre where a child of school age is to reside. The Department
will ensure that the National Curriculum (or equivalent in Scotland
and Wales) is provided, tailored where necessary to meet the particular
needs of residents. For example, rather than teach the National
Curriculum in 2 or 3 year stages, it might be more appropriate
to teach it as a series of projects around a theme, which can
create a more coherent body of work over the short period that
children are expected to remain in the accommodation centre. It
is also expected that more time will be allowed to be spent on
teaching English and less on a modern foreign language in respect
of those children for whom English is not their language. Citizenship
lessons could be tailored to make a link between a child's indigenous
culture and the range of British cultures the child will encounter.
Also, practical things such as learning about the currency and
British institutions could be incorporated.
31. Children in maintained schools, whether they
are asylum seekers or not, are entitled to the same education.
The education provided to children in accommodation centres will
meet the needs of the children and the Department's need to operate
a fast and efficient asylum system. The education provided in
accommodation centres is intended to make the integration into
the school system easier and will certainly not place the child
at a disadvantage in relation to "catching up" should
they be permitted to remain in the United Kingdom and enter the
mainstream school system.
32. The Department considers that a transient population
of children within the accommodation centre, who might only remain
for a few months before moving on, would be highly disruptive
to local schools and disadvantage their regular pupils. There
may well be difficulties with local schools being oversubscribed,
and difficulties in transporting children from an accommodation
centre to a school and back each day. The education in the accommodation
centre is intended to be provided in a way which is supportive
to the needs of the children, for example there will be interpreters
available and other care for the children provided on site. There
are also issues relating to the asylum process and support, particularly
the need to manage contact with asylum seekers and importantly
the effect which removing families with no basis of stay, but
whose children have already integrated into the community, has
on children who are removed from the United Kingdom.
33. The Department wishes to stress that there will
be no relaxation in the quality of the education provided. Ofsted
currently inspect schools in England where asylum seekers are
being educated and they will inspect the education provision in
accommodation centres to the same standard. They will also have
the same powers if the education provision in the centres falls
below an acceptable standard. If accommodation centres are sited
in Wales or Scotland, similar arrangements will be made with Estyn
in respect of Wales and equivalent arrangements will be made in
Scotland.
34. Whilst the Department is confident that the policy
of educating children of asylum seekers required to reside in
an accommodation centre within the centre will prove to be a success,
this will be one of the criteria used to evaluate the initial
trial of accommodation centres. Should, however, accommodation
centres be unable to meet the specific learning needs of a child
in the short term, there is provision in the Bill for the education
to be provided elsewhere.
What are the reasons for allowing the Secretary
of State to provide facilities for a child with a statement of
special educational needs under clause 25 (1) (g) (medical facilities)
rather than clause 25 (1) (f) (education and training).
35. The reference to clause 25 (1) (g) in clause
30 (6) was an error on Introduction which arose from late changes
made to clause 25 (now clause 26). A government amendment was
tabled to reflect this, and the Committee will see that in the
current print of the Bill as amended in Standing Committee, clause
31 (7) refers to clause 26 (1) (f).
Would you normally regard it as appropriate to
exercise your discretion in favour of providing assistance with
housing to a destitute asylum seeker and his or her dependants
where there would otherwise be a risk of violation of rights under
either or both of Article 3 ECHR or ICESC Article 11 (1), together
with the anti-discrimination provisions of ICESE Article 2 (2)
and ECHR Article 14?
36. As is the case under section 95 (1) and (2) of
the Immigration and Asylum Act 1999, the Secretary of State may
provide accommodation and other support to asylum seekers or dependants
of asylum seekers who appear to him to be destitute or likely
to become destitute within a prescribed period (the period currently
prescribed is 14 days). If an asylum seeker requests support and
is eligible for support, the National Asylum Support Service (a
part of the Home Office Immigration and Nationality Directorate)
will offer support. Subject to the comments below about clause
23 of the Bill, the same would be true of a first application
for support made under Part 2 of the Bill.
37. Clause 27 of the Bill provides that support in
an accommodation centre may be made subject to conditions of residence,
and that a person may be required to leave the accommodation centre
if a condition of residence is breached. However, the person concerned
is not prevented from reapplying for support, and the Secretary
of State would have a discretion to reinstate support if appropriate,
although clause 27 (8) allows the Secretary of State to have regard
to previous breaches of condition when considering such a subsequent
application for support.
38. The Department considers that it is reasonable
to impose reasonable conditions subject to which support may be
provided. In appropriate cases, if those conditions are breached,
the Department would want the ability to withdraw support. The
Department does not consider that Article 3 ECHR would be breached
simply by withdrawal of support resulting in the asylum seeker
becoming destitute. However, it is accepted that in some circumstances
Article 3 might be engaged by the withdrawal of support. Careful
consideration will be paid to the circumstances of any particular
case when deciding whether or not to withdraw support.
39. Subject to the obligations imposed by Article
3 ECHR, the Department considers it reasonable that if an asylum
seeker from whom support had been withdrawn for breaching a condition
of residence, for example failure to reside at the accommodation
centre without a good reason, the Secretary of State should be
able to take this into account when deciding whether or not to
re-offer support should the asylum seeker re-apply for support.
The Secretary of State retains a discretion to provide or reinstate
support even if he had previously withdrawn it. This discretion
will allow support to be reinstated if appropriate on the facts
of each particular case if not to do so would involve a breach
of Article 3.
Would an individual's responsibility (or lack
of responsibility) for the behaviour of another be taken into
account when deciding (i) whether to require them to leave an
accommodation centre, and (ii) whether to assist either or both
of them in obtaining alternative accommodation, and if so, how
would it be taken into account.
40. An individual's responsibility for the behaviour
of another would be taken into account when deciding whether to
require them to leave the accommodation centre and whether to
offer an alternative form of support. And if it was decided appropriate
to require the asylum seeker and their dependants to leave the
accommodation centre, an individual's responsibility for the behaviour
of another would be taken into account when deciding whether to
re-offer support should that individual apply for support again.
41. If a person is required to leave an accommodation
centre otherwise than on the grounds that they are no longer an
asylum seeker or dependant of an asylum seeker or that support
is to be provided under a different provision, or if a person
is refused support because the Secretary of State decides that
they do not qualify for support it is important to bear in mind
that there will be a right of appeal to an Asylum Support Adjudicator
(see clause 45 of the Bill inserting a new section 103, 103A and
103B into the Immigration and Asylum Act 1999).
42. In circumstances where there was no breach of
Article 3 of the ECHR, the Department does not consider that Article
11 ICESC would be breached. Further, as regards Article 14 ECHR
and Article 2.2 of the ICESC, the Department are not aware that
any of the grounds set out in those articles would apply. Even
if asylum-seekers fall under the head of "other status"
(which the Department does not consider to be the case) there
will be no discrimination between asylum seekers or between asylum
seekers and other categories with objective and reasonable justification.
Does the Government intend to clarify the correct
approach to these matters in the form of written guidance and,
is so, can a copy of the guidance be provided to the Committee?
43. The Department will issue guidance to case-workers
in due course which will be available publicly.
Non-accommodation support for asylum-seekers and
breach of conditions
How would any order made under clause 34 safeguard
the rights referred to above?
Would you be prepared to send any such order to
the Committee in draft to enable it to consider the provisions
before they come into force, bearing in mind that the order would
be made by statutory instrument subject to annulment, rather than
requiring approval before taking effect (clause 34(4))?
44. Clause 34 (now clause 37) is an enabling power
that would allow the ending of the subsistence only support option
either completely or in specified circumstances. In considering
when and how to exercise the power, Ministers will take account
of the need to comply with the provisions of the ECHR specified
by the Committee. It does not therefore appear necessary for the
Committee to see a draft of any order before it takes effect.
How would any order made under clause 35(7) safeguard
the right not to be subject to degrading treatment under ECHR
Article 3?
Would you be prepared to send any such regulations
to the Committee in draft to enable it to consider them before
they come into force?
45. We assume the Committee is referring to clause
35 (5) (now clause 38 (6)) which substitutes provisions for the
existing section 95 (3) to (8) of the 1999 Act. The new subsection
(7) of section 95 will replace what is currently section 95 (8).
A provision specifying what are not to be regarded as essential
living needs is already contained in Regulation 9(4) of the Asylum
Support Regulations 2000. No regulations have been made specifying
what are to be regarded as essential living needs. In considering
what use to make of the provision referred to by the Committee
Ministers would take account of obligations under the ECHR and
it does not therefore appear necessary to consult the Committee
on the any draft before the regulations come into force.
Can you confirm that support would be reinstated
if refusing to reinstate it would put the applicant at risk of
undergoing suffering of a kind and degree which could amount to
degrading treatment contrary to ECHR Article 3?
46. Where support has been ended it remains open
to an asylum seeker to apply for it to be reinstated. In considering
whether or not to reinstate support, consideration would be given
to any representations that failure to provide support would constitute
treatment contrary to Article 3 of the ECHR.
The Committee understands that the Government
would intend the maximum level of support to be set at 70 per
cent of income support. How could this provision be implemented
in a way that would avoid discriminating between classes of asylum-seekers,
and between asylum-seekers and other immigrants, in relation to
their standard of living, in breach of the requirements of Article
2(2) and Article 11(1) of the ICESC?
47. The cash support for adult asylum seekers supported
by the National Asylum Support Service is currently set at 70
per cent of income support. However where a supported person is
also receiving accommodation that person also has all utilities
bills met and has fully furnished accommodation including such
items as bed linen, kitchen utensils etc. We do not believe that
setting the maximum level of cash support for asylum seekers will
be discriminatory. We are not aware that any of the grounds set
out in article 2 (2) would apply. Even if asylum-seekers fall
under the head "other status" (which we do not think
is the case) there will be no discrimination between asylum seekers
or between asylum seekers and other categories without objective
and reasonable justification. In addition, the support to which
asylum seekers are entitled meets the threshold required by article
11.
Is it intended that the power given by clause
45 (8) would be exercisable only in the circumstances set out
in clause 45 (8)? Why does clause 45 not expressly require reasonable
grounds in all cases? In your view, are the powers also subject
to other restrictions, such as limitations on time for which a
person may be detained, and, of so, why they are not expressly
stated on the face of the Bill.
48. The provision in clause 45 (8) (now clause 49(7))
applies only to a decision to detain made under clause 49. For
example, if the Secretary of State decides to detain under clause
49 (2) (c) pending a decision by the Secretary of State to set
removal directions, clause 49 (8) provides that the power to detain
is exercisable where the Secretary of State has reasonable grounds
to suspect that he may set removal directions.
49. This does no more than preserve the current position
in respect of the powers of an immigration officer. The Immigration
and Asylum Act 1999 amended paragraph 16(2) of Schedule 2 to the
1971 Act to allow detention where there were reasonable grounds
for suspecting that someone was a person in respect of whom removal
directions could be set. Before that amendment, the power to detain
was dependant on the person actually being liable to removal under
those paragraphs.
50. However, if there are no reasonable grounds for
suspecting that the person comes within one of the categories
of person liable to be detained under clause 49 of the Bill, the
detention would not be lawful.
51. The Department accepts that the power to detain
in clause 49, as is the case with paragraph 16 of Schedule 2 to
the Immigration Act 1971 and paragraph of Schedule 3 to that Act,
is subject to the implied limitations made clear by the case of
R. v. Governor of Durham Prison, ex parte Singh [1984]
1 All ER, 983 (and confirmed in Tan Te Lam and others v Superintendent
of Tai A Chau Detention Centre and another [1996] 4 All ER,
256) and limitations flowing from Article 5 ECHR. These require
that the detention be for the purpose of power, that the Department
be acting with reasonable expedition, and that detention does
not go on for an unreasonable time in all the circumstances with
regard to the purpose of detention. These are well established
limitations on the power to detain. They are referred to in Departmental
guidance, and the Department, in keeping with the position in
relation to the current powers to detain in the 1971 Act, sees
no reason for setting them out on the face of the Bill. In any
event, the same limitations are clear from the caselaw in relation
to Article 5 ECHR (for example, Chahal), and the Human
Rights Act 1998 would require the Secretary of State not to act
incompatibly with Article 5 ECHR when deciding whether to exercise,
or continue to exercise, the power to detain in clause 49.
52. Placing a fixed time limit on the duration of
detention would require an arbitrary period to be identified which
would have no regard to individual circumstances and which might
encourage certain detained persons to frustrate and prolong immigration
and asylum processes simply in order to reach a point where their
detention would have to come to an end. The Department believes
that the safeguards referred to above are sufficient without an
arbitrary time limit being expressed on the face of the Bill.
Is it intended to take account of the rights of
the children under Article 37 CRC when making decisions about
the detention of children under powers to be conferred by clause
45 of the Bill, and if so, how?
53. All decisions to detain are taken on the basis
of the circumstances of the individual concerned. Such decisions
are not arbitrary. Detention is used sparingly and lasts for the
minimum period necessary for the purposes for which it was authorised.
It must be stressed that unaccompanied minors are detained only
in the most exceptional circumstances and then normally only overnight
whilst alternative arrangements are made for their care and safety.
Where children are detained as members of a family whose detention
is considered necessary, this is regrettable but is far better
than the alternative of separating the family. Nevertheless, the
detention of a family with children is a very serious step and
is not one which is taken lightly. The interests of the child
concerned would naturally be an important factor in deciding whether
or not detention should be authorised.
What steps would be taken to ensure that appropriate
legal advice and assistance is provided to detainees in order
to allow them to take proceedings to test the legality of their
detention?
54. Although detainees are free to select their own
legal representatives, they are advised at the time of their detention
and during its course that they may contact the Immigration Advisory
Service and the Refugee Legal Centre for independent, free advice
and representation.
Would the Government automatically give an undertaking
to the court to suspend action to remove a person from the United
Kingdom pending the final determination of any such application
which was alleged to engage a Convention right, including applications
for judicial review of certificates made by the Secretary of State
under clauses 72(2), 74 and 76?
55. Clause 77 of the Bill sets out those decisions
which attract an appeal from within the United Kingdom to the
Immigration Appellate Authorities. It includes reference to decisions
that the applicant's removal from the United Kingdom would be
in breach of the applicant's Convention rights.
56. If an applicant's statutory appeal rights have
been exhausted (and this will be included in the new statutory
review to the Administrative Court against decisions by the Tribunal
to refuse leave to appeal), we would expect that the applicant
would have had the opportunity to put forward all relevant grounds
including Convention ones. If an application for judicial review
is lodged with the Administrative Court immediately after that
time or by a person who had chosen not to go through the appeals
process, we would not necessarily suspend removal action if the
application was alleged to engage Convention rights but would
consider each case on its merits.
Penalties under 'authority to carry' schemes
What are the kinds of penalties which might be
imposed, and what steps, if any, would be taken to ensure that
they would meet the requirements of Article 6 of the ECHR in the
light of the decision in International Transport Roth GmbH
and others v. Secretary of State for the Home Department[152]
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))?
57. No firm decisions have been taken on the nature
of the penalties that would be imposed on carriers who bring to
the UK individuals who are subject to an authority to carry (ATC)
scheme, when such authority had not been sought or been refused.
However, clause 101 enables any regulations to make provision
similar to those that apply in the case of regulations relating
to charges for passengers without documentation. It is possible,
therefore, that any penalty would be fixed in line with that applied
to carriers who bring undocumented passengers to the UK.
58. Any penalties would attract the same safeguards
as are to be applied, following Roth, to charges for passengers
without documentation.
Roth
As this amendment will be intended to remove an
incompatibility with a Convention right, declared by the court
in Roth, by primary legislation, can you give
an undertaking to ensure that this Committee receives a copy of
the proposed amendment to allow it to consider the human rights
implications in good time and to report to each House before the
amendment is considered in Committee?
Can you provide copies of drafts of the Codes
of Practice to us at the earliest opportunity, so that the Committee
may consider their contribution to safeguarding human rights?
59. The amendments to implement Roth will not be
tabled until Report. Unfortunately, there is likely to be little
time to distribute the amendments before they are tabled and at
the time of writing the amendments are still very much work in
progress. They have proved more complex than we originally thought.
The Code of Practice with which drivers must comply in order to
avoid liability to a penalty will remain the same. In order to
determine the level of penalty to be given to a responsible person,
the Secretary of State will take account of factors which will
be set out in a separate code of practice. This code will be placed
in the House libraries when the clauses are tabled and we will
send you a copy simultaneously.
Why would proposed new section 25(2) include 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), and in your view, would imposing criminal liability on
someone who knowingly and for gain facilitates movements of asylum-seekers
in the United Kingdom contrary to proposed new section 25(1) amount
to a restriction on the movements of refugees going beyond those
which are necessary, violating Article 31(2) of the Convention
relating to the Status of Refugees?
60. The reference to the entitlement to a non-national
to "travel within" a Member State in the definition
of "immigration law" in section 25(2) was intended to
capture those Member States who have special provision in their
immigration laws relating to transit passengers. The Department
accepts that the reference to "travelling within" a
Member State has given rise to some confusion and intends to amend
this reference to refer in terms to "transit".
61. There is no offence of facilitating the movement
of asylum-seekers wholly within the UK so the question of a possible
violation of Article 31(2) does not arise.
62. The Home Office considers that this Memorandum
answers the points raised in the Chair to the Committee's letter
and will inform the committee of any representations we have received
relating to human rights implications of the Bill. If the Committee
requires anything further, please let the Department know.
152 [2002] EWCA Civ 158, CA Back
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