Joint Committee On Human Rights Seventeenth 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.


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.


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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