Joint Committee On Human Rights

Joint Committee On Human Rights Third Report

Government Bills drawn to the special attention of each House

1 The Asylum and Immigration (Treatment of Claimants, etc.) Bill

Date introduced to the House of Commons
Date introduced to the House of Lords
Current Bill Number
Previous Reports
27 November 2003

House of Commons 5
none

Background

1.1 The Asylum and Immigration (Treatment of Claimants, etc.) Bill is a Government Bill, introduced to the House of Commons on 27 November 2003. The Home Secretary has made a statement under section 19(1)(a) of the Human Rights Act 1998 that in his opinion the Bill is compatible with Convention rights. Explanatory Notes to the Bill have been published[1] (hereafter "EN"). They deal with the Government's view as to the effect of the Bill on Convention rights.[2]

1.2 We have received numerous representations about the effects of the Bill, and the House of Commons Home Affairs Select Committee has also reported on the Bill.[3]

1.3 This Report offers our preliminary reflections on the human rights implications of the Bill. We have put a number of questions to the Government arising from this preliminary consideration.[4] When we have received the Government's responses, we expect to report our conclusions.

The scheme of the Bill

1.4 The Bill deals with a number of different matters, and its overall scheme is as follows.

New or extended criminal offences

1.5 Clauses 1 to 5 would create four new criminal offences.

a) Assisting unlawful immigration (clause 1): this would amend section 25 of the Immigration Act 1971 to allow the Secretary of State to extend by order the list of States, to be known as the "Schengen Acquis States", to assist unlawful immigration into which it will be a criminal offence in the United Kingdom. The Secretary of State's power would be exercisable only when the Secretary of State thinks it necessary for the purpose of complying with the United Kingdom's obligations under the European Community Treaties. We do not consider that this provision raises a human rights issue requiring to be drawn to the attention of either House at this time.

b) Entering the United Kingdom without an immigration document which is in force and satisfactorily establishes the identity and nationality or citizenship of the person and any dependent child would for the first time become a criminal offence (clause 2). The crucial time would be the first occasion on which the person is interviewed by an immigration officer. There would be a power to arrest without warrant on reasonable suspicion that a person is committing this offence, and other investigatory powers would be applicable. There would be various defences. This provision in our opinion raises issues relating to discrimination and the Refugee Convention. This issue has been raised with the Government,[5] and we expect to report further on this matter.

c) Forging immigration documents (other than passports) would be made an offence contrary to the Forgery Act 1981, section 5 (clause 3). This provision seems to us to give rise to no human rights issue requiring to be drawn to the attention of either House at this time.

d) Clauses 4 and 5 would create a new offence of arranging or facilitating the arrival in the United Kingdom of a passenger whom the person intends to exploit through slavery or forced labour within the meaning of Article 4 of the ECHR, sale or coerced donation of organs for transplant, or the use of force, threats or deception to induce the passenger to provide any services or benefits for another person or to enable another person to acquire any benefit. The person assisting entry would be liable if any of the conduct to which the clauses relate is done inside the United Kingdom, or is done outside the United Kingdom by a British citizen, a British overseas territories citizen, a British National (Overseas), a British Overseas Citizen, or a British subject or British protected person under the British Nationality Act 1981. In our view, this gives rise to no human rights issue requiring to be drawn to the attention of either House at this time.

Assessing the credibility of a claimant for asylum or for admittance on human rights grounds

1.6 Clause 6 attempts to provide a framework of relevant considerations to be taken into account when a decision-maker in the immigration process is deciding whether or not to believe any statement made by or on behalf of a person who makes an asylum claim or a human rights claim. This provision in our opinion raises human rights issues. We have raised these questions with the Government,[6] and we expect to report further on this matter in the near future.

Withdrawal of support from claimants whose asylum claim has failed

1.7 Clause 7 would amend Schedule 3 to the Nationality, Immigration and Asylum Act 2002 by inserting a new paragraph 7A extending the power of the Secretary of State to deprive an unsuccessful asylum-seeker of support from public funds. This raises issues relating to ECHR Articles 3 and 8. We have raised these questions with the Government,[7] and we expect to report further on this matter in the near future.

Additional investigatory powers for immigration officers

1.8 Clause 8 would extend the powers of immigration officers, allowing them to arrest people on reasonable suspicion that they have committed a wide range of offences, including bigamy and crimes under the Theft Act 1968 and similar legislation, and to conduct searches. These powers in our opinion raise issues relating to ECHR Articles 5 and 8. We have raised these questions with the Government,[8] and we expect to report further on these matters in the near future.

Fingerprints

1.9 Clause 9 would increase the scope of powers to fingerprint people in the immigration process. Instead of waiting until a direction for removal has been given, it would be possible to take fingerprints of a person as soon as a decision has been taken to reject a claim for leave to remain. It would thus be available from the beginning of the process of enforcing removal. This engages the right to respect for private life under ECHR Article 8.1, but in our view it is likely to be justifiable under Article 8.2 as a proportionate response to a pressing social need to prevent crime by making it more difficult for people whose applications have been rejected to remain unlawfully in the United Kingdom.

New system for handling appeals

1.10 Clause 10 of, and Schedules 1 and 2 to, the Bill would replace immigration adjudicators and the Immigration Appeal Tribunal with a single-tier Asylum and Immigration Tribunal, and would seek to cut off all appeals to and judicial review by the ordinary courts in immigration matters (although the Special Immigration Appeal Commission would be unaffected). These provisions cause us serious concern in relation to the attempt in the Bill to limit the remedies for violations of Convention rights provided by section 7 of the Human Rights Act 1998. We consider this further below, at paragraphs 23 to 28. These provisions also raise issues relating to the right to an effective remedy for a violation of Convention rights under ECHR Article 13, as well as serious issues relating to the maintenance of the rule of law. We have raised these issues with the Government,[9] and expect to report further on them in the near future.

States which are "safe" for restricted descriptions of people

1.11 Section 94 of the Nationality, Asylum and Immigration Act 2002 sets out a list of States which are presumed to be safe places for asylum and human rights purposes, and allows the Secretary of State to amend the list. Once a State is on the list, a person claiming to be the victim there of persecution falling within the Refugee Convention, or of a violation of human rights, can be presumed to be making an unfounded claim. He or she can be returned to that State, and has no right to appeal from inside the United Kingdom against the decision that his or her claim is unfounded. There are some States which are known to be unsafe for people of a particular gender, language, race, religion, nationality, membership of social or other group, political opinion or other attribute, but are safe for others. Clause 11 of the Bill would allow the Secretary of State to specify that asylum and human rights claims by people from such a State are unfounded (because the State is "safe" for those people) only if the claimants fall within (or outside) categories defined by reference to those criteria. Clause 11 of the Bill seems to us to be likely to make the operation of the "safe country" system more responsive to local conditions and less likely to lead to a violation of human rights, but in our view the idea of a "safe country" is still questionable. We develop our reasons for this view further, in combination with discussion of clause 12, below.

Removal and detention pending removal

1.12 Clause 12 of the Bill, and Schedule 3 to it, would replace existing provisions for removing asylum seekers to "safe" countries with a list of countries which are presumed to be safe for everyone for the purposes of both the Refugee Convention and the Convention rights under the ECHR. There are 26 countries on the list. The Secretary of State would then be empowered to create a second list, by order, of countries which are presumed to be safe for the purposes of the Refugee Convention, but not the ECHR rights. In addition, the Secretary of State would be empowered to certify that a particular country which is not on the lists would be safe for a specified person, so that that person could be removed there. The provisions of clause 12 in our view raise significant human rights issues. These are explained below at paragraphs 29 to 33.

Removal of power to grant bail

1.13 Clause 13 of the Bill would amend paragraph 2 of Schedule 3 to the Immigration Act 1971 to allow a person whose deportation has been recommended by a court to be detained without allowing the court to free the person on bail. In our view the provisions of Clause 13 engage the right to liberty under ECHR Articles 5, 8 and 13. We have raised these questions with the Government,[10] and expect to report further on this matter in the near future.

Deportation or removal: co-operation

1.14 Clause 14 would allow the Secretary of State to require a person to take specified action, including providing information, documents, identification data and co-operation, in order to facilitate that person's deportation or removal by enabling a travel document to be obtained for the person. Failure to co-operate would be an offence. In our view Clause 14 raises issues about the right to respect for private life under ECHR Article 8. These questions have been raised with the Government,[11] and we expect to report further on them in the near future.

Electronic monitoring

1.15 Clause 15 would allow electronic monitoring to be imposed on an applicant for immigration to complement a residence restriction or as a condition for immigration bail, or as an alternative to a reporting restriction. The imposition of electronic monitoring engages the right to respect for private life under ECHR Article 8.1. In our view it may be justifiable under Article 8.2 as being in accordance with the law and being necessary in a democratic society for the prevention of crime (in this case illegal immigration). However, there would be no power to challenge the decision to impose a monitoring requirement, because of the restriction on remedies contained in clause 10. There is in our view therefore a risk that this would violate the right to an effective remedy under ECHR Article 13. We have raised this matter with the Government,[12] and expect to report on it further in the near future.

Controls over immigration advisers

1.16 Clauses 16 to 19 would impose a number of controls over people offering advice and assistance to immigrants.

1.17 Clause 16 would allow a JP to issue a warrant permitting the Immigration Services Commissioner to enter and search premises for material of substantial value to the investigation of an offence against section 91 of the Immigration and Asylum Act 1999 (provision of immigration advice or assistance by an unregistered person) in certain circumstances, even if the material consists of items subject to legal professional privilege or the categories of confidential or journalistic material known as excluded material and special procedure material under the Police and Criminal Evidence Act 1984. The provisions of Clause 16 in our opinion engage the right to respect for private life and correspondence under ECHR Article 8. We have raised this matter with the Government,[13] and expect to report further on it in the near future.

1.18 Clause 17 would insert a new section 92B in the Immigration and Asylum Act 1999 to create a new offence where a person offers to provide immigration advice or services (which include advertising such services) in circumstances where doing so would constitute an offence contrary to section 91. This does not seem to us to engage Convention rights.

1.19 Clause 18 would remove the right to appeal to the Immigration Services Tribunal against a decision to defer a decision in relation to the recognition of a provider of immigration advice or services, amending section 87(3) of the Immigration and Asylum Act 1999. In our view, this would not engage Convention rights.

1.20 Clause 19 would amend section 86 of the Immigration and Asylum Act 1999 to allow the Secretary of State to remove a professional body from the list of designated bodies whose members may provide immigration advice and services. It would also compel a designated body to comply with any request of the Commissioner of Immigration Services for the provision of information, either in general or in relation to a particular matter. The Secretary of State would be able to remove the body by order, if it has failed to provide effective regulation of its members' provision of such advice or services, or if it has failed to provide information in response to a request from the Commissioner of Immigration Services. In our view, this does not engage any Convention right.

Fees

1.21 Clauses 20 and 21 would allow the Secretary of State to charge a fee for applications for nationality, leave to remain, work permits, etc., in excess of the administrative cost of processing the application and reflecting the benefits which the Secretary of State thinks are likely to accrue if the application is successful. In our view there is a risk that the provisions of Clauses 20 and 21 could result in the immigration system operating in a discriminatory way, discriminating against people on the basis of their wealth, in contravention of ICCPR Article 26. This binds the UK in international law, although it does not form part of national law. This matter has been raised with the Government,[14] and we expect to report further on it in the near future.

General matters

1.22 Clauses 22 to 28 and Schedule 4 deal with matters of interpretation, money, repeals, commencement, extent and short title, and do not seem to us to require to be drawn to the attention of either House on human rights grounds.

Remedies for violations of Convention rights: the relationship between clause 10 of the Bill and section 7 of the Human Rights Act 1998

1.23 Our gravest concern about the provisions of the Bill relate to the apparent restriction it would impose on the remedies available under the Human Rights Act 1998. Clause 10(7) of the Bill would introduce a new section 108A into the Nationality, Immigration and Asylum Act 2002 which would cut off all appeals to and judicial review by the ordinary courts in immigration matters.[15] It would also exclude habeas corpus applications in immigration cases. The only remedy for a person wishing to challenge a decision of the proposed new single-tier Tribunal would be to ask the Tribunal to review its own decision[16] unless the person is challenging a certificate allowing the removal of the person to a safe country and treating the person's claim in this country as unfounded, or is alleging that a member of the Tribunal has acted in bad faith, in which case the High Court would be able to entertain an application for judicial review.[17] The President of the Tribunal would be allowed to refer a point of law for the opinion of an appellate court, but would be under no obligation to do so, and the opinion of the court would not bind the Tribunal when it comes to make its decision.[18]

1.24 These provisions raise a large number of issues on which we expect to report in due course. At present, we are particularly concerned by the proposed new section 108A(4) of the Nationality, Asylum and Immigration Act 2002, which provides that—

Section 7(1) of the Human Rights Act 1998 (c. 42) (claim that public authority has infringed Convention right) is subject to subsections (1) to (3) above.

Subsections (1) to (3) would seek to exclude the jurisdiction of the High Court to review decisions of the proposed new Tribunal.

1.25 Section 7(1) of the Human Rights Act 1998 is fundamentally important to the scheme of that Act and to the system of protection for Convention rights in the United Kingdom. It provides that a person claiming to be the victim of a violation by a public authority of a Convention right may bring proceedings against the public authority in "the appropriate court or tribunal", or rely on the Convention right in any legal proceedings. The effect of proposed new section 108A(4) of the 2002 Act would be that there would be no such "appropriate court or tribunal" when it is alleged that the proposed new Tribunal has itself acted incompatibly with a Convention right, save for a request to the Tribunal itself to review its decision under proposed new section 105A.

1.26 The Government says that the Lord Chancellor would be able to make rules providing for such a challenge to go to a court or tribunal specified in the rules,[19] but does not explain the source of the power. It probably refers to the power in section 7(2) and (9)-(13) of the Human Rights Act 1998 to make rules identifying particular courts or tribunals as the appropriate court or tribunal to hear claims under section 7(1) of the 1998 Act. However, we consider it very likely that any such rule purporting to allow a challenge to a court in an asylum or immigration matter would, if the Bill is enacted, be invalid and void. As subordinate legislation, it would not be valid if it is inconsistent with the primary legislation contained in proposed new section 108A(1) to (3) of the Nationality, Immigration and Asylum Act 2002. In any case, it would appear inherently unlikely that any such power would be used, if the provisions of clause 10 as a whole accurately reflect current Government policy.

1.27 We are deeply concerned about any provision in a Bill which seeks to make an important provision of the Human Rights Act 1998 subject to other legislation, particularly when the later legislation attempts to restrict remedies for violations of Convention rights by excluding the jurisdiction of the ordinary courts. The power and duty of ordinary courts to provide remedies for Convention rights is fundamental to the ECHR. As the European Court of Human Rights observed in Golder v. United Kingdom,[20] "One reason why the signatory Governments decided to "take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration" was their profound belief in the rule of law. … And in civil matters one can scarcely conceive of the rule of law without there being a possibility of access to the courts." It was also at the centre of the Government's scheme for "bringing rights home" to the United Kingdom. Limiting the scope of the Act's scheme of remedies in particular areas of administration and decision-making would set a dangerous precedent.

1.28 We regard the proposal to restrict the remedial framework of section 7(1) of the 1998 Act through the proposed new section 108A(4) of the 2002 Act as being inherently objectionable as an attack on an important element of the scheme for protecting Convention rights in the United Kingdom. We draw this matter to the attention of each House. We will report further when the Government has responded to our questions.

Rights to appeal and "safe countries"

1.29 Clause 11 of the Bill would extend the power of the Secretary of State under section 94 of the Nationality, Immigration and Asylum Act 2002 to certify a human rights or asylum claim as clearly unfounded, allowing the claimant to be removed without consideration of the claim on its merits where the Secretary of State is satisfied that the claimant is entitled to reside in a "safe country" which appears in a list made by the Secretary of State by order. The clause would allow the Secretary of State to make an order specifying a state or part of a state as "safe" for this purpose for people falling within a defined description, although not as generally being safe.

1.30 Clause 12 of the Bill, and Schedule 3 to it, would replace existing provisions for removing asylum seekers to "safe" countries. The idea behind prescribing certain countries as "safe" is to allow the Home Secretary to reject a person's claim as manifestly ill-founded, without looking at the merits, if it amounts to an allegation that the person has suffered persecution within the meaning of the Refugee Convention (an "asylum claim"), or would be in danger of suffering a violation of his or her Convention rights so that removal to that country would be unlawful by virtue of section 6 of the Human Rights Act 1998 (a "human rights claim"), in one of the prescribed countries. In addition, existing legislation prevents people from appealing against the rejection of the claim or consequential decisions until he or she has left the United Kingdom.

1.31 Schedule 3 to the Bill would create a list of countries which are presumed to be safe for everyone for the purposes of both the Refugee Convention and the Convention rights under the ECHR. There are 26 countries on the proposed list. The Secretary of State would then be empowered to create a second list, by order, of countries which are presumed to be safe for the purposes of the Refugee Convention, but not the ECHR rights. That is to say, people in those countries can be assumed not to have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, but cannot be assumed to be adequately protected against violation of their rights under the ECHR. In addition, the Secretary of State would be empowered to certify that a particular country which is not on the lists would be safe for a specified person, so that that person could be removed there.

1.32 The Committee has previously reported on earlier proposals[21] for lists of countries which should conclusively be presumed to be safe. It drew the attention of each House to its view that "the presumption that a country is safe is of questionable validity",[22] and that the restriction of any right of appeal against a decision that a human rights or asylum claim is clearly unfounded until the claimant has left the country could undesirably weaken legal protection for the rights of asylum-seekers and human rights claimants.[23] At that time, there was no proposal to exclude access to judicial review in immigration and asylum cases. It seems to us that the threat to the structure of remedies is now even more acute, because of the proposals in clause 10 of the current Bill.

1.33 We remain of the view, which we expressed in 2002, that the presumption that a particular country is always safe for everyone is of questionable validity. We are even more concerned about the restriction of appeal rights than we were in 2002, because of the proposals in clause 10 to restrict legal remedies for unlawful or erroneous decisions. We draw this to the attention of each House, and expect to report further when we have received the Government's responses to our questions.

1 Bill 5-EN Back

2 paras 135-143 Back

3 Home Affairs Committee, First Report of 2003-04, Asylum and Immigration (Treatment of Claimants, etc.) Bill, HC 109. Back

4 See letter from the Chair to the Home Secretary printed as Appendix 1 to this Report. Back

5 See Appendix 1, pp 23-24. Back

6 See Appendix 1, pp 24-25. Back

7 See Appendix 1, pp 25-26. Back

8 See Appendix 1, pp 26-27. Back

9 See Appendix 1, pp 27-29. Back

10 See Appendix 1, p 30. Back

11 See Appendix 1, p 30. Back

12 See Appendix 1, pp 30-31. Back