Joint Committee On Human Rights Fifth Report


Summary

The Committee reported on its initial consideration of the Asylum and Immigration (Treatment of Claimants, etc.) Bill in its Third Report of this Session. It now reports on its further consideration of the Bill in the light of the Government's response to the questions set out in the letter published as Appendix 1 to the Third Report. This Report refers to the Bill as amended in Standing Committee B in the House of Commons. It draws the attention of each House to the following matters:

In relation to clause 2:

The Committee welcomes the Government's statement that it is considering whether any amendment is necessary to ensure that those who fall within the protection of Article 31 of the Refugee Convention, and who do have proper and justifiable reasons for arriving without a document, are not penalised (paragraphs 6-14).

The Committee considers that carriers should be required to inform travellers before embarkation of the likely consequences of destroying their travel documents, and of the benefits of retaining even a false passport (paragraphs 19-20) and that the steps taken to make them aware of the consequences of destroying their documents should be thorough and leave no room for misapprehension (paragraph 23).

In relation to clause 6:

The Committee accepts that the presumption of damaged credibility from a failure to make a claim for international protection in the first safe country which a person reaches would be compatible with ECHR Article 13, but underlines the need for the deciding authorities to be conscious that a claimant whose credibility is deemed to be damaged could well be telling the truth none the less (paragraphs 31 and 32).

In relation to clause 7:

The Committee draws attention to the potential state of destitution facing people from whom support is withdrawn, and to the fact that the Secretary of State has a serious obligation to undertake the most careful examination of the likely impact of withdrawing support in each case in order to avoid a violation of the right to be free of degrading treatment (paragraph 35).

The Committee notes that, although clause 7 is in itself compatible with the right to respect for family life under ECHR Article 8 and the right of children to have their best interests treated as a primary consideration in decision-making under Article 3 of the Convention on the Rights of the Child, violations of those rights could follow from the implementation of the clause in practice (paragraphs 42-45).

In relation to clause 11:

The Committee draws attention to relevant material to be taken into account when considering whether the proposed single-tier Tribunal is likely to be able to provide effective protection against, and effective remedies for, violations of Convention rights; and that remaining doubts make it especially important to consider the adverse impact upon the rule of law of the ouster of judicial review (paragraph 66).

The Committee considers that it could be strongly argued that there is a real danger that the ouster of judicial review of tribunal decisions contemplated by clause 11 would violate the rule of law (paragraph 71) and that the differences of legal authority and seniority between the proposed Tribunal on the one hand and the Court of Appeal and House of Lords on the other make it inappropriate to allow self-review by the Tribunal to be the only way of correcting errors which affect Convention rights or rights under the Refugee Convention (paragraph 73).

Although the Government did not intend clause 11 to exclude habeas corpus or actions for damages for unlawful detention, the Committee is concerned to note that Tribunal decisions violating Convention rights other than the right to liberty would be immune to challenge in the courts. The Committee hopes that the Government will be able to redraft the provision in a way which, as well as accurately reflecting its own intentions, adequately protects Convention rights and respects the rule of law (paragraphs 74-76).

In relation to clause 15:

The Committee considers that to require people to co-operate in obtaining papers necessary for their removal would be likely to engage the right to respect for private life under ECHR Article 8, and is not satisfied that the provision serves the legitimate aim of protecting the economic well-being of the country, or that it would in all cases be proportionate to the aim. It notes that an exercise of the power in an individual case could be unlawful by virtue of section 6 of the Human Rights Act 1998 (paragraphs 79-83).

In relation to clause 16:

The Committee is not persuaded that electronic monitoring could not lead to violations of Convention rights, or that the Tribunal would necessarily be able to provide an effective remedy for violations of those rights (paragraphs 84-87).

In relation to clause 17:

The Committee draws to the attention of each House the exceptional nature of the proposed power in clause 17 to search for material which would include items subject to legal privilege, its potential impact on Convention rights, and the need for additional safeguards (paragraphs 88-99).

In relation to clause 21:

The Committee considers that the provisions for setting fees give rise to a risk that there might be a violation of the right to be free of discrimination on the ground of property under ECHR Article 14 taken together with Article 8 and under ICCPR Article 26, and does not regard a power for the Secretary of State to make subordinate legislation allowing an officer to waive a fee in case of destitution (or, perhaps, other hardship) as a satisfactory protection for the right (paragraphs 100-103).



 
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