Joint Committee On Human Rights Fifth Report

Report

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Background

1. In our Third Report of this Session, we drew to the attention of each House a number of concerns we had about the Asylum and Immigration (Treatment of Claimants, etc) Bill. In particular, we expressed concern about:

a)  the attempt in what was then clause 10 and is now clause 11 of the Bill to restrict the remedies for violations of Convention rights which would normally be available under section 7 of the Human Rights Act 1998;[1] and

b)  the questionable nature of the assumption in what were then clauses 11 and 12 and are now clauses 12 and 13 of the Bill that certain countries can always be regarded as "safe countries" in relation to the Refugee Convention or rights under the ECHR, either generally or for particular purposes.[2]

2. We also reported that we had asked a number of questions of the Government, and that we expected to report further on those matters in the light of the Government's response. In particular, we were concerned about the following matters:

a)  issues relating to discrimination and the Refugee Convention in relation to clause 2 of the Bill, which would make it an offence to enter 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;

b)  the attempt in clause 6 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;

c)  the provisions of clause 7, which would extend the power of the Secretary of State to deprive an unsuccessful asylum-seeker of support from public funds;

d)  clause 8, extending the powers of immigration officers to arrest people and to conduct searches;

e)  what was then clause 10 and is now clause 11, introducing a new, single-tier system of appeals in asylum and immigration cases, and excluding appeals to and judicial review by the courts in almost all cases;

f)  clause 13, removing the power of a court to release on bail a person whose deportation has been recommended following conviction of an offence;

g)  what was then clause 14 and is now clause 15, allowing 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;

h)  what was then clause 15 and is now clause 16, allowing an electronic monitoring requirement to be imposed on an applicant for immigration to complement a residence restriction, or as an alternative to a reporting restriction, or as a condition for immigration bail, without any ability to challenge the requirement judicially;

i)  what was then clause 16 and is now clause 17, allowing 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 in certain circumstances, even if the material consists of items subject to legal professional privilege, excluded material or special procedure material; and

j)  what was then clause 20 and is now clause 21, allowing fees to be imposed 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.

3. The questions were raised in a letter dated 6 January 2004 from our Chair to the Secretary of State for the Home Department (the Rt. Hon. David Blunkett MP).[3] The Government replied to our questions in the form of a letter from the Minister of State at the Home Office (Beverley Hughes MP) dated 22 January 2004 (hereafter 'the Government's response').[4]

4. We now report our view of the human rights implications of those provisions in the light of the Government's response. In what follows, we refer to the provisions of the Bill as amended in Standing Committee B in the House of Commons.

Clause 2: Offence of entering the UK without a valid immigration document

5. Two issues arise: first, compatibility with Article 31.1 of the UN Convention Relating to the Status of Refugees (Geneva, 1951) (hereafter "the Refugee Convention"); secondly, compatibility with Article 6 of the ECHR.

THE REFUGEE CONVENTION

6. Article 31 of the Refugee Convention binds the United Kingdom in international law and gives rise to a legitimate expectation under English administrative law that claimants to refugee status will be treated in accordance with its provisions.[5] Article 31provides—

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

7. We find it difficult to reconcile clause 2 of the Bill with Article 31.1 of the Refugee Convention. Clause 2 would make it an offence punishable after trial on indictment by imprisonment for up to two years or an unlimited fine or both for a person, when first interviewed by an immigration officer after arrival in the United Kingdom, not to have with him an immigration document which is in force and satisfactorily establishes his or her identity and nationality or citizenship and those of any dependent child accompanying him or her.[6] There would be a defence available to a person who can prove that he or she and any dependent child is an EEA national or has a reasonable excuse for not being in possession of an appropriate immigration document. Deliberate destruction of the document would not be a reasonable excuse unless the person could prove that the destruction was for a reasonable cause or outside the control of the person charged, and does not include a situation where the person intends the destruction to delay the making or resolution of a claim to asylum, or to increase the chance of success, or to comply with the instructions or advice of a person who advises on or facilitates immigration to the United Kingdom.[7]

8. Article 31.1 allows states to impose criminal liability on people seeking refugee status who enter without authorization in some circumstances. In particular, it is permissible for a state to impose such liability on:

a)  people who do not come directly from the place where they allege they have suffered persecution;

b)  people (whether coming directly or indirectly from that place) who fail to present themselves to the authorities without delay;

c)  people who fail to show good cause for their unauthorized entry or presence in the country.

9. Clause 2 would impose liability on people who fall outside those three categories. The defences would allow people to escape punishment if they prove that they have a reasonable excuse for not being in possession of the appropriate documentation. People who have good cause for their unauthorised entry or presence in the United Kingdom will have to be able to show what would normally be regarded as a reasonable excuse for not having the required documentation.

10. However, the Bill would make it more difficult for asylum-seekers to discharge the burden of proving such an excuse. The Bill would impose on the asylum-seeker the burden of proving what happened in a country where he or she was allegedly suffering persecution or in transit. There may be little or no evidence of these matters apart from the asylum-seeker's word. This is likely to be a common problem: as Liberty points out, asylum-seekers often find it impossible to obtain travel documents from the authorities in countries where they are suffering persecution, and the need for some travel documents in order to satisfy carriers that they should be allowed on board aircraft or ships forces people to make use of false documents or to stow away without documents.[8] Even when the Immigration and Asylum Act 1999 came into effect, section 31 provided a defence against charges of forgery, deception or falsification of documents for people who are using false documentation to enter the country in circumstances covered by Article 31.1 of the Refugee Convention. Nevertheless, it seems that a significant number of people have been wrongfully imprisoned for such offences. JUSTICE has suggested a figure of 5,000; the Government's evidence to the Home Affairs Committee contested that figure, while accepting that there had been a significant number of convictions (although the Minister thought that the number was below 1,000), and asserting that, since the judgment of the Divisional Court in Adimi,[9] fewer than 20 people had successfully claimed compensation for wrongful conviction.[10]

11. Whatever the true figures may be, the proposed offence under clause 2 of the Bill is likely to affect a very large number of asylum-seekers, and there seems to be a real risk that the defence will fail to protect a significant proportion of them, giving rise to a real risk that the United Kingdom will fail to discharge its obligations under Article 31.1 of the Refugee Convention. The Home Affairs Committee has drawn attention to the importance of making it clear on the face of the Bill that there would be a "reasonable excuse" where the person had no practical way of obtaining valid documents, and to the risk that the Bill could criminalize genuine refugees fleeing persecution who are compelled to travel on false or invalid documents.[11] We agree.

12. In the light of this, we asked why the Government considered that the provisions of clause 2 are likely to allow asylum claimants to be dealt with in accordance with Article 31.1 of the Refugee Convention.

13. In its response, the Government said that it would "consider never having had a proper document to be a reasonable excuse for arriving undocumented … We do not accept that someone would struggle to prove that this is the case". If a court would inevitably take the same view, we consider that it would go a long way to secure compliance with the United Kingdom's obligations under Article 31 of the Refugee Convention. However, we are not convinced that clause 2 as currently drafted would inevitably be interpreted in that way by a court.

14. We therefore welcome 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 and who do have proper and justifiable reasons for arriving without a document are not penalised". We recommend that a suitable amendment should be made; and we draw the matter to the attention of each House.

ECHR ARTICLE 6

15. Placing on the accused the burden of establishing a defence to a charge, instead of requiring the prosecution to prove all elements necessary to guilt, is capable of engaging the right to a fair hearing in the determination of a criminal charge under ECHR Article 6.1, read together with the right to be presumed innocent until proved guilty under Article 6.2. The Government accepts this, but argues that it is justifiable to impose this burden on the accused because "it is a justified and a proportionate response to the legitimate aim of the statute in accordance with Strasbourg and domestic case law".[12]

16. The case-law establishes that it may be justifiable to reverse the burden of proof in some circumstances, even if the result is that the defendant has to disprove what would normally be regarded as a central element in the offence, such as intent. Whether it is permissible will depend on the circumstances of each case. If the provision gives rise to a presumption which is effectively irrebuttable by the defendant, there will be a violation of Article 6.1 and 6.2 because the accused will have been denied the opportunity for a fair hearing. On the other hand, a presumption against the accused can be justified if it is kept "within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence".[13] Much will depend on how the trial court ensures that the defendant has a fair opportunity to rebut the charge and decides whether the defendant has discharged the burden of proof. An important element of giving a fair opportunity to rebut the charge is ensuring that the burden imposed on the defendant is not unreasonable, but that cannot be decided until the prosecution has presented its case and at least some of the evidence against the accused is known.

17. For example, if the prosecution provides prima facie evidence that a defendant was in possession of articles which were likely to have been intended for use in terrorism, it is often not unreasonable to require the defendant to offer an innocent explanation for their possession, and if the defendant fails to provide one to infer an involvement in terrorism. In addition, the seriousness of the threat to society which the criminal penalty is designed to counteract may be relevant to the reasonableness of imposing a burden on the accused.[14] On the other hand, a very serious penalty may make it less reasonable to impose a legal or persuasive burden on the defendant, and it could be unreasonable to require a defendant to prove something for which will inevitably be very difficult for him or her to find evidence.

18. How is this likely to apply to a person charged with an offence under clause 2 of the Bill? The purpose of clause 2 is to encourage asylum-seekers to have documents, and to discourage them from destroying or giving to their (possibly illegal) immigration facilitators the documents used to get them onto flights. Such actions obstruct the determination of claims and also make it more difficult to discover the country to which a person whose asylum claim has been rejected should be removed. The clause would also be important in reducing the power of criminal facilitators.[15] We accept that these are legitimate aims.

19. On the other hand, the reversal of the burden of proof would impose on a refugee the task of proving something which by its very nature would be very difficult to establish. Ultimately the issue is likely to depend on the credibility of the asylum-seeker, but the Government has gone so far as to suggest that, because most carriers are required to ensure that passengers have appropriate documentation before embarking, a person entering the United Kingdom without a passport "may in many cases be assumed to have destroyed it en route".[16] It would be particularly difficult for an asylum-seeker to establish a reasonable cause for not having valid documentation where the asylum-seeker was acting on the advice or instructions of a criminal facilitator (who may have subjected the person to considerable duress) and had no other source of advice about what would be needed by a United Kingdom immigration officer: clause 2(5)(b) provides that "'reasonable cause' does not include the purpose of— … (iii) complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the United Kingdom". As the Home Affairs Committee noted, this is likely to be a regular event, and there is a need to ensure that refugees have access to information before arrival in the United Kingdom about the potential consequences of deliberately losing or destroying their documentation.[17]

20. In view of the pressure which people traffickers can put on asylum-seekers to destroy documents en route, we consider 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.

21. In the light of this, it seemed when we first examined the Bill that it might be disproportionate to impose a burden of proof on the defendant to establish reasonable cause for not having valid travel documentation while excluding the defendant's ability to assert as a "reasonable cause" a common and genuinely compelling reason for not having documentation. This will depend on the circumstances of individual cases, but would be likely to be a fairly widespread problem. In such cases, there would be a real risk that clause 2 would operate in such a way as to deprive the defendants of a fair hearing and violate the right to be presumed innocent until proved guilty according to law, under ECHR Article 6.1 and 6.2.

22. We therefore asked the Government why clause 2 (and particularly clause 2(5)) had been drafted in a way that appeared to give rise to such a risk. The Government's response drew attention to the following factors.

a)  Only the person entering the United Kingdom knows whether he or she set off without documents or destroyed them on the way or soon after arrival. As the prosecution would have no means of proving why the person had no document, it is justifiable to place on the applicant the burden of proving that he or she had reasonable cause for not having a document.

b)  Clause 2(5) would not impose an extra burden on the applicant, but would merely limit the scope of the excuse, and so does not engage ECHR Article 6.

23. In the light of the Government's response, we accept in principle that it can be regarded as justifiable to place the burden on the defendant of proving that he or she is entitled to the benefit of the excuse. Nevertheless, we draw the attention of each House to the view of the Home Affairs Committee that it will be necessary to ensure that immigrants have access to information about the legal effect of complying with instructions or advice from people who advise on or facilitate their immigration. In addition, we should not forget the state of confusion and fear in which many asylum-seekers, whether or not they have a well-founded claim, find themselves when attempting to enter the country, or the intimidation to which they may be subject by illegal people-traffickers. The steps taken to make the aware of the consequences of destroying their documents should be thorough and leave no room for misapprehension.

Clause 6: assessing the credibility of a claimant

24. Under clause 6 of the Bill, a "deciding authority", when determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, would have to "take account of" any behaviour of the claimant which the deciding authority thinks is designed or likely to conceal information, mislead, or obstruct or delay, or which otherwise damages the claimant's credibility.[18] A "deciding authority" is (a) an immigration officer, (b) the Secretary of State, (c) an adjudicator or the Immigration Appeal Tribunal (unless and until the provisions of the Bill replacing them are passed and come into force) or the Asylum and Immigration Tribunal (if and when the provisions of the Bill establishing that body are passed and come into force), and (d) the Special Immigration Appeals Commission.[19]

25. The Bill provides that behaviour likely to conceal information, etc., is to include failure without a reasonable explanation to produce a passport, or production of an invalid passport, or destruction, alteration or disposal of a passport, ticket or other travel document, and failure without reasonable explanation to answer a question.[20] Furthermore, a failure to make an asylum or human rights claim while in a "safe country" (on which see clause 12 of and Schedule 3 to the Bill, and paragraphs 26-32 below) would automatically be treated as damaging the claimant's credibility, regardless of the circumstances.[21]

26. This might be thought to give rise to an evidential presumption that a person who behaves in such a way is not worthy of belief. If the presumption lacks a rational basis in a particular case, it might be capable of compromising the fairness of the procedure by which the deciding authority reaches its decision. The deciding authority is not generally required to treat the behaviour as damaging the claimant's credibility. Clause 6(1) normally only requires the deciding authority to take it into account when deciding whether to believe the claimant. If the circumstances are such that the behaviour does not appear to call the claimant's credibility into account, either generally on in relation to specific issues, the deciding authority would remain free to believe the claimant's statement after considering the behaviour in the light of all the circumstances.

27. However, clause 6(3) provides that one kind of behaviour, a failure to take advantage of a reasonable opportunity to make an asylum claim or a human rights claim in a safe country, is always to be regarded as damaging the claimant's credibility. When we first examined the Bill, this presumption seemed to us not to be logically related to the failure to take a reasonable opportunity to make a claim in a safe country. There is no reason to suppose that a person is not worthy of belief on any matter merely because he or she preferred to make a human rights claim in the United Kingdom rather than in another country. The failure to make the claim in another country might cast doubt on certain statements, but, we thought, could hardly be said to damage the claimant's credibility in relation to all statements. Imposing a presumption of damaged credibility regardless of the nature of the statement in relation to which credibility falls to be assessed seemed to us potentially to compromise the fairness of the decision-making process. This would not usually engage the right to a fair hearing under ECHR Article 6.1, because the matters for decision in an immigration context are not usually "civil rights or obligations" in relation to which the obligations under Article 6.1 arise. Nevertheless, it could engage Article 6 indirectly to the extent that the effect of the operation of the presumption would be to render a person liable to be deprived of a civil right or subjected to a civil obligation.

28. Furthermore, so far as human rights claims are concerned, the failure to provide a fair hearing could, we thought, engage ECHR Article 13, which binds the United Kingdom in international law although it is not one of the Convention rights which became part of domestic law by virtue of the Human Rights Act 1998. Article 13 provides—

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

29. ECHR Article 13 requires that a national authority or combination of national authorities complementing each other should be able to provide an effective and independent investigation of allegations that a person's Convention right has been violated, and should provide a final determination of the claim and an effective remedy for it. The Strasbourg Court has not so far found a violation of Article 13 on the basis that rules of evidence require an irrational inference to be drawn, but it seemed to us that such a requirement might tend to make any remedy less than effective, as clause 6(3) of the Bill would make it difficult, if not impossible, for a deciding authority to provide an effective remedy for an alleged violation of a Convention right to which the removal of a person making a human rights claim might give rise.

30. We therefore asked why the Government considered that clause 6(3) would be compatible with ECHR Article 13 in so far as the clause would require a deciding authority to infer that a person making a human rights claim, who has not taken advantage of a reasonable opportunity to make the human rights claim in a safe country, has thereby damaged his or her credibility.

31. The Government's response pointed out that:

a)  it is usually reasonable, in the Government's view, to require a person to make a claim for international protection in the first safe country which they reach;

b)  even if a person's credibility is deemed to be damaged, it would be open to a decision-maker to decide that the claimant's credibility had not been severely damaged, and to conclude that the claimant had made out his or her claim: the decision-maker would still have to consider all the circumstances of the case, and reach a decision in accordance with the United Kingdom's international obligations under the ECHR and the Refugee Convention;

c)  it would still be unlawful for a decision-maker to act in violation of rights under Article 6.

32. We accept that it is legitimate for the Government to adopt this position, and we underline that the deciding authorities should at all times be conscious, when applying clause 6, that a claimant whose credibility is deemed to be damaged could well be telling the truth none the less.

Clause 7: failed asylum-seekers: withdrawal of support

33. At present, under the Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum Act 2002, a person whose asylum claim has been rejected may continue to be treated as an asylum seeker for the purpose of claiming support if the person has a dependent child as a member of his or her household.[22] Clause 7 of the Bill would allow the Secretary of State to prevent this. Clause 7 would insert a new paragraph 7A in Schedule Schedule 3 to the 2002 Act, allowing the Secretary of State to certify that in his opinion such a person has failed without reasonable excuse to take reasonable steps to leave the United Kingdom or to place himself in a position in which he would be able to leave the United Kingdom voluntarily. Fourteen days after the person has received or is deemed to have received a copy of the certificate, he or she would become ineligible for accommodation and welfare support from the local authority under sections 21 or 29 of the National Assistance Act 1948, support for the elderly from the local authority under section 45 of the Health Services and Public Health Act 1968, support from social services under various pieces of legislation including provisions of the Children Act 1989 and the Children (Scotland) Act 1995 which allow support for adults in certain circumstances, accommodation under the homeless persons legislation, promotion of well-being under section 2 of the Local Government Act 2000, and support from NASS under the Immigration and Asylum Act 1999 or the 2002 Act. In effect, the failed asylum-seeker would be left without any source of support from public funds.

34. This might have two consequences which could engage Convention rights and other human rights.

a)  The adult asylum-seeker might be left without any means of support, giving rise to a danger that he or she would undergo a degree of suffering amounting to inhuman or degrading treatment, violating the right to be free of such treatment under ECHR Article 3.

b)  Any dependent child of the asylum-seeker would be liable to be taken into the care of the local social services authority, which would continue to have responsibility for providing accommodation for the child under section 20 of the Children Act 1989 if the adult claimant were to be unable to provide it. As it would not be possible for the local social services authority to offer help to the adult on whom the child is dependent, there are likely to be a significant number of cases in which the authority could only discharge its responsibility towards the child by taking the child into its care. This would involve separating the child from his or her family, and would engage the right to respect for family life under ECHR Article 8.1. It would also engage rights under the Convention on the Rights of the Child (CRC), which binds the United Kingdom in international law although the rights are not directly actionable in courts and tribunals in the United Kingdom under domestic law.

INHUMAN OR DEGRADING TREATMENT

35. ECHR Article 3 provides: "No one shall be subjected to torture or to inhuman or degrading treatment". The English courts have held that establishing a regime in which support can be withdrawn from a destitute asylum-seeker is an act which can subject the person to inhuman or degrading treatment, and that the Home Secretary has a duty under section 6 of the Human Rights Act 1998, in exercising his discretion, not to withdraw support if doing so would leave the asylum-seeker in a situation verging on the degree of severity which would engage Article 3.[23] Clause 7 of the Bill would leave the Secretary of State a discretion, and he would therefore continue to be under a duty to exercise the discretion in such a way as to avoid subjecting a destitute asylum-seeker to conditions verging on the severity necessary to violate ECHR Article 3. The potential state of destitution that confronts people in this situation should be recognised. The duty on the Secretary of State is not a mere formality; it requires the most serious consideration in every case.

RESPECT FOR PRIVATE AND FAMILY LIFE

36. It has also been held that the Secretary of State, when withdrawing support from a claimant, may have to justify the action in terms of ECHR Article 8.[24] This provides—

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

37. Withdrawing support in accordance with clause 7 of the Bill in circumstances which are likely to lead to a child being separated from his or her carers and family members, and being placed in the care of a local authority, would engage the right to respect for private and family life under ECHR Article 8.1. The question is whether such action would be justifiable under Article 8.2. There is no doubt that the clause would provide a sufficient legal basis for the interference with the right to be "in accordance with the law". The issues relate to:

a)  the legitimacy of the government's aim in clause 7; and

b)  whether clause 7 is 'necessary in a democratic society' for the purpose, that is, whether it is a proportionate response to a pressing social need.

A legitimate aim

38. The Government's aim is to provide both a deterrent to prevent people who could leave the country attempting to remain, and an incentive to them to leave in a dignified way with support when all avenues of appeal in the United Kingdom have been exhausted.[25] Since the claimants will at that stage have no right to remain in the United Kingdom, steps to encourage them to leave can be regarded as having the legitimate aim of preventing crime (remaining illegally in the country) as well as being in the interests of the economic well-being of the country by controlling the United Kingdom's financial expenditure on those people.

Necessary in a democratic society

39. In view of the number of people thought to be remaining in the United Kingdom unlawfully after their applications for leave to remain have been rejected, it can be accepted that there is a pressing social need for the matter to be addressed.

40. When we first examined the Bill, we had some doubts as to whether clause 7 represents a proportionate response to that need, for four reasons.

a)  As the Home Affairs Committee noted (and considered to be unsatisfactory), the Government is unable to estimate the number of families who might be affected.[26] It is therefore impossible to be satisfied that the overall impact of the measure on children and their families (all members of which enjoy rights under ECHR Article 8) would be proportionate to the legitimate aim.

b)  The clause does not lay down any procedure to be followed before deciding to remove support. A similar failure to provide for a fair decision-making procedure has already been stigmatized by the Court of Appeal as violating the administrative law principle of fairness in relation to section 55 of the Nationality, Immigration and Asylum Act 2002.[27] Procedural safeguards, and their absence, are relevant factors when deciding whether an interference with a Convention right is proportionate. The Government told the Home Affairs Committee that immigration officers would be given guidance to ensure that support would not be withdrawn without clear evidence and an attempt to interview the family.[28] It is not clear that this would meet the requirements of the principle of fairness. In any case, the Government intends to give the guidance in a non-statutory, and therefore non-binding, form, which offers a very limited assurance of proportionality.

c)  There is an alternative to the withdrawal of support under clause 7: the families could be removed compulsorily before plunging adults into destitution and children into care. The Government has said that it does not routinely "seek the compulsory removal of all families illegally present in the UK because of the expense and difficulty of this option".[29] The Government would act speedily to remove all members of any family whose child is taken into care following withdrawal of support under the measures in clause 7.[30] It does not seem unreasonable to expect Home Secretary to be able to determine whether a family falls into this category before making a decision to withdraw support under clause 7 of the Bill. That being so, it is similarly not unreasonable for the Government to recognize that those families should be compulsorily removed without the need for support to be withdrawn and the family split up, even for a short period.

d)  The Home Affairs Committee has concluded that the measures in clause 7 are likely to be counter-productive, because: it might drive failed claimants underground; some families might have an incentive to go underground while leaving their children in local authority care at public expense; there is a real prospect of the system spawning multiple legal challenges; and the duty to provide support where there is a threat to Convention rights may undermine the purpose of the proposal.[31]

THE BEST INTERESTS OF THE CHILD

41. As the Refugee Children's Consortium pointed out,[32] the idea of using children and the threat of taking them into care as a deterrent or incentive to persuade adults to co-operate with the authorities in removing them from the country seems to be at odds with the requirement of CRC Article 3.1: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration".

OUR INQUIRIES AND THE GOVERNMENT'S RESPONSE

42. In the light of those concerns, we asked why the Government considered that the interference with the right to respect for private and family life, which would be a likely consequence of withdrawing support under clause 7, would be proportionate to the legitimate aim of removing people who are unlawfully within the United Kingdom, having regard to the points made by the Home Affairs Committee and the other matters mentioned here. We also asked whether, and if so why, the Government considers that the proposals in clause 7 comply with the United Kingdom's obligation under CRC Article 3.1.

43. The Government's response made the following points:

a)  the purpose of clause 7 is to ensure that families whose asylum claim has failed return, ideally in a dignified way rather than by compulsory removal, as soon as possible;

b)  the Government does not believe that it is right or justifiable that people should be able to continue living at public expense if they are able to return home and do not do so;

c)  the Government believes that providing support indefinitely provides an incentive not to leave the country;

d)   paragraph 3 of Schedule 3 to the Bill provides that those providing support would not be free of the power or duty to continue to do so to the extent that support is necessary to avoid breach of a person's Convention rights;

e)  it is sometimes not practicable to remove people compulsorily, for example if the country to which the person would otherwise be removed does not issue a travel document for some reason;

f)  the Government is preparing a process which would include letters and an interview to ensure that families are fully aware of the consequences of not leaving the country, including the possibility that support may be withdrawn, and to ensure that enforced removal is effected whenever possible if a family is not cooperating;

g)  discussions are under way with the Local Government Association to establish ways in which a local authority might exercise their duties towards children where support is withdrawn;

h)  in relation to Article 3.1 of the CRC, the Government considers that clause 7 would be compatible, because it would not be in the children's best interests to continue to support them in a country where they have no future: parents would be free to take appropriate steps to leave the country and a local authority may still support children if the parents fail to take those steps, and would have to take any steps necessary to avoid a breach of rights under the ECHR.

44. In the light of these comments, we accept that the Bill would not make it impossible to give appropriate protection to Convention rights, and we accept that it is not in a child's best interests to remain for a long period in a country where he or she has no prospect of being allowed to remain permanently. However, we fear that in practice there could be many people (including children) who suffer severe hardship and violations of Convention rights if the interview system is not sufficiently robust to identify reliably those who lack the resources to support themselves.

45. While clause 7 in itself is compatible with rights under the ECHR and the CRC, we fear that violations could all too easily follow in practice. We draw this to the attention of each House.

Clause 8: additional investigatory powers for immigration officers

46. Immigration officers already have powers of arrest without warrant, and of entry, search and seizure after arrest, in relation to immigration offences. Clause 8(1) and (3) would allow them to exercise those powers in respect of certain other offences if they come across evidence of the offences in the course of an immigration investigation. The offences would be:

a)  conspiracy to defraud;

b)  bigamy;

c)  making a false statement, or aiding or abetting such an offence, contrary to the Perjury Act 1861;

d)  in Scotland, knowingly giving false information to a district registrar of births, marriages and deaths;

e)  theft;

f)  obtaining property by deception;

g)  obtaining a pecuniary advantage by deception;

h)  false accounting;

i)  handling stolen goods;

j)  obtaining services or evading liability by deception;

k)  in Scotland, fraud, uttering and fraud, and reset;

l)  forgery;

m)  using, copying or using a copy of a false instrument; and

n)  making false documents.[33]

47. The proposed extensions to these powers engage the right to liberty (ECHR Article 5), the right to respect for private and family life, home and correspondence (ECHR Article 8), and (in relation to search of the person) the right to be free of degrading treatment (ECHR Article 3). When we first examined the Bill, it was not clear to us why the Government proposed to extend the powers to these offences, or why they were not to be exercisable in relation to other offences. As Liberty and ILPA pointed out, many of the safeguards attaching to the use of similar powers by police officers would seem to be absent:[34] the training in the use of the powers in the context of Code B of the Codes of Practice made under the Police and Criminal Evidence Act 1984; the statutory disciplinary code which applies to the police; arrangements for independent investigation of complaints against police officers arising from the use of the powers; and the supervision of complaints by the Police Complaints Authority. Although the Immigration Service would be bound by the obligations arising under the Human Right Act 1998, victims of an alleged abuse of power might not be able to challenge abuses of the powers in court or obtain compensation, because of the restrictions on remedies proposed in clause 11 of the Bill (see below).

48. We feared that this could give rise to a significant risk of violations of Convention rights, including those under ECHR Articles 5 and 8, while the absence of remedies may give rise to a violation of ECHR Article 13 where the alleged wrong amounts to a violation of a Convention right and of ECHR Article 6.1 when it consists of a violation of a civil right or obligation.

49. We therefore asked why the Government considered that there would be sufficient safeguards against abuse of the powers proposed in clause 8 (including expertise among immigration investigators in investigating the kinds of offences listed, training in the use of the powers and the application of the relevant Codes of Practice, independent investigation of complaints, supervision by the Police Complaints Authority, and availability of judicial remedies) to meet the requirements of ECHR Articles 5.1, 5.5, 6.1, 8, and 13.

50. The Government's response made the following points:

a)  clause 11 is concerned only with the protection from review or appeal of decisions of the proposed Tribunal when it considers appeals against immigration decisions. It would have no application to the remedies available to a person in respect of the exercise by members of the Immigration Service of powers in non-immigration cases;

b)  a person arrested under the new powers would have to be taken to the nearest designated police station, where the full protective regime of the Police and Criminal Evidence Act 1984 (PACE) and its associated Codes of Practice would apply;

c)  by virtue of section 145 of the Immigration and Asylum Act 1999, in England and Wales and Northern Ireland immigration officers must "have regard to" relevant provisions of the PACE Codes of Practice specified in the Immigration (PACE Codes of Practice) Direction 2000;

d)  in Scotland immigration officers must work within the boundaries of the Criminal Procedure (Scotland) Act 1995, sections 13 to 15, under the Immigration Arrest (Scotland) Codes of Practice, which also directly apply the PACE Codes of Practice on search to immigration officers in Scotland;

e)  the policy is to allow only immigration officers who have undergone rigorous training (some details of which were provided) in respect of criminal investigations, including human rights matters, race relations and powers of arrest, to exercise the new powers;

f)  complaints against officers are handled by the Immigration Service Complaints Unit, whose work is scrutinised by the Immigration and Nationality Directorate Complaints Audit Committee (CAC), a member of which (the Independent Assessor) takes lead responsibility for monitoring cases involving a complaint about an arrest.

51. The Government considers that these safeguards are sufficient to protect against abuse of the powers in clause 8. We accept this.

Clause 11 (formerly clause 10): changes to the appeal system

52. Clause 11 of the Bill would make fundamental changes to the immigration and asylum appeal and review systems, replacing them with a single level of appeal from a decision of the immigration officer in most cases. At present, there is a multi-tiered system for making and reviewing or appealing against immigration decisions. An initial decision by an immigration officer may (depending on the nature of the decision) be subject to administrative review, appeal to an adjudicator, further appeal to an Immigration Appeal Tribunal on a point of law, and then subject to judicial review by the High Court (with appeals, with permission, to the Court of Appeal and House of Lords) or appeal to the Court of Appeal (Civil Division), with a final appeal (with leave) to the House of Lords. Other routes of appeal or review apply to decisions by the Secretary of State, and decisions involving national security considerations which go to the Special Immigration Appeal Commission, with further appeals to the Court of Appeal and (with leave) House of Lords.

53. Clause 11(1) of, and Schedules 1 and 2 to, the Bill would replace the adjudicators and the Immigration Appeal Tribunal with a single-tier Asylum and Immigration Tribunal. As JUSTICE pointed out, this would be inconsistent with the recommendations of the report on the tribunal system by Sir Andrew Leggatt, which recommended that the inconsistent arrangements relating to appeals from tribunals should be replaced with a unified appellate body covering different fields of expertise.[35]

54. In addition, clause 11(7) would introduce a new section 108A into the Nationality, Immigration and Asylum Act 2002. When we first examined the Bill, it seemed to us that it would cut off all appeals to and judicial review by the ordinary courts in immigration matters except where a person is challenging a Home Secretary's certificate allowing removal to a safe country and treating the person's claim in this country as unfounded, or is alleging bad faith on the part of the Tribunal (although the Special Immigration Appeal Commission would be unaffected). It seemed to us that it would also exclude habeas corpus applications in immigration cases. The only remedy for a person wishing to challenge a decision of the Tribunal would be to ask the Tribunal to review its decision (clause 11(6), introducing a new section 105A to the 2002 Act), 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 (proposed new section 108A(1)-(3)). 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.[36]

55. There seemed therefore generally to be no right to challenge a decision of the single-tier Tribunal on the ground that it has acted incompatibly with a person's Convention rights.

56. The Home Affairs Committee, when it considered these provisions, concluded that the proposed changes would make it:

… difficult to allay fears that some further cases might have been successful at a second appeal. Implementation of the Government's proposals must, therefore, be accompanied by a demonstrable improvement in the quality of initial decision-making … We recommend that the implementation of the new asylum appeals system should be contingent on a significant improvement in initial decision making having been demonstrated. In particular, the relevant sections of the Act should not be brought into force until the statistics show a clear reduction in the number of successful appeals at the first-tier, adjudication level.[37]

57. The Government's proposals have attracted powerful criticism.[38] Many of the objections to the proposals cite their impact on principles central to the rule of law, including the right to have access to the courts, and refer to the fact that there is no evidence that anything is wrong with the way in which the courts and the Immigration Appeal Tribunal currently operate in the field of asylum and immigration.[39] Ousting the review jurisdiction of the High Court over the executive is a direct challenge to a central element of the rule of law, which includes a principle that people should have access to the ordinary courts to test the legality of decisions of inferior tribunals. Clause 11 of the Bill seeks to make the immigration and asylum process operate outside normal principles of administrative law and legal accountability. This sets a dangerous precedent: governments may be encouraged to take a similar approach to other areas of public administration.[40] Here, we confine ourselves to the human rights implications of the proposals, but they must be considered in the light of the constitutional background.

58. Apart from the fact that the rule of law is a fundamental principle inherent in international human rights law, it is inherent in the fundamental law of the British constitution. It includes the civil right of everyone within the jurisdiction of the United Kingdom to have unimpeded access to the ordinary courts to test the legality not only of administrative decisions but also of the decisions of inferior tribunals. That is an essential element in the British system of government under law.[41]

59. In India and Bangladesh, Commonwealth countries with written constitutions expressly empowering the legislature to amend the constitution, the Supreme Court of each country has decided that the power of amendment, even when exercised in accordance with the letter of the constitution, cannot be used to abrogate or destroy an essential feature of the constitution, for example, by preventing access to the ordinary courts by way of judicial review, or by interfering with judicial independence.[42]

60. The issues raised by the statutory ouster of judicial review may raise similarly important and controversial issues under the unwritten British constitution in reconciling the fundamental principles of parliamentary sovereignty and the rule of law.[43]

61. At the height of the Second World War when our nation was facing a threat of imminent invasion, a clash between these fundamental constitutional principles was avoided by preserving judicial review of the use of emergency powers of detention without trial. It is highly important for Parliament to consider whether cogent and convincing reasons have been advanced in accordance with the principle of proportionality to justify the ouster of judicial review contemplated by Clause 10 not in wartime and not in the context of terrorism but in relation to asylum appeals.

62. The Government considers that the proposals raise "issues under article 13 of the ECHR in relation to the removal of appeal rights. People may also wish to challenge whether their substantive Convention rights under articles 3 and 8 will be jeopardised by the absence of a further tier of appellate rights".[44] We agree that these Convention rights are engaged.

63. In the Explanatory Notes to the Bill, the Government argued that the proposals were compatible with the rights—

… Article 13 does not require the provision of multiple tiers of appeal. What it requires is access to an independent national authority with powers to provide effective redress. The single tier Tribunal will meet this test. It is wholly independent of the initial decision-making body. The single tier tribunal will provide an effective remedy as Article 13 requires and will safeguard appellants' Convention rights including those referred to in Articles 3 and 8.

64. We agree that Article 13 does not require multiple tiers of appeal. However, the Government's assertion that the Tribunal would provide an effective remedy for people alleging violation of Convention rights is at present speculative. Much will depend on the way in which the Tribunal is funded and staffed. The transitional provisions made in Part 2 of Schedule 2 to the Bill would make any adjudicator appointed under section 81 of the Nationality, Asylum and Immigration Act 2002 a member of the Tribunal (together with any legally qualified member of the Immigration Appeal Tribunal), and any member of staff of such adjudicators would become a member of staff of the Tribunal.[45] The figures for appeals from adjudicators show that in 2002 (when the Tribunal had power to hear appeals on questions of fact as well as law, a power withdrawn by the Nationality, Immigration and Asylum Act 2002) adjudicators determined 64,405 appeals in asylum cases, of which they allowed 22% and dismissed 76%, the remainder being withdrawn.[46] In the same year, the Immigration Appeal Tribunal decided 22,825 applications for leave to appeal,[47] and gave leave in about one third of them.[48] Of those, 2,015 (36%) were dismissed; 620 (11.14%) were allowed; and 2,700 (48.51%) were referred back to an adjudicator for further consideration.[49] In other words, in the one-third of asylum cases decided by adjudicators which went on appeal to the Tribunal, nearly 60% (or almost one in five of all cases heard by adjudicators) resulted in an error calling for correction.

65. This level of error is worrying. It seems to be largely due to the poor quality and poor presentation of the decisions which adjudicators have to review, and the pressure of time and the heavy caseload under which adjudicators are working. There is no likelihood of speedy improvements on either count if the proposed new Tribunal is established. It would inevitably face an overwhelming volume of cases, because it would have to deal with all those cases currently dealt with by adjudicators which are not appealed to the Immigration Appeal Tribunal. If no additional public sector expenditure on the Tribunal is contemplated, it is, in our view, unlikely that it will be able to provide an effective remedy for Convention rights, bearing in mind that the word "effective" imports the idea of a remedy which is reasonably timely and delivered reasonably reliably and efficiently.

66. We therefore asked for details of the Government's estimates of proposed staffing and funding for the new Tribunal. The Government has provided these.[50] We draw them to the attention of each House as relevant material when considering whether the proposed Tribunal is likely to be able to provide effective protection against, and effective remedies for, violations of Convention rights. In our view, very serious doubts remain that make it especially important to consider the adverse impact upon the rule of law of the ouster of judicial review.

67. We raised with the Government the human rights implications of making the Tribunal the final arbiter of a claim that it has acted incompatibly with a Convention right would be to deprive the victim of an effective remedy from an independent tribunal. As the Government accepts, to be effective for the purposes of ECHR Article 13 a remedy must be available from a national authority which is independent. We were concerned that the Tribunal might not be sufficiently independent when deciding whether its own decision or conduct had violated a Convention right.

68. The Government replied that Article 13 does not require multiple levels of appeal. However, as the Refugee Legal Centre pointed out in a letter to our Chair,[51] there is also a risk that denying people in the immigration system the judicial remedies for their Convention rights which are available to citizens would infringe the right to be free of discrimination on the ground of nationality in the enjoyment of the right to an effective remedy for violations of Convention rights (ECHR Article 14 taken together with Article 13).

69. The Government further considered that the risk that the Tribunal would violate Convention rights was low, and the risk is even lower in view of the fact that immigration and asylum appeals do not concern the determination of a person's civil rights and obligations. The Government drew attention to the high moral and professional capacity of those appointed as adjudicators and Tribunal members.

70. We accept that the current adjudicators and members of the Immigration Appeal Tribunal are highly capable professionals who do their work to the best of their considerable ability. However, we have already noted the difficulties under which they labour, and the effect which this has had in the past on the error rate. If such an argument were well-founded, it could be invoked in other cases where inferior tribunals take decisions affecting individual rights and freedoms. The argument requires an especially compelling justification where the rights at stake involve protection against well-founded fears of torture and persecution by those seeking asylum and protection as refugees under international law. Although the Government is right to say that relatively few immigration and asylum cases determine rights and obligations which would be regarded as "civil" for the purpose of ECHR Article 6.1, we note that many asylum and all human rights claims concern people who claim to be at risk of having their human rights violated if they are not allowed to remain in the United Kingdom. As the Refugee Legal Centre pointed out,[52] several articles of the ECHR (including Articles 2, 3 and 8) impose positive obligations on the State to take reasonable steps to protect rights against infringement. Accuracy of decision-making is therefore vital to the protection of their Convention rights.

71. We have carefully considered the Government's arguments, but consider that it could be strongly argued that the ouster of judicial review of tribunal decisions contemplated by clause 11 has not been justified by any argument advanced by the Government. There is a real danger that this would violate the rule of law in breach of international law, the Human Rights Act 1998, and the fundamental principles of our common law.

72. The Government's response went on to note that there are precedents for courts being effective in correcting errors by reviewing their own decisions in appropriate cases, and to point out that the Tribunal would have this power.

73. We accept that there is such a power in the House of Lords and the Court of Appeal, and that is necessary in a court of last resort. However, we consider that the immense 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 are likely in many cases to affect people's Convention rights or rights under the Refugee Convention. We draw this to the attention of each House.

74. The Government also told us that it did not intend to extend the range of remedies available from a Tribunal to protect human rights. In particular, we had asked why access to mandatory orders and damages would be excluded when they would sometimes be necessary to protect Convention rights effectively, and could be obtained from a court, if a person had access to one, but not from the Tribunal, by virtue of section 8 of the Human Rights Act 1998. However, the Government told us that it had not intended clause 11 to be interpreted as restricting access to the courts as much as we had assumed. In particular, the Government did not intend clause 11 to restrict the availability of habeas corpus, or to deprive a person of a right to damages for unlawful detention, or to remove the freedom to seek judicial review of a decision which cannot be appealed to the Tribunal.

75. It seems to us that this would leave many cases in which there could be a serious threat to fundamental human rights yet clause 11 would exclude the jurisdiction of the courts. For example, habeas corpus protects only the right to liberty of the person. There would be no access to courts to protect other Convention rights from being violated by immigration and asylum decision. Some of these rights are of even greater importance than the right to liberty of the person, including the rights to life and to freedom from torture and inhuman or degrading treatment or punishment, to say nothing of the right to a fair trial and the right to respect for family life. Under clause 11, it would be impossible for an applicant to initiate a challenge before the ordinary courts to a decision of the Tribunal which fails to protect any Convention right other than the right to liberty of the person (unless the Home Secretary has prevented the consideration of a human rights or asylum claim by certifying that it is ill-founded, or the applicant can provide significant evidence that a member of the Tribunal has been actuated by dishonesty, corruption or bias: see proposed new section 108A(4) of the Nationality, Immigration and Asylum Act 2002). Equally, it would be impossible for a person whose Convention rights are violated by an immigration decision and who cannot obtain redress from the Tribunal to seek other judicial remedies, including damages, for the violation it has resulted in the detention of the person in violation of ECHR Article 5.

76. For these reasons we are not reassured by the Government's explanation of its intentions in proposing clause 11. Nevertheless, we welcome the Government's agreement to consider amending proposed new section 108A(2)(e) to make it reflect accurately the Government's intentions. As currently drafted, the provision seemed to us to have been carefully crafted to achieve exactly the result which the Government now disclaims, and we are relieved that this was not the case. We hope 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. We draw this to the attention of each House.

Clause 14 (formerly clause 13): removal of power to grant bail

77. We raised with the Government the effect of clause 14, relating to the power to detain a person pending removal or deportation notwithstanding that a court had previously granted bail, on the right to liberty of the person under ECHR Article 5. The Government's response explained that the purpose of the provision is not to prevent a court from granting bail to an immigration detainee, but to prevent the grant of bail by a court in an unrelated matter from preventing the detention of a person pending deportation or removal.

78. In the light of the Government's explanation, we accept that this clause does not give rise a significant threat of a violation of a Convention right.

Clause 15 (formerly clause 14): Power to require co-operation of deportees

79. Clause 15 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. The clause as drafted would enable the administration to abuse the power by demanding information and co-operation which can then be used to facilitate the person's deportation later, and to allow the Secretary of State to require any person to co-operate even if that person is in no danger of deportation or removal, with refusal to co-operate being an offence.

80. The provision seems to us to engage the right to respect for private life under ECHR Article 8.1, and is very widely drawn. When we first examined the Bill, it seemed to us that the powers of the Secretary of State and the definition of the offence in clause 15 would go far beyond the particular mischief at which the clause is directed, namely the difficulty of arranging necessary travel documents to allow people to be removed or deported without the assistance of the person in providing information needed to obtain a travel document on their behalf from the person's Embassy or High Commission.[53] We feared that it might therefore be difficult to justify as being proportionate to a pressing social need so as to be "necessary in a democratic society" for a legitimate aim under ECHR Article 8.2.

81. We raised the matter with the Government. In its response, the Government said that it believes that any interference with Article 8 rights would be both justified and proportionate both to the pursuit of effective immigration control and to the economic well-being of the country. Failure to co-operate or take required steps can cause delay and may be done on purpose to frustrate the process. This undermines the efficacy and credibility of the immigration system. The purpose of clause 15 is to ensure that there is a sanction for obstruction.

82. We note, first, that the pursuit of effective immigration control is not in itself one of the purposes for which it is legitimate, under ECHR Article 8.2, to interfere with the right to respect for private life. The Government does not explain in its response exactly how, or how severely, obstructing the immigration process damages the economic well-being of the country.

83. We therefore cannot say that we are satisfied that the provision serves a legitimate aim, or that it would in all cases be proportionate to the aim. We recognise that any individual requirement imposed pursuant to clause 15 which interferes with the right to respect for private life would have to be capable of being shown to serve a legitimate aim and to be proportionate to it in the circumstances of the case, in order to be a valid requirement (because it would otherwise be unlawful by virtue of section 6 of the Human Rights Act 1998). However, we draw the matter to the attention of each House, as Members of each House may wish to seek further information from the Government about the extent of any damage to the economic well-being of the country resulting from obstruction of the immigration system.

Clause 16 (formerly clause 15): electronic monitoring

84. Clause 16 would allow an electronic monitoring requirement 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. This engages the right to respect for private life under ECHR Article 8.1. Although the step 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 (illegal immigration), there would be no power to challenge the decision to impose a monitoring requirement, because of the restriction on remedies contained in clause 11.[54]

85. We therefore raised with the Government the possibility that this might result in the absence of an effective remedy for a violation of a Convention right under ECHR Article 13, and a violation of the right of access to a court for the determination of one's civil rights (such as the right to be free of an assault) as required under ECHR Article 6.1.

86. The Government's response is in two parts. First, the Government reiterates its confidence in the ability of the Tribunal to provide effective remedies. Secondly, the Government considers that in practice it would be unlikely that any Convention rights would be affected, because it intends that an electronic monitoring requirement would be imposed only with the consent of the subject, and would require the subject's consent to operate effectively.

87. We have already expressed our concern about the logistical capacity of the Tribunal to provide reliably effective remedies for violations of Convention rights [paragraphs 64 to 66 above], and we will not repeat it here. As to the consensual nature of electronic monitoring, we appreciate that the subject's co-operation would be needed to some extent. Clause 16(2)(a) states that a person "may be required to co-operate with electronic monitoring", and the reference to co-operation is repeated in clause 16(5). However, we do not regard co-operation as being the same as consent. The fact that the subject may be "required to co-operate" shows that the co-operation may be against the subject's will. That being so, we are not persuaded that there is in practice no significant risk of an interference with Convention rights. Any such interference would require to be justified. We draw this to the attention of each House.

Clause 17 (formerly clause 16): Search warrants for the Immigration Services Commissioner

88. Clause 17 would amend the Immigration and Asylum Act 1999, introducing a new section 92A allowing a JP to issue a search warrant allowing the Immigration Services Commissioner to enter and search premises where there are reasonable grounds for believing that an offence under section 91 of the Act has been committed, that there is likely to be evidence on the premises of substantial value to the investigation of the offence, and that one of a number of conditions is met. (Section 91 of the 1999 Act makes it an offence for a person to provide immigration advice or immigration services if he or she is not registered with the Commissioner under section 84 of the Act, or if he or she is subject to an order made by the Immigration Services Tribunal or a professional disciplinary body restricting or prohibiting the provision of advice or services by that person following a disciplinary charge.)

89. Proposed new section 92A(7)(c) would make he power applicable to material even if it 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.

90. The provisions of proposed new section 92A engage ECHR Articles 6 (right to a fair hearing), 8.1 (right to respect for private life, home and correspondence) and 10.1 (right to freedom of expression). Confidential material is protected under ECHR Article 8.1, and lawyer-client communications attract particularly strong protection: any interference must be justified by reference to specially compelling considerations if it is not to violate Article 8.[55] The European Court of Human Rights recognizes that the ability to communicate freely and privately with one's legal adviser an essential element in a fair trial, so interfering with lawyer-client communications may violate ECHR Article 6.1.[56] The right to legal professional privilege is similarly protected as a fundamental right under English common law.[57] Where the material sought or seized is journalistic material, even if it is not confidential it is protected by ECHR Article 10, which protects journalists' working materials and sources of information as part of the protection for a free press which is regarded as essential to maintaining freedom of expression in a democratic society.[58]

91. Interference can be justified under ECHR Articles 8.2 and 10.2 if the interference is in accordance with the law (or prescribed by law) and necessary in a democratic society for one of the legitimate purposes listed in those paragraphs. Clause 17 would provide an adequate legal basis for the use of the powers to be in accordance with the law or prescribed by law. The prevention of crime is a legitimate purpose under both paragraphs.

92. However, we raised with the Government the question whether it is compatible with the right to a fair hearing under ECHR Article 6.1. We also asked whether it would be "necessary in a democratic society", that is, a proportionate response to a pressing social need, in relation to a legitimate aim for the purposes of Articles 8 and 10, to interfere with the sensitive categories of lawyer-client communications, confidential personal communications and journalistic material in order to investigate a suspicion that an offence of offering immigration advice or assistance without being registered is being committed.

93. We were particularly concerned at what appeared to us to be a lack of strong safeguards in the proposed new section 92A or in the background of applicable rules and guidance. Where a draconian power to interfere with rights under ECHR Articles 8 and 10 is conferred—

… the implementation of the measures must be accompanied by effective safeguards which ensure minimum impairment of the right to respect for his correspondence. This is particularly so where … correspondence with the [complainant's] legal advisers may be intercepted.[59]

94. In its response, the Government did two things. First, in relation to the reasons for allowing a warrant to issue to search for items subject to legal privilege, the Government pointed out that the Commissioner, in order to stop unscrupulous advisers who are believed to be preying on the vulnerable, needs to examine the material which by its nature usually includes correspondence and advice passing between the advisor and the client. However, the Government also pointed out that the purpose is not to use those confidential communications and advice against the client, but rather to use it against the unscrupulous adviser. The Government said that section 93 of the Immigration and Asylum Act 1999 would limit disclosure of the information by the Commissioner to anyone for a purpose other than the prosecution of unregulated advisers. Secondly, in relation to the safeguards, the Government drew attention to the need to satisfy a Justice of the Peace.

95. In our view, the protection offered by a Justice of the Peace is limited. It is only as good as the information provided by the applicant allows it to be. Where the Commissioner, rather than a constable, applies for a warrant it is not clear how far the applicant or the Justice of the Peace would feel obliged to comply with the requirements of the Police and Criminal Evidence Act 1984 and the Code of Practice for the Searching of Premises by Police Officers and the Seizure of Property found by Police Officers on Persons or Premises, issued under it. The limited research which has been conducted on the examination by Justices of the Peace of applications for search warrants suggests that there is a considerable variation between Justices in the rigour with which the examination is conducted.[60]

96. We note further that section 93(2) and (3) of the Immigration and Asylum Act 1999 would allow the Commissioner to disclose information if disclosure is necessary in the public interest, having regard to the rights and freedoms or legitimate interests of any person (clause 93(3)(d)). It is not clear how this would be interpreted in the context of information subject to legal privilege indicating that the client is guilty of a criminal offence.

97. Furthermore, we note that the 1984 Act absolutely prohibits the issue of a warrant to search for items subject to legal privilege, and requires an application for access to or production of the less sensitive categories of confidential and journalistic materials to be made to a circuit judge (usually inter partes) rather than to a Justice of the Peace, in order to ensure that adequate safeguards are observed. The power to issue a warrant proposed here is thus novel, both because of the type of material which can be sought and because of the low level of the judiciary to which an application for confidential material would be made under clause 17.

98. We draw to the attention of each House:

a)  the exceptional nature of the proposed power of search in Clause 17 of the Bill;

b)  its potential impact on Convention rights; and

c)  our view that there is a need for additional safeguards in respect of legally-privileged material relating to the clients of immigration advisers.

99. On the other hand, we are glad that the Government is considering, with the Commissioner, the extent to which excluded material and special procedure material might be relevant to the investigations, and whether the clause should be amended accordingly.

Clause 21 (formerly clause 20): fees for immigration applications

100. Clause 21 proposes a power for the Secretary of State to set fees for applications and certain other processes which exceed the cost of determining the application or undertaking the process. In particular, the Secretary of State would be allowed to calculate the level of the fee by reference to the potential benefits which the Secretary of State thinks are likely to accrue to the applicant if the application is successful or the process is completed.[61] This could allow the Secretary of State to impose very high fees, on the footing that the right to British nationality, leave to remain in the United Kingdom, or (perhaps most of all) a work permit are economically valuable, even if the application is not being made for economic reasons. Such fees could place an impossible hurdle in the way of applicants who do not have a large amount of ready cash. The fee structure could, deliberately or not, discourage poor people from making applications, or in some cases make it financially impracticable for them to do so. It could amount to indirect discrimination against poor people: a standard fee set at too high a level would impose a condition on applicants which could be met significantly more easily by wealthy people than by poor people, and it might mean that only wealthy people would be able to apply.

101. When we first examined the Bill, we took the view that this could discriminate on the ground of wealth in a matter touching their private lives, engaging the right to be free of discrimination in the enjoyment of Convention rights under ECHR Article 14 taken together with Article 8. It could also be contrary to ICCPR Article 26, which provides so far as relevant—

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as … property …

Article 26 binds the United Kingdom in international law, although the right to be free of discrimination on the ground of property is not part of domestic law.

102. We therefore asked the Government why it considered that fees calculated on the basis set out in clause 21(1) and (3) would not impact on poor people in such a way as to be incompatible with the right to be free of discrimination on the ground of property under ICCPR Article 26. (The issues are essentially the same under ECHR Article 14.) The Government replied that it would be open to the Secretary of State to address in subordinate legislation the problem of fees being so high as to discriminate in an unjustified way, allowing fees to be waived in such circumstances. The Government also notes that Treasury approval would be needed before an order imposing an enhanced fee could be made.

103. These points do not seem to us to address what we consider to be the fundamental problem: the clause contemplates setting a fee by reference to a speculative future benefit rather than to either the cost of processing the application or the applicant's ability to pay. We do 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 to be free of discrimination. We draw this matter to the attention of each House.

Other matters

104. We note, and draw to the attention of each House, the following additional points made in the Government's response.

a)  In relation to clauses 12 and 13 (formerly clauses 11 and 12), mentioned in our Third Report, it would be possible (notwithstanding clause 11) for a person to seek judicial review of a Home Secretary's certificate that a person comes from a safe country of origin or could be removed to a safe third country.[62]

b)  Schedule 3 to the Bill has been amended to bring the provisions on safe third countries more closely into line with those on safe countries of origin.

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1   Joint Committee on Human Rights, Third Report of 2003-04, HL Paper 23/HC 252, paras. 1.23-1.28. Back

2   ibid., paras. 1.29-1.33. Back

3   ibid., See Appendix 1, pp. 23-32. Back

4   Appendix 1, pp. 36-49. Back

5   R. v. Uxbridge Magistrates' Court, ex parte Adimi and others [2001] QB 667, [2000[ 3 WLR 434, [1999] 4 All ER 520, DC. Back

6   Cl 2(1), (2), 7(a).A lesser penalty would available following summary conviction: cl 2(7)(b). Back

7   Cl 2(3)-(5). Back

8   See www.liberty-human-rights.org.uk, R. v. Uxbridge Magistrates' Court, ex parte Adimi and others [2001] QB 667, [2000[ 3 WLR 434, [1999] 4 All ER 520, DC. Back

9   R. v. Uxbridge Magistrates' Court, ex parte Adimi and others [2001] QB 667, [2000[ 3 WLR 434, [1999] 4 All ER 520, DC. Back

10   Home Affairs Committee, First Report of Session 2003-04, Asylum and Immigration (Treatment of Claimants, etc.) Bill, HC 109, paras. 12-14. Back

11   ibid., paras. 20 and 22. Back

12   Explanatory Notes para 136. Back

13   Salabiaku v. France (1988) 13 EHRR 379, Eur. Ct. HR, at para. 28 of the judgment. Back

14   R. v. Director of Public Prosecutions, ex parte Kebilene [1999] 3 WLR 972, HL, at pp. 999-1000 per Lord Hope of Craighead. Back

15   Evidence of the Minister of State at the Home Office, Beverley Hughes MP, to the Home Affairs Committee: see Home Affairs Committee, First Report of Session 2003-04, op cit., paras. 18-19. Back

16   Explanatory Notes para. 16. Back

17   See Home Affairs Committee, First Report of Session 2003-04, op cit, paras. 22-23. Back

18   Cl 6(1) Back

19   Cl 6(4), (7) Back

20   Cl 6(2) Back

21   Cl 6(3) Back

22   Immigration and Asylum Act 1999, s. 94(3A); Nationality, Immigration and Asylum Act 2002, s. 18(2). Back

23   R. (Q.) v. Secretary of State for the Home Department [2003] EWCA Civ 364, [2003] 3 WLR 365, CA. Back

24   ibid., at para. 64. Back

25   See Home Affairs Committee, First Report of Session 2003-04, op cit, para. 60. Back

26   ibid., para. 64. Back

27   R. (Q.) v. Secretary of State for the Home Department [2003] EWCA Civ 364, [2003] 3 WLR 365, CA, at para. [69] et seq. Back

28   See Home Affairs Committee, First Report of Session 2003-04, op cit, para. 62. Back

29   ibid., para. 63. Back

30   ibid., para. 62. Back

31   ibid., para. 66. Back

32   Refugee Children's Consortium, www.jcwi.org.uk Back

33   Cl 8(2) Back

34   See www.liberty-human-rights.org.uk and www.ilpa.org.uk Back

35   See www.justice.org.uk, Sir Andrew Leggatt, Tribunals for Users-One System, One Service, Part I, ch. 3, para. 3.8 (London, March 2001). Back

36   Proposed new s. 108B of the Nationality, Immigration and Asylum Act 2002, to be inserted by cl 10(7). Back

37   See Home Affairs Committee, First Report of Session 2003-04, op cit., para. 43 (italics in original; other emphasis removed). Back

38   Ibid., paras. 35-37. Back

39   See www.justice.org.uk Back

40   See www.ilpa.org.uk  Back

41   In R (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2003] 3 WLR 252 at [26]Lord Steynstated that 'the right of access to justice ... is a fundamental and constitutional principle of our legal system. Access to law is crucially important in the refugee context, hence the importance of judicial review, because of "the gravity of the issue" since "the most fundamental of all human rights is the individual's right to life" and the asylum decision "may put the [individual]'s life at risk" (R v Secretary of State for the Home Department, ex p Bugdaycay [1987] AC 514 (HL), 531E-G per Lord Bridge of Harwich)'. Back

42   See e.g., Kesavananda Bharati v State of Kerala AIR 1973 SC 1461 (Supreme Court of India); Minerva Mills v Union of India AIR 1980 SC 1789 (Supreme Court of India); Anwar Hossain Chowdhury v Bangladesh 41 DLR 1989 App Div 165 1989 BLD (Spl 1). In Société United Docks v. Government of Mauritius [1985} AC 585, the Judicial Committee of the Privy Council left open (at 609, per Lord Templeman) the question whether under the constitution of Mauritius a Constitutional Amendment Act constituted an unconstitutional interference with the Supreme Court of Mauritius. Back

43   As Lord Bridge observed in X Ltd v Morgan-Gampian Ltd [1991] 1 AC 1 (HL) at 48E: "The maintenance of the rule of law is in every way as important in a free society as the democratic franchise. In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying the law." Sir John Donaldson MR put it in this way (R v HM Treasury, ex p Smedley [1985] QB 657, 666C-D): "Although the United Kingdom has no written constitution, it is a constitutional convention of the highest importance that the legislature and the judicature are separate and independent of one another, subject to certain ultimate rights of Parliament over the judicature which are immaterial for present purposes. It therefore behoves the courts to be ever sensitive to the paramount need to refrain from trespassing upon the province of Parliament or, so far as this can be avoided, even appearing to do so." Sir John Donaldson continued: " ... I would hope and expect that Parliament would be similarly sensitive to the need to refrain from trespassing upon the province of the courts." Back

44   Explanatory Notes para. 138. Back

45   Sch. 2, paras. 27-29. Back

46   Tina Heath, Richard Jeffries and Adam Lloyd, Asylum Statistics United Kingdom 2002 (London: Home Office, 2003), Table 7.1. Back

47   ibid., Table 7.2. Back

48   ibid., p. 10, para. 27. Back

49   ibid., Table 7.2.The report erroneously states (p. 10, para. 27) that 75% of appeals were dismissed. Back

50   See Appendix 1, pp. 42-43. Back

51   See Appendix 2, pp. 49-51. Back

52   ibid., p. 50. Back

53   Explanatory Notes para. 84. Back

54   See www.ilpa.org.uk Back

55   See e.g.Campbell v. United Kingdom (1992) 15 EHRR 137, Eur. Ct. HR; Niemietz v. Germany (1992) 16 EHRR 97, Eur. Ct. HR; Foxley v. United Kingdom (2000) 31 EHRR 637, Eur. Ct. HR. Back

56   Niemietz v. Germany, above, at § 37 of the judgment. Back

57   B (A Minor) v. Director of Public Prosecutions [2000] 2 AC 428, HL; R. (Morgan Grenfell & Co. Ltd.) v. Special Commissioner of Income Tax [2002] UKHL 21, [2002] 2 WLR 1299, HL. Back

58   Goodwin v. United Kingdom (1996) 22 EHRR 123, Eur. Ct. HR. Back

59   Foxley v. United Kingdom, above, at § 43 of the judgment.See also Campbell v. United Kingdom, above, at §§ 46 and 48 of the judgment. Back

60   See K. Lidstone and V. Bevan, Search and Seizure under the Police and Criminal Evidence Act 1984 (Sheffield: University of Sheffield Faculty of Law, 1992); D. Dixon et al., "PACE in Practice" (1991) 141 NLJ 1586, 1587. Back

61   Cl 20(1), and see also 20(3) in relation to consular fees. Back

62   Note, however, the view of the Refugee Legal Centre: see Appendix 2. Back

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Prepared 10 February 2004