1. Letter from Beverley Hughes
MP, Minister of State, Home Office
Thank you for your letter of 6 January outlining
comments on the Asylum and Immigration (Treatment of Claimants,
etc.) Bill raised by your Legal Adviser. Please find responses
on the questions raised outlined below.
Question 1.
In the light of these considerations, why does the Government
consider 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?
Article 31 provides that refugees shall not be penalised
on account of their illegal entry or presence in the UK if they
come directly to the UK, present themselves without delay to the
authorities and show good cause for their illegal presence or
entry.
Clause 2 is aimed at penalising those people who
arrive in the UK without the documents they must have used to
get to the UK. Its purpose is to catch those people who deliberately
destroy or dispose of passports to avoid proper immigration control.
We do not consider that a refugee needs to destroy or dispose
of documents, having used those documents at the start of a journey,
in order to find safety in the UK.
We do recognise that refugees may find it more difficult
to obtain proper documents or may be unable to travel on their
own documents. It is for these cases, and a limited number of
other situations, that the clause provides a defence of a reasonable
excuse. We would consider never having had a proper document to
be a reasonable excuse for arriving undocumented, as might be
the case for a refugee who was unable to obtain a passport but
nevertheless managed to travel to the UK.
We do not accept that someone would struggle to prove
that this is the case. For example in the case of a person who
flees their country without a passport and is smuggled on to a
plane or bribes an airport official, it is reasonable to expect
that they would be able to give a clear and detailed account of
how that took place, why they did not have a document, how documents
in their country are issued etc.
Having said that, we do take our international obligations
seriously and do not wish to penalise those who have very real
and proper reasons for arriving without a document. With that
in mind, and following discussions that took place during the
Commons Committee stage of this clause, we are 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.
Question 2. Why
does the Government consider that reversing the burden of proof
would be a proportionate response to the legitimate aim, particularly
having regard to clause 2(5) (which limits the circumstances in
which a defendant would be able to claim to have had reasonable
cause for destroying documents)?
A provision which interferes with the presumption
of innocence can be compatible with Article 6 of the ECHR if it
is directed to a legitimate aim and the interference is no more
than is necessary to meet that aim (i.e it is proportionate).
We consider that the reversal of the burden of proof in this offence
is both for a legitimate aim and proportionate.
The problem of abuse of the asylum and immigration
systems is recognised to be a matter of public concern and we
believe that our attempts to counter such abuse would be considered
to be for a legitimate aim. We accept that some people (in the
main those who claim asylum) who arrive in the United Kingdom
without documents or inadequately documented may have good reasons
for doing so. However a significant proportion deliberately destroy
or dispose of their documents in order to enhance their claim
(by obscuring their identity and/or nationality or claiming that
they come from a country which they do not) or to thwart their
removal in the event of a failed claim. Ultimately removal from
the United Kingdom may be delayed indefinitely if a replacement
document cannot be obtained on a person's behalf (the country
concerned may not issue a travel document or accept an EU letter
unless it is satisfied of both the person's true identity and
nationality, which can be difficult to establish if someone has
destroyed their documents).
Whether a person sets off on their journey without
documents or whether they destroy them on the way or soon after
arrival is something that is peculiarly in that person's knowledge.
There might be occasions when, if the burden were on the prosecution
to disprove a defence, its task would be a straightforward one.
Those cases where a person boards a flight in their own name with
their documents and disembarks without them. It will be unlikely
that they will be able to offer an acceptable excuse as to why
that is. However in those cases where a person claims that they
never had a document or where they boarded the plane using a different
name to that which they offered on arrival, it is difficult to
see how the prosecution could disprove an excuse if the burden
of doing so rested with it. In such cases any excuse that the
defendant may have for not having the documents on arrival is
peculiarly in his or her own knowledge and we believe, therefore,
it is justifiable to require the defendant to prove this him or
herself.
We do not believe that clause 2(5) impacts on the
provision's compatibility with article 6. Clause 2(5) merely provides
that certain conduct may not amount to a defence of arriving in
the United Kingdom without a document.
Question 3.
Why does the Government consider 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?
We do not consider it irrational for a deciding authority
to regard it as damaging the credibility of a person making an
asylum or human rights claim if they fail to take advantage of
a reasonable opportunity to apply for protection in a safe third
country through which they pass en route to the United Kingdom.
It is in our view legitimate to expect a person who is genuinely
in need of international protection to apply for such protection
in the first safe country they reach, subject to the reasonable
opportunity proviso included in clause 6(3).
The extent to which failure to seek protection in
a safe country before arriving in the United Kingdom will damage
a person's credibility is not fixed by clause 6. The deciding
authority will have discretion to decide the weight to give to
this failure, taking account of all factors relevant to the claim.
The requirement to take that behaviour into account is not determinative
of credibility and does not displace the obligation to consider
all the circumstances of the case.
Similarly, there is nothing in clause 6 which requires
or permits a deciding authority to act in breach of the European
Convention on Human Rights (or the Refugee Convention). If a deciding
authority considers that a person's asylum or human rights claim
has been successfully made out, notwithstanding the fact that
they did not take up the opportunity of applying for protection
elsewhere, then that person will not be removed.
Clause 6 does not alter the fairness of the initial
decision making in that the merits of any asylum or human rights
claim will still be considered in accordance with our international
obligations under the Refugee Convention and the European Convention
on Human Rights. Claimants will have a right of appeal against
a refusal of their claim and the appellate authority will determine
that appeal in accordance with those obligations.
Question 4.
In the light of these considerations, why does the Government
consider 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?
Clause 7 adds a fifth class of ineligible person
to schedule 3 Nationality, Immigration and Asylum Act 2002 (NIA).
For the purposes of NASS support (part vi Immigration and Asylum
Act 1999) a person continues to be treated as an asylum seeker
while his household includes a dependent child who is under 18
while he and the child remain in the United Kingdom. That is subject
to paragraph 6 of schedule 3, if he fails to comply with a removal
direction (i.e he is then ineligible for support notwithstanding
his continued presence in the UK). Clause 7 applies to those whose
asylum claims have failed and whose appeal rights are exhausted.
The intention of the clause is to ensure that those families
whose asylum claim, after full and fair consideration, has failed
return home as soon as possible. The Government does not believe
it is right or justifiable that persons should be able to continue
living at public expense if they are able to return home and do
not do so. The clause is designed to encourage people to make
a dignified return home rather than facing compulsory removal
(although the Committee should note, in any event, that the latter
is not always possible - see further below). The Government believes
that allowing families to receive support indefinitely when their
asylum claim has been rejected acts as an incentive to frustrate
the removal process and therefore the asylum system. Clause 7
is an important part of the Government's reforms to bring further
order to, and confidence in, the asylum system.
Paragraph 1 of Schedule 3 sets out all those provisions
under which the ineligible persons may not receive support. Paragraph
3 provides that paragraph 1 does not prevent the exercise of a
power or the performance of a duty to the extent that its exercise
or performance is necessary for the purpose of avoiding a breach
of a person's Convention rights. This provision impacts on all
those who may potentially provide support to failed asylum seeking
families including both the Secretary of State and local authorities.
Schedule 3 also contains a requirement at paragraph 13 for a local
authority to inform the Secretary of State if it is asked to provide
support to anyone who it thinks may be covered by paragraph 1.
That requirement is extended by clause 7 to those who the local
authority believes may be ineligible for support by virtue of
it.
Subject to the provisions noted above, the Government
comments further on the operation of Clause 7 and its compatibility
with Article 8 below.
The clause applies to those who the Secretary of
State certifies have failed either to take reasonable steps to
leave the UK or to place themselves in a position whereby they
are able to leave the UK. Dealing with each in turn:
(i) those who the Secretary of State certifies are
failing, without reasonable excuse, to take reasonable steps to
leave the UK voluntarily. In other words those who can but are
not returning home. If this is the case and is certified as such
then support will cease 14 days after receipt of that notification
by the person concerned. The Government does not accept that in
such cases there will be an interference with the family's (or
its individual members) rights under Article 8 since certification
will only occur in cases where the family are able to retain their
unity by returning to their country of origin. If the family were
to choose not to do so, then it is considered that any resulting
interference with their private or family life would be proportionate
to the pursuit of effective immigration control and to the economic
well-being of the country. Assistance for voluntary returns is
available, for example through the Voluntary Assisted Returns
and Reintegration Programme operated by the International Organisation
for Migration. Voluntary return is clearly preferable where children
are involved, hence the Government's desire to encourage return
by this route. Furthermore, enforced removal is also an expensive
process involving considerable Immigration Service resources;
(ii) those who the Secretary of State certifies are
failing to take reasonable steps to place themselves in a position
in which they are able to leave the UK voluntarily. In the main
this will apply to those on whose behalf the Immigration Service
needs to apply for a travel document but who are failing to cooperate
with steps to obtain one on their behalf. They may, for example,
be required to provide biographical details, details of their
education, contact details of friends or relatives in their country
of origin or attend at an interview at the embassy concerned.
The country concerned will only issue a document if it is satisfied
of both the person's (family's) true identity and nationality.
At present a family can fail to cooperate with steps required
to obtain a document on their behalf whilst at the same time and
potentially indefinitely (or at least until the children in the
family reached 18) carry on being supported. As noted above a
removal direction cannot be issued unless a person has a travel
document. In these circumstances, therefore, it is simply not
open to the Government to remove families as suggested by the
Committee, and indeed frequently people do not cooperate precisely
because they are aware that it will frustrate the Government's
attempts to remove them.
In these circumstances the Government accepts that
there may be a period of time between support being withdrawn
and, if that step then compels a family to start co operating,
the issuing of the document itself. If the parents were unable
to care for or support their children during this period and had
no other means of doing so (friends, family, community) then obviously
the local authority would have to consider at that stage whether
it had to take any steps (such as supporting or accommodating
the child) to protect the child's interests. None of the provisions
in schedule 3 NIA, including the proposed clause 7, prevent the
Secretary of State or a local authority from exercising a power
or duty to the extent necessary to avoid a breach of a person's
Convention rights. Necessarily, therefore, in the circumstances
described above, either the Secretary of State or the relevant
local authority would have to consider whether despite the certification
it did need to provide support so as to avoid a breach of Convention
rights. In the context of Article 8, this would mean that support
would be made available wherever it was considered that a failure
to provide it would result in an interference with private or
family life which was disproportionate to the aims pursued.
The Government is currently drawing up a process
that will include a series of letters and an interview. This will
ensure that families are fully aware of the consequences of their
actions and the possibility that support may eventually be withdrawn.
It will also ensure that, in the event a family is not cooperating,
an enforced removal is effected whenever possible. Discussions
are also taking place with the Local Government Association with
a view to establishing the ways in which local authorities might
exercise their duties towards children in those instances where
support is withdrawn.
Question 5.
Does the Government consider that the proposals in clause 7 comply
with the United Kingdom's obligation under CRC Article 3.1 to
make the best interests of children a primary consideration in
all decision-making which affects them, and if so, why?
The Government believes its proposals are in accordance
with Article 3.1 of the UNCRC. As described in response to the
question above, any withdrawal of support will be entirely avoidable
if the parents in the family take appropriate steps to return
home or to place themselves in a position whereby they may be
returned home. It is only if they fail to take these steps that
the Government will consider withdrawal of their support. If it
does this then the children in the family may still be supported
if it is considered necessary, albeit by the relevant local authority.
It will be up to the local authority to determine how best it
should provide that support, although it is prohibited from supporting
the parents as well unless it is necessary to do so to avoid a
breach of the ECHR. The Government does not think that continuing
to support a family in a country in which it has no long-term
future is in a child's best interests. It would delay the family's
eventual resettlement and would be contrary to public policy.
Question 6.
In the light of this, why does the Government consider 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?
Clause 8 provides immigration officers with a power
of arrest without warrant, in respect of a number of specified
offences. However, this power will only be exercised where the
specified offence is encountered as part of an immigration investigation
or operation. The clause specifically states that in order for
the power of arrest to apply, an immigration officer must have
formed a reasonable suspicion that a person has committed or attempted
to commit an offence to which the section applies "in the
course of exercising a function under the Immigration Acts".
Concern has been expressed that the effect of clause
10 would lead to possible breaches of the ECHR where powers under
clause 8 are exercised, in that victims of an alleged abuse of
power might not be able to challenge that alleged abuse in court
or obtain compensation. This is not the case. Clause 10 relates
specifically to challenges to the decision of the Tribunal when
it is considering appeals against immigration decisions as defined
in section 82 of the 2002 Act and has no direct link to clause
8. A person who alleges that an arrest under clause 8 was unlawful
will still be able to seek judicial review or habeus corpus.
In cases where an arrest is made in reliance on the
new power, the arrested person will have to be taken to the nearest,
designated police station. Upon arrival at the police station
the continued detention of that person will have to be authorised
by the custody officer. Once booked in, any person arrested will
be subject to the safeguards provided by the Police and Criminal
Evidence Act 1984 ("PACE").
In addition, by virtue of section 145 of the Immigration
and Asylum Act 1999, in England, Wales and Northern Ireland, immigration
officers exercising their powers to question, search or arrest
must have regard to the relevant specified provisions of PACE
codes. The Immigration (PACE codes of Practice) Direction of 2000
sets out the relevant powers and the provisions of the codes that
must be adhered to. For example, an immigration officer who wishes
to arrest a person without a warrant must have regard to every
provision contained within PACE codes C, D and E.
Neither section 145 of the 1999 Act nor PACE applies
in Scotland. However, the Immigration Service in conjunction with
the Crown Office has drawn up the Immigration Arrest (Scotland)
Codes of Practice. These Codes specify that immigration officers
exercising powers of arrest in Scotland shall work within the
boundaries of the provisions sections 13 to 15 of the Criminal
Procedure (Scotland) Act 1995 (reading those provisions to refer
to "immigration officer" rather than "constable").
Further, when exercising powers of search under the Immigration
Act 1971, the Codes specify that immigration officers must have
regard to the PACE Codes of Practice.
As a matter of policy, only immigration officers
who have undergone rigorous training in relation to criminal investigations
will be allowed to exercise these new powers. The training will
include relevant training in human rights issues and their impact
on arrest and investigation, race relation issues and powers of
arrest. The latter will include further guidance on areas such
as proportionality and reasonableness.
The PACE codes of practice form the basis for the
training package for immigration officers who are to undertake
arrest duties and to work as part of the crime investigation teams.
The training covers all areas that are essential to staff who
will be undertaking arrests and investigation of crimes. Thirteen
days of the fifteen day course for crime investigation teams are
founded on the principles and application of PACE and cover areas
such as searches, interviewing, custody, emergency first aid and
the rights of the individual. A separate course is provided for
arrest training and again the core basis for the training is the
PACE codes of practice, where officers are trained in how to lawfully
implement the powers of arrest and appropriate use of restraint
techniques.
Where a complaint is made there are clearly defined
procedures for the handling of complaints against members of the
Immigration Service and others for which the Service has responsibility.
The Immigration Service Complaints Unit handles such complaints.
The work of the Unit is scrutinised by the Immigration and Nationality
Directorate, Complaints Audit Committee (CAC) who are an independent
body appointed by the Immigration Minister to monitor the complaints
procedure of the Immigration and Nationality Directorate (IND),
including those of the Immigration Service. The committee's terms
of reference, as defined by the relevant Minister are:
"The IND Complaints Audit Committee should
satisfy itself as to the effectiveness of the procedures for investigating
complaints. It will be involved in the investigation of systems
and procedures used in dealing with complaints but will not take
part in the individual decisions. It will have access to all papers
on compliance investigations. In complaints arising from the exercise
of powers by immigration officers under sections 128 - 138 of
Part VII of the Immigration and Asylum Act 1999, the Committee
will be provided with a copy of the complainant's letter as soon
as possible after receipt. The Committee will have the opportunity
to comment on the form which the investigation should take and
will be kept informed of the progress of the investigation. The
Committee will draw the attention of IND management to any weakness
or any quality of service deficiencies identified within established
procedures and working practices, and will make an annual report
to the Home Secretary."
In keeping with this undertaking the CAC have an
enhanced role in relation to any complaints arising from an immigration
officer exercising a power of arrest. The CAC members take the
lead responsibility for monitoring these cases. The appointed
CAC member is known as the Independent Assessor (IA) and the IA
will be notified when such a complaint is received. Investigators,
who have been specially trained in all aspects of the relevant
law, PACE codes of practice and enforcement practice will carry
out the enquiries into the complaint. Upon receipt, the investigation
report will be forwarded to the IA who is able to make comments
or recommendations at this stage. He will be appraised regularly
of the progress of the investigation and may make recommendations
or comments at any stage during the process. The Immigration Service
Complaints Unit completes the final response to the complainant,
and this is forwarded to the IA who will have a further opportunity
to comment before the response is despatched.
In light of the strict procedures that are in place
with regard to the exercise of arrest powers and the fact that
there are specific, independent monitoring systems in place with
regard to complaints, together with the scrutiny of the courts
with regard to prosecution of such cases, the Government is satisfied
that there are sufficient safeguards in place against the abuse
of the powers provided for in clause 8.
Question 7.
What are the Government's estimates of:
(a) the number of full-time and full-time-equivalent
members who would be appointed to the proposed Asylum and Immigration
Tribunal;
As the legislation provides for a transfer of all
existing IAA and IAT judiciary to the IAT, the judicial complement
will be the same as in question 7(b).
(b) a statement of the current number of full-time
and full-time-equivalent adjudicators and members of the Immigration
Appeal Tribunal;
The current number of full-time and full-time-equivalent
adjudicators and members of the IAT is as follows:
IAT: 1 President
1 Deputy President
33 salaried Vice Presidents
32 fee paid legally qualified Chairs
33 fee paid lay members (not transferring to
AIT)
IAA: 1 Chief Adjudicator
1 Deputy Chief Adjudicator
9 Regional Adjudicators
7 Deputy Regional Adjudicators
146 salaried full-time adjudicators
454 fee-paid adjudicators [full- and part- time]
(b) the current number of staff of the Immigration
Appeal Tribunal and the adjudicators;
The IAT has 89 permanent administrative staff. The
IAA has 994 members of staff of which 173 are permanent part-time
or casual part-time.
(c) the current member and staff costs of the
adjudicator and Immigration Appeal Tribunal system; and
The current staff and judicial costs of the IAA and
the IAT are £54.8 million, which breaks down as follows:
£18.0 million for salaried judiciary (both tiers); £16.5
million for fee-paid judiciary (both tiers); £1.6 million
for travel and subsistence (of which 90% is generated by fee-paid
judiciary); and £17.1 million of IAA staff costs and £1.6
million of IAT staff costs. The forecast for judicial fees is
based on judicial numbers and the current year plan of judicial
sittings for fee-paid judiciary in both tiers.
(e) the estimate of member and staff costs for
the first year of operation of the proposed new Tribunal?
The current year pay-bill (for year 2002/03) has
total costs of judiciary and staff of £54.8 million. There
may be a proportional increase in salaried adjudicators' fees,
due to the new Tribunal having more senior judiciary (supervisory
judges). This could feasibly be calculated as a 5% increase on
the current bill of £18.0 million, making a further £0.9
million. However, we can subtract forecasted fees of £1.7
million for lay members who will not be present in the AIT.
An estimated figure therefore may be:
£19.0 million for salaried judiciary (rounded
up)
£14.8 million for fee-paid judiciary (minus
lay members)
£1.6 million judicial travel and subsistence
£18.7 million staff costs
The total estimated staff and judicial costs are
therefore £54.1 million. Please note that this does not account
for inflation or projected pay increases between this financial
year and the implementation date of the new Tribunal.
Question 8.
Why does the Government consider that it would be compatible
with ECHR Article 13 to restrict review by and appeal to the courts
so as to make the proposed Tribunal the final arbiter of a claim
that it has itself violated a Convention right?
The Government has already stated its view that Article
13 does not require the provision of multiple levels of appeal
in the explanatory notes to the Bill. What is required is access
to an independent national authority with strong enough powers
to provide effective redress. The Government's stance is that
the Tribunal will meet these requirements in a way specifically
relevant to the issues that arise in immigration and asylum cases.
The Government wishes to maintain scope for domestic
redress to address such violations as might occur, but considers
that it is justified in forming the view that the risk that the
Tribunal's judiciary might violate an appellant's Convention right
is low. In the four years since the Human Rights Act 1998 came
into force very few cases have alleged violations by judicial
act, and such violations are rendered even less likely in immigration
and asylum appeals which do not concern the determination of a
person's civil rights and obligations for the purposes of ECHR
Article 6(1) (Maaouia v France (2000) 33 EHRR 42). What
the Government does not accept, however, is that in order to provide
effective protection against violations by judicial act, the United
Kingdom is bound to retain the multi-tiered hierarchy of courts.
The Government has confidence in the judiciary at
all levels within the United Kingdom. The requirements for appointment
as adjudicators and Tribunal members and the procedures for judicial
appointments ensure that those who are appointed are of high moral
and professional capacity.
It has never been the case that HRA 1998 provides
that every single allegation of violation by a judicial act is
open to higher court scrutiny. Section 9(1) states as follows:
9(1) Proceedings under section 7(1)(a) in respect
of a judicial act may be brought only—
(a) by exercising a right of appeal;
(b) on an application (In Scotland a petition)
for judicial review; or
(c) in such other forum as may be prescribed
by rules.
(2) That does not affect any rule of law which
prevents a court from being the subject of judicial review."
There is no forum for an allegation that the House
of Lords has violated a Convention right, nor is there for judicial
acts of the Divisional Court when it is exercising jurisdiction
over matters for which it is the "final" level of appeal.
Nor would the Government accept that a forum has
to be provided to enable any complaint to be aired regardless
of the strength or weakness of the complaint. There are permission
stages both in appeals to the IAT and in seeking judicial review.
The inclusion of a requirement for a clear error of law as the
threshold requirement for tribunal review is, in the Government's
view a particularly appropriate way of addressing the level of
risk.
Question 9.
Why does the Government consider that the restriction of recourse
to the courts, coupled with the absence of a power for the Tribunal
to give a full range of remedies (including injunctions and damages)
for violations of human rights, would be compatible with the right
to an effective remedy for alleged violations of Convention rights
as required by ECHR Article 13?
In response to the particular point raised by the
Committee, the Government does not accept that a judge exercising
the Tribunal review jurisdiction is not independent of the judge
who heard the appeal. The Government contends that the Tribunal
system stands as an effective remedy satisfying our international
obligations under article 13. The Government has decided that
it wishes to go further than this, empowering a reviewing judge
to consider cases raising a clear error of law.
The Government firmly rejects any implication that
a differently constituted Tribunal, i.e. a different immigration
judge or panel of immigration judges, would lack independence
of the original immigration judge who heard the appeal. We are
not aware of any jurisprudence contradicting this view, and such
a view would be inconsistent with the understanding of what is
embraced by the principle of the independence of the judiciary.
Not only are judges independent of the executive, they are independent
of each other in the determination of cases. Every judge in deciding
a case does so according to his own judgement. He or she has to
apply his or her own mind and is not to be influenced by any other
judge in an improper way. Whilst the proposed new section 105A
is novel as a statutory provision, it is consistent with the existing
practices of the House of Lords and the Court of Appeal, which
will in appropriate circumstances review their own decisions in
the exercise of their inherent jurisdiction: for example the House
of Lords in ex parte Pinochet (No.2) [2000] 1 AC 119 and
the Court of Appeal in Taylor v Lawrence [2002] 2 All ER
353.
The senior immigration judiciary who presently sit
part time as Vice-Presidents of the Immigration Appeal Tribunal,
include several who are also serving Circuit Judges. The current
IAT President is a High Court judge. The involvement of judges
of differing backgrounds and experience, strengthens the perception
of independence and infusion of the standards of the mainstream
courts within the Tribunal.
The powers which a court or tribunal needs in order
to ensure effective redress are those relevant to the performance
of the functions conferred upon it by statute or subordinate legislation.
The Bill does not alter substantively the range of issues that
come within the Tribunal's jurisdiction - they remain those appeal
rights relating to immigration and asylum claims set out in Part
5 of the Nationality, Immigration and Asylum Act 2002. The Government
does not see any need to add to the range of remedies which the
Tribunal require to perform its functions.
However, the Government recognises, on considering
the Committee's view of the effect of clause 10, that section
108A(2)(e) may be capable of being interpreted as restricting
access to the courts to a greater extent than is intended. Its
intended purpose is to prevent a person who has unsuccessfully
appealed to the Tribunal against an immigration decision, or who
had a right of appeal to the Tribunal which he did not exercise,
from disputing subsequently the lawfulness of the immigration
decision. It is the immigration decision which provides the legal
basis for detaining a person for removal. This would undermine
the finality of the Tribunal's decision. It is not intended that
clause 10 should affect the remedy of habeas corpus nor any right
the person has to damages where he has been unlawfully detained.
Nor is it intended to exclude judicial review where a person has
no right of appeal against a particular immigration decision.
The Government will give consideration to amending this subsection
to make its scope clearer.
Question 10.
Why does the Government consider that a system which denies detainees
the right to apply to a court for bail, or to obtain judicial
remedies (including compensation) for a violation of a Convention
right by the proposed new Tribunal, would be compatible with the
right to compensation for a violation of ECHR Article 5 (see Article
5.5) and the right to an effective remedy by an independent authority
guaranteed by Article 13?
The Committee's description does not appear to reflect
accurately the effect of the clause 13.
Clause 13 does not deny anyone the right to apply
to a court for bail, nor does it prevent a court from granting
bail. The true effect of the clause is that it ensures that where
a person is the subject of deportation action, and detention under
Immigration Act powers is appropriate, and bail has been granted
by a court in an unrelated matter (for example a criminal case),
that grant of bail does not prevent detention on immigration grounds.
This puts people who are detained under Schedule 3 to the Immigration
Act 1971 pending the making of a deportation order in the same
position vis a vis bail granted by a court, as those detained
under that Schedule pending removal once a deportation order has
been made, and as those detained as illegal entrants or overstayers
under Schedule 2 to the 1971 Act. For both the latter 2 categories,
it has always been the case that the grant of bail by a court
does not prevent detention on immigration grounds.
This does not mean that someone who is detained pending
a decision whether or not to make a deportation order following
a court recommendation or pending the making of an order is prevented
from applying for bail. As the explanatory notes make clear, detainees
will continue to be able to apply for bail from the Immigration
Service or the appropriate appellate authority by virtue of paragraph
2(4A) of Schedule 3 to the 1971 Act.
As is the case with the IAA at present, the Tribunal
will not be responsible for the initial decision that a person
should be detained; it will not hear appeals against detention,
nor will it have jurisdiction to determine whether or not a person
has been lawfully detained. Consequently, the provisions in clause
10, which provide for the exclusivity and finality of the Tribunal's
jurisdiction, will not change in any way the current procedures
for challenging the lawfulness or reasonableness of a decision
to detain someone under Immigration Act powers.
Neither clause 10 nor clause 13 has any effect on
the judicial remedies available to someone who has been detained
in contravention of Article 5 of the ECHR. It is true that the
effect of clause 10 will be to prevent judicial review of a decision
by the Tribunal not to grant bail. However, the granting of bail
presupposes that the detention was lawful in the first place.
If it is alleged that the detention is unlawful, the proper remedy
is to seek judicial review, or to apply for habeas corpus.
As noted above, neither clause 10 nor clause 13 is intended to
affect either process, .
Question 11.
Why does the Government consider that clause 14 as currently
drafted is sufficiently focused on the mischief to make it a proportionate
interference with the right to respect for private life under
ECHR Article 8?
Clause 14 makes it an offence if a person fails to
take steps that he is required to take by the Secretary of State
so that a travel document may be obtained by or for that person.
The Secretary of State may only, under this clause, require a
person to take such steps if the action will enable a travel document
to be obtained by or for him and possession of that document will
facilitate that person's removal or deportation from the United
Kingdom. The provisions under which a person may be removed are
specified at clause 14(7). Necessarily the Secretary of State
can only require these steps to be taken if he believes that removal
or deportation is in prospect under these provisions. So, for
example, a British citizen could never be at risk from this offence.
We believe that if there is any interference with
Article 8, for those people for whom there is a prospect of removal
or deportation, it is both justified and proportionate. Obtaining
a travel document on a person's behalf can be a lengthy and difficult
process and requires that person's cooperation. Failure to cooperate
or take required steps can result in considerable delay and is
often done deliberately in order to frustrate the process. Delays
and, in some circumstances, complete obstruction of removal undermines
the efficacy and credibility of a properly functioning immigration
system. We need to take steps to combat this and ensure that removal
cannot be obstructed without sanction.
In the circumstances, therefore, we believe that
any resulting interference with Article 8 as a result of the operation
of this clause will be proportionate both to the pursuit of effective
immigration control and to the economic well being of the country
Question 12.
Why does the Government consider that the remedies for abuse
of the power to impose a requirement of electronic tagging under
clause 15 would be sufficiently comprehensive to meet the requirement
for an effective remedy before a national authority under ECHR
Article 13 where the tagging infringes the right to respect for
private life under ECHR Article 13, and the right to have access
to a court under ECHR Article 6.1 when the tagging infringes a
civil right (such as the right to be free of assault)?
The Tribunal is a public authority under a duty to
act compatibly with the ECHR and the Government has already stated
its view that the risk that the Tribunal's judiciary might violate
an appellant's Convention rights is low. In practice it is intended
that an electronic monitoring condition will only be imposed,
and can only operate, with the consent of the subject. The availability
of electronic monitoring will form part of the process of considering
an application for bail or temporary release/admission. In making
such an application, it will be for individuals to decide whether
they are willing to consent to and abide by an electronic monitoring
requirement. It is intended that each case will be carefully assessed
to determine whether the use of electronic monitoring is both
appropriate and proportionate. As the scheme will operate on the
basis of consent, it is unlikely that any convention issues will
arise.
Question 13.
In view of the level of seriousness of the offence of offering
immigration advice and assistance, and any safeguards against
improper use of the power by the Commissioner, why does the Government
consider that proposed new section 92A of the Immigration and
Asylum Act 1999, which would be inserted by clause 16 of the Bill,
and particularly 92A(7)(c) making possible search for and seizure
of lawyer-client communications, other confidential material of
a personal nature, and journalistic material, would be a justifiable
interference with ECHR Articles 6.1, 8 and 10?
Clause 16 of the Asylum and Immigration (Treatment
of Claimants, etc.) Bill makes provisions for a power of entry,
search and seizure to be granted to the Immigration Services Commissioner
("the Commissioner"). This power will enable the Commissioner
to investigate more effectively the criminal offence, set out
in section 91 of the Immigration and Asylum Act 1999, of providing
immigration services when unqualified to do so. The power applies
to material likely to be of substantial value to the investigation
of the offence. That material may include material subject to
legal privilege, excluded material or special procedure material.
Investigating suspected cases of the section 91 criminal
offence is part of the Commissioner's duty. The rationale behind
that duty, as described in the Commissioner's last annual report,
is "to root out unscrupulous advisers who were believed to
be preying on the vulnerable". Most of the information required
by the Commissioner in order to prosecute the offence pertains,
by its very nature, to correspondence and advice which has passed
between the adviser concerned and his clients. If the Commissioner
is to be given a search and seizure power which will facilitate
investigations of offences under section 91, that power must apply
to material subject to legal professional privilege.
The rationale behind the doctrine of legal professional
privilege is that the administration of justice requires that
everyone should be able to consult a lawyer (or in this case an
immigration adviser), or prepare a case for litigation, without
fear that any information given to his lawyer or adviser will
later be revealed in court against his wishes and interests. The
doctrine thus protects those being advised, primarily in the context
of litigation in which they are involved.
Clause 16 is not intended to compromise those who
have received advice from unregulated advisers. The OISC has no
remit and no power to investigate the client and his immigration
status. Onward disclosure by the Commissioner of information he
has obtained is limited by section 93 of the Immigration and Asylum
Act 1999. The purpose of the power is to obtain information to
prosecute unregulated advisers, not to investigate the immigration
status of those they are advising.
The power is subject to the requirement of a warrant.
Before he can exercise the power of entry, search and seizure,
the Commissioner must satisfy a Justice of the Peace of a number
of conditions which are intended to ensure that the power is used
appropriately and proportionately. If the Justice of the Peace
considered that there was any defect in the Commissioner's proposal,
a warrant would not be issued. We are considering, with the Commissioner,
the extent to which excluded material and special procedure material
would be of value to his investigations and if it is appropriate
to amend this provision we will do so.
Question 14.
Does the Government consider that fees calculated on the basis
set out in clause 20(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 Article 26 of
the International Covenant on Civil and Political Rights, and
if so, why?
We do consider that fees calculated on the basis
set out in clause 20(1) and (3) would not impact on poor people
in such a way as to be incompatible with the rights under Article
26 of the International Covenant on Civil and Political Rights.
Clause 20 does not make the setting of fees at an
above cost level mandatory. It will always be in the discretion
of the Secretary of State whether any fee should be levied using
this power. This discretion, along with the associated discretion
as to how high any fee levied using the power will be, is not
unfettered. As is clear from clause 20(1) and (3), the decision
whether to set a fee under this power and at what level must be
intended to "reflect
the benefits that [the Secretary of State]
thinks are likely to accrue"
to the ultimate beneficiary of the application. Additionally,
of course, in exercising his discretion the Secretary of State
will have regard to all relevant factors in order to ensure that
any fee levied is reasonable in all the circumstances and accords
with the usual principles of administrative decision-making.
Furthermore, each of the fee-setting powers to which
this clause applies enable the Secretary of State to make different
provision for different cases. In particular the Committee is
referred to:
- section 1 of the Consular Fees
Act 1980;
- section 41(3) of the British Nationality Act
1981;
- section 166(3) of the Immigration and Asylum
Act 1999; and
- section 122(3) of the Nationality, immigration
and Asylum Act 2002.
Accordingly, should the Secretary of State conclude
that the setting of a fee may act as an effective disincentive,
or bar, to the making of applications by the economically disadvantaged
or that high fee levels would amount to unlawful discrimination
against such a category of applicant it will be open to him to
make provision addressing this in the secondary legislation that
sets the relevant fee. Provision of this kind may, for example,
include the exempting of certain categories of potential applicant
from the relevant fee or the prescription of a lower fee that
would apply to that category specifically.
Indeed, there is already provision of this kind in
the Consular Fees Regulations 1981(which are made under section
1 of the Consular Fees Act 1980, to which the new charging power
is applied by clause 20(3) of the Bill). Regulation 7 of these
Regulations states that:
"A consular
officer is authorised to waive fees as follows;
(a) where the consular officer so
decides on the ground of proved destitution ... "
As explained above, the flexibility exists for the
Secretary of State to make similar provision in relation to all
the types of fees to which the new powers apply should he deem
it necessary to do so.
Finally, it should not be overlooked that the making
of any instrument, with the exception of an Order in Council under
section 1 of the Consular Fees Act, that seeks to levy fees at
a level over and above the cost of providing the service in question
is subject to Treasury approval (see clause 20(1)). This is an
extra check on the level of fee that might ultimately be set using
this new power.
Although no specific questions are raised on clauses
11 and 12 you mention your concerns highlighted in a previous
report about the restriction on appeal rights for applicants making
asylum or human rights claims certified to be clearly unfounded
and that the provisions in clause 10 of the Bill heighten those
concerns because of the restrictions on appeal rights contained
in those provisions. However, as you point out in the first paragraph
of your comments on clause 10, judicial review remains available
under new section 108A (3)(b)(i) of the Nationality, Immigration
and Asylum Act 2002, which includes reviewing certificates issued
under section 94 of the 2002 Act (the safe country of origin provisions)
and Schedule 3 to this Bill (the safe third country provisions).
So the provisions in clause 10 do not lessen the scope that exists
to review decisions in country before a person is removed following
the issuing of a certificate under section 94 and in future under
Schedule 3. The Committee
will wish to note that the Government has laid amendments in relation
to Schedule 3 bringing the provisions on safe third countries
more closely into line with those on safe countries of origin.
I am copying this letter to David Lammy.
22 January 2004
2. Letter from Refugee Legal
Centre
The Refugee Legal Centre is an independent charity
providing advice and representation to asylum seekers and those
seeking protection from removal from the UK on human rights grounds.
We have considerable casework experience as one of the largest
specialist organisations in this field. We write following the
publication yesterday of your Committee's preliminary report on
the Asylum (Treatment of Claimants, etc) Bill.
The purpose of this letter is to confirm that:
(i) The Refugee Legal Centre shares the concerns
articulated by the Committee in its preliminary report about clauses
10 and 12 of the Bill;
(ii) We have received advice on clauses 10 and 12,
which raises additional concerns relating to Articles 2, 3, 6,
8 and 14. Our concerns are summarized below.
(iii) A fully reasoned opinion elaborating on the
matters summarized below is being finalized and should be available
by Friday 6 February in case that might assist the Committee's
consideration of these difficult provisions.
(iv) We would like to comment further on clauses
10 and 12 once the Government's response to the Committee's letter
to the Secretary of State (which was appended to the preliminary
report) has been published.
Summary of concerns re Clause 10
In summary, clause 10 gives rise to a significant
risk of incompatibility with the UK's ECHR obligations in the
following respects:
(1) excluding any right of appeal from or review
of the new Tribunal's decisions, and purporting to subject s.
7(1) of the Human Rights Act 1998 to the provisions making the
Tribunal's decision exclusive and final, gives rise to a real
likelihood that the UK will be found to be in breach of Article
13 ECHR which guarantees the right to an effective remedy in respect
of Convention violations. The proposed new single-tier Tribunal
will be a public authority for the purposes of the HRA, and therefore
under a duty to act compatibly with Convention rights, but if
the statutory ouster clause is applied by the courts the effect
will be that there is no right to challenge a decision of the
Tribunal before an independent body on the ground that the Tribunal
has itself acted incompatibly with an individual's Convention
rights. Nor will there be any opportunity to obtain the full range
of remedies which may be necessary to protect the Convention right.
The proposed powers in the Tribunal to review its own decisions
and to refer a point of law to a higher court do not meet the
Article 13 objection because the Tribunal is still the final arbiter
of whether it has itself acted incompatibly with a Convention
right, and lacks the power to award the remedies which may be
necessary to give effective protection to Convention rights.
(2) the enactment of clause 10 may also lead to a
finding that the UK is in violation of the positive obligation
implicit in Articles 2, 3 and 8 to provide necessary procedural
safeguards for the effective protection of the substantive rights
protected by those Articles, which may require in certain circumstances
that that there be access to an effective judicial procedure to
avert a possible future breach of the substantive protections
afforded by those Articles. The principle of the rule of law is
a concept inherent in all the Articles of the Convention. It is
a principle of particular importance in the context of interferences
by public authorities with the rights of individuals, and implies
a need for effective judicial protection. The exclusion of any
right of access to the ordinary courts from decisions of the new
Tribunal risks a breach of the implicit procedural obligation
in Articles 2, 3 and 8 to make a judicial procedure available
as part of the necessary domestic law guarantees against arbitrary
interference with those Convention rights.
(3) the removal of the second tier of appeal and
the exclusion from access to the higher courts from the single
tier tribunal will, in the absence of an effective mechanism for
ensuring that all decisions of the single tribunal which are capable
of going wrong can be corrected, inevitably lead to violations
of Articles 2 and 3 ECHR in asylum appeals where genuine asylum
seekers are wrongly returned to countries where they face persecution
or death, and to violations of Article 8 in immigration appeals
where individuals are wrongly returned in breach of their right
to respect for their family life or home.
(4) the enactment of clause 10 will also give rise
to a serious risk of a finding of violation of Article 14 of the
Convention in conjunction, first, with Article 6(1) and/or Article
13, and, second, with Articles 2, 3 and 8, because it will amount
to a breach of the UK's obligation under the Convention to secure
to everyone within its jurisdiction access to judicial protection
in relation to acts of the administration which is not less favourable
than the judicial protection afforded to UK nationals as regards
legal challenges to acts of the administration affecting both
their Convention rights and their other fundamental interests;
and that less favourable treatment lacks an objective and reasonable
justification. Although decisions concerning the entry, stay and
deportation of non-nationals do not directly engage Article 6(1)
because they do not determine civil rights, it is clear from Belgian
Linguistics (No. 2) (1968) 1 EHRR 252 at para. 9 that a State
which goes beyond the strict requirements of Article 6(1), e.g.
by providing a right to apply for judicial review or an appeal
on appoint of law from administrative tribunals to the higher
courts cannot exclude certain categories of people from access
to those remedies without a reason for doing so which satisfies
the requirement of objective and reasonable justification.
The decision of the Court of Appeal in A, X and
Y and other v Secretary of State for the Home Department [2002]
EWCA Civ 1502 (in respect of which leave has been granted by the
House of Lords; appeal due to be heard in October 2004) cannot
be interpreted to mean that differential treatment of foreign
nationals is justifiable for all purposes. Pending determination
of the appeal by the House of Lords, the decision of the Court
of Appeal should be interpreted as applying to the very particular
context of detention of non-nationals for the purposes of protecting
national security in the unusual situation where the State would
usually have the power to remove but for Article 3 ECHR. It does
not follow from that decision that non-nationals can be treated
differently for all purposes, least of all for the purpose of
removing the most fundamental right of access to court in relation
to Convention violations.
Summary of concerns re clause 12
The enactment of clause 12 and Schedule 3 also gives
rise to a significant risk of incompatibility with the Convention
in the following respects:
(5) the measures will deprive asylum seekers of any
opportunity of having determined any arguable claim that deporting
them to a designated third country will violate their Convention
rights, in breach of Article 13 ECHR in conjunction with Articles
2 and 3;
(6) they will lead to violations of Article 3 in
meritorious cases, because asylum seekers with well-founded Convention
claims will be removed without any opportunity of having their
claim determined;
(7) they risk a finding of a violation of Article
14 in conjunction with Article 6(1) and/or Article 13, and in
conjunction with Articles 2 and 3, because those non-nationals
subject to these measures are treated less favourably in remedial
terms than nationals who wish to complain about a violation of
their Convention rights, and there is no objective and reasonable
justification for such less favourable treatment.
As stated above, if further information or clarification
of the above matters might assist the Committee, we would be happy
to provide it.
27 January 2004
