Legislative Scrutiny: Immigration Bill - Joint Committee on Human Rights Contents


The Immigration Bill was introduced in the House of Commons on 10 October 2013. The Bill received its Second Reading in the House of Commons on 22 October 2013, began its Committee Stage on 24 October and completed it on 19 November. Report Stage is expected to take place in January 2014.

The objective of the Bill, according to the Minister for Immigration, is "to make the UK the least attractive destination for illegal migrants, reinforcing the message that we welcome legal migrants who contribute to our economy and society but we will take firm action against those who break the rules." To this end, the Bill has three main themes: reforming the removals and appeals system; allowing Parliament to spell out its view of what the public interest requires when considering the right to respect for private and family life in Article 8 ECHR in immigration cases; and ensuring that illegal migrants cannot access various services, public and private, such as renting accommodation, holding a driving licence and opening a bank account.

We commend the Department on its conscientious and constructive engagement with our scrutiny of the Bill's human rights compatibility. We welcome the fact that the Government's ECHR Memorandum shows that it considered the best interests of children when assessing the compatibility of a particular provision of the Bill with Article 8 ECHR and we also welcome the more detailed UNCRC analysis contained in the Minister's letter in relation to some other provisions in the Bill, but we remind the Government that we would prefer to receive this analysis at the time the Bill is published.

We have borne in mind in our human rights scrutiny of the Bill that a measure which serves a legitimate aim, such as immigration control, and which is not incompatible with the Convention on its face, may nevertheless carry a risk that it will be applied in practice in a way which gives rise to breaches of Convention rights in particular cases, and we aim to assist Parliament to identify and minimise that risk.

Removal and enforcement powers

We welcome the Government's clarification of the intended definition of "family member" for the purpose of the single power of removal and the clarification that family members will always be notified if they are facing removal. However, this raises a question as to why the Secretary of State requires a power to make regulations about "whether" a family member to be removed is given notice and so we recommend that the regulation-making power in clause 1(6)(c) be amended to reflect this intention.

Appeal rights

We are concerned that the Bill's significant limitation of appeal rights against immigration and asylum decisions is not compatible with the common law right of access to a court or tribunal in relation to unlawful immigration decisions, and the right to an effective remedy. Indeed, limiting rights of appeal to the extent that they are restricted in the Bill constitutes a serious threat to the practical ability to access the legal system to challenge unlawful immigration and asylum decisions, and to enforce the statutory duty to have regard to the need to safeguard and promote the welfare of children when exercising immigration and asylum functions.

In our view, the First Tier Tribunal itself, not the Secretary of State, should decide whether it is within its jurisdiction to consider a new matter raised on an appeal. We recommend that the Government amends the Bill to achieve its purpose in a way which does not appear to make the scope of the tribunal's jurisdiction depend on the consent of one of the parties to the appeal before it, but leaves to the Tribunal the question of whether or not it may consider a new matter, provided there is good reason for the matter not having been raised before the Secretary of State. Nor are we satisfied with the Government's reliance on the continued availability of judicial review to challenge the Secretary of State's certification that a human rights appeal can be heard out of country, having regard to the unavailability of civil legal aid to bring such a claim and the proposed reforms of judicial review.

The provisions in the Bill which seek to guide courts and tribunals in their determination of Article 8 claims in immigration cases do not purport to go so far as to determine individual applications in advance or to oust the courts' jurisdiction. They merely require courts and tribunals to have regard to a list of public interest considerations when deciding whether an interference with a person's right to respect for private and family life is justified under Article 8(2) ECHR. The provisions do not seek to make the prescribed public interest considerations exhaustive, or to exclude other considerations from being taken into account when determining the Article 8 compatibility question. The Government's acceptance in litigation that the Immigration Rules should be interpreted consistently with the Strasbourg jurisprudence on Article 8 ECHR therefore applies equally to the provisions in the Bill and on that basis we are satisfied that the provisions introduced by clause 14 of the Bill are not on their face incompatible with Article 8 ECHR.

We are uneasy about any statutory provision which purports to tell courts and tribunals that "little weight" should be given to a particular consideration in any judicial balancing exercise, as is proposed by the Bill in relation to Article 8 claims in immigration cases. That appears to us to be a significant legislative trespass into the judicial function. We recommend that the Bill be amended in a way which retains as relevant public interest considerations whether a private life or relationship were established at a time when the person was in the UK unlawfully or when their immigration status was precarious, but omits the direction about the weight to be given to the person's private life or relationship.

We welcome the Government's clarification of its intention that nothing in the Bill is intended to change or derogate in any way from the children duty in s. 55 of the Borders, Citizenship and Immigration Act 2009. However, there is a danger that front-line immigration officials administering the legal regime will be unclear about the relationship between the children duty in s. 55 and the new tests introduced by the Bill which use different and unfamiliar language. We therefore recommend that new guidance be issued to ensure that the Government's stated intention about the unaffected status of the children duty is in fact achieved in practice.

Access to services

We are concerned about the risk of the new provisions relating to residential tenancies giving rise in practice to breaches of the right not to be subjected to inhuman or degrading treatment in Article 3 ECHR in the case of people who have no right to remain in the UK but face genuine barriers to leaving. We do not feel that we have been provided with sufficient detail of how the discretion of the Secretary of State in this area will operate in practice. We are also concerned to ensure that the Bill does not give rise to an undue risk that migrant children will be exposed to homelessness or separation from family members as a result of these provisions on residential tenancies, and we urge the Government to explain fully to Parliament the safeguards that exist to mitigate in practice the possible negative impact of these provisions on children.

We welcome the draft Codes of Practice and the Government's commitment to monitoring for evidence of discriminatory behaviour in the private rented sector, but in our view, the provisions in the Bill on access to residential tenancies heighten the risk of discrimination on racial grounds against ethnic minority prospective tenants, notwithstanding the fact that such discrimination is unlawful under the Equality Act. We therefore ask the Government not to commence these provisions until the Equality and Human Rights Commission and the Government Equalities Office are satisfied that there are sufficient safeguards in place to prevent such discrimination from arising in practice. We also recommend that the Equality and Human Rights Commission work closely with the Government Equalities Office, landlords' representatives and local authorities to monitor the consequences of the provision, and that the Government keep the provision under careful review in the light of the evidence produced by such monitoring.

We consider that there are questions to be answered about whether there is a rational connection between the Government's aim of ensuring that a person's access to health care is commensurate with their immigration status and the means by which it seeks to do so, namely applying a threshold of indefinite leave to remain. We call on the Government to explain further why there is a sound fit between the stated rationale that entitlement to free health care should be commensurate with immigration status and the selected criterion of indefinite leave to remain.

Sham marriages/civil partnerships

The evidence relied upon by the Government to demonstrate the necessity for legislating to supplement the powers that already exist to combat sham marriages demonstrates a recent sustained increase of about 800 to 900 in the number of annual reports of suspicious marriages or civil partnerships. Beyond this, however, there is little firm evidence of the scale of the problem. Parliament may wish to bear this in mind when it considers the proportionality of the proposed scheme's interference with the right to marry in Article 12 ECHR and the right to respect for private life in Article 8 ECHR, and the right not to be discriminated against in relation to the enjoyment of those rights.

As far as compatibility with the right to marry is concerned, there is nothing inherently objectionable about the Bill's proposed referral and investigation scheme. However, we encourage the Government to work closely with the EHRC with a view to developing an approach to identifying suspect proposed marriages or civil partnerships without resorting to unjustified discrimination on grounds of nationality.

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© Parliamentary copyright 2013
Prepared 18 December 2013