Summary
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.
| 
