1 Introduction
Background
1. The Immigration Bill[1]
was introduced in the House of Commons on 10 October 2013. The
Rt Hon Theresa May MP, Secretary of State for the Home Department,
has certified that, in her view, the Bill is compatible with Convention
rights.
2. 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.
3. 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 to make it easier and quicker to remove those with
no right to be in the UK, by making enforcement quicker and simpler
and limiting appeals;
- 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, to enable
them to continue living in the UK.
4. We wrote to the Government about Parts 1 to
3 of the Bill on 30 October[2]
and the Minister for Immigration replied by letter dated 12 November.[3]
We wrote asking some further questions about Part 4 of the Bill,
which contains new powers to investigate suspected sham marriages
and civil partnerships, on 12 November, and the Minister for Immigration
replied by letter dated 27 November.[4]
5. The Bill's reform of the immigration and asylum
appeals system has significant implications for access to justice
and should be considered in the context of other relevant Government
proposals concerning legal aid, such as the proposed introduction
of a residence test, and the reform of judicial review. We are
currently inquiring into the implications of these reforms for
access to justice generally, and in our call for evidence on the
Government's proposed judicial review reforms we specifically
sought evidence on the combined effect of those other reforms,
particularly the proposed residence test for legal aid, and the
provisions limiting immigration appeals in Part 2 of this Bill.
Information provided by the Government
CONVENTION RIGHTS (ECHR)
6. The Government published a free-standing ECHR
Memorandum, containing its assessment of the compatibility of
the Bill's provisions with the Convention rights, at the same
time as the Bill itself was published, in accordance with the
best practice that we recommend. In what we are pleased to see
now appears to be standard practice for Home Office Bills, the
Memorandum replaces the section on ECHR compatibility in the Explanatory
Notes and is available on the Bill webpage on the Home Office
website.[5]
7. The ECHR Memorandum is detailed and thorough
and includes extensive reference to relevant case-law. The Memorandum
is also, unusually, prefaced by some broad introductory comments
about UK immigration law and the Government's understanding of
the approach taken by the European Court of Human Rights to ECHR
issues which arise in the context of immigration controls.
8. Our letters were responded to on time and
our questions were addressed in detail. The Bill team readily
made itself available to meet our staff to discuss aspects of
the Bill and were also very helpful in responding to subsequent
queries and requests for information.
9. We commend the Department
on its conscientious and constructive engagement with our scrutiny
of the Bill's human rights compatibility. The quality of its
detailed ECHR Memorandum, and the approach taken in that Memorandum,
combining detailed analysis of particular provisions with a more
general account of the Government's understanding of the relevant
Convention case-law and principles, demonstrate a careful and
thorough engagement by the Department with the requirements of
the Convention, and has greatly assisted our scrutiny of the Bill.
We intend to draw this to the attention of the Cabinet Office
as an example of best practice to be aspired to by all Departments
when preparing for our scrutiny of the human rights compatibility
of their Bills.
CHILDREN'S RIGHTS (UNCRC)
10. The Government's ECHR Memorandum did not,
however, include any specific analysis of the compatibility of
the Bill's provisions with the UN Convention on the Rights of
the Child ("UNCRC"). As we have frequently reminded
the Government in recent legislative scrutiny Reports, in December
2010 the Government promised Parliament that it would always carry
out such scrutiny for compatibility with the UNCRC before introducing
legislation. The Bill contains measures which clearly have significant
implications for children, such as the provisions which require
courts and tribunals to have regard to particular public interest
considerations when determining whether an immigration decision
is in breach of the right to respect for private and family life
in Article 8 ECHR.[6]
We therefore asked the Home Office for a Memorandum containing
the Government's analysis of the implications of any provisions
in the Bill for the rights of children under the UNCRC, and explaining
the Government's view as to why those provisions are compatible
with that Convention.
11. The Government's response to our letter includes
its consideration of the UNCRC in its reply to our specific questions.
Like the ECHR Memorandum, it usefully explains the Government's
general approach to the UNCRC in the immigration context. The
Government says it has particular regard to Article 3, the need
to treat the best interests of the child as a primary consideration,
in all actions affecting children. It points out that the UK
has given effect to Article 3 through s. 55 of the Borders, Citizenship
and Immigration Act 2009 which requires the Secretary of State
to make arrangements for ensuring that her functions, including
immigration, nationality and asylum functions, are discharged
having regard to the need to safeguard and promote the welfare
of children who are in the UK ("the children duty").
It also requires any person exercising those functions to have
regard to any guidance given by the Secretary of State. Such
guidance on the children duty was issued in November 2009[7]
and the Government says that there is also internal guidance to
staff on how to take account of the children duty in discharging
their specific functions.
12. The Government says that it has also taken
into account the best interests of children in its consideration
of the Bill's compatibility with the Human Rights Act, in particular
the right to respect for private life, family life and home in
Article 8 ECHR, as the courts have made clear that the child's
best interests are an integral part of the Article 8 assessment
and not something apart from it.[8]
It says that this is reflected in the ECHR Memorandum. The Memorandum
does indeed show that the best interests of the child principle
and the relevant case-law on its application in the immigration
context were taken into account by the Government when considering
the Article 8 ECHR compatibility of a particular provision of
the Bill concerning the deportation of foreign criminals.[9]
13. We welcome the fact that
the Government's ECHR Memorandum shows that it considered the
best interests principle when assessing the compatibility of a
particular provision of the Bill with Article 8 ECHR. We also
welcome the more detailed UNCRC analysis contained in the Minister's
letter in relation to some other provisions in the Bill. However,
we repeat the general point made in a number of our recent legislative
scrutiny Reports that, as a matter of best practice, we would
prefer this analysis to be provided much earlier, either as part
of or alongside the ECHR Memorandum which was published when the
Bill was first introduced.
The relevant human rights law
framework
14. The Government's ECHR Memorandum helpfully
and accurately summarises the general principles which apply under
the ECHR when the human rights compatibility of immigration measures
is in question. To assist parliamentarians in their scrutiny
of the Bill, we summarise here the human rights law framework
which has structured our analysis of the Bill's human rights compatibility.
15. As the Government points out in its Memorandum,
the State is entitled, as a matter of international law and subject
to its treaty obligations, to control both the entry of foreign
nationals into its territory and their residence there. The Convention
does not guarantee the right of a foreign national to enter or
reside in a particular country. The State enjoys a certain "margin
of appreciation" when balancing the competing interests of
foreign nationals and the community as a whole: that is, subject
to the supervision of the Strasbourg Court, the State enjoys a
degree of latitude in deciding how precisely to strike the balance
between those competing interests. Immigration control is recognised
as a legitimate aim under Article 8(2) ECHR, primarily in order
to protect the economic well-being of the country; and the deportation
of foreign criminals is recognised as serving the legitimate aim
of the prevention of disorder or crime.
16. The Government's ECHR Memorandum also rightly
points out that the broad principles which apply in immigration
cases have been developed by the European Court of Human Rights
almost exclusively in the context of expulsion cases.[10]
However, the Government argues that the broad principles to be
derived from the Convention case-law provide the starting point
for arguing that, just as the UK can lawfully remove illegal migrants
for both crime prevention and wider immigration control reasons,
so it can also, compatibly with the Convention, take other measures
that seek to encourage such people to leave by limiting their
access to services and benefits in the UK. The Government rightly
acknowledges that this is subject to the important proviso that
such actions must in themselves be proportionate and do not violate
other ECHR rights such as the right not to be subjected to inhuman
or degrading treatment in Article 3 ECHR.
17. We draw to Parliament's attention a further
important proviso which is that such actions must not result in
unjustifiable discrimination in the enjoyment of Convention rights.
The case-law of the Court clearly establishes that differential
treatment on grounds of both nationality[11]
and immigration status[12]
come within the scope of "other status" in Article 14
ECHR. A person who is subject to immigration control is capable
of being in an analogous (ie. relevantly similar) position to
a citizen of the UK or to another migrant with a different immigration
status when it comes to access to services, for example. Any
differential treatment must therefore be objectively and reasonably
justifiable: that is, the differential treatment must serve a
legitimate aim and there must be a reasonable relationship of
proportionality between the means employed and the aim which it
is sought to achieve.
18. The provisions in the Bill that restrict
access to services on the basis of immigration status therefore
require such objective and reasonable justification where the
services in question fall within the scope of Convention rights.
The Government's ECHR Memorandum treats this as merely "arguable",
rather than a well-established requirement of the Convention case-law.[13]
Nevertheless, the Memorandum goes on to offer justification for
such differential treatment, whilst pointing out, correctly, that
"the margin of appreciation afforded to states is relatively
wide where differential treatment is based on immigration status,
which involves an element of choice, and the issue is a socio-economic
one."[14]
19. Even allowing a relatively wide margin of
appreciation for states when justifying differential treatment
in relation to access to services on the basis of immigration
status, the justification offered must still meet the standards
of objectivity and reasonableness. In Niedzwiecki v Germany,
for example, the Court found a violation of Article 14 in conjunction
with Article 8 of the Convention where under the German law on
child benefits a foreign national was only entitled to child benefit
if he had a residence permit or a provisional residence permit.[15]
The Court did not find "sufficient reasons justifying the
different treatment with regard to child benefits of aliens who
were in possession of a stable residence permit on the one hand
and those who were not, on the other."[16]
The Court agreed with the reasoning of the German Federal Constitutional
Court which had held (in a different case) that the different
treatment of parents who were and were not in possession of a
stable residence permit lacked sufficient justification. In so
far as the provision was aimed at limiting the granting of child
benefits to those aliens who were likely to stay permanently in
Germany, the Constitutional Court had found that the criteria
applied were inappropriate to reach that aim.[17]
The fact that a person was in possession of a limited residence
title did not form a sufficient basis to predict the duration
of his or her stay in Germany. In the absence of any other reasons,
the unequal treatment was therefore found to be unjustified.
20. We have borne in mind in
our human rights scrutiny of the Bill that, while it is correct
that the European Court of Human Rights usually affords a relatively
wide margin of appreciation (or discretion) to States, in particular
in the sphere of economic and social measures, reasonable and
objective justification is still required, and that there are
many examples of the Court finding a violation of Article 14 in
conjunction with another Convention right where access to a State
benefit has been denied on grounds of immigration status. 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.
1 HC Bill 128, as amended in
Public Bill Committee. Back
2
Letter dated 30 October 2013 from the Chair to the Home Secretary
(available on the Committee's website). Back
3
Letter dated 12 November 2013 from Mark Harper MP, Minister for
Immigration. Back
4
Letter dated 27 November from Mark Harper MP, Minister for Immigration.
Back
5
https://www.gov.uk/government/organisations/home-office/series/immigration-bill
Back
6
Clause 14. Back
7
Every Child Matters - Change for Children. Back
8
See in particular the Supreme Court judgment in ZH (Tanzania). Back
9
New s. 117C(5) as inserted by clause 14; see ECHR Memorandum para.
85. Back
10
ECHR Memorandum, para. 9. Back
11
Gaygusuz v Austria (1997) 23 EHRR 364. Back
12
Bah v UK, App. No. 56328/07, (27 September 2011), at para.
47. Back
13
ECHR Memorandum, para. 10, where the Government rightly explains
that measures concerning actual immigration control do not require
justification under Article 14, "however, with the provisions
in the Bill that restrict access to services the contrary can
be argued." Back
14
Bah, above n. 12, para. 47. Back
15
Niedzwiecki v Germany, Application no. 58453/00 (25 October
2005) Back
16
Ibid., para. 33. Back
17
Ibid., para. 24. Back
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