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

1  Introduction


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


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.


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 ChildrenBack

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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Prepared 18 December 2013