Conclusions and recommendations
Introduction
1. 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.
(Paragraph 9)
2. 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.
(Paragraph 13)
3. 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. (Paragraph 20)
Removal and enforcement powers
4. We welcome the Government's clarification of the intended definition of "family member" for the purpose of the single power of removal, and the express acceptance that the exercise of the power of removal of such family members remains subject both to existing immigration law and any relevant international obligations. We also welcome the clarification that family members will always be notified if they are facing removal, but 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. In view of the Government's welcome clarification that a family member who is to be removed will always be given notice, we recommend that the regulation-making power in clause 1(6)(c) be amended to reflect this intention.
(Paragraph 27)
Appeal rights
5. 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, particularly in light of the following:
- the relatively high proportion of such appeals
which currently succeed due to the well-documented shortcomings
in the quality of decision-making by the UK Border Agency;
- the importance of appeals as a means of enforcing
the children duty in s. 55 of the Borders, Citzenship and Immigration
Act 2009;
- the lack of information about the proposed new
system of administrative review; and
- the likely cumulative impact of proposed changes
to legal aid and judicial review on the practical effectiveness
of that remedy for those seeking to challenge the lawfulness of
immigration decisions on grounds other than those covered by the
surviving rights of appeal.
In our view, when viewed in this broader context,
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. (Paragraph 39)
6. In our view, the 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 would expect the Tribunal, in the exercise of its inherent power to prevent abuse of its own process, to permit a new matter to be raised only if there were good reasons for not raising the matter before the Secretary of State.
(Paragraph 46)
7. In view of the admitted novelty of new s. 85(5) and (6) of the Nationality, Immigration and Asylum Act 2002, inserted by clause 11 of the Bill, 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.
(Paragraph 47)
8. We are not 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.
(Paragraph 53)
9. 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 new statutory provision does 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 court or tribunal "must (in particular) have regard to" the public interest considerations listed in the provision.
(Paragraph 56)
10. The Government's express acceptance in the case of MF 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.
(Paragraph 57)
11. We
are uneasy about a statutory provision which purports to tell
courts and tribunals that "little weight" should be
given to a particular consideration in such a judicial balancing
exercise. That appears to us to be a significant legislative
trespass into the judicial function. We note that the Government
did not provide us with any other examples of such statutory provisions,
which suggests that this approach may be unprecedented. 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. (Paragraph 60)
12. 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, the Government has not explained how in practice the provisions in the Bill are to be read alongside the s. 55 duty. Without such explanation 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 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. We also ask the Government to confirm that it intends that the s. 55 children duty also applies to children who are not within the Bill's definition of a "qualifying child", as we believe it should.
(Paragraph 63)
Access to services
13. We are concerned about the risk of the new provisions giving rise in practice to breaches of Article 3 ECHR in the case of people who have no right to remain in the UK but face genuine barriers to leaving. The risk of the Bill's provisions on residential tenancies exposing such people to destitution depends to a large extent on how the Secretary of State's residual discretion to grant permission to occupy residential premises will operate in practice. We do not feel that we have been provided with sufficient detail of how that discretion will operate in practice to be confident that the provisions in the Bill will not give rise to a risk of breaches of Article 3 in practice where people who face a genuine barrier to leaving the UK are left effectively homeless because they are prevented from finding a residential tenancy by the disqualification in the Bill.
(Paragraph 74)
14. We are 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.
(Paragraph 77)
15. We
consider that the Government needs to satisfy Parliament that
the risk of subjecting non-nationals to homelessness is objectively
and reasonably justified, including by demonstrating that the
Secretary of State's residual discretion is likely to operate
in practice to prevent such homelessness in cases where there
are genuine barriers to leaving the UK. (Paragraph 83)
16. We welcome the draft Codes of Practice and the Government's commitment to monitor for evidence of discriminatory behaviour in the private rented sector. However, we are aware of recent reports that, under the current law, letting agents continue to discriminate on racial grounds notwithstanding the legal prohibition on such discrimination contained in the Equality Act.
(Paragraph 88)
17. In our view, the provisions in the Bill on access to residential tenancies heighten the risk of such discrimination on racial grounds against ethnic minority prospective tenants, both UK citizens and foreign nationals with permanent residence, who are entitled to rent, notwithstanding the fact that such discrimination is unlawful under the Equality Act. We ask the Government not to commence theses 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 recommend that the EHRC work closely with the Government Equalities Office, landlords' representatives and local authorities to monitor for evidence as to whether such unintended consequences of the provision are materialising in practice, and that the Government keep the provision under careful review in the light of the evidence produced by such monitoring.
(Paragraph 89)
18. Given the very wide range of the estimates it has produced, we caution against ascribing too much weight to the Department of Health's research when assessing whether the Government has demonstrated an objective and reasonable justification for the differential treatment to which the health charging provisions in the Bill give rise.
(Paragraph 100)
19. We have considered the extent to which immigration status is a reliable proxy for degree of connection with the UK. 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.
(Paragraph 104)
20. The unavailability of this information does not assist Parliament's consideration of whether the Government has demonstrated that the differential treatment of temporary migrants by the introduction of the immigration health charge is objectively and reasonably justified.
(Paragraph 106)
21. If charging for particularly expensive discretionary treatments were to be a feature of the health charging scheme it would introduce a further source of differential treatment which would require objective and reasonable justification. However, we consider that it would be premature for us to express a view on the question before the Government has decided whether it will be a part of the scheme. If the Government so decides, Parliament will need to be provided with more information about the exact criteria by which it will be decided which treatments are not covered by the immigration health charge.
(Paragraph 108)
Sham marriages/civil partnerships
22. We draw to Parliament's attention the questionable strength of the evidence relied on by the Government to demonstrate the necessity for legislating to supplement the powers that already exist to combat sham marriages. The evidence demonstrates a recent sustained increase of about 800 to 900 in the number of annual reports of suspicious marriages or civil partnerships, but beyond this there 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.
(Paragraph 117)
23. 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.
(Paragraph 119)
24. 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.
(Paragraph 124)
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