The Immigration Bill was introduced in the House of Commons on 10 October 2013 and had its Second Reading on 22 October 2013. We published our first Report on the Bill on 18 December 2013, before Remaining stages in the Commons. The Bill then passed to the House of Lords where it had its Second Reading on 10 February. Its Committee stage is due to start on 3 March.
This Report focuses on the new Government clause added to the Bill at Report stage in the Commons concerning the deprivation of UK citizenship, as this is a significant new matter in the Bill which engages substantively with a number of human rights and which was not dealt with in our first Report. We also return to some of the issues set out in our first Report.
Deprivation of UK Citizenship
Exercises of the power to deprive
We are surprised by the Government's refusal to inform Parliament of the number of cases in which the power to deprive of citizenship has been exercised while abroad, or of the number of cases in which the Secretary of State's decision was taken wholly or partly in reliance on information which in the Secretary of State's view should not be made public. Parliament is entitled to this information in order to assist it to reach a view as to how the new power is likely to be exercised in practice. We ask the Government to make this information available to Parliament, or to provide a more detailed explanation as to why this is information which should not be made available to Parliament.
We note that the possibility of introducing a power such as this was being publicly floated by the Home Secretary in media interviews, and by Charles Farr, the Head of the Office of Security and Counter-Terrorism in the Home Office, in evidence to the Home Affairs Committee, as long ago as November last year. Notwithstanding the need to give serious consideration within Government to the implications of the Al-Jedda judgment, we consider that there was time to hold a public consultation which would have made for better informed parliamentary scrutiny of the Government's proposal.
Compatibility with the UK's international obligations on statelessness
We accept the Government's argument that, in strict legal terms, enacting the power in clause 60 to deprive a naturalised citizen of their citizenship even if it renders them stateless does not involve any breach by the UK of its obligations under the UN Conventions on Statelessness. The new power will lead to an increase in statelessness, which represents a significant change of position in the human rights policy of the UK, which has historically been a champion of global efforts to reduce statelessness. It does not per se, however, put the UK in breach of any of its international obligations in relation to statelessness.
Intended scope of the power
We are surprised by the Government's statements about the intended scope of the power to deprive, which is significantly wider than was indicated by the Home Secretary to the House of Commons. We would be very concerned if the Government's main or sole purpose in taking this power is to exercise it in relation to naturalised British citizens while they are abroad, as it appears that this carries a very great risk of breaching the UK's international obligations to the State who admitted the British citizen to its territory. We recommend that the Bill be amended to make it a precondition of the making of an order by the Secretary of State that, in the circumstances of the particular case, the deprivation is compatible with the UK's obligations under international law.
Applicability of the ECHR
We do not accept the Government's argument that, generally speaking and in the absence of exceptional circumstances, a decision to deprive a naturalised citizen of their citizenship while they are physically in the territory of another State does not engage the individual's Convention rights under Articles 2, 3 and 8 ECHR because they are outside the UK's jurisdiction for ECHR purposes. In our view, a deprivation decision must be compatible with those Articles whether the citizen concerned is abroad or in the UK at the time of the deprivation decision.
Impact on children and dependants
We welcome the Government's acceptance that a deprivation order should not be made without taking full account of the impact on the whole family unit, and with regard to the best interests of any child affected. To ensure that the best interests of the child are treated as a primary consideration, as required by Article 3 UNCRC, we recommend an amendment to the Bill which requires the Secretary of State to take into account the best interests of any child affected when deciding whether to make a deprivation order under the new power.
Adequacy of safeguards against arbitrariness
We welcome the Government's indication that it would adopt a proportionality approach to deciding whether or not to exercise the new power in clause 60 to deprive of citizenship. However, we note that the Government does not want to rule out the possibility that deprivation of citizenship leaving a person stateless is necessary in the interests of the economic well-being of the country. It is hard to imagine the circumstances in which such a serious measure could ever be necessary and proportionate for such a purpose. We recommend that the Bill be amended to make it a precondition of an order that the deprivation of citizenship is a necessary and proportionate response to the conduct in question.
Changing the law with retrospective effect is recognised to be an exceptional step which requires weighty justification; and all the more so when the effect of such retrospectivity is to enable particular individuals to be deprived of the benefit of court judgments in their favour. These considerations are even weightier where the provision which is being given retrospective effect is a sanction in respect of previous conduct. We are not persuaded that there are sufficiently weighty reasons to justify the new power being made retrospective, and we recommend that the Bill be amended so as to prevent it having retrospective effect.
In our view it is clear that an appeal to SIAC will not be a fair hearing unless the AF disclosure obligation applies, so that the Secretary of State is legally required to disclose to the individual concerned sufficient information to enable him to give effective instructions to his special advocate. So long as the legal framework does not make such provision, the UK will be in breach of Article 8(4) of the Statelessness Convention. We recommend that the Bill be amended to ensure that the AF disclosure obligation applies in all appeals against orders made by the Secretary of State under the proposed new power.
Access to a practical and effective remedy
We welcome the Government's clarification that appeals to the Special Immigration Appeals Commission against deprivation of citizenship under the new power will not be subject to the proposed residence test for eligibility for legal aid, even where the appeal is brought from outside the UK, and we ask the Government to confirm that the same applies in relation to appeals to the First Tier Tribunal. We also recommend that, in order to ensure that the right of appeal is practical and effective, the legal framework provides that the time for lodging an appeal only begins to run either when the individual has actually received the notification or when the Secretary of State can demonstrate that she has taken all reasonable steps to bring the decision to the individual's attention, whichever is the earlier.
Follow-up to first Report
We recommend amendments to the regulation-making power in clause 1(6)(c) of the Bill to ensure that the Bill reflects the Government's stated intention that family members will always be notified if they are facing removal.
Removal of appeal rights and the right of effective access to court
We have serious concerns about the effect of some of the Government's proposed judicial review reforms on the practical ability to bring meritorious challenges to decisions, including in the immigration and asylum context. We recommend that the removal of appeal rights for which the Bill provides should not be brought into force until Parliament is satisfied that the quality of first instance decision-making has improved sufficiently to remove the risk that meritorious appeals will be prevented from being brought.
Limits on the Tribunal's powers to consider "new matters"
The Government's objective to prevent the Upper Tribunal from becoming the primary decision-maker by considering matters not previously considered by the Secretary of State can be achieved in a way which does not make the scope of the Tribunal's jurisdiction dependent on the consent of the respondent to the appeal. We recommend that the Bill be amended by removing the condition of the Secretary of State's consent and leaving it to the Tribunal to decide the legal question of the scope of its own jurisdiction.
Out of country human rights appeals
In the absence of legal aid, we do not consider that an out of country appeal against deportation on the grounds that it is in breach of the right to respect for private and family life is a practical and effective remedy for the purposes of Article 8 ECHR and Article 13 in conjunction with Article 8. We recommend that legal aid be available for such out of country human rights appeals, or alternatively that new s. 94B of the Nationality, Immigration and Asylum Act 2002, inserted by clause 12(3), be deleted from the Bill.
Best interests of children a primary consideration
We recommend that the Bill be amended to remove any scope for doubt about the effect of the Bill on the s. 55 children duty, by requiring the best interests of the child to be taken into account as a primary consideration.
Prescribing the weight to be given to certain considerations
We remain concerned by the provisions in the Bill which seek to influence the amount of weight given to the right to a private or family life in particular types of case. We recommend an amendment which would give effect to the recommendation in our first Report that the Bill be amended in a way which retains this as a relevant consideration to be weighed in the balance, but does not seek to prescribe the weight to be given to the right in that balancing exercise.
Access to services
We welcome the Government's indication that the Secretary of State, when exercising her residual discretion to grant permission to occupy premises under a residential tenancy agreement, will take into account the best interests of any child involved, in accordance with the duty in s. 55 of the Borders, Citizenship and Immigration Act 2009. We recommend that the Secretary of State issue new guidance specifically on the s. 55 duty, explaining clearly to front-line decision-makers exactly how that statutory duty applies in relation to functions conferred by or by virtue of this Bill.
To meet the concern about the impact of extended charging for health services on children's health, we recommend that new guidance be issued specifically on the s. 11 Children Act duty, explaining to front-line decision-makers in the health sector exactly how that duty applies in the context of extended charging for NHS services.