Legislative Scrutiny: Immigration Bill (Second Report) - Human Rights Joint Committee Contents


3  Follow up to first Report

Removal powers (clause 1)

82. In our first Report, we welcomed the Government's clarification that family members will always be notified if they are facing removal, but questioned why, in the light of that clarification, the Secretary of State requires a power to make regulations about "whether" a family member to be removed is given notice.[41] We recommended that the regulation-making power in the Bill be amended to reflect the Government's intention.

83. In the Government's response to our first Report, it says that it will give consideration to our suggested amendments to the Bill on this point.[42] To date, however, the Government has not tabled any amendment to address our concern.

84. We recommend the following 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:

Page 2, line 28, leave out "whether" and insert "where"

Page 2, line 28, after "is" leave out "to be"

Page 2, line 29, leave out "and, if so"

Effective access to justice (clauses 11-14)

85. In our first Report, we expressed a number of concerns about the effect of Part 2 of the Bill, which significantly limits rights of appeal against immigration decisions, on the fundamental right of effective access to justice protected by both the common law and international human rights law; and we made some recommendations designed to mitigate that impact.

86. When introducing the Bill at its Second Reading in the House of Lords, the Minister, Lord Taylor of Holbeach, included in his list of "myths" surrounding the Bill that it undermines access to justice.[43] The Government says that the Bill does not do this. Rather, the Government says that the Bill makes essential reforms to appeal rights in order to tackle head-on concerns that the appellate body in immigration cases is being turned into a first-instance decision-maker.

REMOVAL OF APPEAL RIGHTS AND THE RIGHT OF EFFECTIVE ACCESS TO COURT

87. In our first Report, we were 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 decisions, and the right to an effective remedy, because the practical ability to access the legal system to challenge such unlawful decisions would be severely curtailed, having regard to matters such as the poor quality of initial decision-making, the lack of information about the proposed system of administrative review, and the cumulative impact of proposed changes to legal aid and judicial review.[44]

88. The Government's response is that "the right of access to a court or Tribunal is preserved in all cases where it is alleged an unlawful decision has been made as either an appeal can be brought or judicial review proceedings commenced."[45] It believes it is "important that a full right of appeal before the Tribunal is limited to those cases where fundamental rights are engaged",[46] and it relies on a combination of the new system of administrative review and the continued availability of judicial review to challenge decisions that are not resolved by administrative review.[47] The new administrative review process, it claims, will provide a quicker and cheaper process to correct case working errors where there is no longer a right of appeal, and judicial review, rather than a full appeal, is the appropriate forum to consider whether a decision is "in accordance with the law."

89. The Government does not accept that the wider reforms being made to judicial review and legal aid will threaten the practical ability of individuals to challenge immigration decisions where those challenges have merit. It says that the aim of the judicial review reforms is to reduce the burden placed on courts by unmeritorious claims, and that the legal aid reforms will not substantively alter the current position of immigration applicants. The proposed residence test, the Government says, will not make any substantive difference because legal aid will continue to be available to asylum claimants for appeals to the Tribunal, and is not currently available anyway for other immigration applicants for appeals to the Tribunal.

90. We have considered carefully the Government's argument that the right of effective access to a court or tribunal in immigration and asylum cases will be preserved by a combination of the continued availability of full appeals in cases concerning fundamental rights, the new system of administrative review, and the availability of judicial review, and its argument that the practical effectiveness of judicial review will not be affected by the proposed reforms to legal aid and judicial review itself. We do not share the Government's confidence.

91. We have already reported our concerns about the implications of the proposed residence test on effective access to justice.[48] We have also inquired into the Government's proposed reforms to judicial review and we will be reporting our conclusions in due course. For present purposes it is sufficient to say that, while we accept that it is a perfectly legitimate objective for the Government to seek to reduce the risk of unmeritorious claims being brought, we do 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.

92. We also draw to Parliament's attention the paradoxical fact that after years of seeking to reduce the number of immigration and asylum judicial review cases that have been causing backlogs in the High Court, including by transferring such cases from the High Court's jurisdiction to the Upper Tribunal, the Government is now seeking to justify a significant reduction in appeal rights by reference to the continued availability of judicial review.

93. In light of our concerns, 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 TRIBUNAL'S POWERS TO CONSIDER "NEW MATTERS"

94. In our first Report, we expressed our concern about whether it is compatible with the right of access to court, the principle of equality of arms and the rule of law for the Tribunal's power to consider a new matter to depend on the "consent" of the Secretary of State.[49] 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 appeal, and the Tribunal should be entrusted to use its inherent power to prevent abuse of its own process to ensure that new matters are not permitted to be raised in the absence of good reasons for not raising them before the Secretary of State. We recommended that the Bill be amended to achieve the Government's purpose in a way which does not make the scope of the Tribunal's jurisdiction depend on the consent of one of the parties to the appeal before it.

95. The Government rejects this recommendation. In the Government's view, it is right for the Secretary of State rather than the Tribunal to decide whether the Tribunal may consider a new matter.[50] It says that the Tribunal was created by legislation which establishes the scope of its jurisdiction, and "it is an appellate Tribunal established to decide an appeal against a decision made by the Secretary of State, not a Tribunal established to make decisions instead of the Secretary of State."

96. We accept that the Tribunal is an appellate tribunal, not an original decision-maker, and that the scope of its appellate jurisdiction is defined by statute. However, jurisdictional questions, such as whether the Tribunal has power to consider a particular matter, are for the Tribunal itself to determine in the first instance, by interpreting its parent statute, subject to correction by a superior court if it errs in its interpretation. It is wrong in principle for the Secretary of State, who is the respondent to the appeal, to be the arbiter of that jurisdictional question and to have the power to decide whether or not to confer jurisdiction on the Tribunal.

97. In our view, the Government's objective in this provision, which is to prevent the 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. The following amendment would give effect to this recommendation:

Page 9, line 39, leave out "the Secretary of State has given the Tribunal consent to do so" and insert—

"the Tribunal is satisfied that the matter is within its jurisdiction and there were good reasons for not raising the matter before the Secretary of State."

OUT OF COUNTRY HUMAN RIGHTS APPEALS

98. We were not satisfied in our first Report by 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 which will make it hard to bring such applications.[51]

99. The Government's response relies on its belief that the practical ability to challenge immigration decisions will not be adversely affected by either the legal aid or the judicial review reforms.[52]

100. 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.

PUBLIC INTEREST CONSIDERATIONS IN ARTICLE 8 CLAIMS

Best interests of children a primary consideration

101. In our first Report, we accepted that the provisions in the Bill[53] which seek to guide courts and tribunals in their determination of Article 8 claims in immigration cases are compatible with that Article, because they do not seek to make the prescribed public interest considerations exhaustive, or to exclude other considerations from being taken into account. They therefore do not purport to go so far as to determine individual applications in advance or to oust the courts' jurisdiction.

102. We were concerned, however, as to whether the statutory guidance provided to courts and tribunals was compatible with our other international obligations, and in particular with the requirement in Article 3 of the UN Convention on the Rights of the Child ("UNCRC") that the best interests of the child must be "a primary consideration".[54] We welcomed 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" on the Secretary of State in s. 55 of the Borders, Citizenship and Immigration Act 2009, which requires her to make arrangements for ensuring that her immigration, nationality and asylum functions are discharged having regard to the need to safeguard and promote the welfare of children. The Government said that this statutory duty ensures that consideration of the best interests of the child as a primary consideration will always be given on the facts of an individual case.

103. Although reassured that the important children duty in s. 55 of the 2009 Act was intended to be left unaffected, we remained concerned about the scope for possible confusion by front-line immigration officials administering the legal regime who might be unclear about the relationship between the s. 55 duty and the provisions concerning children in this part of the Bill. We therefore recommended that new guidance be issued to ensure that the Government's intention, that the children duty is unaffected by the Bill, is achieved in practice, and asked for confirmation that it is the Government's intention that the s. 55 duty applies to all children, and not merely those who are within the Bill's definition of a "qualifying child."

104. We welcome the Government's confirmation, in its response, that the s. 55 children duty applies to all children in the UK, not only those within the definition of "qualifying child", and the Government's indication of its intention to update relevant guidance to front-line immigration officials to reflect legislative developments.[55] However, we note that this part of the Government's response is in very general terms, referring broadly to its intention to issue updated guidance to front-line officials to reflect legislative developments, and does not address our specific concern in this part of our first Report, which was the need for such guidance to provide an explanation as to how the Bill's provisions concerning the public interests considerations relevant in cases concerning Article 8 ECHR are to be read alongside the s. 55 children duty.

105. In the absence of a more specific response to our recommendation, and in view of similar concerns expressed in parliamentary debates,[56] we have revisited the question of whether express statutory provision should be made to ensure that in Article 8 immigration cases where children are concerned the best interests of the child are still taken into account as a primary consideration, in accordance with the UK's obligation under Article 3 UNCRC.

106. We note that a recent UNHCR audit of Home Office decision-making found that in many family asylum cases the analysis of children's best interests was piecemeal and was not always specific to the child's individual characteristics or situation.[57]

107. 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.

108. The following amendment to the Bill, which has been suggested by the Refugee Children's Consortium and tabled by Baroness Lister of Burtersett at Committee stage in the Lords, would give effect to this recommendation:

Page 12, line 25, before sub-paragraph (a) insert new sub-paragraph—

"( ) first, to the best interests of any child affected by a decision as specified in s. 117A(1)."

Prescribing the weight to be given to certain considerations

109. In our first Report, we acknowledged that clause 14 of the Bill could be considered to be Parliament's fulfilment of the important obligation imposed on it by the principle of subsidiarity, to take primary responsibility for the protection of Convention rights in national law by providing a detailed legal framework to give effect to them.[58] However, we expressed our unease about the provisions in the Bill[59] which seek to tell courts that "little weight" should be given to a private life established by a person at a time when he is in the UK unlawfully or when his immigration status is precarious.[60] We considered this to be a significant, and possibly unprecedented, trespass by the legislature into the judicial function, and we recommended that the Bill be amended so as to retain as a relevant consideration whether a private life or relationship were established at a time when the person was in the UK lawfully or when their immigration status was precarious, but without seeking to prescribe the weight to be given by courts to the person's private life or relationship.

110. The Government's response does not specifically address our concern about these particular provisions going too far by seeking to prescribe the weight to be given to certain considerations, but merely repeats the Government's general justification for the provisions in clause 14 of the Bill: that it is "right and helpful that Parliament should set out what the public interest requires in the clear and practical terms reflected in clause 14, which reflect the case-law.[61]

111. We remain concerned by these provisions in the Bill, which do not seek to guide the courts about the public interest considerations to be taken into account in deciding whether an interference with private or family life is justified, but rather seek to influence the amount of weight given to the right itself in particular types of case. The following amendment would give effect to our original recommendation 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:

Page 13, line 5, leave out "Little weight should be given to" and insert "Whether"

Page 13, line 8, leave out "that is" and insert "was"

Page 13, line 10, leave out "Little weight should be given to a private life" and insert "Whether a private life was"

Access to services

ACCESS TO RESIDENTIAL TENANCIES

112. In our first Report we were concerned about the risk that the Bill's provisions on access to residential tenancies might expose migrant children to homelessness or separation from family members and we urged the Government to explain fully to Parliament the safeguards that exist to mitigate in practice the possible negative impact of these provisions on children.[62]

113. The Government in its response says that it considers that there will be sufficient safeguards in place. It mentions four in particular.[63] First, it says that those who receive support directly from the Secretary of State under arrangements made by the Home Office to house asylum seekers who would otherwise be destitute have an additional safeguard whereby a family will normally be allowed to remain in that accommodation until they are able to leave the UK.

114. Second, in relation to those who are self-supporting, the Government relies on the fact that the Bill does not require any landlord to take action to evict tenants who are disqualified from renting. Since this depends entirely on private landlords choosing to stay their hand, we do not consider this to qualify as a safeguard at all.

115. Third, those who are disqualified from renting by their immigration status but who have a genuine barrier to leaving will be able to seek a right to rent on a discretionary basis and the decision whether to grant this will include a consideration of the best interests of a child and their needs, as required by the children duty in s. 55 of the Borders, Citizenship and Immigration Act 2009. The Government says that this consideration will take place whether the child is living with the migrant who is otherwise disqualified from renting, in local authority care, or living in any other alternative arrangement. We consider the adequacy of this safeguard below.

116. Fourth, the Government says that the Bill provides important safeguards in the form of exemptions from certain classes of accommodation from the checking requirement in order to protect vulnerable groups, including accommodation provided as a result of a statutory duty or relevant statutory power exercised by a local authority and hostels for the homeless operated by registered housing associations or charities.

117. 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,[64] will take into account the best interests of any child involved, in accordance with the duty in s. 55. By acknowledging the relevance of s. 55 in this context, this goes beyond the general indication already given by the Government, and welcomed in our first Report, that nothing in the Bill is intended to change or derogate in any way from that existing duty in s. 55.

118. We have considered whether it is legally clear that the s. 55 duty applies to this function of the Secretary of State's, or whether an amendment to the Bill is necessary to make that clear. The duty in s. 55 applies to "any function of the Secretary of State in relation to immigration, asylum or nationality and "any function conferred by or by virtue of the Immigration Acts on an immigration officer."[65] The Bill also amends the definition of the Immigration Acts to include the Immigration Act 2014 which the Bill will become.[66] We are satisfied that this makes the legal position sufficiently clear and that the Bill therefore does not require amending in this respect.

119. However, we remain concerned about whether it will be sufficiently clear to front-line decision-makers that the s. 55 duty applies to significant functions such as the Secretary of State's discretion to grant permission to occupy residential premises. Under s. 55(3) of the 2009 Act, a person exercising any of the Secretary of State's functions in relation to immigration, nationality and asylum must, in exercising the function, have regard to any guidance given by the Secretary of State. 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.

ACCESS TO HEALTH SERVICES

120. Similar concerns arise about the possible impact on children of the provisions in the Bill which extend charging for NHS services.[67] Extending charging to migrants not previously charged for accessing health services, and extending the range of services for which charges apply, are likely to have a deterrent effect on accessing health care, which in turn is likely to have a particularly detrimental effect on the children of such migrants. Those children, as babies, may therefore not benefit from ante-natal and maternity services provided to their mother, and, later, may miss out on immunisations and be exposed to infectious diseases within their families that are not being treated because of the deterrent effect of the extended charging regime. The s. 55 children duty does not apply to charging decisions by health authorities, because it is not the exercise of an immigration function, but the equivalent duty in s. 11 of the Children Act 2004 does apply. To meet this 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.

Sham marriages/civil partnerships

121. In our first Report, we were concerned by the prospect of the Government adopting nationality-based risk-profiling to help it identify suspected sham cases for further investigation, and invoking an exemption from certain of its obligations under the Equality Act.[68] We encouraged 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.

122. The Government response says that in designing and operating the scheme and in particular the approach taken to the assessment of proposed marriages and civil partnerships referred under it, the Government will work with the EHRC to ensure that this does not involve unlawful discrimination on nationality grounds.[69]

123. We welcome the Government's commitment to working with the EHRC to seek to avoid unlawful discrimination on nationality grounds and we look forward to seeing the product of that collaboration.


41   First Report on the Bill, paras 21-27. Back

42   Government response, para. 4. Back

43   HL Deb 10 Feb 2014 col 416. Back

44   First Report, paras 29-39. Back

45   Government response, para. 12. Back

46   Ibid., para. 10. Back

47   Ibid., para. 11. Back

48   Seventh Report of Session 2013-14, The implications for accessto justice of the Government's proposals to reform legal aid, HL Paper 100/HC 766, chapter 2. Back

49   Which would be the effect of new s. 85(5) and (6) of the Nationality, Immigration and Asylum Act 2002, as inserted by clause 11(5) of the Bill: see First Report, paras 40-47. Back

50   Government response, para. 10. Back

51   First Report, paras 48-53. Back

52   Government response, para. 13. Back

53   Clause 14, inserting a new Part 5A (sections 117A-D) into the Nationality, Immigration and Asylum Act 2002. Back

54   First Report, paras 61-63. Back

55   Government response, para. 15. Back

56   See e.g. Sarah Teather MP, HC Deb 30 Jan 2014 cols 1075-6. Back

57   See UNHCR Report [ref]. Back

58   First Report, para. 55. Back

59   New s. 117B(4) and (5), as inserted by clause 14 of the Bill. Back

60   First Report, paras 58-60. Back

61   Government response, para. 14. Back

62   First Report, paras 75-77. Back

63   Government response, paras 22-23. Back

64   Under clause 16(3) of the Bill. Back

65   Section 55(2). Back

66   Clause 66(5). Back

67   Clause 34. Back

68   First Report, paras. 122-124. Back

69   Government response, para. 29/ Back


 
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