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.
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.
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
Page 2, line 29, leave out "and, if so"
Effective access to justice (clauses
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.
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
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.
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."
It believes it is "important that a full right of appeal
before the Tribunal is limited to those cases where fundamental
rights are engaged",
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.
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
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
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
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.
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. 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.
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.
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 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".
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.
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,
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.
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
"( ) 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
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.
However, we expressed our unease about the provisions in the Bill
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.
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
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.
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.
113. The Government in its response says that it
considers that there will be sufficient safeguards in place.
It mentions four in particular.
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
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
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."
The Bill also amends the definition of the Immigration Acts to
include the Immigration Act 2014 which the Bill will become.
We are satisfied that this makes the legal position sufficiently
clear and that the Bill therefore does not require amending in
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.
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.
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
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
Government response, para. 4. Back
HL Deb 10 Feb 2014 col 416. Back
First Report, paras 29-39. Back
Government response, para. 12. Back
Ibid., para. 10. Back
Ibid., para. 11. Back
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
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
Government response, para. 10. Back
First Report, paras 48-53. Back
Government response, para. 13. Back
Clause 14, inserting a new Part 5A (sections 117A-D) into the
Nationality, Immigration and Asylum Act 2002. Back
First Report, paras 61-63. Back
Government response, para. 15. Back
See e.g. Sarah Teather MP, HC Deb 30 Jan 2014 cols 1075-6. Back
See UNHCR Report [ref]. Back
First Report, para. 55. Back
New s. 117B(4) and (5), as inserted by clause 14 of the Bill. Back
First Report, paras 58-60. Back
Government response, para. 14. Back
First Report, paras 75-77. Back
Government response, paras 22-23. Back
Under clause 16(3) of the Bill. Back
Section 55(2). Back
Clause 66(5). Back
Clause 34. Back
First Report, paras. 122-124. Back
Government response, para. 29/ Back