Legislative Scrutiny: Illegal Migration Bill

1 Channel crossings, “illegal” entry and the Illegal Migration Bill

The Illegal Migration Bill

1. The Illegal Migration Bill (the Bill) was introduced in the House of Commons on 7 March 2023, completing its Commons stages on 26 April.² The Bill comes less than a year after another major piece of asylum and immigration legislation, the Nationality and Borders Act 2022, received Royal Assent.

2. In her statement to Parliament on 7 March 2023, the Home Secretary, Rt Hon Suella Braverman KC MP, said that asylum seekers will “not stop coming here until the world knows, if you enter Britain illegally, you will be detained and swiftly removed. Removed back to your country if it’s safe, or to a safe third country like Rwanda” and that “is precisely what this bill will do. That is how we will stop the boats.”³

3. Upon introduction, the Home Secretary made a statement under section 19(1)(b) of the Human Rights Act 1998 (HRA) that she is unable to certify that the provisions of the Bill are compatible with Convention rights.⁴

4. Before Report Stage in the Commons (on 26 April), the Government introduced a raft of proposed amendments and new clauses to the Bill, which made wide-reaching changes, adding, for example clauses on age assessments. On the same day, the Home Office produced a supplementary human rights memorandum which stated that Lord Murray, on introduction of the Bill in the House of Lords, would be unable to certify some of the Government’s amendments would be compatible with Convention rights.⁵

Summary of the Bill

5. The Bill would, if enacted, place a duty on the Secretary of State to make arrangements to remove any person who enters the UK irregularly and has not come directly from a territory where their life and liberty was threatened (which includes anyone who has stopped in or passed through a country where their life or liberty was not threatened). Where the Home Secretary is under a duty to make arrangements for removal of a person (the removal duty), she is also required to declare the person’s asylum claim inadmissible, meaning their application would not be considered within the UK asylum system. Human rights claims relating to removals to a person’s country of origin would also be declared inadmissible.

6. The Bill would also make significant changes to the law on immigration detention and bail, modern slavery, citizenship and settlement, and legal proceedings in asylum cases, as well as introducing broad new powers for immigration officers to search people and premises. It would remove the right of appeal for children who have been wrongly assessed as adults and allow for children to be penalised for refusing to consent to scientific methods for conducting age assessments. It would also allow for Ministers to ignore interim measures issued by the European Court of Human Rights (ECtHR). Finally, it would introduce a duty on the Secretary of State to make regulations specifying the maximum number of persons to be admitted to the UK for settlement each year via safe and legal routes.

Aims of the Bill

7. The Government has said that the purpose of the Bill is to “create a scheme whereby anyone arriving illegally in the UK will be promptly removed to their home country or to a safe third country to have any asylum claim processed”.⁶ The Government has also said the Bill will:

a) deter illegal entry into the UK;

b) break the business model of the people smugglers and save lives;

c) promptly remove those with no legal right to remain in the UK; and

d) make provision for setting an annual cap on the number of people to be admitted to the UK for resettlement through safe and legal asylum routes.⁷

8. These are, of course, legitimate policy aims for the Government to pursue. Given the tragic incidents in the Channel over recent years, and its obligations to protect life under Article 2 of the European Convention on Human Rights (ECHR), the Government must do all it can to end the loss of life at sea. It is also right that the Government deals with the traffickers and smugglers who make money from the exploitation of vulnerable people and children, while sending them off on a journey that can result in their deaths. The UK must also be able to control its borders.

Background to the Bill

The scale of global migration

9. In mid-2022, the UN Refugee Agency (UNHCR) estimated that there were 103 million forcibly displaced people worldwide (the majority of which were in countries neighbouring their own), of which 32.5 million refugees worldwide — the highest number since the UNHCR was created in 1950.⁸ As of 2022, 4.9 million of those refugees are seeking asylum.⁹ This number is likely to increase given the deadly conflict that has erupted in Sudan. It is clear there is a global refugee crisis and no one country alone can solve it. Nor can the UK alone take in every person seeking asylum.

10. When discussing the global refugee crisis, the sheer scale of the numbers makes it easy to forget that all 32.5 million of those people categorised as refugees by the UNHCR are fleeing from persecution on the basis of their race, religion, nationality, membership of a particular social group or political opinion. Many refugees have come from countries where there is war or violent conflict, including the approximately 8 million refugees who call Ukraine home.¹⁰

11. A significant majority (69%) of refugees have settled in countries neighbouring their countries of origin.¹¹ Others will have fled further afield in pursuit of safety, making arduous journeys and travelling through several countries over a number of months.¹² Given the sporadic and complex nature of refugee flows, the global refugee protection system, as Vicky Tennant, Representative to the United Kingdom at the UNHCR told us, relies on countries “sharing responsibility” and “Governments…working together to manage refugee flows.”¹³

12. The UK was “one of the leaders in drafting the [Refugee Convention].” It has also been a leader “in providing support in refugee situations.”¹⁴ For example, 144, 576 people have come through the visa scheme for British Overseas Nationals in Hong Kong,¹⁵ and 225,300 people from Ukraine have been granted visas.¹⁶ Many British families have shown remarkable generosity in opening their homes to people from Ukraine. We should be proud of, and seek to preserve, our reputation as a leader in the global protection of refugees.

Asylum seekers in the UK

13. In the past decade, the number of asylum applications made in the UK has increased steadily from 17,916 in 2010 to 74,751 in 2022.¹⁷ The annual number of applications peaked in 2002 at 84,132. In 2022, the highest number of asylum applicants came from Albania, followed by Afghanistan, Iran, Iraq and Syria.¹⁸

Source: Home Office Immigration Statistics, year ending December 2022, tables Asy_D01 and Asy_D02

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14. In 2022, 18,699 initial decisions were made on asylum applications. 76% of those were positive decisions, granting refugee status, humanitarian protection, or alternative forms of leave. The Home Office states that this is a substantially higher grant rate than in pre-pandemic years, when around a third of initial decisions were grants.¹⁹

Channel crossings

15. Since 2018, there has been an increase in the number of people entering the UK by crossing the Channel in small boats from France. The Channel is the busiest shipping route in the world and those making the crossing often do so aboard vessels that are small, cramped and not seaworthy. The route is an extremely dangerous one and tragically many people, including children, have lost their lives whilst making the crossing.

16. Under Article 2 of the ECHR (as given effect in domestic law by the HRA 1998), the Government has obligations to prevent the loss of life and take steps to actively protect it in certain circumstances. We agree with the Government that preventing any further loss of life in the Channel should be a priority.

17. In 2022, almost 45,000 people arrived in the UK by small boat from France.²⁰ This accounted for 45% of the total number of people claiming asylum that year.²¹ The most recent Home Office data shows that between 1 January 2023 and 31 March 2023 3,793 people were detected arriving in small boats, 17% lower than the number of small boat arrivals in the same quarter the previous year (4,548 arrivals between 1 January and 31 March 2022).²²

Source: Home Office, Irregular migration statistics quarterly (December 2022); Home Office and Border Force, Migrants detected crossing the English Channel in small boats, updated to 1 March 2023.

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18. The majority of small boat arrivals claim asylum. In 2022, 90% (40,302 of 44,666 arrivals) claimed asylum or were recorded as a dependant on an asylum application. Between 2018 and 2022 there were 76,134 asylum applications from people who arrived in small boats, accounting for 28% of all asylum applications during that period.²³

19. Home Office data shows that, as of February 2023, 61% of those who arrived by small boat who had received an initial decision on their application had been granted asylum or another form of humanitarian protection. However, in his evidence to this Committee, Dr Peter Walsh, Senior Researcher at the Migration Observatory, expressed his view that the success rate of small boat arrivals was actually 87%.²⁴

“Safe and legal” routes

20. The term “safe and legal” route, generally speaking, refers to sanctioned immigration provisions that provide access to the UK for humanitarian reasons.²⁵ In December 2022, the Prime Minister committed to “create more” safe and legal routes into the UK.²⁶

21. During the passage of the Bill, the Government has emphasised the fact that since 2015, 500,000 people have been offered safe and legal routes into the UK.²⁷ This is a substantial number and shows the nation’s generosity. The significant majority of those people (approximately 380,000) came under the generous bespoke regimes for Ukrainians and British Overseas Nationals in Hong Kong.²⁸ The others came through one of the refugee resettlement schemes operated in collaboration with the UNHCR (50,000) or family reunification (45,000).

22. Whilst those who gave evidence to this inquiry recognised the generosity of the bespoke Ukrainian and Hong Kong schemes, some also highlighted the lack of available safe and legal routes for people who come from countries such as Syria, Eritrea, Sudan and Iran, where there is no bespoke safe and legal route. Vicky Tennant told us that outside of those bespoke schemes, “the safe legal routes [to the UK] available for the vast majority of refugees are really quite negligible.”²⁹ This was reiterated by Jon Featonby, Chief Policy Analyst at the Refugee Council, who noted that resettlement is running at about 40% of the level that it was before Covid (with only 1,163 people coming to the UK through a refugee resettlement scheme in 2022).³⁰ Safe and legal routes in the context of the Bill are discussed further in Chapter 11, below.

23. It is clear that there is a global migration crisis: tens of millions of people are currently displaced and are fleeing their home countries to escape war and persecution. It is difficult for us to imagine their desperation. In recent years, the number of people coming to the UK to seek asylum has increased. Many of those people have risked their lives by crossing the Channel in small boats, and sadly many people have lost their lives while making that journey. It is right that the Government should seek to prevent further loss of life at sea. Many of those who make dangerous journeys do not have the options of a safe and legal route into the UK. We welcome the Government’s commitment to safe and legal routes and encourage them to specify what these new routes will be as soon as reasonably practicable.

2 Our inquiry and views on the Bill

Our inquiry

24. We launched this inquiry, Legislative Scrutiny: Illegal Migration Bill, along with a call for written evidence, on 16 March 2023. We published 76submissions.³¹ We held two oral evidence sessions before it completed its Commons stages. We heard from a range of witnesses, including NGOs, a barrister, and academics. We are grateful to everyone who took time to share their views with us.

25. We invited the Home Secretary to answer our questions about the human rights implications of the Bill and were disappointed when she was unavailable to attend. Hearing from the Home Secretary directly would have greatly assisted with our scrutiny. The Bill was also substantially amended by the Government during its Report Stage in the House of Commons, meaning that we were unable to receive written evidence on the changes introduced at that time.

26. In this Chapter, we set out in detail some of the themes that emerged in the evidence we received. In the following Chapters, we set out the relevant legal framework, and consider the compatibility of the Bill with the UK’s human rights obligations under the ECHR, and other international treaties, such as the UN Refugee Convention 1951, the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) and the UN Convention on the Rights of the Child (UNCRC).

Opportunities for scrutiny

27. The Bill has progressed through the House of Commons at speed. The Government is treating tackling “illegal” migration as a pressing priority. Unlike the Nationality and Borders Act 2022, however, there was no consultation preceding the Bill and it was not sent to a Public Bill Committee but considered by Committee of the Whole House. Some people have criticised this. For example, Dr Hannah White, Director of the Institute for Government, has noted that a decade ago immigration legislation was normally “considered over a period of weeks with parliamentarians genuinely engaged in the detail of what was proposed”. As an example, she noted that the Immigration Act 2016 had 15 committee sessions and received 55 written pieces of evidence.³²

28. This point was also acknowledged by Sir Stephen Laws KCB, KC, Senior Fellow at Policy Exchange and former First Parliamentary Counsel, who said that Committees of the Whole House generally provide “less time” for scrutiny, “which is probably a bad thing”. However, Sir Stephen also highlighted that the procedure “involves more people, which is a good thing” and said he found it “difficult to be appalled” by the decision to scrutinise the Bill in Committee of the Whole House rather than in Public Bill Committee.³³

29. Our ability to conduct the fullest scrutiny of the Bill has not only been made more difficult by the short timetable, however. We wrote to the Home Secretary on 13 April 2023 inviting her to give evidence.³⁴ Regrettably, she declined our invitation, citing “an exceptionally full diary”.³⁵ Following this, we wrote to her with a list of further questions on the human rights implications of the Bill. We asked her to respond within two weeks to ensure her answers were in the public domain before the Bill completed its Commons stages. Unfortunately, we did not receive a response from the Home Secretary until 2 June—³⁶after Committee Stage had commenced in the House of Lords.

30. It is also unfortunate that the Home Office did not publish the relevant Impact Assessments for the Bill before it completed its Commons stages. Impact Assessments help us to scrutinise whether the Bill is compatible with the UK’s human rights obligations. They are crucial to enable us to assess how the Government has reached the view the Bill will achieve its aims, that the Bill is the least restrictive means necessary to achieve its stated aims, and its potential impact on those with protected characteristics and vulnerable groups (including children).

31. In her evidence to us, the Children’s Commissioner agreed that she has found it challenging to effectively scrutinise the Bill as she was not consulted before the Bill was introduced and no Child Rights Impact Assessment has been published.³⁷

Views on the Bill

32. All but one of the written responses we received were critical of the provisions in the Bill. There has, however, also been support for the Bill. For example, the Centre for Policy Studies, which describes itself as a centre-right think tank, has welcomed the Bill. They have said that, in their view, the Bill contains several welcome steps towards taking back control of our borders and building a firm but fair immigration and asylum regime fit for the 21st century.³⁸

Do stakeholders think the Bill achieve its aims?

33. When conducting a human rights analysis of the Bill, specifically whether it fulfils the tests of necessity and proportionality, it is important to ask whether a measure is capable of achieving its aims and whether it is the least restrictive means of achieving those aims.

34. As pointed out to us by Sir Stephen Laws KCB, KC, “predicting how legislation will operate on complex patterns of human behaviour is inherently difficult.”³⁹ Despite this, a significant number of those who submitted evidence to our inquiry, including senior academics, legal practitioners, NGOs, and organisations providing frontline services to asylum seekers and victims of trafficking and modern slavery, were concerned that the Bill would not achieve its stated aims.

Deterring “illegal” entry

35. Many of those who submitted evidence questioned whether the “deterrent” approach in the Bill would stop people from coming to the UK. The Refugee Law Initiative, for example, highlighted that “empirical data strongly suggests that deterrent measures in the UK…have no real impact on decisions about where to seek asylum by people fleeing their countries”.⁴⁰ This view was also expressed by Christina Marriott, Executive Director of Strategy and Communications at the British Red Cross. She said that the approximately 30,000 asylum seekers the British Red Cross assist annually do not “know about the [asylum] system before they arrive, so [the Bill] cannot be a deterrent because to be deterred by a system you have to have knowledge of that system.”⁴¹

36. Others told us that they believed the Bill would not be a deterrent as it would not address the underlying reasons why people might seek to come to the UK, such as presence of family ties in the UK. In their evidence, Dr Lucy Mayblin, Senior Lecturer, Sociology at University of Sheffield, and Professor Ipek Demir, Professor of Diaspora Studies at University of Leeds, noted that “migration networks” of family members or friends “are commonly believed to act as an important pull factor.”⁴²

37. In contrast, Sir Stephen Laws, told us that he believed the Bill “has a chance of contributing to reducing the number of people using unsafe and illegal routes across the Channel.” He also said that the “broad approach” in the Bill was correct because, “If the use of those routes is going to be diminished, it is essential to reduce the attraction and to attack the demand side of the illegal trade that is bringing people across.”⁴³

38. In her letter to the Committee dated 2 June 2023, the Home Secretary stated that she believes the Bill will have a “significant deterrent affect” as it will ensure “people who enter the UK illegally will have no right to claim asylum here, and they will never be able to have a life here.” She also stated that the Bill is similar to the Australian model, and experience in Australia “demonstrates that once it is clear an illegal route is unviable, the number attempted the journey fall significantly [sic].”⁴⁴ However, the Home Secretary has not provided any data to support her assertion, and this is disputed.⁴⁵

Breaking the business model of the people smugglers and saving lives

39. There have been a number of tragic incidents in which people have lost their lives while trying to enter the UK. It is important that the Government does everything possible to prevent further loss of life. Some of those who gave evidence, however, said that the Bill could lead to people taking other, potentially more dangerous, routes into the UK. In their evidence, the Refugee and Migrants Forum of Essex and London highlighted that the Home Office has previously accepted, in its Impact Assessment of the Nationality and Borders Bill, that increasing security and deterrence may encourage people to “attempt riskier means of entering the UK”.⁴⁶ Colin Yeo, barrister at Garden Court Chambers, said those “riskier means” could include entering by boat “clandestinely” (not calling for rescue if they need it).⁴⁷

40. Drawing on international case studies, Dr Mayblin and Professor Demir also highlighted that deterrent policies may not be effective in breaking the business model of people smugglers. They said that, in the US, deterrent policies to curb irregular immigration from Latin America have “led to an increase in the use of professional people smugglers and in the fees charged by these smugglers as alternative and risker routes were used…⁴⁸ This point was also made by Dr Jean-Pierre Gauci, Senior Research Fellow in Public International Law at the British Institute of International and Comparative Law, who said “trying to close the routes or trying to stop people from coming in” could drive people “into the hands of the smugglers and the traffickers.”⁴⁹

Promptly removing those with no legal right to remain in the UK

41. The Home Secretary has said that “swift removal” of those who arrive irregularly is one of the things that will “stop the boats”. Under the Bill, a person who enters irregularly could be sent to their country of origin (if it is deemed to be safe) or a safe third country. In practice, removals require the cooperation of another country, which Parliament cannot guarantee by legislation. The UK currently has an arrangement in place that would enable the transfer of asylum-seekers to Rwanda.⁵⁰

42. A number of those who gave evidence to us, however, questioned whether the swift removals would be possible in practice. Professor Cathryn Costello, Andrew W Mellon Professor of International Refugee and Migration Law at the University of Oxford, told us, “there is this fantasy that everybody is going to be removed swiftly, even though we know that there is nowhere to send them in reality.”⁵¹ Dr Peter Walsh also said that removing individuals is a “very big challenge.” He went on:

We have had quite similar rules on the books for about two years now, and 20,000 individuals, mostly arriving via small boat, have been considered for inadmissibility because they have come via a safe third country. Only 21 had been removed as of 30 September last year. That is a really big part of the challenge. If people cannot be removed, they will either be detained or be accommodated for long periods, living in a kind of limbo. That is the risk.⁵²

Impact on vulnerable groups

43. We were concerned to hear from expert organisations that they believe the Bill could have a disproportionate impact on vulnerable groups, including children (discussed in detail in Chapter 7), victims of trafficking and modern slavery (discussed in detail in Chapter 8), women and girls,⁵³ including Black, Minority and Ethnic women, LGBTQIA+ people, and victims of torture.

44. In its Equality Impact Assessment (EIA), published on 11 May 2023, the Government has recognised that the Bill could have a particular impact on certain groups. In the EIA the Government states it has more data about age, race (nationality) and sex which has enabled it to identify potential impacts on those groups, and to seek out mitigations of those impacts. It also states that the Bill will not directly or indirectly discriminate against those with the protected characteristic of gender reassignment. However, the EIA acknowledges that there is limited data available to assess the impact of the Bill on asylum-seekers who have the protected characteristics of disability, pregnancy and maternity, religion or belief, sexual orientation and marriage or civil partnership under the Equality Act 2010. The Government says that any potential impacts on those groups would be “justified and proportionate in order to achieve the legitimate aims of controlling migration and reducing crime.”⁵⁴

Impact on International system of refugee protection

45. Some of the stakeholders we have heard from felt very strongly that the Bill would damage the global system of refugee protection, which relies on co-operation between States. This point was made particularly forcefully by Vicky Tennant, who told us the UNHCR are:

[C]oncerned that, if you pursue, in the way this Bill does, a series of unilateral measures that are about pushing refugees away and pushing responsibility on to other countries, it will undermine the trust and regional co-operation needed to manage these movements.⁵⁵

46. She went on to say that if other States adopted similar measures to those in the Bill (specifically requiring refugees to claim asylum in the first safe country they reach) there would be a “domino effect where responsibility was kicked further down the line” and as a result a disproportionate burden would be placed on neighbouring countries.⁵⁶ This view was shared by Dr Natalie Hodgson, Assistant Professor in the School of Law at the University of Nottingham and Head of the Forced Migration Unit in the Human Rights Law Centre, who said that requiring people to seek asylum in the first safe country they reach “has the potential to confine large numbers of asylum seekers to neighbouring countries, which may struggle to deal with such large influxes of people.”⁵⁷

47. As we noted above, the UK is respected internationally for the compassion it has demonstrated towards those fleeing war and persecution in the past. We think every effort should be made to preserve that reputation.

Potential alternatives to the Bill

48. In his evidence, Sir Stephen Laws, described the Bill as a “practical solution” to the “serious problem in the Channel”. He also suggested that those criticising the Bill should “think of another [solution], come up with what [the Government] could do that would work.”⁵⁸

49. During our inquiry, a number of those who gave evidence did, in fact, suggest potential alternatives to the Bill. For example, Professor Cathryn Costello said the UK could make “interventions…in France to assist asylum seekers and to improve things on the French side.” She went on:

There was a period not that long ago…where individuals in northern France who had close family members in the UK were enabled to travel to the UK…There definitely would be ways of deflecting people into a safe route and offering them safer access to the UK. That would clearly deter people from turning to smugglers, as would encouraging people to avail of the protections that are available in France...⁵⁹

50. In their October 2022 report Channel crossings, migration and asylum, the Home Affairs Committee also expressed the view that the “creation of a safe and legal route for those who might successfully seek asylum in the UK having passed through the European continent” could provide a disincentive and deterrent for those crossing the Channel.⁶⁰

51. Vicky Tennant stated that as well as developing safe and legal routes, the Government should prioritise “regional co-operation” with EU countries and seek to “streamline processing mechanisms” for “manifestly unfounded claims” so people could be swiftly returned to their country of origin if they are not in need of protection.⁶¹

Conclusions and recommendations

52. All but one piece of evidence we received opposed the Illegal Migration Bill. There was disagreement about whether the Bill would achieve its stated aims of deterring illegal entry, breaking the business model of people smugglers and saving lives. The majority of those who provided evidence believed the Bill would fail to achieve its aims. Instead, they said it could lead to people attempting to come to the UK through more dangerous routes, which could both benefit people smugglers (who could charge more for their services) and lead to more people tragically losing their lives on those routes. Others highlighted that the Bill could dissuade people from applying for asylum when they arrive in the UK, meaning they would be undocumented and at greater risk of exploitation.

53. Some of those who provided evidence expressed the view that a more effective means of deterring individuals from making dangerous journeys would be to provide more safe and legal routes for people to come to the UK, negotiating returns agreements with European countries and quickly processing weak claims.

54. We also heard that the Bill is likely to have a disproportionate impact on vulnerable groups, including victims of trafficking and modern slavery, children, and LGBTQIA+ people. Given this, it is unfortunate that the Home Office has failed to publish the relevant impact assessments before the Bill concluded its Commons Stages. Those impact assessments are crucial to enable effective and full scrutiny of the Bill, and to enable an assessment of its impacts on vulnerable groups, and of how the Government has reached the conclusion (contrary to the weight of evidence that we have heard) that the Bill will achieve its stated aims, what other alternative methods it has considered to stop people making dangerous journeys, and why it deemed the Bill to be preferable to those alternatives.

55. We also heard that the Bill could damage both the global system of refugee protection and the UK’s reputation as a compassionate country for those fleeing war and persecution and. The only way to solve the global migration crisis is through international co-operation. The Government should make clear what measures it is pursuing on the international stage to ensure and preserve the efficient working of the global refugee protection system.

3 Applicable human rights framework

56. This Chapter sets out the key human rights instruments that are relevant to our analysis, contained in the remainder of the report, of the Bill’s compatibility with the UK’s human rights obligations.

UN Refugee Convention

57. The UN Convention Relating to the Status of Refugees (hereinafter ‘the Refugee Convention’) is an international human rights agreement, ratified by the UK and almost 150 other states, that provides the legal framework for the granting of asylum. It was drawn up in the aftermath of the Second World War and has its origins in the Universal Declaration of Human Rights 1948, which recognizes the right of persons to seek asylum from persecution in other countries.⁶² As summarised by the House of Lords (as predecessor to the Supreme Court), “the general purpose of the convention is to enable the person who no longer has the benefit of protection against persecution for a convention reason in his own country to turn for protection to the international community”.⁶³

58. The Refugee Convention guarantees certain rights to those who fall within the definition of a refugee, which is a person who: “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country”.⁶⁴ Such a refugee is given the opportunity of settling in a new country where he or she can be protected. The Refugee Convention obliges contracting states to facilitate the assimilation and naturalisation of refugees.⁶⁵ Once an asylum seeker has had their refugee status recognised in the UK, they are granted leave to remain for five years, with the right to apply for indefinite leave to remain at the end of that period.⁶⁶

59. Since recognition that an individual is a refugee is a declaratory act, the rights of the refugee, and corresponding obligations on the receiving state, flow from the simple fact of being a refugee as defined in the Convention — not from recognition and documentation by the state. For this reason, a refugee is protected from ‘refoulement’ (being returned to face the risk of persecution) from the moment they enter the territory of a contracting state whilst the state considers whether they should be granted refugee status.⁶⁷

60. The Refugee Convention is binding on the UK as a matter of international law. The UK is under a legal duty to implement all its international treaty obligations in good faith.⁶⁸ There is no formal international mechanism for individuals to make complaints about violations of the Refugee Convention, nor is there an international body with enforcement powers, although the UN UNHCR does have a “supervisory function” in relation to the application of the Refugee Convention.⁶⁹

61. The Refugee Convention has not been incorporated into domestic law, but its binding nature means that all subsequent domestic legislation should be assumed to comply with it and should therefore be construed, where there is any ambiguity, consistently with the obligations the Convention imposes on the State.⁷⁰ Furthermore, many rights under the Refugee Convention are mirrored in domestic law, including the rights to ‘non-refoulement’ (i.e. not being returned to face persecution), to lawful stay in the UK, to work, to study, to claim benefits and to access free healthcare. Refugees also currently have a right to reunite with partners and children under the ‘family reunion’ process. It is noteworthy that most of the detail of the UK immigration and asylum system is set out in the Immigration Rules⁷¹ and section 2 of the Asylum and Immigration Appeals Act 1993 provides that “Nothing in the immigration rules…shall lay down any practice which would be contrary to the Convention.”

62. For the purpose of assessing this Bill’s compatibility with the Refugee Convention, the most relevant provisions include:

a) Article 31, which prohibits the penalisation of refugees who enter a State unlawfully;⁷²

b) Article 33(1), which guarantees against ‘refoulement’;⁷³

c) Article 34, which obliges states parties to “as far as possible facilitate the assimilation and naturalization of refugees”.⁷⁴

63. It is also relevant to note that, according to the UN High Commissioner on Refugees (UNHCR), “in order to give effect to their obligations under the 1951 Convention, States are required to grant individuals seeking asylum access to their territory and to fair and efficient asylum procedures.”⁷⁵ The opinion of the UNHCR is of real significance, as the UK is legally bound to “co-operate with the Office of the [UNHCR] in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”⁷⁶

ECHR

64. While it contains no rights that explicitly refer to immigration or asylum,⁷⁷ the ECHR provides protections in addition to those provided by the Refugee Convention. In particular, the ECHR protects against refoulement, irrespective of refugee status:

a) It is a violation of the right to life to remove a person to face a real risk of being subject to treatment that violates Article 2 ECHR (notably, the death penalty);⁷⁸

b) It is a violation of Article 3 ECHR for a person to be removed to another country where there is a real risk they will suffer torture or inhuman or degrading treatment or punishment;⁷⁹

c) It is a violation of Article 4 ECHR if a person is removed to another country where there is a real risk of slavery or forced labour;

d) In rare situations where an individual may face a “flagrant denial of justice” in a destination country, Articles 5 (right to liberty) or 6 (right to fair trial) of the ECHR may also prohibit their removal.⁸⁰

65. In addition, Article 13, the right to an effective remedy, requires the State to give asylum seekers the opportunity to claim asylum and have their claims considered.⁸¹

66. The relative narrowness of the definition of refugee under the Refugee Convention means that some asylum seekers who fall outside that definition will receive protection, including a guarantee against refoulement, under the ECHR instead.⁸² Should this occur, they may receive ‘humanitarian protection’ rather than ‘refugee status’. This also provides five years leave to remain, with the right to apply for indefinite leave to remain at the end of five years, and is for most purposes equivalent to refugee status.

67. Other human rights issues may form part of claims for protection/asylum:

a) The right to life under Article 2 (and the right not to be subjected to inhuman or degrading treatment under Article 3) may be engaged by decisions to remove individuals with serious medical conditions who will suffer severe consequences as a result of not being able to receive the treatment they require in their destination country;

b) The qualified right to respect for private and family life under Article 8 ECHR can be engaged by decisions to remove a person with strong personal relationships and/or family ties in the UK, and to decisions relating to family reunion (granting leave to family members of refugees);

c) Article 14 prohibits discrimination in the enjoyment of other Convention rights, and may be engaged by any policies that apply different standards or outcomes to different categories of asylum seekers. Immigration status is capable of founding the basis of an ‘other status’ for the purpose of engaging Article 14 ECHR.⁸³ The case for treating refugee status as an ‘other status’ is even stronger than for immigration status more broadly, because “as unlike immigration status refugee status did not entail an element of choice”.⁸⁴

UN Convention Against Torture

68. The UN Convention Against Torture (UNCAT) also protects against refoulement, such that individuals cannot be returned to face torture even when they might not otherwise qualify for refugee status. The non-refoulement obligation exists whenever there are ‘substantial grounds’ for believing the person concerned would be in danger of being subjected to torture in a State to which they are facing deportation, either as an individual or as a member of a group, and this obligation is absolute.⁸⁵ This obligation also means that the person at risk should never be deported to another State from which the person may subsequently face deportation to a third State where there are substantial grounds for believing that the person would be in danger of being subject to torture (i.e. onward refoulement).⁸⁶

International Covenant on Civil and Political Rights

69. The UK has also ratified the International Covenant on Civil and Political Rights (ICCPR), which, in addition to the rights also protected by the ECHR and mentioned above, provides specific rights relevant to immigrants including:

a) A right to liberty of movement within a state and freedom to choose one’s residence (Article 12(1) ICCPR); and

b) A right for aliens lawfully within a state not to be expelled except by a lawful decision which they can review with representation before the competent authority (Article 13 ICCPR).

UN Convention on the Rights of the Child

70. The UK ratified the UN Convention on the Rights of the Child (UNCRC) in 1991. Its provisions are legally binding on the UK as a matter of international law. The rights in the Convention apply to all children in the UK, without discrimination on the basis of their status.⁸⁷ The overarching principle of the Convention is enshrined in Article 3: In all actions concerning children, the best interests of the child shall be a primary consideration. States parties to the Convention are also bound by the overarching principle of non-discrimination (Article 2), the right to life, survival and development (Article 6) and the right of the child to express their views in all matters affecting them and to have those views taken into account (Article 12).

71. The JCHR has previously called for the Convention to be fully incorporated into domestic law, but it remains only partially incorporated.⁸⁸ However, section 55 of the Borders, Citizenship and immigration Act 2009 reflects the key tenets of the Convention. Section 55 requires that all immigration, asylum, nationality and customs functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the UK. This duty extends to all Home Office staff and those acting on behalf of the Home Office. The Supreme Court has made clear that the impact of section 55 is that “any [immigration] decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be ‘in accordance with the law’ for the purposes of article 8.2 [ECHR].”⁸⁹

Council of Europe Convention on Action against Trafficking in Human Beings

72. The modern slavery provisions in the Bill engage the prohibition of slavery in Article 4 ECHR and the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT). The ECTHR has held that trafficking falls within the scope of article 4 of the ECHR.⁹⁰ ECAT informs the content of the state’s obligations under Article 4 ECHR.

73. There are a number of obligations flowing from these prohibitions of slavery and human trafficking, including the positive obligation to put in place an appropriate legislative and administrative framework; the positive obligation to take operational measures to protect victims or potential victims of human trafficking or slavery; and the procedural obligation to investigate and prosecute the perpetrators of slavery or human trafficking.

74. Of particular relevance to this Bill, ECAT requires that:

a) Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process…has been completed (Article 10(2))

b) Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological, and social recovery. (Article 12(1))

c) Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim…During this period it shall not be possible to enforce any expulsion order against him or her…During this period, the Parties shall authorise the persons concerned to stay in their territory. (Article 13).

4 Compatibility with Convention rights and the disapplication of section 3 Human Rights Act

Statement under Section 19 of the Human Rights Act 1998

75. The Home Secretary made a statement under section 19(1)(b) of the Human Rights Act 1998 (the HRA) in relation to this Bill. In doing so, the Home Secretary declared that she is unable to make a statement that, in her view, the provisions of the Illegal Migration Bill are compatible with Convention rights, but that the Government nevertheless wishes the House to proceed with the Bill.⁹¹ The statement was repeated by the Parliamentary Under-Secretary to the Home Office, Lord Murray of Blidworth, when the Bill entered the House of Lords.⁹²

What is a section 19 statement?

76. Section 19(1) of the HRA requires the minister in charge of a Bill to make a statement before second reading in each House that either:

a) In the minister’s view, the provisions of the Bill are compatible with Convention rights⁹³ (a ‘statement of compatibility’);⁹⁴ or

b) The minister is unable to make a statement of compatibility but the Government nevertheless wishes the House to proceed with the Bill (a section 19(1)(b) statement).⁹⁵

77. A statement under section 19(1)(b) does not indicate that the Government believes a Bill is necessarily incompatible with the Convention rights; it only means that the minister is unable to make a positive statement that the provisions of a Bill are more likely than not to be compatible. Speaking to our Committee in December 2022, the Rt Hon Dominic Raab MP, then Deputy Prime Minister and Lord Chancellor and Secretary of State for Justice, confirmed that this was “effectively a 51% test”.⁹⁶ Even in circumstances when a minister has made a section 19(1)(b) statement in respect of a provision, it is possible for the Government to go on to successfully defend the compatibility of that provision with Convention rights in court.⁹⁷

78. Statements under section 19(1)(b) have been historically rare. We are aware of section 19(1)(b) statements having been made in respect of five Bills before the introduction of the Illegal Migration Bill. Of those, the Local Government Bill 2000,⁹⁸ the Civil Partnerships Bill 2004⁹⁹ and the Northern Ireland Executive Formation Bill 2019¹⁰⁰ were introduced into their first House under a section 19(1)(a) statement but, due to amendments in that House, when the Bill moved to the second House the statement was updated to be a section 19(1)(b) statement. The Communications Bill 2003¹⁰¹ and the House of Lords Reform Bill 2012–2013¹⁰² were introduced in their first House with statements under section 19(1)(b).

Implications of the Home Secretary’s statement

79. The Home Office has not set out definitively which provisions of the Bill caused the Home Secretary to make a s.19(1)(b) statement. However, the Government implied, at paragraph 47 of the Bill’s ECHR Memorandum, that the only provisions underlying this statement are the clauses on modern slavery.¹⁰³ Similarly, the Home Office has not set out definitively which provisions of the Bill caused the Parliamentary Under-Secretary to the Home Office, Lord Murray of Blidworth, to make a section 19(1)(b) statement when the Bill entered the House of Lords. However, the supplementary ECHR Memorandum indicates that the statement was also necessary due to Government amendments to the Bill in the House of Commons relating to age assessments¹⁰⁴ and electronic devices.¹⁰⁵

80. The Home Secretary believes that the entirety of the Bill is compatible with the UK’s international legal obligations, including those under the European Convention on Human Rights.¹⁰⁶ However, we have concluded that various provisions of the Bill are not compatible with the Convention or with numerous other binding legal obligations on the UK.

Disapplication of section 3 HRA

81. Section 3 of the HRA requires all legislation to be read and given effect in a way that is compatible with Convention rights, but only as far as it is possible to do so. This obligation applies to all public authorities, not only to the courts. It was designed, like the HRA as a whole, to achieve a balance between the protection of fundamental human rights and the right of a democratically elected Parliament to pass legislation. Thus, as a matter of well-established case law, it does not permit an interpretation that is “inconsistent with the scheme of the legislation or with its essential principles.”¹⁰⁷ In our report on the Government’s Bill of Rights Bill, which would legislate for the general repeal of section 3 HRA, we described it as “crucial to the legal protection of human rights in the UK”.¹⁰⁸ In their written evidence to us, the Immigration Law Practitioners Association echoed that view, stating that section 3 HRA is “a key part of the HRA’s architecture used by our courts to provide a primary domestic remedy for victims [and] to avoid finding domestic law breaches [of] international law…”¹⁰⁹

82. Clause 1(5) of the Bill would disapply section 3 HRA “in relation to provision made by or by virtue of this Act”. Section 3 HRA itself states that it is intended to apply “to all primary and secondary legislation whenever enacted”. The HRA did not provide for a ‘pick and choose’ approach and the disapplication of section 3 HRA to the provisions of this Bill is unprecedented.

83. The consequence of this disapplication would be to remove the obligation on all public authorities, including those administering the immigration and asylum system, as well as any courts applying or considering challenges to provisions of the Bill or of any secondary legislation made under it, to read or give effect to the legislation compatibly with human rights. Instead, under clause 1(3), public authorities would be required to read the Bill, so far as possible, to give effect to the purpose of preventing and deterring unlawful migration. The disapplication would therefore require the Home Office to apply the legislation in accordance with this purpose, even if that would result in a violation of human rights that could be avoided if the legislation were only interpreted differently. While section 6 HRA, which prohibits public authorities from acting incompatibly with Convention rights, has not been expressly disapplied, it does not apply if “as the result of one or more provisions of primary legislation, the authority could not have acted differently”. Thus, all of the provisions of the Bill that impose a duty, rather than a power, arguably fall outside section 6 HRA.

84. For the courts, the disapplication of section 3 would deprive them of a mechanism for remedying incompatibilities identified in the legislation. For secondary legislation, the higher courts would retain the ability to make a quashing order. In respect of the Bill itself, however, rather than having the opportunity to consider whether its provisions could be read and given effect in a compatible manner without being inconsistent with its essential principles, the courts would only be able to make a declaration of incompatibility under section 4 HRA.¹¹⁰ Such a declaration simply states that the court considers the legislation to be incompatible. It would then be for the Government and ultimately Parliament to correct that incompatibility to ensure compliance with the ECHR — but there is no requirement in domestic law for them to do so. The Home Secretary has told the Committee that the Government does not accept the premise that disapplying section 3 HRA would increase the use of declarations of incompatibility under section 4 HRA.¹¹¹ We do not understand this position, as a court faced with legislation it would previously have read down under section 3 HRA to avoid incompatibility will, in the absence of that obligation, be very likely to declare that it is incompatible with the ECHR under section 4.

85. While the Government has previously responded to declarations of incompatibility by amending the offending legislation, this has generally been a long and drawn-out process. In our report on the Bill of Rights Bill, we noted that two recent remedial orders intended to respond to declarations of incompatibility had taken take more than 4 and 5 years to become law, respectively.¹¹² While the remedial order process is continuing, the incompatible legislation remains law and continues to infringe the rights of those it affects. For this reason, a declaration of incompatibility is unlikely to be considered an “effective remedy” by the ECtHR, so as to prevent an affected individual taking their claim on to Strasbourg. Thus, an increase in declarations of incompatibility, caused by the disapplication of section 3 HRA, is likely to result in more applications being brought before the ECtHR. As the Immigration Law Practitioners’ Association stated in their evidence the UK will remain responsible for any breaches and therefore the Bill will “put the UK on a direct collision course with the domestic courts, the European Court of Human Rights (ECtHR), the Council of Europe, and other international bodies.”¹¹³

86. In respect of much legislation, section 3 HRA may be of limited relevance because the potential for the courts to find that it is incompatible with Convention rights is low. In respect of this Bill, however, the prospects are much higher — as recognised by the Home Secretary herself in her section 19(1)(b) statement. Given this likelihood, the disapplication of section 3 HRA appears to be a conscious attempt to limit the courts’ ability to remedy anticipated incompatibilities within the Bill.

87. The disapplication of section 3 only in respect of this Bill, and secondary legislation made under it, raises additional human rights concerns. A number of stakeholders have described clause 1(5) as undermining the fundamental universality of human rights, described by the British Institute for Human Rights as the principle:

that human rights apply to us all equally regardless of who we are or what has happened in our lives. By disapplying Section 3 to anyone who falls within the scope of this Bill, the Government are creating a two-tier system of access to rights and access to justice.¹¹⁴

88. Liberty also described clause 1(5) as creating:

a two-tiered system of human rights protection, whereby laws will not be required to be read compatibly with human rights for certain people, solely on the basis of how they have entered the UK.¹¹⁵

89. Article 14 ECHR prohibits unjustified discrimination in the enjoyment of Convention rights on grounds including race and national origin, as well as “other status” which may include immigration status.¹¹⁶ Those affected by this Bill and the subordinate legislation made under it will arguably receive different treatment, because for them public authorities will be permitted to read and give effect to legislation in a way that is incompatible with human rights. Furthermore, while others faced with a legislative provision that violates their rights could argue that the courts should give a new Convention-compatible reading to that legislation under section 3 HRA, those affected by this Bill would not have that option available them. This could result in them being unable to remedy the violation of their rights.

90. The obligation to read legislation compatibly with Convention rights under section 3 HRA is crucial to the legal protection of human rights in the UK. We have previously recommended against the repeal of section 3 HRA and we are equally unconvinced and troubled by its piecemeal disapplication, including under clause 1(5) of this Bill. We are concerned that, by denying those affected by this Bill access to part of the human rights protective framework, clause 1(5) runs counter to the principle that those rights are universal. It also gives rise to concerns in respect of the prohibition on discrimination under Article 14 ECHR. The Bill should be amended to remove the disapplication of section 3 HRA (see Annex, Amendment 1).

5 The duty to make arrangements to remove people from the UK

Clause 2 — the duty to make arrangements to remove persons from the UK

Incompatibility with the Refugee Convention

91. Clause 2 provides that the Secretary of State “must make arrangements for the removal of a person” from the UK if the person meets four conditions. These four conditions amount to irregular and indirect entry or arrival in the UK on or after 7 March 2023. The scope of clause 2 is extremely broad. Most asylum seekers entering or arriving in the UK will fall foul of the removal duty by meeting the four conditions (discussed below at paragraphs 92 – 104).

Condition 1 — ‘illegal’ entry or arrival

92. The first condition is that the person has come to the UK ‘illegally’, i.e. entering without permission; entering in breach of a deportation order; arriving without permission; arriving without an electronic travel authorisation; or entering the UK subject to a travel ban.¹¹⁷

93. To claim asylum in the UK, an individual must be physically present in the country. As there is no legal route available (such as an ‘asylum visa’) to those wishing to claim asylum in the UK, the vast majority of asylum seekers will enter the UK without leave to enter, without valid entry clearance, and without an electronic travel authorisation, thereby satisfying condition 1 of clause 2. The UNHCR notes that “ninety-six per cent of refugees, asylum-seekers and others in need of international protection come from 108 countries whose nationals require entry clearance to come to the UK”.¹¹⁸

94. Condition 1 will also cover victims of trafficking or slavery who are brought to the UK via irregular means. As noted by the Helen Bamber Foundation, “a core aspect of human trafficking is the movement of people and the use of threat, force or fraud and the abuse of vulnerability to do so. Roughly three quarters of all survivors of trafficking are not British nationals and many will be in the country without leave to remain. Many will have been brought here by their traffickers by ‘irregular routes’.”¹¹⁹

95. Condition 1 also covers those who have entered the UK with valid leave to enter, if that leave to enter “was obtained by means which included deception by any person.”¹²⁰ Thus even if an asylum seeker has a valid tourist or student visa to enter the UK, if their intention in coming to the UK was not to be a tourist or a student, they would satisfy condition 1. Indeed, since the deception can be “by any person”, they would satisfy condition 1 even if they were not personally involved in the deception about their intentions. Freedom from Torture describe “[t]he ‘deception’ clause” as “shutting down one of the last remaining safe routes to seek asylum in the UK.”¹²¹

96. It is important to recognise that the Refugee Convention was drafted in specific recognition of the fact that ‘illegal’ entry was often necessary for refugees, as can be seen from the travaux preparatoires for Article 31: “A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge. It would be in keeping with the notion of asylum to exempt from penalties a refugee, escaping from persecution, who after crossing the frontier clandestinely, presents himself as soon as possible to the authorities of the country of asylum and is recognized as a bona fide refugee.”¹²²

Condition 2 — entry or arrival on or after 7 March 2023

97. The second condition is that the person entered or arrived “on or after 7 March 2023”. This is the date the Bill was introduced in the Commons. The removal duty will therefore apply retrospectively.

98. All asylum seekers entering or arriving in the UK on or after 7 March 2023 will satisfy condition 2. The Government states that the purpose of this approach is to “prevent a ‘fire sale’ of migrants seeking to enter illegally before the bill is enacted.”¹²³ In evidence to us, The Law Society notes, “laws should not be made to apply retroactively is a general principle of the rule of law. Where it is used, there must be strong justification and it must not be used, as it is here, to remove rights retrospectively.”¹²⁴

Condition 3 — coming indirectly to the UK

99. The third condition is that the person “did not come directly to the United Kingdom from a country in which the person’s life and liberty were threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion”. Clause 2(5) specifies that someone who “passed through or stopped” in a safe country en route to the UK did not “come directly.”

100. The vast majority of asylum seekers who reach the UK will have “passed through or stopped” in another country where their life and liberty were not threatened by reason of race, religion, nationality, membership of a particular social group or political opinion, thereby satisfying condition three. We asked the Home Secretary to set out (a) what proportion of persons who were granted asylum in the UK arrived in or entered the UK lawfully, without any involvement of deception, and did not pass through another safe state on the way? And (b) what proportion of victims of modern slavery arrived in or entered the UK lawfully and did not pass through another safe state on the way? The Home Secretary stated “[w]e do not collect data in a reportable format with regard to points (a) and (b).”¹²⁵

101. In evidence to us, Dr Peter Walsh from Migration Observatory explained, “it is typically assumed that the majority travel through other countries, given the difficulty in reaching the UK by plane. We do not know exactly how many, but it would probably be a decent majority.”¹²⁶ The UNHCR notes that “almost 90% of people in need of international protection globally come from countries from which it is impossible to come to the UK directly because there are no direct flights”.¹²⁷

102. Even if direct flights were available, refugees often face difficulties obtaining documentation, passports and visas to allow them to take such flights. As noted by the UNHCR in its legal observations, “this Bill would bar anyone who arrives in the UK irregularly from claiming asylum, if they have passed through a country where they did not face persecution, regardless of whether they will be admitted to a third country and guaranteed effective access to international protection there….[T]he bar would apply regardless of whether a person could have sought protection in another country prior to seeking it in the UK.”¹²⁸

Condition 4 — no leave to enter or remain

103. The fourth condition is that the person requires leave to enter or remain in the UK but does not have it. This means that someone who arrived unlawfully but later secured leave to remain would not be liable to removal under clause 2.

104. The vast majority of refugees who travel to the UK will not have leave to enter or remain in the UK. The UNHCR notes that “even those who have arrived — safely and apparently regularly — holding some other status, will normally have it cancelled on the grounds that, having in fact intended to claim asylum, they either no longer qualify for leave they were granted or have tacitly admitted to obtaining it by deception”.¹²⁹

Exceptions

105. There are only four circumstances in which the removal duty will not apply to persons who enter or arrive in the UK irregularly and indirectly: unaccompanied children (discussed below in Chapter 7); victims of trafficking or slavery who are cooperating with criminal investigations or prosecutions and are required to be in the UK (discussed below in Chapter 8);¹³⁰ where the Minister exercises discretion to apply an interim measure of the ECtHR (discussed below in this Chapter); and, temporarily, where a suspensive claim has been made to challenge removal from the UK (discussed below in Chapter 10). Clause 3(5) gives the Secretary of State a power to make regulations exempting other people from the removal duty. For the most part, persons meeting the four conditions in clause 2 will be liable to removal from the UK.

The object and purpose of the Refugee Convention

106. The Refugee Council highlighted that nearly half of those who crossed the Channel were from Afghanistan, Iran, Syria, Eritrea and Sudan — all of these countries have current asylum grant rates of over 80%, with three countries having rates of 98%.¹³¹ It is likely that all of these individuals who would currently be granted refugee status in the UK would be liable for removal under this Bill. As noted by the UNHCR in its legal observations on the Bill, “the UK would be retreating from the principles of international cooperation on which the global refugee system is based and acting inconsistently with the object and purpose of the Refugee Convention.”¹³²

107. Clause 2, taken together with clauses 4 and 5 (which provide for the inadmissibility of asylum and human rights claims and removal from the UK), penalises refugees who come to the UK irregularly and indirectly, including children and victims of modern slavery, by denying them access to the asylum system and making them liable to removal. This is, in effect, a near-ban on asylum and humanitarian protection. Extinguishing the right of asylum for refugees arriving in the UK breaches the object and purpose of the Refugee Convention with which we are bound, in good faith, to comply.

Article 31 of the Refugee Convention: “coming directly” to the UK

108. Clause 2 penalises persons who enter or arrive in the UK indirectly. This approach has been adopted by the Government on the basis that refugees must claim asylum in the first safe country they reach and cannot therefore claim asylum in the UK if they have passed through other safe countries en route. As discussed in detail below, this position has no basis in law.

109. Article 31 prohibits states from penalising refugees who enter irregularly: “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” As explained by Professor Costello, “’coming directly’ appears only in Article 31 of the Refugee Convention, which is, in general, a provision that aims to protect refugees from penalisation. Then it has a slight restriction, which says that refugees—who are still refugees, with all the rights in the convention—may be penalised for infractions of migration law if they do not come directly from countries where their lives are threatened.”¹³³

The meaning of ‘coming directly’

110. By denying refugees access to the asylum system, this Bill imposes a ‘penalty’ on refugees—‘penalty’ has been interpreted by the Supreme Court of Canada as covering administrative disadvantages, such as “obstructed or delayed access to the refugee process”.¹³⁴ In her response to our letter, the Home Secretary states: “[w]e are satisfied that the duty to make removal arrangements does not amount to a penalty within the meaning of the Refugee Convention.” Article 31 specifies that the non-penalisation of refugees applies only to those who come “directly from a territory where their life or freedom was threatened”. Whether or not penalisation of refugees is lawful under the Refugee Convention therefore turns, in part, on the definition of “coming directly”.

111. The Government’s definition of “coming directly” is reflected in the third condition set out in clause 2(5): “a person is not taken to have come directly to the UK from a country where their life and liberty were threatened….if, in coming from such a country, they passed through or stopped in” another country where their life or liberty is not so threatened.¹³⁵ This would cover any refugee who travels to the UK by any means other than a direct mode of transport from the persecuting state. It is worth noting that the Government provided its own statutory interpretation of “coming directly” in the NBA 2022, which we recommended required amendment to bring it into line with the correct interpretation of Article 31.¹³⁶ In this Bill, the Government has offered a different statutory interpretation, which is even broader, just a year later. The legal basis for the Government’s evolving interpretation of Article 31 is unclear. In her response to our letter, the Home Secretary stated: “[i]n order to respond to the continuing problem of people making dangerous journeys to arrive in the UK illegally, it is only right that we consider our interpretation of ‘coming directly’.”¹³⁷ The Government cannot unilaterally redefine the interpretation of an international treaty obligation in accordance with current domestic circumstances.

112. The Government’s definition of “coming directly” is inconsistent with the interpretation of Article 31 set out by experts assembled by the UNHCR, who concluded, following analysis of the travaux preparatoires, that “the drafters [of the Refugee Convention] only intended that immunity from penalty should not apply to refugees who found asylum, or were settled, temporarily or permanently, in another country.”¹³⁸ As noted by Professor James Hathaway of the University of Michigan, a leading academic in this field, “coming directly” was intended by the drafters to remove non-penalisation protection only from refugees who had found asylum in another country, and not those who had failed to seek asylum or merely passed through.¹³⁹ Dr Natalie Hodgson, Assistant Professor in the School of Law at the University of Nottingham and Head of the Forced Migration Unit in the Human Rights Law Centre further explained, “The reference to ‘coming directly from a territory’ in Article 31 was added to the Convention to address the rare situation where a refugee might enter a territory irregularly despite having already claimed, and been granted, asylum elsewhere”.¹⁴⁰

113. This is supported by the evidence we received from Professor Costello, an expert on Article 31, who expressed her strong view that the Government’s approach “has absolutely no basis in international law”. She explained:

it would also completely undermine the global system on which refugee protection is based. It is an absolute legal distortion to take these two words in a protective provision in a protective instrument and turn them into an absolutely fictitious notion that refugees are under a duty to stay in the first country of asylum. There is no such obligation on refugees as a matter of international law. The system could not work if there were.¹⁴¹

114. The Government’s definition in clause 2(5) is also inconsistent with the interpretation of Article 31 as determined by the High Court:

[I]t is the [Secretary of State’s] contention that Article 31 allows the refugee no element of choice as to where he should claim asylum. He must claim it where first he may: only considerations of continuing safety would justify impunity for further travel. For my part I would reject this argument. Rather, I am persuaded by the applicants’ contrary submission, drawing as it does on the travaux préparatoires, various conclusions adopted by UNHCR’s executive committee (ExCom), and the writings of well respected academics and commentators (most notably Professor Guy Goodwin-Gill, Atle Grahl-Madsen, Professor James Hathaway and Dr Paul Weis), that some element of choice is indeed open to refugees as to where they may properly claim asylum. I conclude that any merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the article…¹⁴²

115. This interpretation was confirmed¹⁴³ by the House of Lords,¹⁴⁴ which confirmed that “a short stopover” in another country on the way to claiming asylum in the UK does not preclude reliance on Article 31 of the Refugee Convention:

the fact a refugee stopped in a third country in transit is not necessarily fatal and may be explicable: the refugee has some choice as to where he might properly claim asylum. The main touchstones by which exclusion from protection should be judged are the length of the stay in the intermediate country, the reasons for delaying there and whether or not the refugee sought or found protection de jure or de facto from the persecution from which he or she was seeking to escape…¹⁴⁵

116. Sir Stephen Laws told us that there was a “very powerful dissent” in this case, which he preferred, and said that since the domestic courts were not “the authoritative place for proposing what the treaty means it was “legitimate for the UK Government to take the other view and to proceed accordingly.”¹⁴⁶ We disagree - a dissenting opinion in a judgment does not reflect the law.

117. As explained by the Refugee Law Initiative, Article 31:

“is a protective provision that excepts certain refugees from penalties that might ordinarily be imposed for illegal entry or presence. In no way does it authorise additional measures to punish or disadvantage refugees who arrive irregularly. Moreover, its terms show the drafters expressly recognised that refugees are often forced to travel irregularly. Had they intended to make such refugees inadmissible, they could have done so in the Article 1 definition. The fact that they did not do so supports the firm conclusion that Article 31 cannot be prayed in aid to excuse non-compliance with the duty to determine refugee status.”¹⁴⁷

118. In our letter to the Home Secretary we asked: “[w]hat is your legal basis for disagreeing with both the UNHCR and the courts, and requiring refugees to claim asylum in the first safe country they enter in order to benefit from the protections of the Refugee Convention?”¹⁴⁸ The Home Secretary stated in response: “[w]e are satisfied the provisions in the Bill comply with the Refugee Convention. It is a longstanding principle that those in need of protection should claim asylum at the earliest opportunity, in the first safe country they reach. The Divisional Court (AAA and others v SSHD [2022] EWHC 3230 (Admin)) recently upheld the lawfulness of this principle in relation to the UK’s Migration and Economic Development Partnership with Rwanda, concluding that the Government can relocate asylum seekers to Rwanda for their claims to be determined there rather than by the United Kingdom.”¹⁴⁹ In AAA, the High Court found that the transfer of asylum seekers to Rwanda for their asylum claims to be determined there was not, in principle, unlawful. The High Court did not, however, find that the Refugee Convention requires refugees to claim asylum in the first safe country they reach in order to benefit from the protections of the Refugee Convention.

119. Also in her response to our letter, the Home Secretary stated that “the first safe country principle is widely recognised internationally and is a fundamental feature, for example, of the EU Common European Asylum System.”¹⁵⁰ This is an intergovernmental system for the allocation of responsibility for processing asylum claims within the EU. It should not be implied that the existence of this responsibility-sharing arrangement changes the clear position in international law that there is no requirement for asylum seekers to claim asylum in the first safe country they reach.

120. The journey of refugees is often complex and irregular and indirect for a multitude of reasons. This is demonstrated by a case study provided to us by the University of Birmingham:

Feven first experienced SGBV [Sexual and Gender Based Violence] in her home country of Eritrea, while hiding from religious persecution by the police. She became pregnant after being raped while staying in a “safe house” while in hiding and fled to Sudan. In Sudan, she was again threatened by her rapist, wanting to take her baby and fled to Turkey to get away from him, becoming separated from her husband and child. She did not feel safe in Turkey so moved on to Greece where she lived rough for 9 years selling cans and bottles back to supermarkets. A kind tourist gave Feven money for passage to Canada which she felt was her best option for reunification with her husband and son. With no papers, Feven’s only option was to pay traffickers to take her to Canada. Instead they took her to France where she was threatened and raped again. The traffickers told her if she didn’t do what they said they wouldn’t take her to Canada. Eventually she was put in a refrigerated container and told she was going to Canada. It was so cold in the truck she thought she was going to die. When the container was opened she found herself in England. Feven cannot return to Eritrea due to the threats against her and France does not feel safe due to her experiences there.¹⁵¹

121. If Feven arrived in the UK now, on account of her irregular and indirect arrival in the UK, she would be liable to removal. She would have her asylum claim declared inadmissible and therefore be denied access to the asylum system. She would have any human rights claim regarding return to Eritrea declared inadmissible. Despite her status as a victim of trafficking and a victim of sexual violence, she would be denied a recovery period, she would be denied support, and she would be denied the right to limited leave to remain in the UK, unless she cooperated with an investigation and it was deemed necessary for her to stay in the UK to do so. Instead, she would be subject to detention without limit and, in theory, removed from the UK to a ‘safe third state’ such as Rwanda.

122. Clause 2 penalises refugees in clear breach of the Refugee Convention and Article 31 of the Refugee Convention by providing for a blanket denial of access to the asylum system for those who come to the UK irregularly and indirectly. It is clear that the drafters of the Refugee Convention recognised that refugees might travel through multiple countries prior to seeking asylum. Article 31 does not authorise the Government to deny the protections of the Convention to any refugee who enters the UK indirectly. This is the unequivocal legal position as set out by the UNHRC and confirmed by our domestic courts. Clause 2 should be removed from the Bill as it violates the UK’s legal obligations under the Refugee Convention (see Annex, Amendment 2).

123. Further, if clause 2 remains in the Bill, the definition of “coming directly” in clause 2(5) must be amended to reflect the position in law and not the Government’s misconstruction of Article 31 (see Annex, amendment 3). The Nationality and Borders Act 2022 will also require amendment to reflect the proper interpretation of Article 31.

124. Failing the removal of clause 2 from the Bill, exemptions must be introduced to exclude certain categories of person from the duty in clause 2, such as those who have additional vulnerabilities, including victims of trafficking and slavery, survivors of torture, pregnant women, and accompanied children (see Annex, Amendment 4). This would not resolve the clause’s incompatibility with the UK’s obligations under the Refugee Convention.

Clause 53 — interim measures of the European Court of Human Rights

125. We deal with clause 53 here as it relates to the removal duty in clause 2. As noted above, the removal duty in clause 2 does not lapse i.e. it remains in place for perpetuity once a person has satisfied the four conditions. However, there may be cases where a person who is liable for removal under the Bill makes an urgent application to the ECtHR to suspend their removal on the grounds that their Convention rights will be breached.

126. In order to pre-empt this, at Report stage in the Commons, the Government introduced a new clause dealing with interim measures of the ECtHR. Clause 53 provides that an interim measure indicated by the ECtHR does not affect the duty in clause 2 of the Bill to make arrangements for the removal of a person from the UK, unless a Minister of the Crown acting in person determines that it is to do so.¹⁵² In considering whether an interim measure of the ECtHR will affect the removal duty, the Minister may have regard to various factors including whether the Government was given an opportunity to present observations before the interim measure was indicated, and the form of the decision to indicate the interim measure.¹⁵³ If the Minister decides to ignore the interim measure of the ECtHR such that the removal duty continues to apply, then the interim measure must also be ignored by immigration officers when exercising their functions to remove individuals under the Bill, the Upper Tribunal when considering any application or appeal under this Act, and a court or tribunal when considering any application or appeal which relates to a decision to remove a person from the UK under this Act.¹⁵⁴

What are interim measures?

127. Under Rule 39 of the Rules of the ECtHR, the Court may indicate interim measures to any State party. These are usually sought in connection with immigration removal or extradition cases, and amount to a requirement that the removal or extradition be suspended for a short period of time or until the case has been fully examined. The ECtHR has established that requests for interim measures are granted only exceptionally, when applicants would otherwise face a real risk of serious and irreversible harm. They are, however, granted from time to time, including against the UK.¹⁵⁵

128. Interim measures were indicated to the UK on 14 and 15 June 2022 by the ECtHR in relation to the Government’s attempt to remove asylum seekers to Rwanda. The first interim measure concerned an asylum-seeker from Iraq facing removal to Rwanda.¹⁵⁶ This interim measure indicated to the UK Government that the applicant should not be removed until the expiry of a period of three weeks following the delivery of the final domestic decision in the ongoing judicial-review proceedings. Following an application by the UK Government, the Court reviewed the interim measure and, in the light of the parties’ submissions, confirmed it on 1 July 2022. Two other interim measures concerning Iranian and Vietnamese asylum seekers facing removal from the UK to Rwanda were granted by the Court for a short period of five days.¹⁵⁷ This caused concern in Government and amongst some commentators.¹⁵⁸

What are the legal implications of this clause?

129. Interim measures appear in the Rules of the Court rather than in the Convention itself, which has led some commentators to suggest the UK is not bound to comply with them. This is particularly because Article 46 of the Convention, which concerns the “Binding force and execution of judgments”, only commits the UK to abide by “the final judgment of the Court” and does not mention interim measures. However, the ECtHR Grand Chamber has held that a failure to comply with interim measures would amount to a violation of Article 34 of the Convention, under which the High Contracting Parties undertake “not to hinder in any way the effective exercise” of the right of applicants to bring their claims before the court.¹⁵⁹

130. It is therefore a binding obligation, as a matter of international law, for the UK to act in accordance with interim measures issued by the ECtHR in order to ensure that the UK does not hinder the right of individuals to bring their claims before the court. In spite of this, clause 53 gives the Minister the discretion to apply or ignore interim measures and, in doing so, gives the Minister permission, as a matter of domestic law, to breach international law. The supplementary ECHR memorandum provided by the Government does not address this fundamental point, saying only that “the provision in general and the discretion in particular are capable of being operated compatibly with Convention rights, in the sense that they will not necessarily give rise to an unjustified interference of those rights, meaning that the legislation itself will not be incompatible.”¹⁶⁰ The meaning of this sentence is far from clear, but it does not explain or justify granting a Minister permission to breach international law.

131. During a recent Summit of the Heads of State and Government of the Council of Europe in Reykjavik, the President of the ECtHR, Siofra O’Leary, confirmed that since last November, reflections have been ongoing within the Court in relation to the procedures for dealing with interim measures (Rule 39). She stressed that such an internal review is unrelated to any individual case or the position on interim measures of any one of the 46 member States. She further underlined the importance of States reaffirming their commitment to the Convention system and to the binding nature of the Court’s judgments and decisions, including interim measures.¹⁶¹

132. On 17 May 2023, the Prime Minister signed the Reykjavik Declaration which states:

We reaffirm our deep and abiding commitment to the European Convention on Human Rights and the European Court of Human Rights (ECHR) as the ultimate guarantors of human rights across our continent, alongside our domestic democratic and judicial systems. We reaffirm our primary obligation under the Convention to secure to everyone within our jurisdiction the rights and freedoms defined in the Convention in accordance with the principle of subsidiarity, as well as our unconditional obligation to abide by the final judgments of the European Court of Human Rights in any case to which we are Parties.

133. We welcome the Prime Minister’s recent reaffirmation of his ‘deep and abiding’ commitment to the ECHR and the ECtHR made at the Reykjavik summit. However, clause 53 gives Ministers legislative permission to act in direct violation of the UK obligations under the ECHR. Where a Minister chooses to ignore an interim measure and therefore breach Article 34 of the ECHR, clause 53 also prevents the courts from having regard to interim measures when considering proceedings under this Bill. This clause therefore permits deliberate breaches of our obligation to comply with interim measures of the ECtHR. Clause 53 must be removed from the Bill (see Annex, Amendment 5).

Clause 3 — power to remove unaccompanied children

134. Clause 3(1) provides that the removal duty in clause 2 does not apply to unaccompanied children¹⁶² while they are under 18.¹⁶³ However, clause 3(2) provides that the Secretary of State may nevertheless decide to make arrangements for the removal of an unaccompanied child whilst they remain under 18. Although clause 3 does not contain a duty, it does give the Secretary of State the power to treat unaccompanied children in the same way as adults and remove them from the UK. Unaccompanied children may therefore be removed from the UK at the discretion of the Secretary of State, if they also entered irregularly and indirectly and have no permission to be here. As soon as they turn 18, clause 2 would apply and the Secretary of State would then be under a duty to make arrangements to remove the individual. In response to our letter, the Home Secretary stated: “[w]e would not return an unaccompanied child to their home country unless it was safe to do so and we were satisfied there were adequate reception arrangements in place, and after consideration had been given to the best interests of the child.”¹⁶⁴

135. Following a Government amendment to clause 3 at Report stage in the Commons, there are some limitations on the exercise of this power. Clause 3(2A) provides that the power to remove unaccompanied children may be exercised in four circumstances. Firstly, for the purpose of reunion with the child’s parents;¹⁶⁵ secondly, where the child is to be removed to a ‘safe’ country of origin within the EEA states (plus Albania and Switzerland);¹⁶⁶ thirdly, where the child is to be removed to their country of origin or country of embarkation outside the EEA states (plus Albania and Switzerland) as long as they have not made a protection claim¹⁶⁷ or human rights claim;¹⁶⁸ or fourthly, in such other circumstances as may be specified in regulations made by the Secretary of State. Whilst this amendment circumscribes the circumstances in which the Secretary of State may exercise her power to remove a child, this does not go far enough to safeguard the rights of the child.

136. The Government states in its supplementary ECHR memorandum that, with this amendment, any interference with Article 8 ECHR involved in the removal of a child would be justified under Article 8(2) and there would be no breach of Articles 2 or 3 ECHR “since the individuals would be removed to a place where they would be safe”.¹⁶⁹ However, there is no reference to the UN Convention on the Rights of the Child (UNCRC). The exercise of the removal power would engage the UK’s obligations under Article 3 of the UNCRC, which requires that in all actions concerning children, the best interests of the child shall be a primary consideration.¹⁷⁰ As the UK Committee to UNICEF told us, “All asylum and immigration policies and practices at every stage of the process must comply with the duty to treat a child’s best interests as a primary consideration, irrespective of the child’s immigration status. The same duty applies to both unaccompanied and separated children and children in families. The duty applies to how claims are considered and decisions are made, as well as to procedures and processes.”¹⁷¹ Clause 3 would also engage section 55 of the Borders, Citizenship and Immigration Act 2009 which places a duty on the Secretary of State to make arrangements for ensuring that immigration, asylum, nationality and customs functions are discharged having regard to the need to safeguard and promote the welfare of children in the UK.

137. As explained by the UN Migration Network:

the precondition to the return of any child — whether the child is unaccompanied, separated or within a family — is that return has been found to be in their best interests through an individual and participative process aimed at identifying a sustainable solution with the central involvement of child protection authorities. States should examine each individual child’s case in their own right and in an age — and gender-sensitive manner, and take into account the specific rights and vulnerabilities of children. To determine whether return is in the best interests of the child, States should implement a formal, multi-disciplinary, individual, documented, best interests procedure that aims to identify a sustainable solution that protects the long-term best interests and welfare of the child by considering all options. When it is determined that return is in the best interests of the child, child protection actors should collaborate across borders prior to and during the return and an individual reintegration plan should be prepared with the child’s input.¹⁷²

138. Clause 3 falls far short of these important safeguards.

139. It is difficult to see how the removal of unaccompanied child refugees under clause 3 could comply with the legal obligations to have regard to the need to safeguard and promote the welfare of children in the UK, and to treat the best interests of the child as a primary consideration except in very specific circumstances, such as family reunification. Clause 3 should therefore be removed from the Bill (see Annex, amendment 6). Failing this, clause 3 must be circumscribed to allow the Secretary of State only to exercise the power in circumstances where removal is clearly in the best interests of the child (see Annex, amendment 7). The Bill’s impact on children more broadly is discussed in detail in Chapter 7.

Clause 3(7) — Other exceptions to the duty to remove under clause 2

140. Clause 3(7) grants the Secretary of State a wider power to make provision for other exceptions to the removal duty. Although this power is located within a clause which otherwise deals with unaccompanied children, there is nothing to limit the exception-making power to this category.¹⁷³ These exceptions can also be retrospective (clause 3(8)(b)). The Bill’s Explanatory Notes identify “extradition proceedings” and “people being prosecuted in the UK for a criminal offence” as possible exceptions to be made using this power.¹⁷⁴

Clause 4 — disregard of certain claims and applications

141. Clause 4(1) would provide that the removal duty (clause 2), or the power to remove unaccompanied children (clause 3), applies regardless of whether the person has made a protection claim; a human rights claim; a claim to be a victim of trafficking or slavery; or an application for judicial review in relation to their removal from the UK.¹⁷⁵ Asylum claims by people who are subject to the removal duty must be declared inadmissible.¹⁷⁶ This means that their claims will not be considered. In other words, irrespective of the merits of a person’s case, if a person meets the conditions of irregular and indirect entry in clause 2, that person will be subject to removal arrangements and no consideration will be given to the individual circumstances of their case. There is no right of appeal against an inadmissibility decision.¹⁷⁷ It would, however, be possible to apply for judicial review of the inadmissibility decision, but this would not suspend removal pending the outcome of the proceedings.¹⁷⁸ Refugees, victims of trafficking, and victims of slavery will be treated in exactly the same way as those with unmeritorious claims.

142. Notably, by refusing to process any claims, the Government is also unable to reject any claims. While this may not be a major concern in circumstances where removals to a third country are straightforward, where removals to a safe third country are difficult, the Government will be unable to distinguish between meritorious and unmeritorious claims and will not, therefore, be able to remove the thousands of people who do not have valid claims for asylum.

Inadmissibility of asylum claims

143. Primary legislation already allows for the removal of asylum seekers who have a “connection” to a “safe third country” (and therefore whose claims are deemed inadmissible) as well as the removal of those whose asylum claims are pending.¹⁷⁹ The existing inadmissibility rules apply automatically to EU citizens (unless there are exceptional circumstances). Under the existing rules, asylum claims declared inadmissible can nevertheless be admitted for processing if the person cannot be removed to a safe third country within six months.¹⁸⁰

144. The inadmissibility regime as set out in the Bill goes beyond the existing regime. It would apply automatically to all persons who meet the four conditions in clause 2, irrespective of nationality or country or origin, without the need to consider the merits of their asylum claims. Asylum claims would be declared inadmissible, even if the country through which an asylum seeker passed had no effective asylum system or would have put the individual at risk of destitution. This effectively requires refugees to stay in the first country they reach as long as they are not facing persecution, even if they would face other forms of serious harm.

145. We note that between January 2021 and 30 September 2022, of the 20,605 claims which were considered on inadmissibility grounds, only 21 individuals were removed on inadmissibility grounds.¹⁸¹ 9,772 individuals were subsequently admitted into the UK asylum process for substantive consideration of their asylum claim. Under the Bill, there is no option for processing an inadmissible claim, even if the person concerned cannot be removed from the UK (for example, in circumstances where removal cannot take place due to practical hindrances or capacity constraints in the ‘safe third state’). This would leave asylum seekers in a perpetual state of legal limbo in circumstances where removal is not possible. The UNHCR response to the ‘New Plan for Immigration’ explained that “[a] system that is designed to maintain a refugee in a precarious state intentionally frustrates, rather than facilitates, their integration and naturalisation.”¹⁸² Forcing refugees into a state of perpetual legal limbo is therefore likely to breach Article 34 of the Refugee Convention which requires states to naturalise and assimilate refugees as far as possible.

146. The denial of access to a fair and effective asylum system may also violate Article 13 ECHR, which guarantees the availability an effective domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The ECtHR has found that where shortcomings in the asylum procedure were such that an individual faced the risk of refoulement to his country of origin without any real examination of the merits of asylum applications, this violates the right to an effective remedy as guaranteed by Article 13 ECHR.¹⁸³

147. Clause 4, alongside clauses 2 and 3, forms the basis for the automatic denial of the right to asylum for the vast majority of asylum seekers entering or arriving in the UK, irrespective of the merits of their claims. The blanket denial of access to the asylum system for persons who enter or arrive in the UK irregularly and indirectly is a clear breach of the object and purpose of the Refugee Convention. In circumstances where removal is not possible or is protracted, the lack of status and permanent denial of access to the asylum system for refugees is likely to breach the Refugee Convention, in particular, the duty to naturalise and assimilate refugees as far as possible in Article 34. The denial of access to a fair and effective asylum system may also violate Article 13 ECHR. Clause 4 should be removed from the Bill to allow asylum seekers the right to claim asylum and in doing so have the merits of their case considered (see Annex, Amendment 8).

Inadmissibility of human rights claims

148. At present, the current inadmissibility rules do not apply to human rights claims (i.e. claims that removal would be unlawful on the basis that it would violate the claimant’s Convention rights). Under the existing laws, an individual claiming that they would have their human rights breached in the country to which they were to be removed would still need to have the merits of their human rights claim (as distinct from their asylum claim) properly considered. At present, a human rights claim would effectively suspend a person’s removal, unless the claim was certified as “clearly unfounded”.¹⁸⁴

149. The Bill makes changes to the admissibility of human rights claims. Clause 4(3) provides that for individuals arriving irregularly and indirectly (as per clause 2), human rights claims¹⁸⁵ challenging removal to the person’s country of origin¹⁸⁶ must be declared inadmissible under clause 4(2). This denies persons the ability to rely on their Convention rights when challenging their removal to their countries of origin — this applies as equally to Iranian or Eritrean nationals as it would to French or German nationals. The automatic inadmissibility of human rights claims from nationals such as Iranians or Eritreans would create a serious risk of returning individuals to face violations of their rights, in breach of the prohibition on ‘refoulement’. In order to circumvent this inevitable risk, clause 5 requires removals to ‘safe third states’ instead. Human rights claims concerning a person’s removal to a third country would still be admissible (and therefore considered), but would not have the effect of suspending the claimant’s removal unless a ‘serious harm suspensive claim’ were made (see Chapter 10 below).¹⁸⁷

150. For example, a human rights claim made by an Iranian woman who was at real risk of facing the death penalty or torture on return to Iran would be declared inadmissible if she entered the UK irregularly having passed through or stopped in a safe country en route to the UK and had no permission to be here (as per clause 2). To avoid this inevitable breach of non-refoulement if she were to be removed to Iran to face a real risk of death or torture, the Bill provides that such individuals will instead be removed to a safe third country as set out in the Schedule (discussed below at paragraphs X-X). If she made a human rights claim that removal to Rwanda would breach her Convention rights, this human rights claim would be admissible but it would not prevent her removal — she could still be removed to Rwanda whilst her claim was considered in the UK. Only a ‘serious harm suspensive claim’ would suspend her removal until the claim was decided (see Chapter 10 below).

Human rights implications of the inadmissibility regime

151. A refusal to consider the merits of individual claims may violate Article 13 ECHR. This may be particularly so where an individual claims that they would face a real risk of treatment contrary to Article 3 ECHR upon removal (i.e. torture or inhuman or degrading treatment or punishment). The ECtHR has held that in view of the importance which the Court attaches to Article 3 and the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises, the effectiveness of a remedy within the meaning of Article 13 imperatively requires close scrutiny by a national authority.¹⁸⁸ Further, states must undertake independent and rigorous scrutiny of any claim that there are substantial grounds for fearing a real risk of treatment contrary to Article 3.¹⁸⁹ The Court also requires that the person concerned should have access to a remedy with automatic suspensive effect.¹⁹⁰ The Bill falls short of these requirements.

152. In circumstances where an individual’s human rights claim is declared inadmissible by virtue of clause 4(2), the UK’s failure to undertake any scrutiny of the merits of an arguable case and the denial of any remedy with suspensive effect may breach Article 13 ECHR on the basis that there are no effective guarantees to protect the individual from returning to face a real risk of rights violations. As above, clause 4 should be removed from the Bill (see Annex, Amendment 8).

153. The UK cannot divest itself of its obligations under the Refugee Convention or the ECHR simply by declaring applications inadmissible and thereby refusing to process them. The prohibition against refoulement, the prohibition against penalisation, and the requirement to facilitate the naturalisation and assimilation of refugees are binding obligations on the UK under the Refugee Convention, irrespective of whether or not a person’s status as a refugee has been formally recognised by the UK. Declaring asylum and human rights claims inadmissible does not alter the UK’s obligations under the ECHR which protects individuals from being returned or removed to another country where they face a real risk of serious harm.

Clause 5 — removal of people subject to the removal duty and the power to remove

154. Clause 5(1) provides that the Secretary of State must ensure that arrangements for removal are made “as soon as reasonably practicable”. Clause 5(3) provides that persons can be removed either to their country of nationality or citizenship; the country from which they have obtained a passport of ID document; the country in which they embarked for the UK; or a country to which “there is reason to believe they will be admitted”. Written notice is required to be given to the person subject to removal arrangements.¹⁹¹ However, there are certain restrictions to this general rule if persons have made protection or human rights claims, despite the inadmissibility of these claims as per clause 4(2).

EEA nationals plus Swiss and Albanians

155. Clause 5(4) provides that individuals from EEA states, plus Switzerland and Albania,¹⁹² cannot be removed to their country of nationality/citizenship/passport if the person has made a protection or human rights claim and there are “exceptional circumstances” which prevent removal. Clause 5(5) lists two examples of “exceptional circumstances” for these purposes, including that the destination country is derogating from any of its obligations under the ECHR. Beyond the two examples in clause 5(5), what constitutes “exceptional circumstances” will be a matter for the Secretary of State to determine.

The risk of refoulement and the case of Albania

156. The automatic return of EEA nationals, plus Swiss and Albanians, to their countries of origin, without any consideration of their claims could potentially place the UK in breach of the principle of non-refoulement in circumstances where individuals may face a real risk of persecution or a violation of their Convention rights upon return.

157. Whilst the risk may be low for some EEA countries, it may nevertheless be present in some cases, for example, for Albanian women and children, many of whom have successfully claimed asylum in the UK to date. Removals to EEA countries of origin (plus Switzerland and Albania) will not be permitted if individuals make protection or human rights claims and the Secretary of State considers there are “exceptional circumstances”, but this is not a sufficient safeguard given the subjective nature of this threshold and the inevitable high bar. It is unclear in what “exceptional circumstances” individuals from EEA countries, plus Switzerland and Albania, could rely on their Convention rights to challenge removal to their countries of origin. There is, therefore, a real possibility that persons will be returned to their countries of origin despite facing a real risk that their Convention rights will be breached.

158. The implications for Albanian women and children are particularly concerning.¹⁹³ For example, under the Bill, an Albanian woman who has been trafficked to the UK and faces a real risk of reprisals and re-trafficking upon return to Albania, could be returned to Albania unless she can demonstrate “exceptional circumstances” according to the determination of the Secretary of State. The Home Office’s most recent statistics on grant rates for Albania which show that the overall grant rate for Albanians in the year ending December 2022 was 49% — for Albanian adult men the grant rate was 11% and for Albanian women and children it was 87%.¹⁹⁴ The UK country guidance and decisions of UK courts have recognised that certain groups of Albanian citizens may be at risk of persecution.¹⁹⁵ Rainbow Migration notes that “there were five grants of asylum made by the UK to Albanians who were recognised as being at risk of persecution due to their sexual orientation. As clause 5 permits the return of Albanians to their own country, people claiming based on sexual orientation face being returned directly to the persecution they fled.”¹⁹⁶ JCWI notes that this approach “fails to recognise that while there may not be a state of “general risk” in Albania, there are groups of people who are recognised as facing significant risk, for example trafficked women (as recognised by the Upper Tribunal (Immigration and Asylum Chamber).¹⁹⁷

159. In our letter to the Home Secretary we asked: “[a]ccording to your statistics, the asylum grant rate for Albanian women and children in 2022 was 87%. On what basis has Albania been designated as safe given the significant number of Albanian women and children who have been granted asylum in the UK? Given the absence of any individualised assessment of Albanian asylum or human rights claims, does this not run a very real risk of breaching the prohibition of refoulement?”¹⁹⁸ She responded: “Albania is generally considered a safe country and people should not be risking their lives travelling from there to reach the UK to claim asylum…..No one will be returned or removed to a country where they may be persecuted. This is in keeping with our obligations under Article 33 of the Refugee Convention.”¹⁹⁹

160. Whilst the states listed in clause 57 (EEA plus Switzerland and Albania) may be considered to be safe ‘in general’, this does not guarantee their safety for all individuals, particularly those who are members of a particular social group such as female VOTs. It must be possible for such individuals who face a real risk of persecution upon return to make a protection or human rights claim which must be considered on its merits in order to guard against the risk of refoulement. Clause 5 should be amended to remove the requirement for “exceptional circumstances” and instead provide that where persons from EEA countries, plus Albania and Switzerland, make a protection or human rights claim, this claim must be admissible and subject to proper consideration unless it is ‘clearly unfounded’ (see Annex, Amendment 9). An individual must not be removed from the UK and returned to an EEA country or Switzerland or Albania unless and until their claim has been properly considered and decided.

161. Further, there must be clear criteria set out on the face of the Bill for the inclusion of states as ‘safe’. Any country which has a significant successful grant rate for asylum claims, such as Albania, should not be included on a list of safe states. Albania should be removed from the list of safe states in clause 57 owing to the significant rates of successful asylum claims (see Annex, Amendment 10). Clause 57 should be amended to include criteria for designating countries as ‘safe’ which is based on strict and objective criteria based on reliable information, which includes, at a minimum, that: designated states must have signed and ratified the core UN human rights treaties as well as the Refugee Convention; that individuals must have access to a fair and effective asylum system and to free legal advice and representation; that states must have adequate domestic human rights laws and an effective and accessible justice system. (see Annex, Amendment 11).

All other nationalities

162. Clause 5(8) and (9) covers nationalities other than EEA, Swiss, and Albanian nationals (i.e. nationals of countries which are not listed as safe states in clause 57(3)). These sub-sections provide that all other nationals of these countries who have made a protection claim or human rights claim may not be removed to their country of nationality/citizenship/passport. Such persons would instead be removed to a ‘safe third state’, as listed in the Schedule to the Bill. The Schedule includes not only European countries, but an additional 25 non-European countries including Rwanda, Mali, and Sierra Leone.²⁰⁰ Clause 6 allows the Secretary of State to add countries to the list of states in the Schedule if satisfied that there is, in general, no serious risk of persecution and removals will not contravene the ECHR. Countries can also be listed as safe for certain groups of people. For example, the Schedule lists several African countries as safe for men only.

Removals to safe third states i.e. Rwanda

163. Removals require the cooperation of these safe third states. The UK has entered into a Memorandum of Understanding with Rwanda for the transfer of asylum seekers from the UK to Rwanda.²⁰¹ Aside from Rwanda, no third country has agreed to accept asylum seekers from the UK as far as we are aware. It is unclear, therefore, how removals to safe third states will work in practice. Whilst most if not all cases of EEA, Swiss, and Albanian nationals will result in removals to their countries of origin, no other nationals can be returned home due to inevitable risk that automatic inadmissibility and removal entails. In order to avoid inevitable breaches of Convention rights and a violation of the principle of non-refoulement, clause 5 ensures that all other foreign nationals will be removed to a safe third state such as Rwanda.

The risk of refoulement

164. The prohibition on refoulement applies not just to returns to countries of origin, but also to the relocation of individuals to third countries which may be unsafe. However, there are no safeguards within clause 5 or the Schedule to ensure that removals to third countries are in fact safe for the individuals concerned. The only two conditions for removing an individual to a safe third state are (i) that the person embarked for the UK from that country, or there is reason to believe they will be admitted there²⁰² and (ii) the country is listed in the Schedule.²⁰³ There are no criteria set out in the Bill for the designation of states which are currently listed as ‘safe’ for the purpose of the Schedule.

165. Particular concerns have been raised with regard to the removal and relocation of certain groups:

a) The Helen Bamber Foundation notes that it is “striking that Jamaica has been included in the list of ‘safe’ countries in the Schedule despite the Supreme Court deciding in 2015 that the Home Secretary had acted unlawfully in adding Jamaica to the list in section 94 of the 2002 Act because of the general risk of persecution of LGBTQ people in Jamaica.”²⁰⁴

b) Rainbow Migration notes a number of countries which appear in the Schedule which are not safe for LGBTQI+ individuals, including Kenya (where at initial asylum application stage, 33 people were recognised as refugees based on their sexual orientation in 2021); Nigeria (where there were 50 grants of asylum made to people based on their sexual orientation, and nine appeals were allowed, in 2021); and Ghana (where nine grants of refugee status were made in 2021 and 7 appeals were allowed for asylum claims based on sexual orientation).²⁰⁵

c) The Evangelical Alliance notes that “several countries listed, India, Nigeria and Mali are nations where men, women and children can experience severe and significant persecution for their Christian belief.”²⁰⁶

d) Redress have expressed concerns that the Bill would “inevitably result in survivors of torture being either returned directly or indirectly to their country of origin or sent to another country, regardless of their risk of being subject to torture there; and fail to provide survivors of torture with these procedural guarantees which would enable their torture to be taken into account.”²⁰⁷

166. The list of safe third states in the Schedule partially reflects section 94 of the Nationality, Immigration and Asylum Act 2002, which allows for the Secretary of State to certify human rights and protection claims as “clearly unfounded” (i.e. they are bound to fail). The Secretary of State may add countries to this list in section 94 if satisfied that (a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and (b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom’s obligations under the Human Rights Convention.²⁰⁸

167. The domestic courts have held that designation of states as safe “in general” under section 94 can be made even if there is a demonstrable risk of persecution for certain individuals or even entire groups.²⁰⁹ However, this position requires that asylum or human rights claims from these ‘safe’ countries listed in section 94 must be considered on their merits, in order to safeguard against refoulement. Under the Bill, this case-by-case assessment will no longer be possible as claims will be declared inadmissible and therefore no consideration will be given to the individual merits of the case. This creates a real risk of refoulement.

168. The Home Office statistics clearly indicate that the countries listed in the Schedule are not safe in all cases. For example, as noted by the UNHCR, between 2018 and 2022, there were 8,177 asylum applications made by nationals of the ‘safe third states’ listed in the Schedule to the Bill. Of these, 1,683 were granted asylum at first instance.²¹⁰ This means in just over 20% of cases, the Home Office recognised that the applicants faced a real risk of persecution in their country of origin and could not therefore be returned without breaching the prohibition on refoulement. Such individualised assessments would not be possible under the Bill (subject to the serious harm suspensive claims discussed below). Instead, under the Bill, if these 1,683 asylum seekers entered the UK irregularly and indirectly, their asylum and human rights claims would have been declared inadmissible and they would have been returned to a state listed in the Schedule irrespective of the risks.

169. The designation of third states as safe “in general”, in the absence of any individualised assessments of risk, is not an adequate safeguard against refoulement. The approach in the Bill runs a very real risk of breaching the prohibition on refoulement, especially for specific groups such as women and girls, religious minorities, LGBTQI+ individuals, and torture survivors. If clause 5 remains in the Bill, it must be amended to ensure that any removals of individuals to ‘safe third states’ must be subject to individualised assessments of risk to guard against refoulement and onward refoulement (see Annex, Amendment 12).

The legality of removals to Rwanda and other ‘safe third states’

170. In principle, the Refugee Convention does not prohibit moving asylum seekers to be processed in another safe state. The UNHCR has accepted that inadmissibility and transfer arrangements may be acceptable as part of a sharing of responsibility under the Refugee Convention between states (e.g. the EU’s Dublin system).²¹¹ However, the UNHCR draws a distinction between that form of arrangement and an arrangement designed to shift a state’s responsibilities under the Refugee Convention to another state.²¹² It has described “arrangements that seek to transfer refugees and asylum seekers to third countries in the absence of sufficient safeguards and standards” as “contrary to the letter and spirit of the Refugee Convention.”²¹³ The UNHCR has expressed concerns about the legality and appropriateness of sending asylum seekers to Rwanda.²¹⁴

171. The legality of removals to Rwanda in accordance with the Government’s MOU was recently litigated in the Court of Appeal.²¹⁵ On 19 December 2022, the Divisional Court handed down judgment in a number of linked judicial review claims that challenged Home Office decisions to remove asylum seekers in the UK to Rwanda, in order for their asylum claims to be processed there. In the judgment the Court concluded it was in principle lawful to relocate asylum seekers to Rwanda, but that the Home Secretary had to properly assess each individual’s circumstances, and that in a number of the claims there had been a failure to do so.²¹⁶ Applications for permission to appeal against the judgment, to the Court of Appeal, were heard on 16 January 2023. Permission was granted on various grounds to a number of the claimants, including whether the Divisional Court properly assessed the reliability of assurances given by the Rwandan government to respect the human rights of those removed; whether removal to Rwanda would breach the Refugee Convention; and whether the decision-making process adopted by the Home Secretary was procedurally unfair.

172. At present, as a matter of domestic law, the principle of removals to Rwanda has been found lawful by the High Court, although this is subject to appeal. The automatic inadmissibility and removal process envisaged by the Bill does not allow for individualised assessments to take place. As a matter of international law, if removals to Rwanda are found to lack sufficient safeguards, then any arrangement transferring refugees to Rwanda would, according to the UNHCR, be contrary to the letter and spirit of the Refugee Convention.

Appeal rights

173. It is possible for individuals to make a claim that their human rights would be breached as a result of their removal to a safe third state such as Rwanda. Such a claim would be admissible as the claim relates to a safe third state, rather than a home country. However, such a claim would not prevent removal. Only a successful suspensive claim made under clause 37 would suspend removal.²¹⁷ As discussed in detail below in Chapter 10, we do not think that suspensive claims available under the Bill are adequate.

Clause 6 — the power to add new safe third states to the Schedule

174. Clause 6 provides the Secretary of State with the power to add new countries to the Schedule by regulations. There is a test for the addition of new countries, or parts of countries, which requires the Secretary of State to be satisfied that (a) there is in general no serious risk of persecution and (b) removal will not contravene the ECHR.²¹⁸ This test is subjective and simply requires the Secretary of State to be satisfied of these criteria, having regard to all the circumstances and information from any appropriate source.²¹⁹

175. The subjective nature of the test for safety of third states is not an adequate safeguard against refoulement. If clause 6 remains in the Bill, it must be amended to provide that the designation of new third states as ‘safe’ must be subject to strict and objective criteria based on reliable information, which includes, at a minimum, that: designated states must have signed and ratified the core UN human rights treaties as well as the Refugee Convention; that individuals must have access to a fair and effective asylum system and to free legal advice and representation; that states must have adequate domestic human rights laws and an effective and accessible justice system (see Annex, Amendment 13).

Clause 7 — further provisions about removal

176. Clause 7 requires that a person may not be removed from the UK unless they have been given written notice of removal, including the country to which they are to be removed, and that the claim period for suspensive claims has expired (i.e. 8 days, beginning with the day on which they were served the removal notice). Clause 7 also provides that the Secretary of State may give directions to owners or agents of ships, aircrafts, trains or vehicles to effect removal. A captain or a ship or drive of a vehicle, for example, may be directed by an immigration officer to prevent a person from disembarking and may detain that person. The TUC note their concern that “transport workers are not trained for such tasks, and they should not be obligated to carry out the government’s immoral policies. Such detentions could also present danger to the workers on board, as well as other detainees, if any individual to be removed is violent or suffers from a mental health condition that has not been treated.”²²⁰

Clause 8 — support where asylum claim inadmissible

177. Article 3 ECHR places an obligation on the UK to ensure that no asylum seeker is left in destitution.²²¹ Clause 8 amends section 4 of the Immigration Act 1999 so that people whose claims are declared inadmissible are potentially entitled to ‘section 4 support’, which consists of accommodation and weekly payments of £45. Those who receive ‘section 4 support’ are exempt from all NHS charges. However, section 4 support will not be automatically granted to everyone with an inadmissible claim, and it is unclear how this support will be provided to people with inadmissible claims.

178. NACCOM (the No Accommodation Network) expressed deep concerns about the high risk of destitution, homelessness, and exploitation that tens of thousands of people will face as a result of inadmissibility decisions. They explain that “A person whose claim is deemed inadmissible will have the same support entitlements as a person who has been refused asylum and is considered to be appeals rights exhausted (ARE) by the Home Office. A person in this position will have no recourse to public funds (NRPF), meaning they have no access to Local Authority housing, Local Authority homelessness assistance, and most welfare benefits. In addition to having no access to the safety net, a person subject to the powers of Clause 4 will be barred from working and subsequently have no legal means of supporting themselves.”²²² As a result, they fear that many will “face an extremely high risk of homelessness and destitution.”²²³ Even those who are eligible for support will likely need legal assistance to make a support application which, as NACCOMM point out, is “extremely challenging from a position of homelessness and is exacerbated by the current deficit in free legal aid and the existence of legal aid deserts.”²²⁴

179. In order to comply with Article 3 ECHR (freedom from torture or inhuman or degrading treatment), it is imperative the Government does not leave asylum seekers, and those whose claims have been held inadmissible, in a state of destitution. The Bill should provide that everyone with an inadmissible claim should be automatically granted support.

6 Powers of detention and bail

Immigration detention and Article 5 ECHR

180. All state powers of detention engage fundamental human rights and must be narrowly constrained, carefully justified and subject to effective safeguards.²²⁵ Freedom from unlawful and arbitrary detention is guaranteed under Article 5 of the ECHR but has also long been prohibited under the common law.²²⁶

181. The Home Office currently has extensive statutory powers to detain individuals on immigration grounds.²²⁷ Detention for immigration purposes is recognised as one legitimate basis for detention, under Article 5(1)(f), but there are limits on the use of such detention to avoid arbitrariness. The ECtHR has summarised that:

To avoid being branded as arbitrary, detention under art.5(1)(f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued.²²⁸

Expansion of detention powers

182. Clause 10 of the Bill would expand current immigration detention powers to apply to all those who meet the conditions in clause 2, and to those who the Home Office is assessing to determine whether they fall within clause 2. The Government has made clear that the intention is to use these powers of detention as part of the removal process under the Bill:

The Illegal Migration Bill will change the law to make it unambiguously clear that, if you enter the UK illegally, you should not be able to remain here. Instead, you will be detained and promptly removed either to your home country or to a safe country where any asylum claim will be considered.²²⁹ [emphasis added]

183. Key to our concern over the human rights compatibility of the expansion of immigration detention powers under the Bill lies the fact that (a) there is a high likelihood, if not an inevitability, that, of those who will be detained on arrival, many will be people who have reached the UK after fleeing persecution or human rights abuses in their own country; and (b) as a result of the inadmissibility provisions of the Bill, their claims will never be considered, so it is hard to see how those who have gone through such horrors will even be identified. We have received troubling evidence about the impact of detention on vulnerable asylum seekers. The Helen Bamber Foundation and Asylum Aid told us that immigration detention can cause “profound long-term trauma”:

Detainees have been found to have high levels of anxiety, depression and post-traumatic stress disorder. Suicidal ideation and deliberate self-harm are also common.²³⁰

Capacity of the detention estate

184. Many stakeholders who provided evidence to us queried the ability of the Government to detain the numbers of people who will satisfy the clause 2 conditions. Dr Peter Walsh informed us that the current detention estate has capacity for “about 2,500 individuals”.²³¹ In 2022 alone, 45,000 people arrived in the UK after crossing the English Channel by boat (almost all of whom would satisfy the clause 2 conditions) and many more arrived outside the immigration rules by lorry or by aircraft. The Government has stated that the Bill will dissuade people from attempting to travel to the UK to claim asylum, and will, therefore, reduce these numbers. As discussed above, we have, however, heard and received evidence disputing the likely deterrent effect of the Bill.²³² The Government has not provided in an impact assessment, or any other form, their assessment of how many persons who satisfy the clause 2 conditions will continue to arrive and be detained. The Home Secretary has acknowledged that there is a need to increase the UK’s detention capacity, and has confirmed plans to build two new detention facilities with a combined capacity of around 1,000 places,²³³ but has disputed that capacity will need to be expanded by 45,000 (i.e. the numbers who arrived in 2022).²³⁴ Regardless of the precise number, it remains likely that thousands of people will continue to arrive and will be subject to these new powers of detention. There are already around 160,000 asylum seekers in the UK, still awaiting decisions from the Home Office, who may also at some point come within existing powers to detain prior to removal.²³⁵ The Taskforce on Victims of Trafficking in Immigration Detention told us that:

We expect that tens of thousands of individuals will be indefinitely detained in immigration detention facilities, with the current already overstretched detention estate being unable to hold anywhere near the numbers anticipated.²³⁶

Removal of limitations and safeguards

185. For those detained under powers introduced by clause 10, a number of restrictions on immigration detention that currently apply would be disapplied. Firstly, they could be detained “in any place that the Secretary of State considers appropriate.” (Clause 10(2) and (6)). The Explanatory Notes explain that this “includes, but is not limited to, pre-departure accommodation, a removal centre or a short-term holding facility.”²³⁷ This means that accommodation outside such facilities would also be permitted under the Bill, which is perhaps unsurprising given the lack of capacity within the current detention estate.

186. We received evidence raising concerns about the implications of giving such a wide discretion in respect of where vulnerable individuals, potentially including families, unaccompanied children and pregnant women can be detained. The Government has stated that ‘Individuals will only be detained in specified, appropriate, places of detention.’²³⁸ It has already announced the intention to use former military barracks and an accommodation barge to accommodate migrants.²³⁹ Evidence sent to us noted in particular the possibility that, given the planned expansion of detention and the limited existing detention capacity (discussed above), similar facilities may be need to be used to detain individuals rather than just to accommodate them, which could put the rights of those detainees at risk.²⁴⁰ Towards the end of 2022 a lack of available facilities led to asylum seekers, including families with children, being detained in appalling conditions in the completely unsuitable Manston Processing Centre giving rise to concerns regarding the Article 8 and even Article 3 rights of those detained.²⁴¹ We are concerned that a huge expansion of detention without the necessary facilities being available could see such a situation repeat itself.

Children, families and pregnant women

187. Secondly, families with children are currently only detained in pre-departure accommodation (defined in statute as “a place used solely for the detention of detained children and their families”) and are subject to a 72-hour time limit (extendable to up to a week with ministerial authorisation). The Bill would expressly remove these location and time limits in respect of families due to be removed under the clause 2 duty. The Government’s explanation for this change is their desire not to incentivise people smuggling gangs to target particular groups.²⁴²We have not seen evidence that this is likely to happen, nor that it would it justify detaining children for periods previously considered to be excessive.

188. A further, specific safeguard designed to protect families and children is the statutory duty on the Secretary of State to consult with the Independent Family Returns Panel (IFRP) in every family returns case, and particularly whenever it is proposed that a family with children should be detained.²⁴³ The IFRP website explains that “[e]vidence of the suitability of detainment and showing consideration of the need to safeguard and promote the welfare of any children in the family must be shown to the IFRP.”²⁴⁴ This approach “was established as a way of avoiding the detention of families with children who are subject to an enforced return.” The Bill would expressly disapply the obligation to consult with the IFRP where the removal and detention are for the purposes of clause 2. The UK Committee for UNICEF described this as “regrettable.”²⁴⁵ We agree.

189. Thirdly, the detention of pregnant women is currently restricted to a maximum of 72 hours. This limit would be specifically disapplied in respect of those detained because they are or may be subject to the Clause 2 removal duty. Under the Bill, pregnant women could be detained for any period considered reasonably necessary (see discussion of clause 11 below).

190. Fourthly, the power to detain unaccompanied children pending removal or pending a decision on whether to grant them leave to remain would no longer be subject to the 24-hour time limit (and other protections) currently provided in Schedule 2 of the Immigration Act 1971. The Refugee and Migrant Children’s Consortium noted that this time limit was established by law “because widespread evidence showed the long-lasting damage that detention has on children’s lives.”²⁴⁶ We note that the Government have stated that the detention of unaccompanied children will be “for the shortest possible time in appropriate detention facilities with relevant support provisions in place” but they have not provided any detail on what would amount to “appropriate” facilities or conditions.²⁴⁷ We also note that, following Government amendments to the Bill at Report Stage, the power to detain unaccompanied children under the Bill may only be exercised in the circumstances specified in regulations to be made by the Secretary of State. These regulations may include a time limit on such detention, but we are troubled that the Bill neither requires this nor establishes what other restrictions on detention will be put in place. These regulations would be subject to the negative resolution procedure. We agree with the conclusion of the House of Lords Delegated Powers and Regulatory Reform Committee that, given the importance and sensitivity of the subject matter, if regulations are made concerning the detention of children the affirmative resolution procedure should apply.²⁴⁸ Clause 10 should be amended accordingly (see Annex, Amendment 14).

191. The UK Committee for UNICEF reported to us that clause 10, permitting the detention of children, both unaccompanied and in families, was “not compatible with international standards and also risks undermining the great progress that the UK has achieved in working to end immigration detention of children since 2010.”²⁴⁹ Furthermore, their evidence indicates that whatever limits on the detention of children are made in regulations issued by the Secretary of State, they are unlikely to be sufficient to meet the requirements of the UN Convention on the Rights of the Child (UNCRC):

Article 37 (b) of the CRC establishes the general principle that a child may be deprived of liberty only as a last resort and for the shortest period of time… Two relevant UN Committees have stated that the possibility of detaining children as a measure of last resort… is not applicable in immigration proceedings as it would conflict with the principle of the best interests of the child and the right to development… The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has stated that “within the context of administrative immigration enforcement… the deprivation of liberty of children based on their or their parents’ migration status is never in the best interests of the child, exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children.”²⁵⁰

192. We are extremely concerned by the expansion of powers of immigration detention under the Bill, and the apparent intention to use detention as a matter of course for all those who satisfy the clause 2 conditions. Detention for immigration purposes, particularly when those being detained are likely to be genuine victims of persecution or human rights violations, should be a measure of last resort only.

193. Given the current capacity of the immigration estate and limited scope for removals to third countries, we share concerns that detaining greater numbers could give rise to the need to use unsuitable facilities, with risks for human rights. Abandoning many of the limitations and safeguards against inappropriate or unjustified detention, particularly for children, families and pregnant women, increases the likelihood that these rights will be infringed. If these detention powers remain within the Bill, it should be amended to retain existing limitations and safeguards regarding the detention of vulnerable groups (see Annex, Amendment 14).

Period for which persons may be detained

Article 5 and Hardial Singh

194. Clause 11 makes further amendments to the Immigration Act 1971 and other legislation, concerning the period for which persons may be detained. Significantly, these amendments would affect immigration detention generally, not just the detention of those who satisfy the conditions in clause 2 of the Bill.

195. As noted above, Article 5 ECHR places restrictions on detention for immigration purposes, including restrictions on the length of time for which people can be detained. These restrictions have been reflected in domestic common law since the 1984 judgment in the case of Hardial Singh,²⁵¹ which provides that in respect of detention for the purposes of removal:

a) The Secretary of State must intend to remove and can only detain for that purpose.

b) The person being removed may only be detained for a period that is reasonable in all the circumstances.

c) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, she should not seek to exercise the power of detention.

d) The Secretary of State should act with reasonable diligence and expedition.

196. As noted in the evidence of the Immigration Law Practitioners’ Association, the Hardial Singh principles “do what Article 5 ECHR requires”.²⁵² Significantly, the Court of Appeal has also made clear that it must be for the courts to decide whether a person has been detained for an unreasonable period:

It must be for the court to determine the legal boundaries of administrative detention. … [T]the court will no doubt take such account of the Home Secretary’s views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked.²⁵³

197. The fact that it is the courts that rule on whether detention is or is not for a reasonable period is crucial: “It is this objective approach of the court which reviews the evidence available at the time that removes any question that the period of detention can be viewed as arbitrary in terms of Article 5 of the European Convention on Human Rights.”²⁵⁴

Changes within the Bill

198. Clause 11 of the Bill would deliberately alter this approach, specifying that a person may be detained “for such period as, in the opinion of the Secretary of State, is reasonably necessary” for the purposes of the Bill. Many of those who provided written evidence raised concerns about this change of approach, including by explaining that by specifying that it is for the Secretary of State, the official responsible for the detention, to decide whether the detention is or is not reasonable, this crucial objectivity that prevents arbitrary detention in breach of Article 5 ECHR would be removed.²⁵⁵ Both Bail for Immigration Detainees and the Taskforce on Victims of Trafficking in Immigration Detention drew to our attention that, in 2021–22, the Home Office paid out around £13 million in compensation for unlawful detention, a record figure and a record number of payments.²⁵⁶ This does not suggest to us that the Home Office, rather than the courts, is best placed to decide when detention is and is not for a lawful period.

199. Clause 11 would also provide for the power to detain to apply “regardless of whether there is anything that for the time being prevents” the removal or other purpose of the detention being carried out. This could easily be interpreted (particularly in the absence of the s3 HRA interpretive obligation) to cover situations such as the present one, in which the UK does not have agreements in place to allow individuals to be removed to countries other than Rwanda (but may be working to establish them). It gives rise to a risk of detention continuing despite the purpose of that detention, i.e. removal, being uncertain and far from imminent — and thus runs dangerously close to contradicting the requirements of Hardial Singh and Article 5 ECHR. The Jesuit Refugee Service consider that this change would mean:

… barriers to the purpose of detention would not render detention illegal. This constitutes a significant move towards enshrining arbitrary detention in law, and certainly creates a serious risk of widespread arbitrary detention occurring in practice.²⁵⁷

200. Clause 11 also provides that, where the Secretary of State considers that removal is no longer possible within a reasonable period of time, she may still detain a person “for such further period as, in the opinion of the Secretary of State, is reasonably necessary to enable such arrangements to be made for the person’s release as the Secretary of State considers appropriate”. Ideally, arrangements for release will be made prior to a decision on bail or for release being made by the courts, but it may on occasions be reasonable, and even in the detainee’s interests, to continue detention for a short period while alternative accommodation is arranged or necessary bail conditions put in place. The courts have already approved a ‘grace period’ for such purposes.²⁵⁸ A power to do so written in such general terms, and, once again, subject to the Secretary of State’s own opinion and consideration of what is appropriate, however, raises significant risks of detention continuing without justification. Delays in organising arrangements for release and bail conditions could easily result in detention that is excessive and in breach of Article 5.

201. The ECtHR has so far concluded that the Hardial Singh principles ensure our domestic system complies with Article 5.²⁵⁹ It is unclear whether the ECtHR would accept the statutory alteration of those principles in the Bill to be sufficient to provide adequate protection against arbitrary detention. The Taskforce on Victims of Trafficking in Immigration Detention informed us that:

Should Clause [11] come into force, we will see a considerable and unprecedented expansion of the Government’s administrative detention powers, with civil servants able to exercise the power to indefinitely detain someone with extremely limited judicial oversight — thereby eroding both common law and human rights protections.²⁶⁰

202. The common law approach to immigration detention, established in the case of Hardial Singh, currently operates to ensure that immigration detention complies with Article 5 ECHR. This recognises that it must be for the courts to determine the legal boundaries of administrative detention. The Bill would alter that approach, leaving it to the Secretary of the State to decide what amounts to a reasonable period of immigration detention. We are extremely concerned that this change would result in an immigration detention system that is not consistent with Article 5 ECHR. The Bill should be amended to ensure that there is independent, judicial oversight of individual liberty and compliance with Article 5 ECHR (see Annex, Amendments 15 and 16).

Restricting judicial supervision of detention

203. In addition to widening the Secretary of State’s power to detain, and seeking to place in her hands the determination of the lawfulness of the length of that detention, the Bill would also restrict the ability of the courts to supervise the legality of detention under the Bill. This would place obstacles in the way of detained individuals asserting their Article 5 rights (the right to liberty and security), many of whom, it should be remembered, will be refugees,. Under Article 5(4):

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.²⁶¹

204. Clause 12 would have two significant effects on anyone detained for the purposes of establishing if they fall within clause 2 or for the purpose of removal pursuant to the Secretary of State’s clause 2 duty:

a) For the first 28 days of their detention the First-tier Tribunal would be prohibited from granting them bail; and

b) For the first 28 days of their detention, the decision to detain them or to deny them bail would not be open to challenge in the courts, including by way of judicial review (except on grounds of bad faith or “a fundamental breach of the principles of natural justice”).²⁶² Habeas corpus applications would, however, still be available.

205. The reason why these proposed changes are necessary is not explained in the Explanatory Notes or the ECHR memorandum, but the Home Secretary’s letter to the Committee dated 2 June 2023 did state that “restricting access to the First-tier Tribunal granting immigration bail for the first 28 days of detention will allow for an assessment of inclusion within the duty to remove, any challenges or barriers to be considered and removal arrangements to be put in place.”²⁶³ Considering the reasons for the removal of bail and the denial of judicial review in turn:

a) According to the guidance given to immigration judges, “in essence, a First-tier Tribunal Judge will grant bail where there is no sufficiently good reason to detain a person and lesser measures can provide adequate alternative means of control.”²⁶⁴ The proposed change in the law would leave the Home Office the power to grant bail (which generally involves release subject to conditions, such as residing at a particular address and reporting regularly to the Home Office) in the first 28 days of detention, but would remove that power from the First-tier Tribunal. This replaces independent supervision of detention with an appeal to the very body that has already deemed detention necessary. Furthermore, it suggests that there is still a recognition that bail may be appropriate in the first 28 days of detention, but a lack of trust in the First-tier Tribunal’s ability to determine when it should be granted. Alternatively, it is possible the change in the law is not down to a lack of trust in the Tribunal but is designed to ensure that a person remains in detention even when an independent body would find that there is not a sufficiently good reason to detain them.

b) Similarly, preventing courts ruling on the legality of detention would serve no obvious purpose if there was confidence that the detention was lawful, because any judicial review would merely confirm this. As JUSTICE put it: “The Home Office should not fear…oversight of detention if they are confident about the underlying lawfulness of their decisions.”²⁶⁵ And yet clause 12 would alter the law to provide that “the powers of the immigration officer or the Secretary of State…are not to be regarded as having been exceeded by reason of any error made in reaching the decision.”²⁶⁶ It appears, therefore, that the prohibition on courts questioning or setting aside the decision to detain, even when it has been made in error, is designed to allow detention to continue in circumstances where a court would find it unlawful.²⁶⁷

206. Bail for Immigration Detainees told us that that, in their view, clause 12 would allow for decisions to detain to be founded upon an error that could not be challenged through judicial review. Detention in such circumstances, they said would be “punitive, coercive and unnecessary and as such amount to a violation of Article 5(1)(f).”²⁶⁸

207. We agree that it is hard to reconcile this denial of access to bail or legal challenge with Article 5 ECHR, particularly, the right to challenge one’s detention “speedily” under Article 5(4). The Government’s ECHR memorandum explains that the changes made by clause 12 will be consistent with Article 5 because “individuals will be able to challenge their detention through the courts from the outset of their detention, via habeas corpus, and the courts will ensure compliance with Article 5 when determining applications for a writ of habeas corpus”.²⁶⁹

208. Habeas corpus is a legal action, which requires that a detained person be brought before a court so that the legality of their detention may be examined. It has been part of domestic law for centuries.²⁷⁰ Habeas corpus does not serve the same purpose as, and therefore cannot replace, bail. Bail is premised on there being a lawful basis for detention, while habeas corpus only determines whether or not there is such a lawful basis. It does not allow for a person to be released subject to conditions —by which the risk of a person subject to immigration control absconding can be minimised without resorting to detention. Furthermore, habeas corpus does not appear to provide protection that directly maps that guaranteed by judicial review and by Article 5 ECHR. If it did, and a habeas corpus application allowed exactly the same ability to challenge detention as a judicial review claim, it would be very hard to see why the Bill would include an express ouster of judicial review while allowing habeas corpus applications to continue. The ouster of the supervisory jurisdiction of the High Court must surely serve a purpose.

209. We received numerous submissions which did not accept that retaining habeas corpus applications would be sufficient to meet the requirements of Article 5.²⁷¹

210. We share these concerns. The case of Cheblak,²⁷² followed in Muboyayi,²⁷³ saw the Court of Appeal make clear that “[a] writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so is unlawful” while challenges based on “procedural error, a misappreciation of the law, a failure to take account of relevant matters, a taking account of irrelevant matters or the fundamental unreasonableness of the decision or action” should be brought by way of judicial review. While subject to much academic criticism, these judgments have been upheld more recently in Jane v Westminster Magistrates’ Court.²⁷⁴ The narrow scope of habeas corpus makes its ability to remedy any violation of Article 5 ECHR far from clear.

211. Protection from arbitrary detention and upholding the right to liberty in the UK depends on judicial supervision. Depriving those detained under the Bill the opportunity to make a bail application to a Tribunal, or a judicial review application in the High Court, even if it is only for the first 28 days of detention, would severely restrict judicial supervision. It would prevent those who are unnecessarily or unlawfully detained from being able to secure release on bail or challenge the lawfulness of that detention. We are unconvinced that allowing for applications for habeas corpus is enough to ensure that this proposal is compatible with Article 5 ECHR, which guarantees the right to have the lawfulness of detention decided speedily by a court. Clause 12 must be amended to ensure that those subjected to immigration detention retain the ability to challenge their detention in the courts and seek bail (see Annex, Amendments 17 and 18).

7 Children: age assessments, and support and accommodation for unaccompanied children

212. Children are affected by every aspect of this Bill. The Government has a clear legal responsibility to protect the best interests of children under the UN Convention on the Rights of the Child (UNCRC). The Home Office has stated that the provisions in the Bill relating to children are intended to deter children from making dangerous journeys to the UK and dissuade adults from inciting them to make such journeys. However, such aims cannot negate the UK’s duty to protect the rights of all children in the UK.

213. Wherever possible, we have analysed the effects of particular provisions on children’s rights in the same chapters as their adult counterparts. For example, the impact of the Bill in relation to children and modern slavery is covered in Chapter 8 below, and clause 3 relating to the power to remove unaccompanied children is covered in Chapter 5 above. This chapter therefore focuses on the areas of the Bill which affect children but are not addressed elsewhere in this report, including age assessments and accommodation provided for unaccompanied children.

Clauses 55 and 56 — Age assessments

What is an age assessment?

214. The UK immigration system gives differential treatment to children and adults. The status of being a child may determine whether they can access children’s support services and education, how they are accommodated or detained, and what asylum support is available from the Home Office. This reflects the particular needs and vulnerability of children and the additional safeguards required to keep them safe.

215. Migrants arriving through irregular routes may lack official documentation confirming their date of birth. Many children’s documents will have been left behind or destroyed during the dangerous journey, or they may be travelling with false papers stating that they are older than they are. Equally, adults wishing to appear to be children may have deliberatively destroyed their documents or be using false papers indicating they are a child.

216. The Home Office explains that many unaccompanied children without documentation are obviously children, even if they incorrectly present as adults, and equally some are very clearly adults claiming to be children. These cases are “handled by either Immigration Officers at the point of entry or social workers once the individual is place with a local authority.”²⁷⁵ However, in cases where the relevant authority disputes whether an individual is a child or the age of a child, an age assessment can be undertaken to determine whether they are a child (or a child the age they claim to be), and therefore how they should be treated.²⁷⁶

217. Assessing a person’s age can be difficult. These difficulties are exasperated by the fact that the most common age claimed for unaccompanied children is 16 or 17.²⁷⁷ Home Office statistics show that of the 5,242 applications from unaccompanied asylum-seeking children in 2022, 70% of these applicants were aged 16 or 17.²⁷⁸

218. There is a developed body of domestic law that sets out minimum standards that must be applied during age assessments. The foundational principles were established in the case of B v London Borough of Merton²⁷⁹ and further developed by case law. The key principles include the following:

a) The assessment should be carried out by two trained social workers;²⁸⁰

b) An interpreter must be provided if necessary;²⁸¹

c) The claimant must be offered the opportunity to have an independent appropriate adult present;²⁸²

d) Except in clear cases where it is obvious that the claimant is under or over 18, the age of the applicant cannot be determined solely on the basis of their appearance;²⁸³

e) During the interview, the age assessors must explain the purpose of the interview to the claimant,²⁸⁴ and seek to obtain the general background of the claimant, including their family circumstances and history, their educational background, and their activities during the previous few years. Ethnical and cultural information may also be important.²⁸⁵

Age assessments under the Nationality and Borders Act 2022

219. Age assessments in the immigration system are currently governed by Part 4 of the Nationality and Borders Act 2022 (NABA 2022). Fewer than half of the sections in Part 4 have been fully commenced. It is not clear why the Government are legislating again on this issue so soon. The provisions of the NABA 2022 could usefully have been subject to post legislative scrutiny before their amendment in this Bill.

220. The key provisions regarding age assessments are section 50 and 51 of the NABA 2022:

• Section 50 concerns age assessments for the purposes of establishing whether and how a local authority should exercise its functions under the relevant provisions of the Children Act 1989 in England and equivalent provisions in other nations of the UK. The section sets out when age assessments may be conducted by the relevant local authority or when they can or must be carried out by a ‘designated person’ (i.e. the National Age Assessments Board which was established under sections 50 and 51 for this purpose).²⁸⁶ The standard of proof for an age assessment under section 50 is the usual civil standard of the balance of probabilities.²⁸⁷
• Section 51 concerns age assessments for the purposes of establishing whether or how the Secretary of State or an immigration officer should exercise any immigration functions. The National Age Assessments Board also carries out such assessments.²⁸⁸ The standard of proof is also the balance of probabilities.²⁸⁹

Illegal Migration Bill framework: restriction on access to the courts

221. The clauses on age assessment were added to the Bill by the Government at Report Stage in the Commons. Submitters responding to our call for evidence therefore did not have the opportunity to give their assessment of these measures. However, it is clear that these provisions raise serious human rights concerns. As the Government has noted that these clauses are more likely than not to be incompatible with Convention rights, the Government was obliged to make a section 19(1)(b) statement in respect of them when the Bill entered the House of Lords.²⁹⁰

Clause 55 — removal of appeal, limiting review

222. Sections 50 and 51 of the NABA 2022 continue to provide the framework, but clause 55 removes judicial protections around age assessments carried out by a ‘relevant authority’ in relation to a person who falls within the clause 2 removal duty under the Bill. The section applies whether the decision is being taken ‘for the purposes’ of the Illegal Migration Bill or otherwise.²⁹¹ A ‘relevant authority’ is defined broadly in (6) to include the Secretary of State, an immigration officer, a local authority or a public authority.

223. Clause 55 prohibits the appeal of an age assessment under sections 50 or 51 of the NABA 2022 for persons who fall under the duty to remove of clause 2 of the Bill. In other words, if a person falls within clause 2 of the Bill, including children, they are denied any appeal if an authority decides that they are in fact over 18.

224. An individual’s challenge to the decision by way of judicial review is non-suspensive, meaning the individual (who contends they are a child) could be removed from the UK pending the outcome of the review.²⁹² Moreover, the Government seeks to limit the ground of judicial review so that a court may only review whether the decision is ‘wrong in law’.²⁹³ The court is explicitly prohibited from quashing decisions on the basis that the court considers the decision was wrong as a matter of fact.²⁹⁴ Given errors of fact are highly likely when conducting age assessments based on subjective judgment, this is extremely concerning and gives carte blanche to Home Office errors.

225. There is some evidence available that children have been wrongly treated as adults by the UK immigration system. The Helen Bamber Foundation states that in 2022, 70 local authorities had 1,386 referrals to their children’s services department of young people who had been sent to adult accommodation or detention; of those referrals, 63% were found to actually be children and had therefore wrongly been placed in adult accommodation or detention during that period.²⁹⁵ Such mistakes have also been reported to us in oral evidence taken during the passage of the Nationality and Borders Bill through Parliament.²⁹⁶ Such accounts do not support a conclusion that the age assessment process is necessarily flawed. They do, however, indicate that some migrants’ ages are not consistently being determined correctly. It is therefore deeply concerning that the Home Office is seeking in clause 55 to oust judicial oversight of such critical decisions. The Home Office argues that curtailing the available challenges to age assessment decisions is “important…to prevent individuals frustrating the aims of the Bill.”²⁹⁷ We do not agree that preventing children from effectively challenging incorrect decisions on their age — which will have far-reaching consequences for their treatment, their lives and their rights — is reasonable.

226. A number of rights under the ECHR are engaged by these provisions:

a) a) As a result of making age assessments harder to challenge, it is possible that more children will be incorrectly treated as adults. The wrongful treatment of a child as an adult in an immigration context can amount to a breach of the child’s rights under Article 3, including in cases where there has been a flawed age assessment process.²⁹⁸

b) The removal of appeal rights and the limiting of judicial review clearly engage the UK’s positive procedural obligations under Article 8.²⁹⁹ In the recent case of Darboe and Camara v Italy,³⁰⁰ the lack of “judicial decision or administrative measure concluding that the applicant was of adult age” issued to the applicant, which “made it impossible for him to lodge an appeal”, was relevant to the court’s conclusion that Italy had failed to comply with its positive obligations under Article 8.³⁰¹ Such inability to effectively challenge the age assessment may also amount to a violation of Article 13 (right to an effective remedy).³⁰² An Article 8 argument would be exacerbated due to the additional obstacles placed on pursuing a judicial review, namely that such proceedings would be non-suspensive. A purported child could be removed from the UK pending the outcome of the review and be forced to conduct their legal case from abroad in circumstances where they are also suffering from inappropriate treatment as an adult. The Government acknowledges that “appropriate support and facilities will need to be in place in the country of removal to ensure that the individual can effectively participate in their judicial review from abroad” but gives no details on how this could be accomplished.³⁰³ It is difficult to see how an appeal from abroad on a matter such as age — in which a judge may need to weigh the veracity of a purported-child’s evidence in the absence of definitive documentary proof and in which the appropriate judicial safeguards will be required to ensure the child could effectively give evidence — could be conducted in accordance with the UK’s positive procedural obligations under Article 8.³⁰⁴

c) We are also gravely concerned by the Article 6 (right to a fair trial) implications of these provisions.³⁰⁵ This also appears to be of concern to the Government, given that lack of confidence in the compatibility of the age assessment provisions with Article 6 contributed to the Home Office Minister making a section 19(1)(b) HRA statement in the House of Lords).³⁰⁶³⁰⁷ In these circumstances, the determination of a child’s age may determine their rights and treatment as children as a matter of domestic law. The child could therefore enjoy under Article 6 the right to practical and effective access to the courts, which may not be satisfied by the limited recourse to non-suspensive judicial review, which can only review errors of law rather than the substantive facts of the purported child’s case.

227. The UK’s legal obligations to protect children also mean that children must be protected from any adult who falsely claims they are a child. Home Office statistics show that between 2016 and December 2022 there were 7,900 asylum cases where age was disputed and subsequently resolved, of which half (48.5%) were found to be adults.³⁰⁸ Local Authorities’ duties to safeguard children continue while the assessment process is ongoing, which can include purported children being kept separate from other children pending the outcome. These circumstances are dealt with on a case-by-case basis, taking into account and balancing all the particular facts and rights in the case.³⁰⁹ The Bill’s removal of the ability for children wrongly classified as adults to effectively challenge the Home Office’s decision does not assist in the protection of children from adults who have been wrongly classified as children.

228. Whilst we understand that the Government does not wish to incentivise the trafficking of children, without the usual safeguards of appeals and full judicial review, and without judicial reviews being suspensive in terms of removal, this legislation seriously risks children being treated incorrectly as adults as well as them being removed from the UK to unsuitable conditions. This is clearly not in the best interests of any child and is likely to breach the child’s rights under Articles 6, 8, and 13 of the ECHR. Clause 55 should be removed from the Bill (see Annex, Amendment 20).

Clause 56 — penalising non-cooperation with scientific methods

229. Section 52 of the NABA 2022 empowers to Secretary of State to make regulations specifying the scientific methods that may be used for age assessments under sections 50 or 51 of the NABA 2022. At the time of writing, section 52 has only been partially commenced and no regulations have been made under section 52. Section 52(7) requires decision makers to take into account as damaging to the age-disputed person’s credibility the decision not to consent to the use of the scientific method. In the explanatory notes to the NABA 2022, the Home Office justified the introduction of age assessments on the basis of “the inherent difficulty in reliably assessing age” and that “the use of scientific methods offers the opportunity for more informed decision-making around an age-disputed person’s age”.³¹⁰

230. Clause 56 builds on section 52 by giving the Secretary of State the power to make regulations to penalise individuals who do not consent to use of a specified scientific method without ‘reasonable grounds’. In particular, the regulations may provide that a person can be assumed to be an adult.³¹¹ The Bill does not elaborate on what might constitute ‘reasonable grounds’ for refusing consent.

231. The current guidance from the Royal College of Paediatrics and Child Health states that: “[a]ge assessment by examination and X-rays is imprecise and at best can determine what stage of puberty a child is at and with that an estimated range for their age. The British Society for Paediatric Endocrinology and Diabetes states that the timing of puberty is extremely variable and impacted by genetics as well as environmental and social factors…Current methods for bone age X-ray assessments…use X-rays taken from ‘average’ Caucasian children and again will vary enormously depending on what stage of puberty a child is at.”³¹² In December 2022 the Council of Ministers adopted a recommendation that “when interpreting the results of a medical examination for age assessment purposes, States should apply any margin of error in favour of the person undergoing age assessment.”³¹³ These reflect the widespread concerns among the scientific community about the use of age assessment methods, which we raised in our legislative scrutiny of the Nationality and Borders Bill in 2022.³¹⁴

232. In our report on the age assessment provisions of the Nationality and Borders Bill, we concluded that we were unconvinced that there was any justification for the use of scientific methods — especially physical or invasive methods being used on already-traumatised individuals — when a holistic assessment might be just as effective and avoid some of the potential for trauma.³¹⁵ In its response to that report, the Government restated its position that scientific methods could supplement holistic assessments without addressing the concerns of the scientific community.³¹⁶

233. We recognise that the Secretary of State has highlighted in the updated ECHR memorandum regarding clause 56 that there are real obstacles to using scientific methods at present: “The Secretary of State will not exercise the power [to make regulations under clause 56] until satisfied that the scientific methods in question are sufficiently accurate to mean that applying the automatic assumption in cases of refusal to consent will be compatible with the European Convention on Human Rights (in particular Article 8 (right to private and family life))”.³¹⁷ In our previous report on the Nationality and Borders Bill (as it then was), we explored how scientific methods of age assessment themselves may engage Article 8 (right to privacy, including bodily integrity) and, depending on the nature of the methods used, Article 3 (right to be free from inhuman and degrading treatment).³¹⁸ Penalisation, and the scope of the power to deem a non-cooperative child an adult, raise further human rights concerns which the Home Office would have to overcome. In particular, such penalisation would seem to run counter to the presumption of minority required in such circumstances by the ECHR.³¹⁹

234. The Home Office has not provided information on what concerns it will consider ‘reasonable’.

235. We remain concerned about ‘scientific methods’ being used to assess age in light of the continued opposition from relevant professional organisations and doubts over the accuracy of such measures. We remain unconvinced there is any justification for the use of scientific methods instead of a holistic assessment. We agree with the Government that the Secretary of State’s power to penalise children for not complying with these methods should only be made where there is evidence that the methods involved are consistently accurate and could be applied in a manner that does not breach the individual’s rights under Articles 3 or 8 ECHR. Any such regulations would have to be carefully drawn to ensure that the circumstances and experiences of the individual child, as well as their best interests, are fully considered before determining whether a child has reasonable grounds for refusing to comply and applying any penalty. The Home Office should also issue guidance as soon as possible setting out what would constitute reasonable grounds for refusing consent. Moreover, any penalisation (and the reasons for it) would have to be challengeable in court.

Unaccompanied children

Who is an unaccompanied child?

236. According to Government figures, in March 2022 there were 5,570 unaccompanied asylum-seeking children in England.³²⁰ In the foreword to the Government’s safeguarding strategy for unaccompanied asylum seeking and refugee children in November 2017, the then-Minister of State for Children and Families and the then-Minister of State for Immigration stated:

Unaccompanied asylum seeking and refugee children can be some of the most vulnerable children in our society. They are alone and in an unfamiliar country, at the end of what could have been a long, perilous and traumatic journey…We must remember that they are children. It is true that their immigration status will have an impact on their future, but they should not be defined solely by their status as an asylum seeking or refugee child.³²¹

237. For the purposes of the Bill, an unaccompanied child is defined by clause 3(3) as a person who meets the four clause 2 conditions, is under the age of 18 and, at the time of their arrival in the UK, there is no individual aged 18 or over who has care of them. For the purposes of this definition, the child will be considered to be accompanied whether or not the adult who has care of the child is their parent.³²² What constitutes ‘having care’ of a child is not defined in the Bill.

238. This formulation of the definition of an unaccompanied child may have anomalous consequences. The relevant point in time for determining whether a child is accompanied or not is the time of their irregular entry or arrival in the UK.³²³ As such, if a child arrived in the care of an adult and that adult died shortly thereafter, the child would still fall outside of the definition of an ‘unaccompanied child’ and therefore would be subject to the clause 2 duty to remove. This approach to the definition of an ‘unaccompanied child’ contrasts with the current definition of an unaccompanied asylum-seeking child (UASC) in the immigration rules, which defines a UASC as a child “separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so.”³²⁴ The Bill’s definition may raise issues under Article 8 (right to respect for private and family life) read with Article 14 (prohibition of discrimination), because of the lack of justification for treating equally vulnerable children without the care of an adult differently defending on how they arrived rather than the situation the child actually finds themselves in.

239. The definition of an unaccompanied child should be brought into line with the current approach in the Immigration Rules (see Annex, Amendment 21).

Support of unaccompanied children before they turn 18

240. The Bill makes provision for the support of unaccompanied children in situations where the Secretary of State declines to exercise the power under clause 3(2), pending the child reaching the age of 18.

241. Unaccompanied children who enter irregularly and indirectly without permission will not be able to apply for asylum as their claims will be deemed inadmissible.³²⁵ It is not clear what the immigration status of an unaccompanied child would be, although the wording of clause 2(7) implies that limited leave to enter or remain might be given under the immigration rules to an unaccompanied child. Nevertheless, it seems clear that the effect of any such limited leave would last only until the child turned 18, at which point they would become subject to the removal duty under clause 2.³²⁶

242. Clauses 15–20 make specific provision regarding the care of unaccompanied migrant children in England.³²⁷ These provisions are limited to unaccompanied children who fall within the ambit of the duty to remove under the Bill.³²⁸

243. These provisions must be viewed through the prism of the UK’s obligations under Article 3 of the UNCRC which require the best interests of a child to be a primary consideration in all actions concerning children. The UNCRC is not fully incorporated into UK domestic law, but section 55 of the Borders, Citizenship and Immigration Act 2009 reflects some of its key principles. Section 55 provides that, in exercising functions involving immigration, asylum or nationality of children, those functions must be discharged having regard to the need to safeguard and promote the welfare of children. The Supreme Court has made clear that the impact of section 55 is that “any [immigration] decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be ‘in accordance with the law’ for the purposes of article 8.2 [ECHR].”³²⁹ Any decisions concerning the accommodation of unaccompanied migrant children must therefore be taken in light of these duties.

Home Office accommodation and support of unaccompanied migrant children

244. Section 17 of the Children Act 1989 (CA 1989) places a general duty on local authorities to safeguard and promote the welfare of children within their area. Section 20 of the CA 1989 obliges local authorities to provide accommodation for any child in need within their area who requires accommodation because there is no person who has parental responsibility for them. The duties placed on local authorities by the CA 1989 in many cases extend beyond the child’s 18th birthday.³³⁰ However, the Home Office has been accommodating some unaccompanied asylum-seeking children in hotels since July 2021 in lieu of local authority capacity.³³¹

245. Clause 15 places Home Office accommodation of unaccompanied children on a clear statutory footing by giving the Secretary of State a power — not an obligation — to provide or arrange for the provision of accommodation in England for unaccompanied migrant children in England. The Bill does not define what would constitute “accommodation for unaccompanied migrant children” other than to say that it is accommodation provided under clause 15.³³² Clause 15(3) gives the Secretary of State another power — again, not an obligation — to provide or arrange for the provision of “other types of support to the child” while they are in Home Office accommodation.

246. The Bill does not set a time limit for how long an unaccompanied child can be kept in Home Office accommodation. The Explanatory Notes that accompany the Bill indicate that the policy intention is that a child’s stay in Home office accommodation would be temporary until they could be transferred into local authority care.³³³ As of 8 February 2023, Home Office statistics show that unaccompanied asylum-seeking children are accommodated in Home Office hotels for an average of 20.11 days, with the shortest being less than a day, and the longest stay during the relevant period was 128 days.³³⁴ A number of child-focused non-governmental organisations have expressed concern about the welfare of unaccompanied migrant children who are currently or have been in Home Office are in hotels.³³⁵ Between January and December 2022, 3,658 unaccompanied asylum-seeking children were accommodated by the Home office in hotels. 404 children went missing from these hotels during the same period of whom 199 were still missing as of 20 February 2023.³³⁶

247. In her written evidence to our committee, the Children’s Commissioner for England, Dame Rachel de Souza, said the following about her team’s visit in March 2023 to a hotel being used by the Home Office to accommodate unaccompanied asylum-seeking children that the children’s vulnerability was compounded by their lack of spoken or written English, and of familial or other support networks in the UK, and their lack of knowledge of their Rights. She concluded that she was “worried that [the children in the hotel] are highly vulnerable to abuse and exploitation.³³⁷

Standards of Home Office accommodation and support

248. Whether the Home office accommodates the child before transferring them to local authority care, or the Secretary of State directs an unaccompanied child to be transferred into Home Office accommodation from the local authority, doubts about the compliance of Home Office accommodation with the UK’s international and domestic legal obligations have been raised.

249. Home Office accommodation has been criticised for placing unaccompanied migrant children outside the safeguards of the CA 1989.³³⁸ The CA 1989 is the grounding for the child protection system in England.³³⁹ It is also one of the key vehicles for the implementation of UNCRC in English domestic law.³⁴⁰ The CA 1989 sets a broad range of duties and safeguards in relation to children in public care, from a general duty on local authorities to safeguard and promote the welfare of children within their area who are in need,³⁴¹ to taking steps to secure that the accommodation provided meets the needs of the children,³⁴² and the promotion of the welfare of the child by promoting their educational achievement.³⁴³ It also sets out a system for considering complaints about the way the local authority discharges its functions in relation to the children in its care.³⁴⁴

250. The Explanatory Notes to the Bill set out the Home Office’s position that the Secretary of State would not be in the position of a corporate parent for the purposes of the CA 1989, and therefore not obliged to discharge the duties under that Act.³⁴⁵ The unaccompanied migrant children would therefore be outside the scope of the CA 1989’s protection while they resided in Home Office accommodation. The Bill provides no standards or safeguards relating to the Home Office accommodation provided under clause 15. Although the Home Office calls for local authorities in whose area the Home Office accommodation is located to “consider [their] duties under the Children Act 1989”, it does not explicitly assert that the local authorities would be bound by any duties.³⁴⁶ Furthermore, the hotel accommodation is unregulated by any other relevant authority, such as Ofsted.³⁴⁷ The Bill therefore creates a gap in protection whereby unaccompanied migrant children in Home Office accommodation will fall outside of the safeguards of the CA 1989 and no equivalent safeguards have been set out. The Home Secretary has assured us that unaccompanied children staying in Home Office accommodation “will be provided with the necessary support during their stay”.³⁴⁸ However, she did not address the question we had put to her asking why no equivalent safeguards to those of the CA 1989 had been set out on the face of the Bill.³⁴⁹

251. If the Home Office accommodation provided under the Bill to unaccompanied children is inadequate, their Article 8 rights or potentially even Article 3 rights may be breached, depending on the severity of any inadequacy.³⁵⁰ For example, accommodation for a child was found to be inhuman and degrading treatment in breach of Article 3 where he was accommodated for four months in a reception centre for adults, in overcrowded conditions where there was an insufficient number of staff and difficulties in accessing medical care.³⁵¹

252. The most recent report of the Independent Chief Inspector of Borders and Immigration of existing hotels for housing UASCs noted a number of weaknesses in Home Office hotel accommodation.³⁵² These included an absence of nurses able to prescribe mediation (including basic pain relief) or with access to an emergency bag containing a defibrillator or an epi-pen,³⁵³ no provision of mental health support,³⁵⁴ inconsistent access to healthcare outside the hotels leading to a failure to safeguard young people’s welfare,³⁵⁵ and staff with access to master keys living onsite at the hotels who had not been Disclosure and Barring Service (DBS) cleared.³⁵⁶

253. The Government has made clear that it is seeking to move away from the use of hotels in general to accommodate asylum seekers, particularly in light of the costs of such accommodation to the taxpayer.³⁵⁷ The Home Secretary has not given us examples of what alternative appropriate accommodation could be provided to children, however she has stated to us that the Home Office is “working closely with the Department for Education and others to ensure we provide suitable accommodation”.³⁵⁸ The Government has announced the use of ‘accommodation barges’,³⁵⁹ initially intended to house single males, and ‘surplus military sites’.³⁶⁰ Since ‘Home Office accommodation’ is not defined for the purposes of clause 15, whilst it is not currently the intention, it remains possible that these announced forms of accommodation could be designated as ‘Home Office accommodation’ for accommodating unaccompanied children. As discussed in Chapter 6, above, this sort of accommodation may be inadequate: previous uses of former military sites - such as the Manston migrant processing centre - have raised concerns over breaches of Articles 3 and 8 of the ECHR.³⁶¹

254. The Divisional Court noted in February 2023 that:

…unlike local authorities, the Home Office and its officials do not have the facilities, the skills or the legal powers and duties to look after children pursuant to the Children Act 1989. It is plainly not in the best interest of [unaccompanied asylum-seeking children] to be accommodated, at any rate for more than very short periods, in hotels or immigration reception centres.³⁶²

255. The Bill is currently unclear about both the nature of the accommodation to be provided to unaccompanied children by the Home Office or the standards and safeguards applicable to that accommodation. Inadequate accommodation could breach the children’s Article 8 rights to a private or family life, or potentially even their Article 3 rights to be free from torture and inhuman or degrading treatment, depending on the severity of the inadequacy. The Bill should be amended to ensure that the safeguards provided by the Children Act 1989 to children in local authority care are replicated for children in Home Office accommodation in England (see Annex, Amendment 22).

256. Furthermore, the UK ratified the UNCRC in 1991. Its provisions are therefore legally binding on the UK as a matter of international law. The rights in the Convention apply to all children in the UK, without discrimination on the basis of their status.³⁶³ Articles of particular relevance in these circumstances include:

• Article 3, which requires the interests of a child to be a primary consideration in all actions. To this end, the UK must ensure a child has such protection and care as is necessary for their wellbeing and ensure that the institutions, services and facilities responsible for the care and protection of children conform with relevant standards (including safety and health standards);
• Article 22, which requires the UK to take appropriate measures to ensure that children seeking refugee status — whether accompanied or not — receive protection and humanitarian assistance in the enjoyment of their rights under the UNCRC and other relevant international human rights agreements;
• Article 24, which recognises a child’s access to healthcare;
• Article 28, which recognises a child’s access to access education; and
• Article 39, which requires the UK to take all appropriate measures to promote the physical and psychological recovery and social reintegration of child victims of any form of neglect, exploitation, torture or inhuman or degrading treatment or punishment, or armed conflicts. This is to take place in an environment that fosters the health, self-respect and dignity of the child.

257. Although clause 15(3) gives the Secretary of State the power to make provision for other support to the unaccompanied children in its accommodation, she is not placed under a duty to do so, and no detail is given about the type of level of support which should be provided.

258. The Home Secretary is bound by the UK’s international law obligations under the UNCRC. The Bill as currently drafted fails to make clear the support that should be provided to unaccompanied children in the UK in care of the Home Office in accordance with the UNCRC. The Bill should be amended to set out the type of support that the Secretary of State should provide to unaccompanied children housed in Home Office accommodation. The power to provide such support should also be changed to a duty to provide such support in accordance with the binding obligations under the UNCRC (see Annex, Amendments 23 and 24).

Transfer to and from local authority accommodation

259. Clause 16 gives the Secretary of State a power to cease accommodating an unaccompanied child and direct a local authority in England to provide accommodation for that child. Clause 16 also gives the Secretary of State the power to direct a local authority to transfer an unaccompanied migrant child it is accommodating to the Secretary of State. We wrote to the Home Secretary asking her to set out the policy reason for taking the power in clause 16. The Home Secretary’s response did not provide any reasons for the power being taken.³⁶⁴ Clause 17 gives the Secretary of State a power to direct a local authority to provide information to the Secretary of State to assist them in making a decision whether to transfer a child from the Secretary of State to the local authority or vice versa. This is supplemented by clause 18, which facilitates the Secretary of State enforcing clauses 16 and 17 vis-à-vis local authorities.

260. In light of the inadequacies in the current provision of Home Office accommodation to unaccompanied children, it would be difficult for the Home Office to demonstrate that the transfer of a child from local authority care into Home Office accommodation would be in the child’s best interests for the purposes of the UK’s international law obligations under the UNCRC. It would also be difficult to demonstrate that it was compatible with existing domestic law provisions such as section 55 of the Borders, Citizenship and Immigration Act 2009. Unless the standards required of Home Office accommodation are amended to bring them in line with the requirements of the Children Act 1989, as we recommend above (see Annex, Amendments 23 and 24), clause 16 should be amended to remove the power to transfer a child from local authority accommodation into Home Office accommodation (see Annex, Amendment 25).

Consequences of an unaccompanied child turning 18

261. Under the Bill, an unaccompanied child would be excepted from the duty to remove until their 18th birthday.³⁶⁵ As with those who were always subject to the removal duty, a former unaccompanied child will face the same bars to making protection and human rights claims both before and after they turn 18.

262. This raises significant concerns about the effect this policy would have on children’s wellbeing. The Children’s Commissioner for England noted in her evidence to our committee that:

[B]y creating a duty to remove children when they turn 18, the Bill has the potential to make it harder for Local Authorities to fulfil their duties in the Children Act 1989 in relation to ensuring stability for children as their corporate parent. If children know they are to be removed when they turn 18 it will be significantly harder for Local Authorities to help them to form relationships with carers, participate in education, or feel a sense of safety and stability.³⁶⁶

263. The point was supported by evidence from the Association of Directors of Children’s Services, which stated that: “If implemented, the Bill will irreversibly distort the care system; for children it will become a holding mechanism for the immigration system.”³⁶⁷

264. We are also deeply concerned that the threat of removal from the UK when an unaccompanied child turns 18 would provide a perverse incentive for children to ‘disappear’ before their 18th birthday. As a number of organisations noted in their evidence to our committee, this would run the real risk that children would be pushed into the arms of traffickers and exploiters.³⁶⁸

265. Depending on factors such as their age when they arrived, the amount of time they have spent in the UK, and the personal connections they have made while growing up in the UK, their removal from the UK when they turn 18 is likely to interfere with their rights under Article 8. In considering whether such interference is ‘necessary in a democratic society’, it is possible that this blanket approach to removal, regardless of the individual’s private and family life, could fail the test of proportionality.

266. We are deeply concerned that the threat of removal from the UK when a child turns 18 will be harmful to the child’s wellbeing and ability to live a healthy, happy childhood. It also gives them a powerful incentive to flee authorities’ care, thereby making them extremely vulnerable to traffickers, exploiters, and criminal gangs. This is clearly not in the best interests of the child for the purposes of the UK’s obligations under the UNCRC. We recommend that the duty to remove is not automatically applied when a child turns 18 (see Annex, Amendment 26).

8 Modern slavery

267. The removal duty applies to all persons arriving or entering the UK irregularly and indirectly, including victims of trafficking (VOTs) and slavery (VOSs). The Bill makes it clear that the removal duty applies even if a person claims to be a victim of trafficking or modern slavery,³⁶⁹ and even if a decision has been made by competent authorities that there are reasonable grounds to believe that a person has been trafficked.³⁷⁰

268. The Bill prevents victims of trafficking or slavery who are subject to the ‘removal duty’ from accessing protections and entitlements that would otherwise be available to them as a matter of law. Clauses 21–24 disapply various aspects of modern slavery law to victims of trafficking or slavery who are subject to the ‘removal duty’:

a) Sections 61 of the Nationality and Borders Act 2022 (NABA) provides that potential victims of modern slavery or trafficking are entitled to a “recovery period” for a minimum of 30 days and are protected from being removed from the UK pending a conclusive grounds decision. This protection is disapplied to potential victims who meet the conditions in clause 2.

b) Section 50A of the Modern Slavery Act 2015 provides that potential victims of trafficking or slavery are entitled to assistance and support in certain circumstances. This protection is disapplied to potential victims who meet the conditions in clause 2.

c) Section 65 of the Nationality and Borders Act 2022 provides that victims of trafficking or slavery who have received a positive conclusive grounds decision must be granted limited leave to remain if necessary for assisting the victim with their recovery.136 This entitlement is disapplied to potential victims who meet the conditions in clause 2.

269. There is an exception to this disapplication of these protections. The Bill³⁷¹ provides that the disapplication of (i) protection from removal and (ii) the right to be granted limited leave to remain³⁷² and (iii) assistance and support,³⁷³ will not apply if the Secretary of State:

a) is satisfied that a person is cooperating with an investigation by a public authority into their alleged slavery or trafficking;

b) considers it necessary for the person to be present in the United Kingdom to provide that cooperation; and

c) does not consider that the public interest in the person providing that cooperation is outweighed by any significant risk of serious harm to members of the public which is posed by the person.137

270. Following a Government amendment made to the Bill at Report stage in the Commons, the Secretary of State is required to assume that it is not necessary for a person to be present in the UK to cooperate with an investigation or criminal proceedings unless there compelling circumstances which require the person to be present for that purpose. The default position is therefore that even if a victim is cooperating with an investigation, they can still be removed from the UK on the basis of the assumption that cooperation does not require their presence in the UK.

271. Clause 25 suspends these provisions after a period of two years following commencement, but allows them to be suspended before this date by the Secretary of State. Clause 26 provides for the revival of these provisions by regulations. The rationale for this is not clear, but the sunsetting of these provisions suggests that the Government recognises their severity.138

Abuse of the system

272. Applying the removal duty to and removing protections from VOTs and VOSs is a response to what the Home Secretary has described as “[t]he fact that our modern slavery laws are being abused.”³⁷⁴ Many have disputed this claim that the system is being abused, however. Former Prime Minister Theresa May MP spoke on the subject during the Report stage debate in the House of Commons:

The Minister has indicated again today that, in his view, there is evidence that the Modern Slavery Act 2015 is being abused. I apologise for doing this to him again, but he might wish to look at the evidence given to the Home Affairs Committee this morning by a representative of the Organisation for Security and Co-operation in Europe, basically saying there is no evidence to support the claim that the national referral mechanism is being abused. On the contrary, the evidence is that there is a low level of abuse.³⁷⁵

Compatibility with ECAT and ECHR

273. In the ECHR memorandum that accompanied the Bill, the Home Office states that the modern slavery and trafficking provisions are “capable of being applied compatibility with Article 4 ECHR”. Nevertheless, “the Government has concluded that radical solutions are required to put a stop to the small boats crossing the Channel and the approach adopted in these provisions is therefore new and ambitious but taking such an approach means that the Home Secretary is unable to make a statement under section 19(1)(a) of the 1998 Act.”³⁷⁶

274. In our view, the Government’s position that the modern slavery clauses are “capable of being applied compatibly” is untenable. The UK has clear positive duties under Article 4 ECHR (prohibition of slavery and forced labour) to protect victims or potential victims of slavery or human trafficking, as well as duties under ECAT — these provisions of the Bill are in direct conflict with these duties as set out below.

Article 4 ECHR

275. Article 4 ECHR prohibits slavery and forced labour and places a number of positive obligations upon states which are absolute and non-derogable:

a) An obligation to put in place “a legislative and administrative framework providing real and effective protection of the rights of victims”.³⁷⁷

b) An obligation to take “operational measures to protect victims, or potential victims”³⁷⁸ where there are reasonable grounds to believe that a person is a victim of modern slavery.³⁷⁹ This includes “facilitating the identification of victims by qualified persons and assisting victims in their physical, psychological and social recovery.”³⁸⁰

c) A procedural obligation to investigate potential situations of modern slavery and punish the perpetrators³⁸¹ where there are reasonable grounds to believe that a person is a victim of modern slavery.³⁸²

276. Article 4 ECHR does not contain explicit reference to human trafficking, but the ECtHR has clarified that “conduct or a situation may give rise to an issue of human trafficking under Article 4, only if all the three constituent elements of the international definition of human trafficking, under the Anti-Trafficking Convention and the Palermo Protocol (as outlined above) are present”.³⁸³ Article 4 ECHR therefore applies to both VOSs and VOTs. Article 4 is read in light of ECAT which places very specific obligations on states.

277. Although the Government argues the need to take a ‘novel’ and ‘radical’ approach in these “exceptional circumstances”,³⁸⁴ there is, however, no permissible basis for derogating from Article 4 ECHR.

ECAT

278. ECAT also places positive obligations on the UK, including obligations to take measures to identify VOTs and protect them from removal if there are reasonable grounds to believe a person is a VOT before the identification process has been completed; and to adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery, which would include services such as access to medical treatment, counselling, and accommodation.

279. These duties under ECAT are unconditional and cannot therefore be disapplied to victims, or potential victims, of trafficking in any circumstances. Conversely, the Bill provides for the blanket removal of rights of modern slavery victims falling under clause 2 unless the victim is cooperating with a public authority in connection with an investigation or criminal proceedings and the Secretary of State considers it necessary, and public interest is outweighed by any serious harm which may be caused to the public.

Removal from the UK

280. Clause 21 of the Bill disapplies the prohibition on removing a person from the UK.³⁸⁵ This allows for removal of an individual with a ‘positive reasonable grounds decision’ (i.e. a decision made when the Home Office finds that there are reasonable grounds to believe that the person is a victim of modern slavery) before the victim identification process has been completed (i.e. before a ‘conclusive grounds decision’). The return of identified victims of human trafficking who do not have lawful residence to their country of origin is not prohibited by either ECHR or ECAT. However, disapplying the prohibition on the removal of potential victims of trafficking currently provided for by sections 61 and 62 of the NABA 2022 would, in our view, breach various legal obligations.

281. Article 10(2) ECAT requires that “each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim […] has been completed by the competent authorities.” This obligation also derives from Article 4 of the ECHR. Therefore, as the Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) states in its evidence to us: “States Parties shall ensure that if the competent authorities have reasonable grounds to believe that a person has been trafficked, that person shall not be removed from its territory until the identification process has been completed. The Convention does not require absolute certainty for not removing the person concerned. If there are “reasonable” grounds for believing someone to be a victim, then that is sufficient reason not to remove them until completion of the identification process.”³⁸⁶

282. There is no exception to this obligation under ECAT. ECAT does not allow states to disqualify persons from being identified as victims of trafficking on the ground that they enter or arrive in the territory of states parties irregularly or indirectly. GRETA warns that the removal of victims: “risks placing victims in the hands of traffickers. It also impedes the identification of perpetrators and the criminal proceedings as the prosecution would be denied the necessary witnesses to secure a conviction.”³⁸⁷

283. The Supreme Court has considered the circumstances in which removal of a person from the UK would be contrary to section 6 HRA on the grounds that it would be incompatible with Article 4 ECHR. The Court found that: “it is clear that an effective investigation cannot take place if the appellant is removed to Pakistan: the UT rightly held that ‘it is inconceivable that an effective police investigation and any ensuing prosecution could be conducted without the full assistance and cooperation of the appellant. Realistically this will not be feasible if he is removed to Pakistan.’”³⁸⁸ Removing victims of trafficking from the UK may hinder the UK’s ability to undertake effective investigations such that Article 4 ECHR is breached.

284. Further, before returning an identified victim of modern slavery to their country of nationality or permanent residence, Article 16 ECAT requires states to make an individualised assessment of the impact of such return on ‘the rights, safety and dignity of that person’. There is nothing in the Bill which requires an individualised assessment to be undertaken prior to the removal of a victim of trafficking.

285. Clause 21 breaches Article 10 of ECAT which provides that if the competent authorities have reasonable grounds to believe that a person has been trafficked, that person shall not be removed from its territory until the identification process has been completed. Clause 21 should be removed from the Bill (see Annex, Amendment 27). Failing that, the Bill should be amended to ensure that no removals take place until a conclusive grounds decision has been taken (see Annex, Amendment 28). Further, any returns of VOTs or VOSs must be subject to an individualised assessment of the impact of such return on the rights, safety and dignity of that person.

Disapplication of limited leave to remain

286. Clause 21 also disapplies victims’ entitlement to limited leave to remain to persons who fall foul of the conditions in clause 2. There is no absolute right for victims of trafficking or slavery to be granted limited leave to remain. However, Article 14 (1) ECAT requires states to issue “renewable residence permits” to victims of trafficking either in exchange for cooperation with the law-enforcement authorities or on account of the victim’s needs. However, as noted by the Modern Slavery and Human Rights Policy and Evidence Centre, “the obligation to issue residence permits in Article 14 ECAT is couched in weak language, leaving a wide margin of discretion to states.”³⁸⁹

287. GRETA has noted that difficulties arise when a country chooses to make the residence permit conditional on the victim’s co-operation, which in practice undermines the unconditional nature of assistance to victims: “There are situations in which victims might be afraid to co-operate in the investigation because of threats from the traffickers. Granting a residence permit on account of the personal situation of the victim takes in a range of situations, such as the victim’s safety, state of health and family situation, and tallies with the human rights-based approach to combating trafficking in human beings. GRETA has therefore invited State Parties to consider granting temporary residence permits to victims of human trafficking on the basis of their personal situation, in addition to the residence permit on the basis of the victim’s co-operation in the investigation or criminal proceedings.”³⁹⁰

288. Despite the wide margin of appreciation afforded to states, the High Court found that Article 14 ECAT required victims of trafficking who had made claims for asylum/human rights protection, and who feared being re-trafficked if returned to their country of origin, to be granted modern slavery discretionary leave to remain on the basis that it was “necessary owing to their personal situation” for them to remain in the UK to pursue their claims.³⁹¹

289. In respect of children, Article 14 (2) of ECAT provides that “the residence permit for child victims, when legally necessary, shall be issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions.” The explanatory report to ECAT states: “In the case of children, the child’s best interests take precedence over the above two requirements. The words “when legally necessary” have been introduced in order to take into account the fact that certain States do not require for children a residence permit.”³⁹²

290. Although there is no absolute right for victims of trafficking or slavery to be granted limited leave to remain, Article 14 of ECAT requires states to take into account the needs of the victim when making decisions regarding leave to remain. Such decisions should not be based solely on the means and method of entry into the UK and whether or not the victim is cooperating with an investigation. Clause 21 should be removed from the Bill (see Annex, Amendment 27).

Disapplication of the recovery period

291. Clauses 22–24 disapply victims’ entitlement to a recovery period if they fall foul of the ‘removal duty’. In its ECHR memorandum, the Government justifies the disapplication of various modern slavery provisions on the basis that persons who meet the four conditions in clause 2 are a “threat to public order.”³⁹³ As a result, the obligations in Article 13 of ECAT, according to the Government, do not apply.

292. In our letter to the Home Secretary, we asked: “[o]n what basis are you suggesting that victims of modern slavery who come to the UK irregularly represent a threat to public order such that it prevents them being given a recovery and reflection period?”³⁹⁴ In her response, the Home Secretary stated: “[t]he threat to public order from someone subject to the duty under clause 2(1) arises from the exceptional circumstances relating to illegal entry into the UK, pressure placed on public services by the large number of illegal entrants and the loss of life caused by illegal and dangerous journeys. Given those circumstances, it is considered that it is consistent with ECAT to apply the public order disqualification to enable the timely removal of those subject to the duty under clause 2(1). It is recognised that the application of the public order disqualification to this cohort of illegal entrants…….is a significant step and only justified during such time as the exceptional circumstances relating to the illegal entry into the UK, including such resulting from persons crossing the Channel in small boats, continue to apply.”³⁹⁵ It is not clear that what the Home Secretary describes as “exceptional circumstances” would amount to a “threat to public order.”

293. Article 13 of ECAT requires state parties to provide a “recovery and reflection period” of at least 30 days to potential VOTs, i.e. when there are reasonable grounds to believe that the person concerned is a victim of trafficking. During this period, the UK must not enforce any expulsion order against him or her and must authorise the persons concerned to stay in their territory, 115 unless “grounds of public order prevent it or if it is found that victim status is being claimed improperly”. 116 As noted by the Modern Slavery and Human Rights Policy and Evidence Centre in evidence to us, “the aim of this period is two-fold. It first allows potential or identified victims to recover and escape the influence of traffickers. It also allows potential or identified victims to come to a decision on cooperating with the law enforcement authorities in any prosecution of the traffickers.”³⁹⁶

294. GRETA argues that it would therefore be contrary to the purpose of Article 13 to disqualify those who arrive irregularly from the opportunity to benefit from the recovery period. Further, “It would also undermine the effectiveness of the investigation or criminal proceedings as victims are often in such a bad psychological and physical condition that they cannot provide relevant information to the authorities immediately after their detection, and need time to recover from their trauma and deliver a testimony”.³⁹⁷

295. There is no definition in ECAT of what could be considered as a “grounds of public order”. There is no rational justification for automatically categorising all VOTs as a “threat to public order” for the purpose of disqualifying them from support. GRETA notes that “the grounds of public order should always be interpreted on a case-by-case basis, and it is not possible to automatically disqualify a victim from access to the recovery and reflection period on the basis that the person has violated migration laws. The grounds of public order are intended to apply in very exceptional circumstances and cannot be used by States Parties to circumvent their obligation to provide access to the recovery and reflection period”.³⁹⁸

296. It is, in our view, wholly inappropriate to categorise victims as a threat to public order by the mere fact that they arrived in the UK through an irregular route, particularly given the fact that victims are controlled by their traffickers. Under the NABA 2022, these provisions are already disapplied to certain potential victims of torture (VOTs), on grounds of public order, such as persons convicted of terrorist offences and foreign national offenders. There is clearly no justification for extending the disqualification to all VOTs and victims of slavery (VOSs) who enter or arrive in the UK irregularly, without coming directly to the UK, and without permission to be here.

297. The Government’s reliance on the “public order disqualification” to disapply protections and entitlements to all VOTs who enter irregularly and indirectly violates Article 13 of ECAT. It is also a breach of Article 26 of ECAT which provides for the non-punishment of victims of trafficking. This is also likely to breach the parallel obligations on the UK under Article 4 ECHR, which are interpreted in light of the requirements of ECAT, to identify and protect every victim of modern slavery. All potential victims of trafficking are entitled to a recovery period. This entitlement is unconditional. Clauses 22–24 must be removed from the Bill (see Annex, Amendments 29–31).

Disapplication of support and assistance

298. Clauses 22–24 also disapply the requirement of support and assistance for persons who fall foul of the ‘removal duty’. Article 12 ECAT contains a comprehensive set of assistance and support measures to assist victims in their physical, psychological and social recovery, taking into account their safety and protection needs. The measures which states must provide include appropriate and secure accommodation, psychological and material assistance, emergency medical treatment, translation and interpretation services, legal counselling and information, and access to education for children. Assistance measures must be provided to persons as soon as there are reasonable grounds to believe that they are victims of trafficking, i.e. before the victim identification process has been concluded. As noted by the Modern Slavery and Human Rights Policy and Evidence Centre, this “does not depend on a victim’s immigration status nor on their willingness to cooperate with the police or prosecution.”³⁹⁹

299. ECAT does not allow states to disqualify potential victims of trafficking from any form of protection and assistance under the ground that they irregularly enter or arrive in a State Party. Article 12(6) states that measures should be adopted to ensure that support is not made conditional upon willingness to act as a witness. The disapplication of section 50A of the Modern Slavery Act 2015 (which provides potential victims of slavery or trafficking are entitled to assistance and support in certain circumstances) is a clear breach of the obligations to provide support to VOTs under Article 12 ECAT. This is also likely to breach the parallel obligations on the UK under Article 4 ECHR, which are interpreted in light of the requirements of ECAT, to identify and protect every victim of modern slavery. As above, clauses 22–24 must be removed from the Bill (see Annex, Amendments 29–31).

Child victims

300. Article 35 of the UNCRC requires all States to take appropriate measures to prevent the abduction, sale or trafficking of children. Article 8 of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC), to which the UK is a state party, requires that states “adopt appropriate measures to protect the rights and interests of child victims of the practices prohibited under the present Protocol at all stages of the criminal justice process.”⁴⁰⁰ These rights are not conditional on cooperation by the child.

301. In evidence to us, the Children’s Commissioner set out her concerns that the changes to modern slavery protections run in contravention to Article 35 of the UNCRC which provides for protections from trafficking, and Article 39 which provides that victims must be able to access appropriate support to recover:

The Children Act and accompanying guidance is clear that children who are the victims of trafficking should be entitled to protection and care. Therefore, children and their families must be allowed to make a claim to asylum if they have been a victim of trafficking or modern slavery. Children and families who have been identified as victim of trafficking or modern slavery should be exempted from the disapplication of being able to access support through the National Referral Mechanism (NRM) in Scotland and Northern Ireland.⁴⁰¹

We agree and our amendments reflect these concerns, not just for children, but for all victims.

The risk of increasing trafficking

302. In addition to the breaches of ECAT and Article 4 set out above, numerous organisations have voiced serious concerns that the Bill will increase trafficking. The Anti-Trafficking Monitoring Group states that: “the Bill will fuel trafficking and organised crime by driving anyone that is liable to be detained and removed underground and trap them in exploitation. The threat of criminalisation to victims and survivors by means of disqualification from support and subsequent detention and removal will be used as leverage by traffickers to coerce and control people and prevent them from escaping or reporting their trafficking experience.”⁴⁰² ECPAT UK states that “child victims are at particular risk of harm, with a very high prevalence of re-trafficking of children. A research report we published in April 2022 in conjunction with Missing People — When Harm Remains — found that one in three child victims went missing from local authority care in 2020. This is a rise of 25% from when we last conducted the research in 2018.”⁴⁰³

303. We are concerned that the modern slavery provisions of the Bill not only breach the UK’s legal obligations towards VOTs and VOSs, but may also result in the increase in trafficking and slavery. These clauses must be removed from the Bill.

9 Entry, settlement and citizenship

304. The Bill imposes two sets of future consequences on a person who has ever fulfilled the clause 2 conditions: first, a lifelong prohibition on lawful re-entry or gaining leave to remain in the UK (clause 29); and second, a lifelong prohibition on grants of British citizenship (clauses 30–36).

Prohibition on lawful re-entry or gaining leave to remain

305. Clause 29 amends the Immigration Act 1971 (IA 1971) to ban lawful re-entry for anyone who has ever met the four conditions in clause 2. The new section 8AA in the IA 1971 prohibits these individuals being given leave to enter or remain in the UK, except in very limited circumstances. These limited exceptions are for the granting of limited leave to remain for unaccompanied children for the purposes of clause 3,⁴⁰⁴ and for a limited class of the victims of modern slavery or human trafficking.⁴⁰⁵ The new section would also prevent prohibited individuals being granted entry clearance or electric travel authorisations (ETAs).

306. The new section 8AA in the IA 1971 would give the Secretary of State the power to make further exceptions for individuals in certain circumstances:

a) New subsection (3) would give the Secretary of State the power to grant a prohibited person who has left or been removed from the UK limited leave to enter the UK, entry clearance or an ETA. This power can be exercised where either the Secretary of State considers that failure to grant it would contravene the UK’s obligations under the ECHR or there are other ‘exceptional circumstances’ which mean that it is appropriate to grant it.

b) New subsection (4) would give the Secretary of State the power to grant a person limited leave to remain in the UK. There are two situations in which this power could be used. The first is where the Secretary of State considers that failure to do so would contravene the UK’s obligations under the ECHR or any other international agreement to which the UK is a party. The second is where the Secretary of State has already granted limited leave to enter or entry clearance of an ETA to a person who has left or been removed from the UK under the power in new subsection (3) and the Secretary of State considers there are other ‘exceptional circumstances’ which mean it is appropriate to give the person limited leave to remain.

c) New subsection (5) would also give the Secretary of State a more limited power to give a prohibited person indefinite leave to remain in the UK if the Secretary of State considers that failure to do so would contravene the UK’s obligations under the ECHR.

Article 8 — the need to have regard for individual circumstances

307. Under the ECHR, the UK is entitled to control the entry of aliens into its territory.⁴⁰⁶ Article 8 does not guarantee a right to foreign nationals to enter or reside in any particular country.⁴⁰⁷ However, in exercising its control over its borders, decisions which engage Article 8 must be taken in accordance with the law and be necessary in a democratic society.⁴⁰⁸ To this end, the Secretary of State’s power to make exceptions to the lifelong prohibitions is an important safety value, but the overall compatibility of clause 29 with the ECHR in particular will depend on the treatment of the circumstances of individual cases. We wish to highlight three scenarios in which the Home Secretary’s exception making powers would have to be exercised in order to comply with the requirements of Article 8 ECHR:

a) The UK has certain positive obligations under Article 8 to allow for family reunification.⁴⁰⁹ Failure to allow a relevant individual to reunite with their family members by entering or settling in the UK could breach these obligations, depending on the particular circumstances of the case.

b) We received evidence which noted that the operation of clause 29 in conjunction with clause 4 could leave individuals in perpetual immigration limbo in the UK.⁴¹⁰ If a person entered the UK by irregular means but could not be removed (for whatever reason), clause 29 would prevent them from regularising their stay in the UK, unless the Secretary of State decided to exercise her power to make an exception under new sections 8AA(3)–(5). Leaving an individual in limbo, depending on the length of the delay and the private and family life ties which they have generated during that delay, could violate the UK’s positive obligations under Article 8 ECHR to provide an effective and accessible means of protecting the right to respect for private life through appropriate regulations to ensure that any such state of uncertainty is kept to a minimum.⁴¹¹ Depending on the duration and conditions of that limbo, we received evidence which argued that the breach of Article 8 could escalate to a breach of Article 3 ECHR.⁴¹² As a practical matter, in circumstances where the Secretary of State has determined that a human rights claim or asylum claim is inadmissible by virtue of clause 4, we are not clear how an individual could apply to the Secretary of State for an exception to be made in their case.

c) For those who have either voluntarily left the UK or been forcibly removed as a result of the Bill, the blanket lifelong re-entry ban — which disregards any of the individual’s personal circumstances — is unlikely to be proportionate for the purposes of Article 8. Under the current Immigration Rules, a 10 year re-entry ban is the maximum available, even in cases where an individual is deported or removed from the UK at public expense.⁴¹³ The duration of an exclusion from a state is highly impactful on whether any interference with Article 8 is proportionate or fairly balances the public interest with the individual’s Article 8 rights.⁴¹⁴ Therefore, even though the Home Office argues that Article 8 compliance is guaranteed by the “discretion on the Secretary of State to waive the re-entry and limited leave to remain bans where the refusal to do so would breach ECHR [sic]”⁴¹⁵ it is doubtful whether the life-long blanket ban itself would be proportionate under Article 8. The

308. We are also concerned that the Secretary of State’s power to make exceptions for individuals where failure to give them the relevant leave or entry clearance would contravene the UK’s obligations under the ECHR is expressed as a discretion rather than an obligation.⁴¹⁶ We agree with the evidence of the Immigration Law Practitioners’ Association that it “is unclear why the Home Secretary wishes to retain, or in what circumstances she would use, a discretion to act in breach of the UK’s international obligations by refusing to grant entry, settlement, or citizenship” in such circumstances.⁴¹⁷

309. In order to avoid the sort of Article 8-breaching scenarios which could arise in the absence of decisions being made on the facts of a particular case, applications for exceptions to the ban on Article 8 grounds must be capable of routine consideration by the Home Office on a case by case basis, taking into account the specific private and family life circumstances of the individual. Where it is decided that a re-entry ban is appropriate, the duration of that ban should be tailored to properly balance the individual’s Article 8 rights and the public interest. Where failure to make an exception in an individual case would breach the ECHR, the Secretary of State must be under a duty rather than have a discretion to make such an exception.

The particular impact of the prohibition on children’s rights

310. The implications for children of a lifelong prohibition on re-entry or gaining leave to remain are difficult to reconcile with the UK’s international and domestic obligations. It is hard to see how a blanket lifelong prohibition on re-entering or gaining leave to remain is in the best interests of a child for the purposes of either Article 3 of the UNCRC or section 55 of the Borders, Citizenship and Immigration Act 2009. The consideration of the best interests of an individual child is not built into the exercise of clause 29. While the Secretary of State is able to make exceptions to clause 29 at her discretion upon application, the prohibition in principle seems to contravene Article 2 of the UNCRC, which prohibits the discrimination or punishment of a child on the basis of the status or activities of their parents or guardians. In circumstances where a child may have had no control over their parents or the decisions which led to them arriving in the UK irregularly, the automatic imposition of a lifelong ban which they then have to seek to convince the Secretary of State to reverse seems to fall within the definition of a punishment.

311. The UK Supreme Court has been clear on the application of domestic law in light of the UK’s international obligations under the UNCRC. In Zoumbas v Secretary of State for the Home Department, Lord Hodge summarised the relevant principles in an immigration context including that:⁴¹⁸

a) the best interests of a child are an integral part of the proportionality assessment under Article 8 of the Convention;

b) in making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration;

c) although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;

d) it is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations;

e) in accordance with the above, there is no substitute for a careful examination of all relevant factors when the interests are involved in an Article 8 assessment; and

f) a child must not be blamed for matters for which they are not responsible, such as the conduct of a parent.

312. The lifelong ban on re-entry or leave to remain should not be applied routinely to children. The Bill should be amended so that the circumstances of each child must be taken into account before a decision is taken to refuse them leave to remain in the UK or to deprive them of any right of re-entry (see Annex, Amendment 32).

Prohibition on grants of citizenship

313. Clause 30 sets out that an ‘ineligible person’ is a person who has ever met the clause 2 conditions (clause 30(3)). Clauses 31–34 then set out that an ineligible person is not entitled to:

• Be registered as a British citizen or be granted a certificate of naturalisation as a British citizen (clause 31);
• Be registered as a British overseas territories citizen or be granted a certificate of naturalisation as a British overseas territory citizen (clause 32);
• Be registered as a British overseas citizen (clause 33); or
• Be registered as a British subject (clause 34).

314. Clause 35 gives the Secretary of State a power to make exceptions in individual cases. Under clause 35, as amended in the Commons, the Secretary of State may determine that a person is not an ‘ineligible person’ for the purposes of clauses 31–34 if the Secretary of State considers the application of those sections in relation to a person would contravene the UK’s obligations under the ECHR. As with the ban on leave to enter or remain under clause 29, the exercise of this power is discretionary.

Narrowing the exceptions

315. This formulation of clause 35 provides for a narrower set of exceptions than were available when the clause was originally introduced.⁴¹⁹ Clause 35 as originally introduced would have allowed the Secretary of State to determine that the person was not an ‘ineligible person’ if they considered that excepting the person was necessary in order comply with the UK’s obligations under not just the ECHR, but also any other international agreement to which the United Kingdom is a party. We are unclear why the Government has chosen to narrow the available exceptions.

316. The UK’s obligations under other international agreements are binding. Without the power to make an exception to the life-long prohibition on citizenship when required by other international legal obligations on the UK, the Government risks the UK being placed in breach of those obligations.

317. This is particularly the case as regards children brought to the UK. Clause 30(3) renders a person ineligible for life for British citizenship if they have ever met the four conditions in clause 2. That means that a child brought to the UK by irregular means by their parents or other adult, who would meet the clause 2 conditions in their own right, would face the lifelong prohibition unless the Secretary of State makes an exception on ECHR grounds under clause 35. However, even if ECHR grounds cannot be established to the Secretary of State’s satisfaction, the UK’s legal obligations under the UNCRC may still be breached: Article 2(2) of the UNCRC prohibits discrimination or punishment of a child on the basis of the status or activities of their parents or guardians. In circumstances where the child had no agency over the actions of their parents or how the child arrived in the UK, the proposition that the child would be punished by a lifelong ban on obtaining citizenship appears to breach the UK’s UNCRC obligations. Unlike under the original iteration of clause 35, the Secretary of State would have no power to make an exception on the basis of the UK’s obligations under the UNCRC.

318. We are concerned that the Government has amended clause 35 to remove the power for the Secretary of State to make exceptions in order to comply with other international agreements to which the UK is a party. This risks the UK being placed in breach of its international law obligations under international agreements other than the ECHR. We recommend that the grounds for making exceptions under clause 35 are restored to the version introduced in the Commons (see Annex, Amendment 33).

Compatibility with Article 8 ECHR

319. The compatibility of the lifelong citizenship prohibition with Article 8 of the ECHR will depend on the treatment of individual cases and the extent to which the Secretary of State uses her power under clause 35 to make exceptions. For example, while Article 8 does not provide a right to acquire a particular nationality or citizenship,⁴²⁰ denying citizenship on an arbitrary basis could breach Article 8.⁴²¹

320. We are concerned that the Secretary of State’s power to make an exception is discretionary rather than mandatory where she considers that the prohibition would contravene the UK’s obligations under the ECHR. As discussed in relation to clause 29, above, the Secretary of State should be obliged to make an exception in such circumstances so that the UK is not placed in breach of international law.⁴²²

321. The exception in clause 35 to the lifelong prohibition on being granted citizenship or naturalising is an important safety valve, but the compatibility of these provisions with the ECHR will depend on the treatment of the circumstances of individual cases as well as the extent to which the Secretary of State uses her power under clause 35 to make exceptions. Where the lifelong ban on citizenship would breach the UK’s obligations under the ECHR, the Home Secretary should be under a duty to make an exception rather than have a discretion to do so.

10 Legal proceedings

Suspensive and non-suspensive effect

322. As discussed above, clause 4 of the Bill requires the Secretary of State to declare protection claims and human rights claims made by a person who satisfies the conditions in clause 2 inadmissible, but only if they relate to removal to that person’s own country. An individual claiming that they would have their human rights breached in a third country to which they are to be removed (e.g. Rwanda) would still need to have the merits of their human rights claim properly considered. Under existing laws, this human rights claim would effectively suspend the claimant’s removal, unless the claim was certified as “clearly unfounded”.⁴²³

323. The suspensive effect of a human rights claim is a crucial safeguard against individuals being removed to face human rights abuses before the validity of their claims has been established. Furthermore, this effect applies in recognition of the fact that pursuing a claim from another jurisdiction is likely to be very difficult and, in some cases, impossible — meaning that allowing removal to go ahead could result in people with valid human rights claims being denied the opportunity to establish those claims and gain the protection they need. As noted by the UNHCR, “out of country remedies are generally ineffective in practice, and are especially likely to be so where the claimant or appellant is in an unfamiliar third country, or in one of the many countries from which they will be prohibited from giving oral evidence by videolink.”⁴²⁴

324. The practical difficulties in pursuing an appeal against deportation from abroad have been recognised by the Supreme Court. In R (Byndloss) v SSHD [t]he Supreme Court found that removing foreign criminals before their appeals involved a violation of Article 8 ECHR, expressing scepticism over the practical availability of supporting professional evidence and ready legal advice as well as the availability and effectiveness of equipment required to give evidence from abroad.⁴²⁵ Similar concerns arise in respect of the practical obstacles to human rights claims and appeals being pursued from outside the UK. While the right to a fair trial under Article 6 ECHR does not generally apply to immigration proceedings, the ECtHR has held that the right to an effective remedy under Article 13 ECHR, taken together with Articles 2 or 3, guarantees the ability to present an asylum claim effectively.⁴²⁶

325. Clause 4 of the Bill makes it clear that the clause 2 duty on the Secretary of State to make arrangements for removal will still apply to a person making a claim that removal from the UK to a third country would violate their human rights. The continuing application of the ‘duty’ means that under the Bill these claims would all be ‘non-suspensive’ — i.e. the individual seeking to bring the claim could still be removed from the UK while the claim is ongoing. If they wish to continue to pursue the claim they must do so from the country to which they are sent, and secure a court order requiring their return to the UK if successful. We note that in her recent letter to the Committee, the Home Secretary told us that “arrangements will be made to ensure that those persons relocated to a safe third country can continue to pursue their legal claims from overseas and returned to the UK if their human rights claims are successful.”⁴²⁷ While this statement is welcome, we would appreciate further detail of what problems the Home Office recognises must be addressed and what practical steps will be taken to address them.

Suspensive claims

326. Making all claims by those who meet the clause 2 conditions ‘non-suspensive’ would open up the possibility of many asylum seekers being sent to third countries before any claim challenging their removal has been considered by a court. The Bill does, however, provide narrow exceptions to this non-suspensive effect by establishing two categories of “suspensive claims” — i.e. claims that prevent the removal of the claimant while they are ongoing.

a) Serious harm suspensive claim — a claim by a person who has been given notice that they are to be removed under the Bill to a third country that they would “during the relevant period face a real, imminent and foreseeable risk of serious and irreversible harm”.⁴²⁸ The ‘relevant period’ is the time it would take for the claimant to make a human rights claim in relation to their removal, have that considered by the Home Office and to judicially review a refusal of that claim. This period been chosen because, at least theoretically, should the claimant be successful at any point during their claim they could be brought back to the UK. So as long as any risk of harm does not arise during that period, they should be able to be brought back safely before it manifests.

b) Factual suspensive claim — a claim by a person who has been given notice of removal under the Bill (whether to a third country or to their own) that the Secretary of State or an immigration officer made a mistake of fact in deciding that the person met the clause 2 conditions. This could apply to a claimant who argues, for example, that he arrived in the UK before 7 March; that he in fact had leave to enter (that was not obtained by deception); or that he in fact came directly from the country where he was persecuted (within the meaning established by the Bill).

327. Under the Bill these two types of suspensive claim are the only ways in which anyone who satisfies the clause 2 conditions — whether they are seeking asylum, have been trafficked to the UK or otherwise have come without permission — would be able to challenge their removal before it takes place. Once either claim is made, the claimant may not be removed to the destination country before the Secretary of State makes a decision on the claim or, if an appeal is made, before that has been concluded.

Serious harm suspensive claims

328. If a serious harm suspensive claim is successful, the claimant will not be removed from the UK to the destination where they would suffer that harm. Crucially, however, even a successful claimant will remain subject to the Secretary of State’s removal duty, and to the prohibition on gaining leave to enter or remain in the UK under clause 29, and thus will remain in a state of limbo regarding their immigration status, at least theoretically still awaiting removal.⁴²⁹

329. This type of suspensive claim has been modelled on the test applied by the ECtHR when issuing interim measures under Rule 39 (i.e. measures requiring a member state to suspend a planned action — usually the removal of an individual to another state — discussed further above). The ECtHR will only issue interim measures where there is an “imminent risk of irreparable damage”, “a real risk of serious and irreversible harm” or “a real and imminent risk of serious and irreparable harm”.⁴³⁰ The aim of interim measures is to ensure that the applicant’s claim is heard before they suffer the very harm they have brought the application to avoid — otherwise the claim would become pointless.⁴³¹

330. Government amendments made to the Bill at Report stage provided more clarity as to what is meant by “serious and irreversible harm” for the purposes of a serious harm suspensive claim. The claimant is required to show “a real, imminent and foreseeable risk” of such harm. This definition is relatively consistent with the Strasbourg approach to Rule 39.

331. The Bill also now gives examples of what will amount to “serious and irreversible harm” and what will not:

a) Death, torture and inhuman and degrading treatment and punishment, i.e. violations of the rights guaranteed under Article 2 and Article 3 ECHR, will amount to serious and irreversible harm, as will persecution within the meaning of the Refugee Convention and onward refoulement.⁴³²

b) Harm resulting from a lower standard of healthcare in the destination country (including, in particular, a less favourable prognosis) will not amount to serious and irreversible harm. The Bill also provides, however, that pain or distress resulting from a lack of medical treatment that is available in the UK is only unlikely to amount to serious and irreversible harm.

332. Article 2 ECHR guarantees the right to life and Article 3 ECHR prohibits inhuman and degrading treatment. Where there are substantial grounds for believing that a person, if removed from the UK, would face a real risk of being subjected to treatment contrary to Articles 2 or 3 in the destination country, the Convention (and the duty to act compatibly with it under the HRA) prohibit their removal. By aligning the test of “serious and irreversible harm” under the Bill with Articles 2 and 3 of the ECHR, and with persecution under the Refugee Convention, the Government have at first glance created a suspensive process that complies with international law. More careful scrutiny nevertheless reveals a number of concerns remain:

a) The Bill is still premised on most human rights claims being non-suspensive and having to be pursued from outside the UK. Allowing for any claim to have a non-suspensive effect depends on the viability of pursuing protection and human rights claims from abroad. Since a similar scheme relating to deportation has seen the Supreme Court recognise that this may not be possible, it is hard to see how the Government can be confident in this viability.⁴³³ As Amnesty International UK put it in their written evidence to us:

It having been demonstrated, at the least, that there was no real or effective capacity to ensure human rights compliance in what was done [in respect of deportation], it is extraordinary, to put the matter very modestly, to now seek to hugely expand what was then done.⁴³⁴

b) Under Articles 2 and 3 ECHR there does not need to be a “a real, imminent and foreseeable risk” in order to make removal unlawful. The test established in the ECtHR is “where substantial grounds have been shown for believing that the person in question would face a real risk”.⁴³⁵ While this is only a subtly different test to that applicable for a serious harm suspensive claim under the Bill, it does appear to mean that individuals who can establish a real risk of treatment contrary to Article 2 or 3 but cannot establish that it is “imminent” would still be removed under the Bill and left to pursue their claims from overseas — in likely breach of the Government’s obligations under the ECHR.

c) If it is established that the asylum procedure in a destination country is insufficient, giving rise to a risk of onward refoulement, Article 3 ECHR imposes a duty not to remove the asylum seeker to that country.⁴³⁶ It is unclear whether an insufficient asylum procedure will be enough to meet the test of a “real, imminent and foreseeable risk” of onward refoulement required under the Bill.

d) The ECtHR has established that, in very exceptional cases, Article 3 can be invoked to prevent the removal of a seriously ill person who faces a real risk of “a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or a significant reduction in life expectancy”, “on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment”.⁴³⁷ By providing that harm resulting from a lower standard of healthcare cannot amount to serious and irreversible harm, the Bill risks compelling the removal of individuals with legitimate Article 3 claims.

e) The Bill requires a serious harm suspensive claim to “contain compelling evidence that the serious harm condition is met”. As noted by the Public Law Project, this appears to be, at least outside the criminal law, “a new evidential standard created by this Bill”.⁴³⁸ Freedom from Torture told us that this amounts to:

an extremely high evidential threshold which may, in fact, be higher than ‘real risk’ or even ‘the balance of probabilities’. How an individual who has just fled persecution could provide evidence to this threshold is unclear. A person may be able to provide ‘reasonable’ or even ‘strong’ evidence, but not quite enough to be ‘compelling’. Very many refugees will not be able to surmount this evidential burden, putting them at risk of harm.⁴³⁹

f) Article 8 (the right to family life) may, in exceptional circumstances, also form the basis for a claim not to be removed to a third country. In very limited circumstances, Articles 5 and 6 may also be relied upon to prevent removal, where the claimant risks suffering a flagrant denial of justice.⁴⁴⁰ It is unclear whether claims based on these rights could form the basis of a serious harm suspensive claim so as to prevent the claimant being removed.⁴⁴¹

g) The Bill retains a power for the Secretary of State to make provision about the meaning of “serious and irreversible harm” in regulations under the draft affirmative procedure.⁴⁴² The justification for this power given by the Home Office to the House of Lords Delegated Powers and Regulatory Reform Committee is to keep up with changes in ECtHR jurisprudence on Rule 39.⁴⁴³ It is nevertheless possible that the meaning of “serious and irreversible harm” could be altered to be less compatible with ECtHR case law with limited Parliamentary supervision.

333. Making human rights claims “non-suspensive” can only be consistent with our human rights obligations if pursuing those claims from the destination state is viable. We are concerned that this has not been established for the states deemed safe for removals. The threshold required to establish a suspensive claim based on serious harm under the Bill, and the requirement for “compelling evidence” to support it, puts at risk of removal those who have genuine human rights reasons why they should not be removed. Furthermore, allowing the Secretary of State to redefine “serious and irreversible harm” by regulations opens up the possibility of increasing disparity between the protections against refoulement in domestic law and those to which the UK is committed in international law, including the ECHR. We urge the Government to reconsider its decision to make human rights claims non-suspensive, and the extremely high threshold imposed to establish serious harm suspensive claims. The meaning of “serious and irreversible harm” should not be open to amendment by regulations. Clause 39 should be removed from the Bill (see Annex, Amendment 34).

Procedural framework

334. More generally, the suspensive appeal process can only be compliant with the obligation of non-refoulement under the ECHR and Refugee Convention if, in practice, it offers a genuine and effective opportunity to prevent removal. The applicable procedure is therefore extremely important.

Timeframes

335. Both types of suspensive claims are subject to restrictive timeframes (although they can be extended by the Secretary of State):

a) A claimant must lodge their claim within 7 days following receipt of the notice that they are to be removed.

b) The Secretary of State must then decide on the claim within three days of receiving it.

c) If the claim is refused the claimant must appeal to the Upper Tribunal within 6 working days following the refusal.

d) A claimant who makes his claim outside the 7-day period must provide “compelling evidence” that there were “compelling reasons” for him doing so. If this is not accepted by the Secretary of State a written application can be made to the Upper Tribunal where the test is the same. As noted by Amnesty International, what is “starkly absent from this stringent formulation is any consideration of the claim’s underlying merits.”⁴⁴⁴

336. Imposing timeframes on claims and appeals processes can be helpful. It is not in the interest of anyone, including those seeking asylum, for legal proceedings to be unnecessarily prolonged. However, in respect of the timeframes proposed in the Bill, we received a large amount of written evidence raising concerns, exemplified by this from the Law Society:

We are seriously concerned that the timeframes outlined in the Bill … are unworkable and would not ensure procedural fairness.

Allowing only 3 days for the Secretary of State to make a decision is likely to lead to low-quality, rushed decision making.

The timeframes allowed for issuing and appealing claims do not account for the practical realities and complexities of asylum cases. It first takes time to find and instruct a solicitor…. Preparing a case also takes time — in addition to the problems outlined above with gathering evidence, interpreters and other experts such as medical professionals may need to be engaged, and there needs to be adequate time to analyse and present the findings. Without proper time to prepare a case, the functioning of the justice system is undermined and there is a real risk of people being wrongly removed to places where they face human rights violations.⁴⁴⁵

337. The Public Law Project put it more bluntly:

The idea that 23 days is enough time for a detained person to organise a legal case …, for the busy Home Office to formulate a case in response, for the case to be argued in court, and for judges to decide the case, is absurd.⁴⁴⁶

338. The ECtHR has previously concluded that applying unreasonably short time-limits to submit asylum claims and appeals, such as in the context of accelerated asylum procedures, can deprive an individual of the ability to present an asylum claim effectively, contrary to the requirements of Article 13 ECHR taken together with Article 3 ECHR.⁴⁴⁷ While a suspensive claim is not itself an asylum or protection claim, merely delaying removal rather than providing any right to remain, it is a mechanism designed to protect the claimant against removal to face irreversible harm, including Article 3 treatment and therefore the same need to ensure efficacy applies.

339. We were also reminded that the difficulty of preparing a case in such tight timeframes would be compounded if the claimant is detained — something clearly envisaged under the Bill.⁴⁴⁸ Redress told us that during those seven days, the “vast majority” of asylum seekers who are detained “would likely find it difficult or impossible either to access a lawyer or to obtain a medico-legal report to confirm their status as a survivor of torture.”⁴⁴⁹

Legal aid and legal representation

340. Amendments made at Report stage in the House of Commons confirmed that legal aid will be available for these suspensive claims.⁴⁵⁰ This is a welcome development, but it does not guarantee that legal representation will be available. Dr Jo Wilding and Dr Shahrzad Fouladvand were among many witnesses who raised with us the difficulties in accessing legal aid lawyers.⁴⁵¹

341. JUSTICE noted that domestic courts have previously held a ‘detained fast track’ process (DFT) for asylum claims to be unlawful on the basis of inherent systemic or structural unfairness.⁴⁵² In that case, the Court of Appeal recognised that even with legal aid, effective legal representation could be impossible: “in view of (i) the complex and difficult nature of the issues that are often raised; (ii) the problems faced by legal representatives of obtaining instructions from individuals who are in detention; and (iii) the considerable number of tasks that they have to perform…the timetable for the conduct of these appeals is so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases under the FTR regime.”⁴⁵³

342. The Helen Bamber Foundation and Asylum Aid summed up the concerns expressed by many of those who provided evidence to us:

These times frames are grossly insufficient to being able to decide fairly, lawfully and with humanity, whether someone is at risk of a human rights violation on removal to either their home country or other third country. There is no consideration of the individuals’ trauma history or the time it may take to disclose their ill-treatment. With higher stakes, and fewer safeguards than even the DFT had it cannot be said that these provisions are either procedurally fair or offer any protection against refoulement.⁴⁵⁴

343. The Bill’s introduction of extremely narrow suspensive claims does provide some protection against the most serious and immediate human rights abuses, but even this protection is meaningless if the procedural framework prevents effective access to these claims. The time limits placed on each stage of the claim process are so strict that it is hard to see how claimants, who are likely to be traumatised, vulnerable and held in detention, could prepare and present their case effectively. If the suspensive claim framework is to remain within the Bill, the time limits imposed must be made more generous. Furthermore, applications to extend those time limits must themselves have suspensive effect (see Annex, Amendment 35).

Appeals and judicial oversight

344. Generally, immigration and asylum decisions can be appealed to the First-tier tribunal, with a further appeal to the Upper Tribunal on a point of law. Under the Bill, the rejection of a suspensive claim can be appealed, but only directly to the Upper Tribunal. Reducing appeal rights may have the intended effect of speeding up the process for those few individuals who are able to claim that removal to a third country would violate their human rights, but at significant cost.

345. As with suspensive claims themselves, the Bill requires the notice of appeal to be supported by “compelling evidence”. This is despite the test that the Upper Tribunal is required to apply simply being whether or not the serious harm condition has been met or a mistake of fact made. We are concerned that this could result in a notice of appeal being rejected despite there being evidence that, while not “compelling”, is nevertheless sufficient to establish that either of these tests are met.

346. By requiring an appellant to go directly to the Upper Tribunal, the Bill eliminates one round of appeal. If the Secretary of State certifies the claim as “clearly unfounded” then the claim cannot be appealed at all without first securing permission from the Upper Tribunal. This will only be granted in serious harm cases if the Upper Tribunal considers that there is “compelling evidence” that the serious harm condition is met with the additional requirement that the serious harm is “obvious”. This could result in the Upper Tribunal refusing permission despite being satisfied that the serious harm condition is met (if this is not obvious). This would plainly expose the claimant to a risk of irreversible harm in breach of the Convention.

347. As JUSTICE stated in their evidence to us, “[s]ince vulnerable individuals will be restricted to one expedited hearing, it is even more important that there is proper oversight from experienced judiciary.”⁴⁵⁵ However, the Bill also denies the right to judicially review the decision of the Upper Tribunal on permission to appeal a certified claim (subject to minor exceptions) — even where there has been an “error made in reaching the decision”.⁴⁵⁶ Freedom from Torture described this ouster of judicial review as “dangerous…because it insulates decisions of the Upper Tribunal from any kind of judicial oversight or correction by the higher courts.⁴⁵⁷”

348. The Public Law Project added:

What makes this worse is that Clause 48 is an ouster clause which makes decisions of the Upper Tribunal final. A court decision that has been rushed which follows a Home Office process which was also rushed will be the final decision on a person’s life and safety.⁴⁵⁸

349. By restricting the right to appeal against the refusal of a suspensive claim, and effectively denying the possibility of judicially reviewing the appeal decision, the Bill might speed up this narrow opportunity to suspend removal but it would also substantially increase the chances of errors remaining uncorrected. The risk to those who are removed despite having a human rights claim pending is extremely serious, and every chance to correct errors in decision-making should be available. We do not agree that appeal rights in suspensive claims under the Bill should be limited, but if they are it is important that there is effective judicial supervision of the Upper Tribunal. The Bill should be amended to remove the unnecessary ouster of judicial review (see Annex, Amendment 36).

Interim remedies

350. An additional restriction on the ability of courts to protect against refoulement was added to the Bill at Report stage in the Commons. Under clause 52, in any court proceedings relating to a decision to remove a person from the United Kingdom under the Bill, the courts are expressly prohibited from granting an interim remedy that prevents or delays, or that has the effect of preventing or delaying, the removal of the person from the United Kingdom in pursuance of the decision. According to Home Office Minister Robert Jenrick, this provision merely makes clear what is already the case under the Bill — “that interim relief, including injunctions, is not available and the only way of preventing removal is by making a ‘suspensive claim’ as defined in the bill itself.”⁴⁵⁹

351. This means that, under the Bill:

a) The courts will be unable to prevent the removal of an individual from the UK even where there is clear evidence that they will be unable to pursue their human rights claim from outside the country.

b) An individual who is facing removal and has been unable to make his or her serious harm suspensive claim within 7 days will not be able to secure an injunction to prevent their removal even if they have good reason, perhaps medical issues or perhaps a lack of legal assistance, to explain that inability. The only option for them under the Bill is to (a) request an extension of time from the Home Office before the 7-day period is up, which will only be granted if the Home Office considers it appropriate to do so; or (b) lodge their suspensive claim after the 7-day period but before they are removed, and establish to the Home Office or Upper Tribunal’s satisfaction that there were compelling reasons for the delay. If their removal is due to take place before they can put the suspensive claim together, clause 52 actively prohibits the courts from taking action to prevent their removal — even if the court is satisfied that the underlying human rights claim has merits.

352. Interim remedies allow the courts to maintain the status quo while a claim is being considered. They are a vital tool to prevent litigants suffering the very harm they are bringing their claim to prevent. This is essential when the harm in question is a violation of human rights. They are also vital to ensure that justice can be done; to ensure that one party to litigation cannot prevent judicial consideration of the claim against them by removing the claimant from the jurisdiction. Denying the courts their ability to use interim remedies when justice demands it undermines the guarantees of Articles 2 and 3 ECHR. Clause 52 should be removed from the Bill (see Annex, Amendment 37).

11 Electronic devices and credibility

353. During Report stage in the House of Commons additional clauses were added to the Bill granting new powers to immigration officers to search for electronic devices and providing that certain matters affect the assessment of an asylum seeker’s credibility. As a result of their late addition to the Bill, we have received no evidence on these new provisions and they have undergone very limited Parliamentary scrutiny.

Electronic devices

354. Clause 14 introduces schedule 2, which contains new powers for immigration officers to search for items on which information is or may be stored in electronic form. Plainly this will encompass mobile phones, tablets, laptops and virtually any other electronic device.

355. The power is to search any person who satisfies or is suspected to satisfy the clause 2 conditions, any vehicle or container in which such a person has travelled, any premises in which they are found and any property in their possession. The only requirement is that the immigration officer must have reasonable grounds to believe that the person is in possession of the device, or has been in possession of it while in the vehicle, premises or in possession of the property.

356. In respect of a personal search, the officer would be authorised to conduct strip searches (subject to safeguards, including the presence of an appropriate adult if the person being searched is under 18) and searches inside the mouth.

357. Once items on which information may be stored is found, they can be seized and retained for as long as the officer or the Secretary of State considers necessary. Any information held on the item can be accessed, examined and copied.

Article 8 and search powers

358. Almost all powers of search will engage the Article 8 right to respect for private life of the person being searched. A search inside the mouth and particularly a strip search will involve a greater interference with Article 8.

359. Article 8 ECHR will also be engaged by looking through personal material, such as that stored on a mobile telephone, and retaining this material. Modern mobile phones contain huge amounts of personal data – including access to contacts and social media.

360. Interferences with Article 8 can be lawful if they serve a legitimate purpose and are necessary and proportionate.⁴⁶⁰ The purpose for these new powers is set out in the 24 April 2023 letter from Robert Jenrick MP to Stephen Kinnock MP concerning amendments to the Bill:

Mobile phones and other electronic devices may contain a wealth of information which can directly or indirectly facilitate the confirmation of a person’s identity and an understanding of their activities. This can assist in determining a person’s immigration status or right to be in the UK, as well as in developing the intelligence picture on illegal migration and providing evidence which could be used in criminal prosecutions.⁴⁶¹

361. It is unclear why information stored on a mobile phone or other electronic device would be needed to assist in processing individuals who are known to come within clause 2, and thus arguably necessary for the purposes of Article 8; their treatment is pre-determined under the Bill and any claims they may have would automatically be inadmissible in any event. Presumably for those who are only suspected of satisfying the clause 2 conditions, information held on a mobile phone could help to establish whether they passed through any ‘safe’ third states before arriving in the UK. Otherwise, the purpose appears to be simply gaining more information on an individual to make dealing with them easier.

362. The Government’s supplemental ECHR memorandum states that the Government is satisfied that the powers are capable of being applied compatibly with Article 8 ECHR.⁴⁶² Crucially, however, the Lords Minister is unable to make a statement under section 19(1)(a) of the HRA — meaning that the Government cannot say that these provisions are compatible with human rights.

363. Such broad powers to interfere with Article 8 rights can only be proportionate if adequate safeguards apply. The only safeguards against abuse of these powers set out in the ECHR memorandum are:

a) That only immigration officers can use the powers — although the Bill also gives the Secretary of State the option to make regulations extending the power to others. It would be surprising if immigration powers were given to officials other than immigration officers. This is not a safeguard.

b) The Home Office will issue guidance on their use. Even if this could theoretically amount to an effective safeguard, it cannot be judged without knowing the contents of that guidance.

c) The use of the powers will be subject to judicial review. All powers exercised by public authorities are subject to judicial review after the event — other than in the very rare circumstances in which judicial supervision is ousted. This is not a method by which the abuse of search powers can be prevented before it takes place.

d) There will be no intimate searches and safeguards will apply to strip searches. These safeguards include strip searches being carried out in private and by a person of the same gender. These limitations on the use of the power may prevent the search amounting to inhuman and degrading treatment but will not prevent it being an interference with Article 8 rights.

e) Any item seized will have to be returned when it is no longer considered necessary to retain it. This is a very limited restriction on the power of seizure. It would, in any event, be impossible to justify the retention of items for longer than is necessary.

364. The main safeguard against abuse of this power on the face of the Bill is that it requires reasonable suspicion before it can be exercised. But even this provides extremely limited protection against abuse. The suspicion relates only to the presence of an item capable of storing information in electronic form. To carry out a search there is no need for any suspicion, reasonable or otherwise, that information relevant to immigration status or criminal behaviour is held on the device or that it has been used in connection with illegal entry or criminality. The power to search vehicles and premises relies only on the prior presence of a person who is suspected of being in possession of a relevant device. Give the ubiquity of mobile phones, there are very few circumstances in which it would not be reasonable to suspect a person to be in possession of one.

365. The only additional restriction on retention of the device and the copying of its contents is that the immigration officer or Secretary of State considers the retention necessary and the contents relevant to immigration functions.

366. The proposed new power to search for items capable of storing information in electronic form permits substantial interferences with the right to respect for private life with limited justification and minimal safeguards. Particularly concerning is that the power would allow strip searching, including of children, and searching through and copying any information held on a device such as a mobile phone. The Government has been unable to confirm that in their view this provision is compatible with Convention rights. We agree that the provision is unlikely to be compatible with Article 8. These powers represent a significant invasion of privacy. This provision should not have been added to the Bill at a late stage, preventing it being properly scrutinised by Parliament. It should be removed from the Bill (see Annex, Amendment 38).

Credibility

367. Under existing law, decision makers determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, shall take account of certain matters as damaging the claimant’s credibility.⁴⁶³ In other words, certain matters will automatically impact negatively on the decision maker’s decision whether or not to believe the claimant’s evidence and thus his or her claim.

368. The list of these matters was recently expanded in the NABA 2022 to include failures to comply with the tight deadlines imposed by evidence notices and priority removal notices. We were critical of this step in our report on Parts 1, 2 and 4 of the Nationality and Borders Bill, concluding that this measure contributed to increasing “the risk that genuine refugees will be denied asylum because they were wrongly disbelieved, or their evidence wrongly given minimal weight.”⁴⁶⁴

369. Clause 60 of the Bill would add another matter that would be taken into account by decision makers as damaging to an asylum seeker’s credibility: a “failure to provide…on request, any information or anything else required in order to access any information stored in electronic form on a thing in the possession of an immigration officer or the Secretary of State that was found on the claimant or appears…to have been in the possession of the claimant.”⁴⁶⁵

370. This provision appears to be premised on the idea that an asylum claimant would only refuse to allow the Home Office to look at everything on their phone, or other electronic device, if they are hiding something and are thus not to be believed. It also appears to be linked to some extent with the new power of search and seizure in schedule 2, discussed above. The power to seize a mobile phone may serve little purpose if the phone cannot be accessed because it requires a password, fingerprint or facial image and the owner refuses to provide it. The possibility that such a refusal would harm the claimant’s asylum or human rights claim is likely to operate as an incentive to provide the password or fingerprint required.

371. Under the framework introduced by the Bill, damaging a claimant’s credibility is of little relevance because protection and human rights claims relating to return will in any event be inadmissible under clause 4. Under the Bill, only human rights claims relating to removal to a third country are likely to be affected. However, this change to the existing law will affect all asylum and human rights claims, not just those brought by individuals who satisfy the clause 2 conditions. It therefore has the potential to significantly impact the assessment of asylum and human rights claims by the Home Office and Tribunals.

372. From a human rights perspective, we remain concerned that an asylum or human rights claimant’s credibility should not be damaged by conduct that may be explained by something other than dishonesty or an attempt to conceal relevant information. Vulnerable asylum seekers may have other justifications for not wanting to hand over access to all their private information to a government official, not least an understandable lack of trust in authority. The Bill should be amended to make clear that the credibility of a claimant who has provided a reasonable excuse for their failure to provide a password etc requested by the Home Office will not be affected (see Annex, Amendment 39).

12 Safe and legal routes and the ‘cap’

Clause 58 — cap on number of entrants using safe and legal routes

373. Most of the Bill deals with the UK’s approach to individuals who enter the UK via irregular routes, such as small boats. However, the Bill also introduces an annual cap on the number of people who can enter the UK via ‘safe and legal routes’.

374. Clause 58(1) places a duty on the Secretary of State to make regulations specifying the maximum number of persons who may enter the United Kingdom annually using ‘safe and legal routes’. For the purposes of this duty, clause 58(7) states that a ‘safe and legal route’ means “a route specified in regulations made by the Secretary of State”. No further conditions or qualifications are imposed by the Bill on what the Secretary of State could designate as a ‘safe and legal route’. Clause 59, which was added to the Bill at Report Stage in the House of Commons, requires the Secretary of State to prepare and publish a report on the safe and legal routes by which persons may enter the UK within 6 months of the Bill receiving Royal Assent.

375. Clause 58(2) places a duty on the Secretary of State to consult before making the regulations specifying the maximum number, but clause 58(3) disapplies that duty to consult if the Secretary of State considers that the number needs to be changed as a matter of urgency. Clause 58(4) requires the Secretary of State to begin the consultation for the first set of regulations to be made under (2) within 3 months of the Bill receiving Royal Assent.

A ‘soft’ cap on voluntary resettlement schemes and country-specific schemes?

376. The cap appears to be a ‘soft’ cap equivalent to an administrative target limiting only the Government’s discretion to participate in voluntary resettlement schemes..⁴⁶⁶

377. Resettlement is a distinct concept from the process by which individuals apply under the Refugee Convention for asylum in the UK on the basis of being in the UK’s territory. Applications for asylum in the UK must be made in the UK.⁴⁶⁷ The UK has no visa which allows people to travel to the UK for the purposes of claiming asylum. Travelling to UK on a different sort of visa with the purpose of claiming asylum upon arrival can result in the visa being refused or cancelled.⁴⁶⁸ In contrast, ‘refugee resettlement’ is the process by which recognised refugees are selected and transferred from the country in which they are or in which have sought protection to a third country which has agreed to admit them.⁴⁶⁹

378. The UK operates a number of resettlement schemes. For example, the UK cooperates with the United Nations High Commissioner for Refugees (UNHCR) via the UK Resettlement Scheme.⁴⁷⁰ As part of this scheme, the UK voluntarily agrees to accept a certain number of individuals for resettlement that the UNHCR has recognised as refugees or in need of protection. The numbers the UK resettles under the UK Resettlement Scheme are subject to negotiation, taking into account the Government’s funding commitments and capacity, and the UK Government ultimately has the discretion to decide whether to accept any particular individual.⁴⁷¹

379. The UK also operates a number of country-specific resettlement schemes, including for individuals from Ukraine, Hong Kong and Afghanistan.⁴⁷² Such schemes are set up at the Government’s discretion on the basis that the nationals of that state are deserving of the UK’s general protection in light of the circumstances in their home state. These schemes allow individuals to travel directly to the UK for resettlement but have limited eligibility criteria. In addition, the UK has routes for family union of immediate family members of those who have been granted protection in the UK, and more stringent routes for extended family under the Immigration Rules.⁴⁷³

380. It is the combination of these sorts of generic voluntary resettlement schemes, and country-specific resettlement schemes — which are subject to the Government’s discretion — and family reunion routes — which have tight eligibility criteria, including having a relevant family member already in the UK — which are usually referred to as ‘safe and legal routes’

381. The interpretation of the cap in clause 58 as a soft resettlement cap seems to be supported by clause 58(5) which provides foresees that the cap can be exceeded: it provides that where the number of persons who enter the UK using safe and legal routes exceeds the number specified by the Secretary of State in regulations in any given year, the Secretary of State must lay a statement before Parliament explaining why the number has been exceeded. An example of such a scenario might be if regulations made by the Secretary of State specified that n number of refugees would be resettled from third states as part of voluntary resettled programmes, but an unforeseen natural disaster means the Secretary of State decides to accept more than n on humanitarian grounds in cooperation with third states. The Bill does not place a duty on the Secretary of State (or anyone else) to limit the number of resettlements to a number beneath the cap.

Incompatibility of a ‘hard’ cap with the Refugee Convention

382. For the reasons set out above in our analysis of clauses 2, 4, and 5, the automatic denial of access to the UK’s asylum system of those who have reached the UK’s territory by irregular means is likely to breach the UK’s obligations under the Refugee Convention and the ECHR. It would be equally incompatible to disregard the nth + 1 application for asylum. The availability of resettlement schemes and country-specific schemes, or other designated ‘safe and legal routes’, cannot absolve the UK of its responsibilities to refugees who arrive in the UK through other means.⁴⁷⁴ Article 27 of the Vienna Convention on the Law of Treaties is clear that a state cannot invoke the provisions of its domestic law as justification for its failure to fulfil its treaty obligations.

383. If the cap is a ‘soft’ cap or quota for the number of refugees the UK will volunteer to resettle, either from third states as part of cooperation programmes with international partners or as part of country-specific schemes, we are satisfied that such a cap would not itself contravene the UK’s international law obligations. However, a ‘hard’ cap which sought to invalidate or reject the nth+1 asylum application made in the UK’s territory on the basis of a domestic quota would be incompatible with the UK’s international law obligations.

Overall conclusion

384. As we have highlighted above, all but one of the pieces of written evidence we received was critical of the Bill. In general terms, the range of responses we received reflected concerns expressed by Dunja Mijatović, Council of Europe Commissioner for Human Rights, in her letter to the Speaker of the House of Commons dated 24 March 2023. She said:

Ensuring access to asylum procedures is a key component of the system of human rights protection in Europe and beyond. Regardless of the manner of their arrival, people who may be in need of protection must have an opportunity to put their claim forward and have it fairly assessed. By effectively preventing people arriving irregularly from having their asylum claims assessed, the Bill would strip away one of the essential building blocks of the protection system…

…The exclusion, with very limited exceptions, of people arriving irregularly from modern slavery protections is another disturbing aspect of the Bill, both in view of the prohibition of slavery, servitude and forced or compulsory labour under the ECHR and of the Council of Europe Convention on Action against Trafficking in Human Beings…

I am also concerned at the widespread powers of detention, including in view of the fact that those detained will be largely deprived of ways to judicially challenge their detention in the first 28 days (with the limited exception of habeas corpus writs)…

In short, my assessment is that the Bill would have serious consequences both for the rights of refugees, asylum seekers and migrants in the UK, and for the upholding of the UK’s international obligations more generally…[I]n my view, the Bill’s provisions create clear and direct tension with well-established and fundamental human rights standards, including under the [European Convention on Human Rights].⁴⁷⁵

385. The Government is rightly concerned about the loss of life in the Channel. So are we. However, our role here is to scrutinise legislation for its compatibility with human rights law. In our view, it is clear that the Bill would deny the vast majority of refugees access to the UK’s asylum system, despite the fact that there will have been, in many cases, no means for them to enter the UK by safe and legal routes. It prohibits the consideration of their protection or human rights claims irrespective of the merits of their cases. It permits them to be subject to detention without time limits, including pregnant women and children who are normally subject to special protections. It renders them liable to removal from the UK, either to their country of origin or to a ‘safe third state’ with which they may have no connection, without any individualised assessments of risk being undertaken. It also restricts their access to the courts and their ability to remain in the UK while they challenge removal on human rights grounds.

386. We conclude that this Bill breaches a number of the UK’s international human rights obligations and risks breaching others. The Home Secretary herself has been unable to certify that the Bill is compatible with Convention rights. We therefore urge the Government to consider our conclusions and recommendations in order to address the human rights incompatibilities within this Bill.

Conclusions and recommendations

Channel crossings, “illegal” entry and the Illegal Migration Bill

1. It is clear that there is a global migration crisis: tens of millions of people are currently displaced and are fleeing their home countries to escape war and persecution. It is difficult for us to imagine their desperation. In recent years, the number of people coming to the UK to seek asylum has increased. Many of those people have risked their lives by crossing the Channel in small boats, and sadly many people have lost their lives while making that journey. It is right that the Government should seek to prevent further loss of life at sea. Many of those who make dangerous journeys do not have the options of a safe and legal route into the UK. We welcome the Government’s commitment to safe and legal routes and encourage them to specify what these new routes will be as soon as reasonably practicable. (Paragraph 23)

Our inquiry and views on the Bill

2. All but one piece of evidence we received opposed the Illegal Migration Bill. There was disagreement about whether the Bill would achieve its stated aims of deterring illegal entry, breaking the business model of people smugglers and saving lives. The majority of those who provided evidence believed the Bill would fail to achieve its aims. Instead, they said it could lead to people attempting to come to the UK through more dangerous routes, which could both benefit people smugglers (who could charge more for their services) and lead to more people tragically losing their lives on those routes. Others highlighted that the Bill could dissuade people from applying for asylum when they arrive in the UK, meaning they would be undocumented and at greater risk of exploitation. (Paragraph 52)

3. Some of those who provided evidence expressed the view that a more effective means of deterring individuals from making dangerous journeys would be to provide more safe and legal routes for people to come to the UK, negotiating returns agreements with European countries and quickly processing weak claims. (Paragraph 53)

4. We also heard that the Bill is likely to have a disproportionate impact on vulnerable groups, including victims of trafficking and modern slavery, children, and LGBTQIA+ people. Given this, it is unfortunate that the Home Office has failed to publish the relevant impact assessments before the Bill concluded its Commons Stages. Those impact assessments are crucial to enable effective and full scrutiny of the Bill, and to enable an assessment of its impacts on vulnerable groups, and of how the Government has reached the conclusion (contrary to the weight of evidence that we have heard) that the Bill will achieve its stated aims, what other alternative methods it has considered to stop people making dangerous journeys, and why it deemed the Bill to be preferable to those alternatives. (Paragraph 54)

5. We also heard that the Bill could damage both the global system of refugee protection and the UK’s reputation as a compassionate country for those fleeing war and persecution and. The only way to solve the global migration crisis is through international co-operation. The Government should make clear what measures it is pursuing on the international stage to ensure and preserve the efficient working of the global refugee protection system. (Paragraph 55)

Compatibility with Convention rights and the disapplication of section 3 Human Rights Act

6. The Home Secretary believes that the entirety of the Bill is compatible with the UK’s international legal obligations, including those under the European Convention on Human Rights. However, we have concluded that various provisions of the Bill are not compatible with the Convention or with numerous other binding legal obligations on the UK. (Paragraph 80)

7. The obligation to read legislation compatibly with Convention rights under section 3 HRA is crucial to the legal protection of human rights in the UK. We have previously recommended against the repeal of section 3 HRA and we are equally unconvinced and troubled by its piecemeal disapplication, including under clause 1(5) of this Bill. We are concerned that, by denying those affected by this Bill access to part of the human rights protective framework, clause 1(5) runs counter to the principle that those rights are universal. It also gives rise to concerns in respect of the prohibition on discrimination under Article 14 ECHR. The Bill should be amended to remove the disapplication of section 3 HRA (see Annex, Amendment 1). (Paragraph 90)

The duty to make arrangements to remove people from the UK

8. Clause 2, taken together with clauses 4 and 5 (which provide for the inadmissibility of asylum and human rights claims and removal from the UK), penalises refugees who come to the UK irregularly and indirectly, including children and victims of modern slavery, by denying them access to the asylum system and making them liable to removal. This is, in effect, a near-ban on asylum and humanitarian protection. Extinguishing the right of asylum for refugees arriving in the UK breaches the object and purpose of the Refugee Convention with which we are bound, in good faith, to comply. (Paragraph 107)

9. Clause 2 penalises refugees in clear breach of the Refugee Convention and Article 31 of the Refugee Convention by providing for a blanket denial of access to the asylum system for those who come to the UK irregularly and indirectly. It is clear that the drafters of the Refugee Convention recognised that refugees might travel through multiple countries prior to seeking asylum. Article 31 does not authorise the Government to deny the protections of the Convention to any refugee who enters the UK indirectly. This is the unequivocal legal position as set out by the UNHRC and confirmed by our domestic courts. Clause 2 should be removed from the Bill as it violates the UK’s legal obligations under the Refugee Convention (see Annex, Amendment 2). (Paragraph 122)

10. Further, if clause 2 remains in the Bill, the definition of “coming directly” in clause 2(5) must be amended to reflect the position in law and not the Government’s misconstruction of Article 31 (see Annex, amendment 3). The Nationality and Borders Act 2022 will also require amendment to reflect the proper interpretation of Article 31. (Paragraph 123)

11. Failing the removal of clause 2 from the Bill, exemptions must be introduced to exclude certain categories of person from the duty in clause 2, such as those who have additional vulnerabilities, including victims of trafficking and slavery, survivors of torture, pregnant women, and accompanied children (see Annex, Amendment 4). This would not resolve the clause’s incompatibility with the UK’s obligations under the Refugee Convention. (Paragraph 124)

12. We welcome the Prime Minister’s recent reaffirmation of his ‘deep and abiding’ commitment to the ECHR and the ECtHR made at the Reykjavik summit. However, clause 53 gives Ministers legislative permission to act in direct violation of the UK obligations under the ECHR. Where a Minister chooses to ignore an interim measure and therefore breach Article 34 of the ECHR, clause 53 also prevents the courts from having regard to interim measures when considering proceedings under this Bill. This clause therefore permits deliberate breaches of our obligation to comply with interim measures of the ECtHR. Clause 53 must be removed from the Bill (see Annex, Amendment 5). Clause 53 must be removed from the Bill (see Annex, Amendment 5). (Paragraph 133)

13. It is difficult to see how the removal of unaccompanied child refugees under clause 3 could comply with the legal obligations to have regard to the need to safeguard and promote the welfare of children in the UK, and to treat the best interests of the child as a primary consideration except in very specific circumstances, such as family reunification. Clause 3 should therefore be removed from the Bill (see Annex, amendment 6). Failing this, clause 3 must be circumscribed to allow the Secretary of State only to exercise the power in circumstances where removal is clearly in the best interests of the child (see Annex, amendment 7). The Bill’s impact on children more broadly is discussed in detail in Chapter 7. (Paragraph 139)

14. Clause 4, alongside clauses 2 and 3, forms the basis for the automatic denial of the right to asylum for the vast majority of asylum seekers entering or arriving in the UK, irrespective of the merits of their claims. The blanket denial of access to the asylum system for persons who enter or arrive in the UK irregularly and indirectly is a clear breach of the object and purpose of the Refugee Convention. In circumstances where removal is not possible or is protracted, the lack of status and permanent denial of access to the asylum system for refugees is likely to breach the Refugee Convention, in particular, the duty to naturalise and assimilate refugees as far as possible in Article 34. The denial of access to a fair and effective asylum system may also violate Article 13 ECHR. Clause 4 should be removed from the Bill to allow asylum seekers the right to claim asylum and in doing so have the merits of their case considered (see Annex, Amendment 8). (Paragraph 147)

15. In circumstances where an individual’s human rights claim is declared inadmissible by virtue of clause 4(2), the UK’s failure to undertake any scrutiny of the merits of an arguable case and the denial of any remedy with suspensive effect may breach Article 13 ECHR on the basis that there are no effective guarantees to protect the individual from returning to face a real risk of rights violations. As above, clause 4 should be removed from the Bill (see Annex, Amendment 8). (Paragraph 152)

16. The UK cannot divest itself of its obligations under the Refugee Convention or the ECHR simply by declaring applications inadmissible and thereby refusing to process them. The prohibition against refoulement, the prohibition against penalisation, and the requirement to facilitate the naturalisation and assimilation of refugees are binding obligations on the UK under the Refugee Convention, irrespective of whether or not a person’s status as a refugee has been formally recognised by the UK. Declaring asylum and human rights claims inadmissible does not alter the UK’s obligations under the ECHR which protects individuals from being returned or removed to another country where they face a real risk of serious harm. (Paragraph 153)

17. Whilst the states listed in clause 57 (EEA plus Switzerland and Albania) may be considered to be safe ‘in general’, this does not guarantee their safety for all individuals, particularly those who are members of a particular social group such as female VOTs. It must be possible for such individuals who face a real risk of persecution upon return to make a protection or human rights claim which must be considered on its merits in order to guard against the risk of refoulement. Clause 5 should be amended to remove the requirement for “exceptional circumstances” and instead provide that where persons from EEA countries, plus Albania and Switzerland, make a protection or human rights claim, this claim must be admissible and subject to proper consideration unless it is ‘clearly unfounded’ (see Annex, Amendment 9). An individual must not be removed from the UK and returned to an EEA country or Switzerland or Albania unless and until their claim has been properly considered and decided. (Paragraph 160)

18. Further, there must be clear criteria set out on the face of the Bill for the inclusion of states as ‘safe’. Any country which has a significant successful grant rate for asylum claims, such as Albania, should not be included on a list of safe states. Albania should be removed from the list of safe states in clause 57 owing to the significant rates of successful asylum claims (see Annex, Amendment 10). Clause 57 should be amended to include criteria for designating countries as ‘safe’ which is based on strict and objective criteria based on reliable information, which includes, at a minimum, that: designated states must have signed and ratified the core UN human rights treaties as well as the Refugee Convention; that individuals must have access to a fair and effective asylum system and to free legal advice and representation; that states must have adequate domestic human rights laws and an effective and accessible justice system. (see Annex, Amendment 11). (Paragraph 161)

19. The designation of third states as safe “in general”, in the absence of any individualised assessments of risk, is not an adequate safeguard against refoulement. The approach in the Bill runs a very real risk of breaching the prohibition on refoulement, especially for specific groups such as women and girls, religious minorities, LGBTQI+ individuals, and torture survivors. If clause 5 remains in the Bill, it must be amended to ensure that any removals of individuals to ‘safe third states’ must be subject to individualised assessments of risk to guard against refoulement and onward refoulement (see Annex, Amendment 12). (Paragraph 169)

20. The subjective nature of the test for safety of third states is not an adequate safeguard against refoulement. If clause 6 remains in the Bill, it must be amended to provide that the designation of new third states as ‘safe’ must be subject to strict and objective criteria based on reliable information, which includes, at a minimum, that: designated states must have signed and ratified the core UN human rights treaties as well as the Refugee Convention; that individuals must have access to a fair and effective asylum system and to free legal advice and representation; that states must have adequate domestic human rights laws and an effective and accessible justice system (see Annex, Amendment 13). (Paragraph 175)

21. In order to comply with Article 3 ECHR (freedom from torture or inhuman or degrading treatment), it is imperative the Government does not leave asylum seekers, and those whose claims have been held inadmissible, in a state of destitution. The Bill should provide that everyone with an inadmissible claim should be automatically granted support. (Paragraph 179)

Powers of detention and bail

22. We agree with the conclusion of the House of Lords Delegated Powers and Regulatory Reform Committee that, given the importance and sensitivity of the subject matter, if regulations are made concerning the detention of children the affirmative resolution procedure should apply. Clause 10 should be amended accordingly (see Annex, Amendment 14). (Paragraph 190)

23. We are extremely concerned by the expansion of powers of immigration detention under the Bill, and the apparent intention to use detention as a matter of course for all those who satisfy the clause 2 conditions. Detention for immigration purposes, particularly when those being detained are likely to be genuine victims of persecution or human rights violations, should be a measure of last resort only. (Paragraph 192)

24. Given the current capacity of the immigration estate and limited scope for removals to third countries, we share concerns that detaining greater numbers could give rise to the need to use unsuitable facilities, with risks for human rights. Abandoning many of the limitations and safeguards against inappropriate or unjustified detention, particularly for children, families and pregnant women, increases the likelihood that these rights will be infringed. If these detention powers remain within the Bill, it should be amended to retain existing limitations and safeguards regarding the detention of vulnerable groups (see Annex, Amendment 14). (Paragraph 193)

25. The common law approach to immigration detention, established in the case of Hardial Singh, currently operates to ensure that immigration detention complies with Article 5 ECHR. This recognises that it must be for the courts to determine the legal boundaries of administrative detention. The Bill would alter that approach, leaving it to the Secretary of the State to decide what amounts to a reasonable period of immigration detention. We are extremely concerned that this change would result in an immigration detention system that is not consistent with Article 5 ECHR. The Bill should be amended to ensure that there is independent, judicial oversight of individual liberty and compliance with Article 5 ECHR (see Annex, Amendments 15 and 16). (Paragraph 202)

26. Protection from arbitrary detention and upholding the right to liberty in the UK depends on judicial supervision. Depriving those detained under the Bill the opportunity to make a bail application to a Tribunal, or a judicial review application in the High Court, even if it is only for the first 28 days of detention, would severely restrict judicial supervision. It would prevent those who are unnecessarily or unlawfully detained from being able to secure release on bail or challenge the lawfulness of that detention. We are unconvinced that allowing for applications for habeas corpus is enough to ensure that this proposal is compatible with Article 5 ECHR, which guarantees the right to have the lawfulness of detention decided speedily by a court. Clause 12 must be amended to ensure that those subjected to immigration detention retain the ability to challenge their detention in the courts and seek bail (see Annex, Amendments 17 and 18). (Paragraph 211)

Children: age assessments, and support and accommodation for unaccompanied children

27. Without the usual safeguards of appeals and full judicial review, and without judicial reviews being suspensive in terms of removal, this legislation seriously risks children being treated incorrectly as adults as well as them being removed from the UK to unsuitable conditions. This is clearly not in the best interests of any child and is likely to breach the child’s rights under Articles 6, 8, and 13 of the ECHR. Clause 55 should be removed from the Bill (see Annex, Amendment 20). (Paragraph 228)

28. We remain concerned about ‘scientific methods’ being used to assess age in light of the continued opposition from relevant professional organisations and doubts over the accuracy of such measures. We remain unconvinced there is any justification for the use of scientific methods instead of a holistic assessment. We agree with the Government that the Secretary of State’s power to penalise children for not complying with these methods should only be made where there is evidence that the methods involved are consistently accurate and could be applied in a manner that does not breach the individual’s rights under Articles 3 or 8 ECHR. Any such regulations would have to be carefully drawn to ensure that the circumstances and experiences of the individual child, as well as their best interests, are fully considered before determining whether a child has reasonable grounds for refusing to comply and applying any penalty. The Home Office should also issue guidance as soon as possible setting out what would constitute reasonable grounds for refusing consent. Moreover, any penalisation (and the reasons for it) would have to be challengeable in court. (Paragraph 235)

29. The definition of an unaccompanied child should be brought into line with the current approach in the Immigration Rules (see Annex, Amendment 21). (Paragraph 239)

30. The Bill is currently unclear about both the nature of the accommodation to be provided to unaccompanied children by the Home Office or the standards and safeguards applicable to that accommodation. Inadequate accommodation could breach the children’s Article 8 rights to a private or family life, or potentially even their Article 3 rights to be free from torture and inhuman or degrading treatment, depending on the severity of the inadequacy. The Bill should be amended to ensure that the safeguards provided by the Children Act 1989 to children in local authority care are replicated for children in Home Office accommodation in England (see Annex, Amendment 22). (Paragraph 255)

31. The Home Secretary is bound by the UK’s international law obligations under the UNCRC. The Bill as currently drafted fails to make clear the support that should be provided to unaccompanied children in the UK in care of the Home Office in accordance with the UNCRC. The Bill should be amended to set out the type of support that the Secretary of State should provide to unaccompanied children housed in Home Office accommodation. The power to provide such support should also be changed to a duty to provide such support in accordance with the binding obligations under the UNCRC (see Annex, Amendments 23 and 24). (Paragraph 258)

32. In light of the inadequacies in the current provision of Home Office accommodation to unaccompanied children, it would be difficult for the Home Office to demonstrate that the transfer of a child from local authority care into Home Office accommodation would be in the child’s best interests for the purposes of the UK’s international law obligations under the UNCRC. It would also be difficult to demonstrate that it was compatible with existing domestic law provisions such as section 55 of the Borders, Citizenship and Immigration Act 2009. Unless the standards required of Home Office accommodation are amended to bring them in line with the requirements of the Children Act 1989, as we recommend above (see Annex, Amendments 23 and 24), clause 16 should be amended to remove the power to transfer a child from local authority accommodation into Home Office accommodation (see Annex, Amendment 25). (Paragraph 260)

33. We are deeply concerned that the threat of removal from the UK when a child turns 18 will be harmful to the child’s wellbeing and ability to live a healthy, happy childhood. It also gives them a powerful incentive to flee authorities’ care, thereby making them extremely vulnerable to traffickers, exploiters, and criminal gangs. This is clearly not in the best interests of the child for the purposes of the UK’s obligations under the UNCRC. We recommend that the duty to remove is not automatically applied when a child turns 18 (see Annex, Amendment 26). (Paragraph 266)

Modern slavery

34. Clause 21 breaches Article 10 of ECAT which provides that if the competent authorities have reasonable grounds to believe that a person has been trafficked, that person shall not be removed from its territory until the identification process has been completed. Clause 21 should be removed from the Bill (see Annex, Amendment 27). Failing that, the Bill should be amended to ensure that no removals take place until a conclusive grounds decision has been taken (see Annex, Amendment 28). Further, any returns of VOTs or VOSs must be subject to an individualised assessment of the impact of such return on the rights, safety and dignity of that person. (Paragraph 285)

35. Although there is no absolute right for victims of trafficking or slavery to be granted limited leave to remain, Article 14 of ECAT requires states to take into account the needs of the victim when making decisions regarding leave to remain. Such decisions should not be based solely on the means and method of entry into the UK and whether or not the victim is cooperating with an investigation. Clause 21 should be removed from the Bill (see Annex, Amendment 27). (Paragraph 290)

36. It is, in our view, wholly inappropriate to categorise victims as a threat to public order by the mere fact that they arrived in the UK through an irregular route, particularly given the fact that victims are controlled by their traffickers. Under the NABA 2022, these provisions are already disapplied to certain potential victims of torture (VOTs), on grounds of public order, such as persons convicted of terrorist offences and foreign national offenders. There is clearly no justification for extending the disqualification to all VOTs and victims of slavery (VOSs) who enter or arrive in the UK irregularly, without coming directly to the UK, and without permission to be here. (Paragraph 296)

37. The Government’s reliance on the “public order disqualification” to disapply protections and entitlements to all VOTs who enter irregularly and indirectly violates Article 13 of ECAT. It is also a breach of Article 26 of ECAT which provides for the non-punishment of victims of trafficking. This is also likely to breach the parallel obligations on the UK under Article 4 ECHR, which are interpreted in light of the requirements of ECAT, to identify and protect every victim of modern slavery. All potential victims of trafficking are entitled to a recovery period. This entitlement is unconditional. Clauses 22–24 must be removed from the Bill (see Annex, Amendments 29–31). (Paragraph 297)

38. ECAT does not allow states to disqualify potential victims of trafficking from any form of protection and assistance under the ground that they irregularly enter or arrive in a State Party. Article 12(6) states that measures should be adopted to ensure that support is not made conditional upon willingness to act as a witness. The disapplication of section 50A of the Modern Slavery Act 2015 (which provides potential victims of slavery or trafficking are entitled to assistance and support in certain circumstances) is a clear breach of the obligations to provide support to VOTs under Article 12 ECAT. This is also likely to breach the parallel obligations on the UK under Article 4 ECHR, which are interpreted in light of the requirements of ECAT, to identify and protect every victim of modern slavery. As above, clauses 22–24 must be removed from the Bill (see Annex, Amendments 29–31). (Paragraph 299)

39. We are concerned that the modern slavery provisions of the Bill not only breach the UK’s legal obligations towards VOTs and VOSs, but may also result in the increase in trafficking and slavery. These clauses must be removed from the Bill. (Paragraph 303)

Entry, settlement and citizenship

40. In order to avoid the sort of Article 8-breaching scenarios which could arise in the absence of decisions being made on the facts of a particular case, applications for exceptions to the ban on Article 8 grounds must be capable of routine consideration by the Home Office on a case by case basis, taking into account the specific private and family life circumstances of the individual. Where it is decided that a re-entry ban is appropriate, the duration of that ban should be tailored to properly balance the individual’s Article 8 rights and the public interest. Where failure to make an exception in an individual case would breach the ECHR, the Secretary of State must be under a duty rather than have a discretion to make such an exception. (Paragraph 309)

41. The lifelong ban on re-entry or leave to remain should not be applied routinely to children. The Bill should be amended so that the circumstances of each child must be taken into account before a decision is taken to refuse them leave to remain in the UK or to deprive them of any right of re-entry (see Annex, Amendment 32). (Paragraph 312)

42. We are concerned that the Government has amended clause 35 to remove the power for the Secretary of State to make exceptions in order to comply with other international agreements to which the UK is a party. This risks the UK being placed in breach of its international law obligations under international agreements other than the ECHR. We recommend that the grounds for making exceptions under clause 35 are restored to the version introduced in the Commons (see Annex, Amendment 33). (Paragraph 318)

43. The exception in clause 35 to the lifelong prohibition on being granted citizenship or naturalising is an important safety valve, but the compatibility of these provisions with the ECHR will depend on the treatment of the circumstances of individual cases as well as the extent to which the Secretary of State uses her power under clause 35 to make exceptions. Where the lifelong ban on citizenship would breach the UK’s obligations under the ECHR, the Home Secretary should be under a duty to make an exception rather than have a discretion to do so. (Paragraph 321)

Legal proceedings

44. Making human rights claims “non-suspensive” can only be consistent with our human rights obligations if pursuing those claims from the destination state is viable. We are concerned that this has not been established for the states deemed safe for removals. The threshold required to establish a suspensive claim based on serious harm under the Bill, and the requirement for “compelling evidence” to support it, puts at risk of removal those who have genuine human rights reasons why they should not be removed. Furthermore, allowing the Secretary of State to redefine “serious and irreversible harm” by regulations opens up the possibility of increasing disparity between the protections against refoulement in domestic law and those to which the UK is committed in international law, including the ECHR. We urge the Government to reconsider its decision to make human rights claims non-suspensive, and the extremely high threshold imposed to establish serious harm suspensive claims. The meaning of “serious and irreversible harm” should not be open to amendment by regulations. Clause 39 should be removed from the Bill (see Annex, Amendment 34). (Paragraph 333)

45. The Bill’s introduction of extremely narrow suspensive claims does provide some protection against the most serious and immediate human rights abuses, but even this protection is meaningless if the procedural framework prevents effective access to these claims. The time limits placed on each stage of the claim process are so strict that it is hard to see how claimants, who are likely to be traumatised, vulnerable and held in detention, could prepare and present their case effectively. If the suspensive claim framework is to remain within the Bill, the time limits imposed must be made more generous. Furthermore, applications to extend those time limits must themselves have suspensive effect (see Annex, Amendment 35). (Paragraph 343)

46. By restricting the right to appeal against the refusal of a suspensive claim, and effectively denying the possibility of judicially reviewing the appeal decision, the Bill might speed up this narrow opportunity to suspend removal but it would also substantially increase the chances of errors remaining uncorrected. The risk to those who are removed despite having a human rights claim pending is extremely serious, and every chance to correct errors in decision-making should be available. We do not agree that appeal rights in suspensive claims under the Bill should be limited, but if they are it is important that there is effective judicial supervision of the Upper Tribunal. The Bill should be amended to remove the unnecessary ouster of judicial review (see Annex, Amendment 36). (Paragraph 349)

47. Interim remedies allow the courts to maintain the status quo while a claim is being considered. They are a vital tool to prevent litigants suffering the very harm they are bringing their claim to prevent. This is essential when the harm in question is a violation of human rights. They are also vital to ensure that justice can be done; to ensure that one party to litigation cannot prevent judicial consideration of the claim against them by removing the claimant from the jurisdiction. Denying the courts their ability to use interim remedies when justice demands it undermines the guarantees of Articles 2 and 3 ECHR. Clause 52 should be removed from the Bill (see Annex, Amendment 37). (Paragraph 352)

Electronic devices and credibility

48. The proposed new power to search for items capable of storing information in electronic form permits substantial interferences with the right to respect for private life with limited justification and minimal safeguards. Particularly concerning is that the power would allow strip searching, including of children, and searching through and copying any information held on a device such as a mobile phone. The Government has been unable to confirm that in their view this provision is compatible with Convention rights. We agree that the provision is unlikely to be compatible with Article 8. These powers represent a significant invasion of privacy. This provision should not have been added to the Bill at a late stage, preventing it being properly scrutinised by Parliament. It should be removed from the Bill (see Annex, Amendment 38). (Paragraph 366)

49. From a human rights perspective, we remain concerned that an asylum or human rights claimant’s credibility should not be damaged by conduct that may be explained by something other than dishonesty or an attempt to conceal relevant information. Vulnerable asylum seekers may have other justifications for not wanting to hand over access to all their private information to a government official, not least an understandable lack of trust in authority. The Bill should be amended to make clear that the credibility of a claimant who has provided a reasonable excuse for their failure to provide a password etc requested by the Home Office will not be affected (see Annex, Amendment 39). (Paragraph 372)

Safe and legal routes and the ‘cap’

50. If the cap is a ‘soft’ cap or quota for the number of refugees the UK will volunteer to resettle, either from third states as part of cooperation programmes with international partners or as part of country-specific schemes, we are satisfied that such a cap would not itself contravene the UK’s international law obligations. However, a ‘hard’ cap which sought to invalidate or reject the nth+1 asylum application made in the UK’s territory on the basis of a domestic quota would be incompatible with the UK’s international law obligations. (Paragraph 383)

51. The Government is rightly concerned about the loss of life in the Channel. So are we. However, our role here is to scrutinise legislation for its compatibility with human rights law. In our view, it is clear that the Bill would deny the vast majority of refugees access to the UK’s asylum system, despite the fact that there will have been, in many cases, no means for them to enter the UK by safe and legal routes. It prohibits the consideration of their protection or human rights claims irrespective of the merits of their cases. It permits them to be subject to detention without time limits, including pregnant women and children who are normally subject to special protections. It renders them liable to removal from the UK, either to their country of origin or to a ‘safe third state’ with which they may have no connection, without any individualised assessments of risk being undertaken. It also restricts their access to the courts and their ability to remain in the UK while they challenge removal on human rights grounds. Paragraph (385)

52. We conclude that this Bill breaches a number of the UK’s international human rights obligations and risks breaching others. The Home Secretary herself has been unable to certify that the Bill is compatible with Convention rights. We therefore urge the Government to consider our conclusions and recommendations in order to address the human rights incompatibilities within this Bill. (Paragraph 386)

Annex: Amendments

References to paragraph numbers are to paragraphs within the body of the Report

1. Removal of disapplication of section 3 of the Human Rights Act 1998 (see paragraph 92)

Clause 1, page 2, line 37, leave out subsection (5)

Explanatory statement: This amendment leaves out clause 1(5) which disapplies section 3 of the Human Rights Act 1998 in relation to the Bill. Section 3 requires legislation to be interpreted compatibly with the Convention rights so far as it is possible to do so. This gives effect to the JCHR’s recommendation.

2. Removal of clause 2 (duty to make arrangements for removal) (see paragraph 122)

Clause 2, page 2, line 40, leave out clause 2

Explanatory statement: This amendment would remove the duty to make arrangements for removal. This gives effect to the JCHR’s recommendation.

3. Substitution of clause 2(5) (whether a person has come directly to the United Kingdom) (paragraph 123)

Clause 2, page 3, line 32, leave out subsection (5) and insert—

“(5) For the purposes of subsection (4) whether a person is taken to have “come directly” has the same meaning as in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and its Protocol (see Article 31 of the Convention).”

Explanatory statement: This amendment requires the term “come directly” to be construed by reference to the same term in Article 31 of the Refugee Convention. Domestic courts have held this to mean that short stopovers in other countries do not mean that a person has not come directly to the United Kingdom. This gives effect to the JCHR’s recommendation.

4. Exemptions for certain persons from clause 2 (duty to make arrangements for removal) (paragraph 124)

Clause 2, page 4, line 21, at end insert—

“(e) the person is a vulnerable person;

(12) In subsection (11)(e) a “vulnerable person” includes a person who is—

(a) a victim of slavery;

(b) a victim of human trafficking;

(c) pregnant;

(d) a child who is not an unaccompanied child.”

Explanatory statement: This amendment creates an exemption from the duty in clause 2 in relation to certain vulnerable persons. This is defined as including victims of slavery or human trafficking, those who are pregnant and a child who is not an unaccompanied child. This gives effect to the JCHR’s recommendation.

5. Remove clause 53 (interim measures of the European Court of Human Rights) (paragraph 131)

Clause 53, page 54, line 12, leave out clause 53

Explanatory statement: this amendment would remove the clause giving Ministers of the Crown the ability to determine the effect of interim measures of the European Court of Human Rights on the duty to make arrangements for removal. This gives effect to the JCHR’s recommendation.

6. Removal of clause 3 (unaccompanied children and power to provide for exceptions) (paragraph 136)

Clause 3, page 4, line 22, leave out clause 3.

Explanatory statement: this amendment would remove the power to make arrangements for removal of unaccompanied children under the Bill. This gives effect to the JCHR’s recommendation.

7. Amendment of clause 3 (unaccompanied children and power to provide for exceptions) (paragraph 136)

Clause 3, page 4, line 29, after “only” insert “where it is in the best interests of the child and”

Explanatory statement: This amendment limits the power of the Secretary of State to remove unaccompanied children so that it must be in the child’s best interests to do so (in addition to the other circumstances set out in clause 3(3)). This gives effect to the JCHR’s recommendation.

8. Remove clause 4 (disregard of certain claims, applications etc) (paragraphs 144 and 150)

Clause 4, page 5, line 40, leave out clause 4.

Explanatory statement: this amendment would prevent the duty to make arrangements for removal applying notwithstanding protection, human rights and trafficking claims; and would remove the requirement to declare protection and human rights claims inadmissible. This gives effect to the JCHR’s recommendation.

9. Amendment of clause 5 to remove “exceptional circumstances” requirement (paragraph 158)

Clause 5, page 7, line 19, leave out from “claim,” to end of line 40 and insert “(unless the claim has been certified as clearly unfounded)”.

Explanatory statement: This amendment removes the exceptional circumstances test in clause 5(5). This applies in the context of removal to a State listed in section 80AA(1) (see clause 57) which can only be prevented where a person has made a protection or human rights claim and the Secretary of State considers there to be “exceptional circumstances” that prevent removal. This gives effect to the JCHR’s recommendation.

10. Removal of Albania from list of safe States (paragraph 159)

Clause 57, page 59, leave out line 4

Explanatory statement: This amendment removes Albania from list of safe States in new section 80AA of the Nationality, Immigration and Asylum Act 2002. This gives effect to the JCHR’s recommendation.

11. Amendment of clause 57 regarding power to designate safe States (paragraph 159)

Clause 57, page 59, line 43, at end insert—

“(c) the State has ratified—

(i) the Core International Human Rights Instruments, and

(ii) the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and its Protocol,

(d) in general in that State individuals can access a fair and effective system for the consideration of protection and human rights claims (including access to free legal advice and representation),

(e) in that State the laws to protect individuals’ human rights and fundamental freedoms are adequate, and

(f) in general in that State the administration of justice is fair, effective and accessible.

(3A) In subsection (3)(c)(i), the “Core International Human Rights Instruments” means—

(a) the International Convention on the Elimination of All Forms of Racial Discrimination adopted on 21 December 1965,

(b) the International Covenant on Civil and Political Rights adopted on 16 December 1966,

(c) the International Covenant on Economic, Social and Cultural Rights adopted on 16 December 1966,

(d) the Convention on the Elimination of All Forms of Discrimination against Women adopted on 18 December 1979,

(e) the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted on 10 December 1984,

(f) the Convention on the Rights of the Child adopted on 20 November 1989, and

(h) the Convention on the Rights of Persons with Disabilities adopted on 13 December 2006.

Explanatory statement: This amendment adds further requirements to the Secretary of State’s power to add to the list of safe States in new section 80AA (see clause 57(3)) to ensure that any additional States have ratified core human rights instruments and that their systems of law and justice are fair and effective. This gives effect to the JCHR’s recommendation.

12. Amendment of clause 5 to ensure that removal does not breach principle of non-refoulement (paragraph 166)

Clause 5, page 7, line 14, at end insert—

“But P may not be removed where to do so would be incompatible with the principle of non-refoulement.”

Explanatory statement: This amendment limits the power to remove a person where to do so would be incompatible with the principle of non-refoulement, which prohibits the removal of persons to a country in which they are liable to be subjected to persecution. This would thereby require an assessment of whether refoulement would occur in an individual’s case. This gives effect to the JCHR’s recommendation.

13. Amendment of clause 6 regarding power to designate safe States (paragraph 172)

Clause 6, page 8, line 40, at end insert—

“(c) the State has ratified—

(i) the Core International Human Rights Instruments, and

(ii) the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and its Protocol,

(d) in general in that State individuals can access a fair and effective system for the consideration of protection and human rights claims (including access to free legal advice and representation),

(e) in that State the laws to protect individuals’ human rights and fundamental freedoms are adequate, and

(f) in general in that State the administration of justice is fair, effective and accessible.

(3A) In subsection (3)(c)(i), the “Core International Human Rights Instruments” means—

(a) the International Convention on the Elimination of All Forms of Racial Discrimination adopted on 21 December 1965,

(b) the International Covenant on Civil and Political Rights adopted on 16 December 1966,

(c) the International Covenant on Economic, Social and Cultural Rights adopted on 16 December 1966,

(d) the Convention on the Elimination of All Forms of Discrimination against Women adopted on 18 December 1979,

(e) the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted on 10 December 1984,

(f) the Convention on the Rights of the Child adopted on 20 November 1989, and

(h) the Convention on the Rights of Persons with Disabilities adopted on 13 December 2006.

Explanatory statement: This amendment adds further requirements on the Secretary of State’s power to add to the list of safe States in Schedule 1 to ensure that any additional States have ratified core human rights instruments and that their systems of law and justice are fair and effective. This gives effect to the JCHR’s recommendation.

14. Affirmative resolution procedure for regulations affecting detention of unaccompanied children (paragraph 180)

Clause 10, page 17, line 2, leave out “is subject to annulment in pursuance of a resolution of either House of Parliament.” And insert:

“may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”

Explanatory statement: This amendment requires regulations concerning the detention of unaccompanied children to be made in accordance with the affirmative resolution procedure. This gives effect to the JCHR’s recommendation.

15. Retention of existing safeguards against detaining vulnerable groups (paragraph 193)

Clause 10, page 17, line 19, at end insert:

“(12) For the avoidance of doubt, the powers of detention in this section are subject to paragraph 18B of the Immigration Act 1971 (limitation on detention of unaccompanied children) and section 60 of the Immigration Act 2016 (limitation on detention of pregnant women).”

Explanatory statement: This amendment ensures the detention powers introduced by the Bill are subject to the current limits on detaining unaccompanied children and pregnant women. This gives effect to the JCHR’s recommendation.

16. Removal of subjective test regarding period of immigration detention (paragraph 203)

Clause 11, page 17, line 28, leave out “, in the opinion of the Secretary of State,”

Clause 11, page 18, line 9, leave out “, in the opinion of the Secretary of State,”

Clause 11, page 18, line 28, leave out “, in the opinion of the Secretary of State,”

Clause 11, page 18, line 42, leave out “, in the opinion of the Secretary of State,”

Clause 11, page 19, line 16, leave out “, in the opinion of the Secretary of State,”

Clause 11, page 19, line 36, leave out “, in the opinion of the Secretary of State,”

Clause 11, page 20, line 4, leave out “, in the opinion of the Secretary of State,”

Clause 11, page 20, line 17, leave out “, in the opinion of the Secretary of State,”

Clause 11, page 20, line 29, leave out “, in the opinion of the Secretary of State,”

Clause 11, page 20, line 37, leave out “, in the opinion of the Secretary of State,”

Explanatory statement: These amendments remove from clause 11 the subjective test for determining the period of immigration detention. Under clause 11 the period of detention depends on the opinion of what the Secretary of State considers is reasonably necessary. This gives effect to the JCHR’s recommendation.

17. Reestablishment of Hardial Singh principles and independent judicial oversight of immigration detention (paragraph 203)

Clause 11, page 17, line 32, leave out sub-paragraph (2)

Clause 11, page 18, line 31, leave out sub-paragraph (3B)

Clause 11, page 19, line 21, leave out subsection (2K)

Clause 11, page 20, line 7, leave out subsection (1B)

Clause 11, page 20, line 31, leave out paragraph (3)

Explanatory statement: These amendments would help to ensure that the lawfulness of immigration detention remains subject to the principles established in the common law. This gives effect to the JCHR’s recommendation.

18. Amendment to remove limitation on power to grant immigration bail (paragraph 212)

Clause 12, page 21, line 15, leave out paragraph (b)

Explanatory statement: This amendment removes clause 12(3)(b) which prevents the First-tier Tribunal from granting immigration bail within the first 28 days of a person’s detention in all cases and regardless of circumstances. This gives effect to the JCHR’s recommendation.

19. Amendment to remove provision ousting the jurisdiction of the courts in relation to immigration detention (paragraph 212)

Clause 12, page 21, line 24, leave out subsection (4)

Explanatory statement: This amendment removes clause 12(4) which ousts the jurisdiction of courts and tribunals to question decisions to detain persons for immigration purposes during the first 28 days of a person’s detention in all cases and regardless of circumstances. This gives effect to the JCHR’s recommendation.

20. Removal of clause 13 (Disapplication of duty to consult Independent Family Returns Panel) (paragraph 193)

Clause 13, page 22, line 27, leave out clause 13.

Explanatory statement: this amendment would remove the disapplication of the duty to consult the Independent Family Returns Panel in respect of removal and detention of families with children. This gives effect to the JCHR’s recommendation.

21. Removal of clause 55 (decisions relating to a person’s age) (paragraph 226)

Clause 55, page 56, line 17, leave out clause 55.

Explanatory statement: this amendment would remove limits on the ability to legally challenge the assessment of the age of a person who meets the four conditions in clause 2. This gives effect to the JCHR’s recommendation.

22. Replacement of definition of “unaccompanied child” (paragraph 239)

Clause 3, page 5, line 7, leave out subsections (5) and (6) and insert—

“(5) For the purposes of this Act, an “unaccompanied child” is a child who is separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so.”

Explanatory statement: This amendment replaces the definition of “unaccompanied child” in clause 3 with an equivalent definition currently used in the Immigration Rules. This gives effect to the JCHR’s recommendation.

23. Application of Children Act 1989 safeguards to power to provide accommodation etc (paragraph 254)

Clause 15, page 23, line 17, at end insert—

“(3A) For the purposes of this section, the Secretary of State is to be treated as subject to the duties in section 17 and 20 of the Children Act 1989.”

Explanatory statement: This amendment ensures that in providing accommodation and other support to unaccompanied migrant children under clause 15, the Secretary of State complies with relevant duties in the Children Act 1989. This gives effect to the JCHR’s recommendation.

24. Conversion of power to provide accommodation etc into a duty (paragraph 258)

Clause 15, page 23, line 11, leave out “may” and insert “must”

Clause 15, page 23, line 16, leave out “may” and insert “must”

Explanatory statement: These amendments put the Secretary of State under a duty to provide accommodation and other support to unaccompanied children. This gives effect to the JCHR’s recommendation.

25. Requirement to set out accommodation and support being provided (paragraph 258)

Clause 15, page 23, line 17, at end insert—

“(3A) The Secretary of State must lay before Parliament a statement that sets out—

(a) what accommodation and other types of is being provided by virtue of this section, and

(b) whether the Secretary of State considers the provision of that accommodation and other types of support is consistent with the Convention on the Rights of the Child adopted on 20 November 1989; and if so, why.”

(3B) The statement under subsection (3A) must be laid before Parliament—

(a) at the end of the period of six months beginning with day on which this section comes into force, and

(b) at the end each period of 12 months thereafter.”

Explanatory statement: This amendment requires the Secretary of State to lay before Parliament each year a statement that sets out what accommodation and other support is being provided under clause 15 and whether that provision is consistent with the Convention on the Rights of the Child. This gives effect to the JCHR’s recommendation.

26. Removal of power to transfer unaccompanied child from local authority accommodation into Home Office accommodation (paragraph 260)

Clause 16, page 23, line 30, leave out subsections (4) to (7).

Explanatory statement: This amendment removes the power of the Secretary of State to direct that an unaccompanied child is transferred from local authority accommodation into Home Office accommodation. This gives effect to the JCHR’s recommendation.

27. Removal of duty to remove person who was an unaccompanied child and becomes 18 years old (paragraph 266).

Clause 3, page 4, line 24, leave out from “Kingdom” to end of line 25 and insert “who entered or arrived in the United Kingdom as an unaccompanied child”.

Explanatory statement: This amendment would prevent the duty in clause 2 from automatically applying to a person who entered or arrived in the United Kingdom as an unaccompanied child even after they turn 18. This gives effect to the JCHR’s recommendation.

28. Removal of clause 21 (provisions relating to removal and leave) (paragraph 285)

Clause 21, page 25, line 31, leave out clause 21.

Explanatory statement: this amendment would prevent the disapplication of modern slavery protections relating to removal and leave for persons who meet the conditions in clause 2. This gives effect to the JCHR’s recommendation.

29. Prevention of removal for those awaiting a conclusive grounds decision (paragraph 285)

Clause 2, page 4, line 21, at end insert—

“(e) a person is awaiting a conclusive grounds decision as to whether the person is a victim of slavery or human trafficking.”

Explanatory statement: This amendment disapplies the duty in clause 2 where a person is awaiting a conclusive grounds decision as to whether the person is a victim of slavery or human trafficking. This gives effect to the JCHR’s recommendation.

30. Removal of clause 22 (provisions relating to support: England and Wales) (paragraph 296 and 298)

Clause 22, page 27, line 28, leave out clause 22.

Explanatory statement: this amendment would prevent the disapplication of modern slavery protections relating to support for persons who meet the conditions in clause 2. This gives effect to the JCHR’s recommendation.

31. Removal of clause 23 (provisions relating to support: Scotland) (paragraph 296 and 298)

Clause 23, page 28, line 1, leave out clause 23.

Explanatory statement: this amendment would prevent the disapplication of modern slavery protections in Scotland relating to support for persons who meet the conditions in clause 2. This gives effect to the JCHR’s recommendation.

32. Removal of clause 24 (provisions relating to support: Northern Ireland) (paragraphs 296 and 298)

Clause 24, page 29, line 29, leave out clause 24.

Explanatory statement: this amendment would prevent the disapplication of modern slavery protections in Northern Ireland relating to support for persons who meet the conditions in clause 2. This gives effect to the JCHR’s recommendation.

33. Amendment to clause 29 (disapplication of the ban to children) (paragraph 311)

Clause 29, page 35, line 14, at end insert – “except for persons who were children at the time of their entry or arrival in the United Kingdom”.

Explanatory statement: This amendment disapplies the ban in clause 29 to persons who were children when they entered or arrived in the United Kingdom. This gives effect to the JCHR’s recommendation.

34. Amendment to clause 35 (disapplication of sections 31 to 34) (paragraph 319)

Clause 35, page 38, line 38, leave from “under” to end of line 39 and insert--

“(a) the Human Rights Convention, or

(b) another international agreement to which the United Kingdom is a party.”

Explanatory statement: This amendment restores clause 35 to the version that was introduced in the House of Commons and it widens the circumstances in which a person can be treated as not an “ineligible person” for the purposes of entry, settlement and citizenship to include where doing so would contravene the United Kingdom’s obligations under international agreements. This gives effect to the JCHR’s recommendation.

35. Removal of clause 39 (Meaning of serious and irreversible harm) (paragraph 331)

Clause 39, page 27, line 28, leave out clause 39.

Explanatory statement: this amendment would remove the Secretary of State’s power by regulations to alter the meaning of “serious and irreversible harm” for the purposes of this Act. This gives effect to the JCHR’s recommendation.

36. Amendments to time frames for suspensive claims (paragraph 341)

Clause 41, page 44, line 10, leave out “8” and insert “28”

Clause 41, page 44, line 12, leave out “4” and insert “14”

Clause 45, page 47, line 37, leave out “4” and insert “14”

Clause 47, page 49, line 34, leave out “3” and insert “6”

Clause 48, page 50, line 5, leave out “7” and insert “21”

Clause 48, page 50, line 19, leave out “7” and insert “14”

Clause 48, page 50, line 23, leave out “7” and insert “10”

Clause 48, page 50, line 29, leave out “7” and insert “14”

Clause 48, page 50, line 33, leave out “7” and insert “10”

Clause 48, page 50, line 43, leave out “3” and insert “5”

Explanatory statement: These amendments extend the timeframe within which serious harm suspensive claims, appeals and associated applications must be made. This gives effect to the JCHR’s recommendation.

37. Removal of clause 49 (finality of certain decisions by the Upper Tribunal) (paragraph 348)

Clause 49, page 51, line 1, leave out clause 49.

Explanatory statement: this amendment would remove the ouster of judicial review of certain decisions by the Upper Tribunal. This gives effect to the JCHR’s recommendation.

38. Removal of clause 52 (interim remedies) (paragraph 351)

Page 53, line 36, leave out clause 52.

Explanatory statement: this amendment would remove the prohibition on courts considering a decision to remove a person under this Bill from issuing interim remedies that prevent or delay that removal. This gives effect to the JCHR’s recommendation.

39. Removal of clause 14 and Schedule 2 (electronic devices etc) (paragraph 365)

Clause 14, page 23, line 1, leave out clause 14.

Schedule 2, page 68, line 29, leave out Schedule 2

Explanatory statement: this amendment would remove the power to search persons liable to be detained under the Bill for things on which information in electronic form is stored, and to seize and retain those things. This gives effect to the JCHR’s recommendation.

40. Amendment of clause 60 (credibility of claimant: concealment of information etc) (paragraph 371)

Clause 60, page 62, line 5, after “failure” insert “without reasonable excuse”

Explanatory statement: This amendment makes clear that the credibility of a claimant who fails to provide anything required to access information on an electronic device will not be affected if they had a reasonable excuse for that failure. This gives effect to the JCHR’s recommendation.

Formal minutes

Tuesday 6 June 2023

In-person Meeting

Members present:

Joanna Cherry KC MP, in the Chair

Lord Alton of Liverpool

Lord Dholakia

Lord Henley

Dr Caroline Johnson MP

Baroness Kennedy of the Shaws

Baroness Lawrence of Clarendon

Baroness Meyer

Bell Ribeiro-Addy MP

David Simmonds MP

Report consideration

Draft Report (Legislative Scrutiny: Illegal Migration Bill), proposed by the Chair, brought up and read.

Ordered, That the Chair’s draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 386 read and agreed to.

Summary agreed to.

Annex ‘Amendments’ brought up and read

Question put that the Annex be added to the Report

The Committee divided.

Content	Not Content
Lord Alton of Liverpool Lord Dholakia Baroness Kennedy of the Shaws KC Baroness Lawrence of Clarendon Bell Ribeiro-Addy MP Joanna Cherry KC MP	Lord Henley Dr Caroline Johnson MP Baroness Meyer David Simmonds MP

Annex accordingly agreed

Resolved, That the Report be the Twelfth Report of the Committee to both Houses.

Ordered, That the Chair make the Report to the House of Commons and that the Report be made to the House of Lords.

Ordered, That embargoed copies of the Report be made available, in accordance with the provisions of Standing Order No. 134.

[Adjourned until 7 June 2.45pm

Declaration of interests

Lord Alton of Liverpool (Crossbench)

• Patron or Trustee of a number of charities or NGOs involved in the promotion of human rights domestically and internationally, officer or vice-chair of a number of APPGs, including that for Public Accountability, retired Trustee, Arise Foundation, charity which combats human trafficking.

Lord Dholakia (Liberal Democrat)

• No relevant interests to declare

Lord Henley (Conservative)

• No relevant interests to declare

Baroness Kennedy of the Shaws KC (Labour)

• Director, International Bar Association’s Institute of Human Rights; Patron, Rights and Security International; practitioner at the English Bar.

Baroness Lawrence of Clarendon (Labour)

• No relevant interests to declare

Baroness Meyer (Conservative)

• No relevant interests to declare

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Witnesses

The following witnesses gave evidence. Transcripts can be viewed on the inquiry publications page of the Committee’s website.

Wednesday 22 March 2023

Jon Featonby, Chief Policy Analyst, Refugee Council; Colin Yeo, Barrister, Garden Court Chambers; Dr Jean-Pierre Gauci, Senior Research Fellow in Public International Law, British Institute of International and Comparative Law; Christina Marriott, Executive Director of Strategy and Communications, British Red CrossQ1–11

Wednesday 29 March 2023

Sir Stephen Laws, KCB KC, Senior Fellow, Policy Exchange; Professor Cathryn Costello, Andrew W Mellon Professor of International Refugee and Migration Law, University of Oxford; Dr Peter Walsh, Senior Researcher, Migration ObservatoryQ12–21

Vicky Tennant, Representative to the United Kingdom, UN Refugee Agency (UNHCR); Elizabeth Ruddick, Senior Legal Protection Associate, UN Refugee Agency (UNHCR), UN Refugee Agency (UNHCR)Q12–21

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Published written evidence

The following written evidence was received and can be viewed on the inquiry publications page of the Committee’s website.

IMB numbers are generated by the evidence processing system and so may not be complete.

1 Agunbiade, Oluwakemi (Policy and Campaigns Officer, National AIDS Trust) (IMB0071)

2 Amnesty International UK (IMB0055)

3 Anti-slavery International; and Anti-Trafficking Monitoring Group (ATMG) - consists of 17 organisations, which are listed in the submission (IMB0036)

4 Bail for Immigration Detainees (IMB0049)

5 Bhatt, Dr Vivek (Lecturer (Assistant Professor) in Public International Law and Human Rights, University of Aberdeen) (IMB0012)

6 British Institute of Human Rights (IMB0013)

7 CARE (Christian Action Research and Education) (IMB0022)

8 Castan Centre for Human Rights Law (IMB0028)

9 Charlotte, Professor (Professor of Law, University of York) (IMB0057)

10 Community Policy Forum (IMB0074)

11 Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) (IMB0024)

12 Doctors of the World UK (DOTW) (IMB0021)

13 ECPAT UK (IMB0038)

14 Equality and Human Rights Commission (IMB0080)

15 Evangelical Alliance (IMB0035)

16 Faulkner, Dr Elizabeth (Lecturer in Law, Keele University) (IMB0042)

17 Ferreira, Professor Nuno (Professor of Law, Sussex Centre for Human Rights Research/ Sussex Law School, University of Sussex); Sokhi-Bulley, Dr Bal (Senior Lecturer in Law and Critical Theory, Sussex Centre for Human Rights Research/ Sussex Law School, University of Sussex); Velluti, Dr Samantha (Reader in Law, Sussex Centre for Human Rights Research/ Sussex Law School, University of Sussex); and Berry, Dr Stephanie (Senior Lecturer in International Human Rights Law, Sussex Centre for Human Rights Research/ Sussex Law School, University of Sussex) (IMB0030)

18 Freedom from Torture (IMB0065)

19 Garahan, Dr Sabina (Lecturer, Essex Law School); and Gillett, Dr Matthew (Lecturer, Essex Law School) (IMB0015)

20 HOPE not hate (IMB0016)

21 Helen Bamber Foundation; and Asylum Aid (IMB0003)

22 Helen, Dr (Associate professor of law, Nottingham Trent University) (IMB0027)

23 Hibiscus (IMB0051)

24 Hodgson, Dr Natalie (Assistant Professor of Law, University of Nottingham) (IMB0033)

25 Hope for Justice (IMB0010)

26 Human Trafficking Foundation (IMB0067)

27 Humanists UK (IMB0050)

28 Immigration Law Practitioners’ Association (ILPA) (IMB0061)

29 Independent Advisory Panel on Deaths in Custody, Ministry of Justice (IMB0076)

30 Institute for Research into Superdiversity, University of Birmingham (IMB0008)

31 International Organization for Migration (IMB0078)

32 Iusmen, Dr. Ingi (Associate Professor in Governance and Policy, Department of Politics and International Relations, University of Southampton); Stalford, Prof. Helen (Professor of Law, and Founder of the European Children’s Rights Unit, School of Law and Social Justice, University of Liverpool); Kreppner, Dr. Jana (Associate Professor in Developmental Psychopathology, School of Psychology, University of Southampton); Chase, Prof. Elaine (Professor of Education, Wellbeing and International Development , University College London (UCL)); and Shankley, Dr. William (Assistant Professor in Sociology in the School of Sociology and Social Work, University of Nottingham) (IMB0039)

33 JUSTICE (IMB0068)

34 Jesuit Refugee Service UK (IMB0006)

35 Joint Council for the Welfare of Immigrants (JCWI) (IMB0041)

36 Just Fair (IMB0002)

37 Lambert, Mrs Jean ( MEP - now retired, European Parliament) (IMB0062)

38 Laws, Sir Stephen (Senior Fellow, Policy Exchange) (IMB0081)

39 Lewis, Dr Olayinka (Lecturer, Essex Law School and Human Rights Centre, University of Essex) (IMB0045)

40 Liberty (IMB0075)

41 Luna, Caitlin (Senior Support Worker, RAIS Lancaster) (IMB0001)

42 Mayblin, Dr. Lucy (Senior Lecturer, Sociology, University of Sheffield); and Demir, Professor Ipek (Professor of Diaspora Studies, University of Leeds) (IMB0032)

43 McCready, Dr William (Barrister and Lecturer in Law, University of Sussex) (IMB0048)

44 Migrant Help (IMB0059)

45 Migrants’ Rights Network; and Migrants at Work (IMB0060)

46 Modern Slavery and Human Rights Policy and Evidence Centre (IMB0011)

47 NACCOM (No Accommodation Network) (IMB0064)

48 Northern Ireland Human Rights Commission (IMB0047)

49 Positive Action in Housing (IMB0066)

50 Project for the Registration of Children as British Citizens (PRCBC); and Amnesty International UK (IMB0054)

51 Public Law Project (IMB0020)

52 Pulvirenti, Dr Rossella (Senior Lecturer, Manchester Metropolitan University); and Lalor, Dr Kay (Reader in human rights law, Manchester Metropolitan University) (IMB0046)

53 Rainbow Migration (IMB0014)

54 Redress (IMB0018)

55 Refugee Action (IMB0058)

56 Refugee Law Initiative, University of London (IMB0009)

57 Refugee and Migrant Children’s Consortium (RMCC); and Coram Children’s Legal Centre (IMB0053)

58 Refugee and Migrants Forum of Essex and London (IMB0056)

59 René Cassin, the Jewish voice for human rights (IMB0025)

60 Safety4Sisters; Humraaz; Saheli; Rochdale Women’s Welfare Association; Nestac; Olive Pathway; Ubuntu Women Shelter; and Apna Haq (IMB0019)

61 School of Law, University of Glasgow (IMB0079)

62 Spring, Leon (Journalist and academic researcher, The Migration Trials investigation project) (IMB0063)

63 Taskforce on Victims of Trafficking in Immigration Detention (IMB0040)

64 The Association of Directors of Children’s Services (IMB0005)

65 The Children’s Commissioner for England (IMB0031)

66 The Children’s Society (IMB0037)

67 The Detention Forum (IMB0073)

68 The Law Society (IMB0026)

69 Trades Union Congress (IMB0029)

70 Truscott, Ms Clare (IMB0070)

71 UK Committee for UNICEF (IMB0034)

72 Walsh, Dr Peter (Senior Researcher and Departmental Lecturer in Migration Studies, The Migration Observatory) (IMB0082)

73 Welsh Women’s Aid (IMB0017)

74 Wilding, Dr Jo (Lecturer in Law, Sussex Centre for Human Rights Research/ Sussex Law School, University of Sussex); and Fouladvand, Dr Shahrzad (Senior Lecturer in International Criminal Law, Sussex Centre for Human Rights Research/ Sussex Law School, University of Sussex) (IMB0023)

75 Women’s Resource Centre (IMB0072)

76 Wood, Mrs Isabelle (IMB0007)

---

List of Reports from the Committee during the current Parliament

All publications from the Committee are available on the publications page of the Committee’s website.

Session 2022–23

Number	Title	Reference
1st	Legislative Scrutiny: Public Order Bill	HC 351 HL 16
2nd	Proposal for a draft State Immunity Act 1978 (Remedial) Order	HC 280 HL 42
3rd	The Violation of Family Life: Adoption of Children of Unmarried Women 1949–1976	HC 270 HL 43
4th	Protecting human rights in care settings	HC 216 HL 51
5th	Legislative Scrutiny: National Security Bill	HC 297 HL 73
6th	Legislative Scrutiny: Northern Ireland Troubles (Legacy and Reconciliation) Bill	HC 311 HC 79
7th	Draft State Immunity Act 1978 (Remedial) Order 2022	HC 895 HL 103
8th	Draft Bereavement Benefits (Remedial) Order 2022: Second Report	HC 834 HL 108
9th	Bill of Rights Bill	HC 611 HL 132
10th	Legislative Scrutiny: Strikes (Minimum Service Levels) Bill 2022–2023	HC 1088 HL 157
11th	Human Rights Ombudsperson	HC 222 HL 175
1st Special Report	Human Rights Act Reform: Government Response to the Committee’s Thirteenth Report of Session 2021–22	HC 608
2nd Special Report	Legislative Scrutiny: Public Order Bill: Government Response to the Committee’s First Report	HC 649
3rd Special Report	Protecting Human Rights in Care Settings: Government Response to the Committee’s Fourth Report	HC 955
4th Special Report	Legislative Scrutiny: Northern Ireland Troubles (Legacy and Reconciliation) Bill: Government response to the Committee’s Sixth report	HC 1179
5th Special Report	The Violation of Family Life: Adoption of Children of Unmarried Women 1949–1976: Government Response to the Committee’s Third Report	HC 1180
6th Special Report	Legislative Scrutiny: Strikes (Minimum Service Levels) Bill: Government response to the Committee’s Tenth Report	HC 1315
7th Special Report	Human Rights Ombudsperson: Government Response to the Committee’s Eleventh Report	HC 1489

Session 2021–22

Number	Title	Reference
1st	Children of mothers in prison and the right to family life: The Police, Crime, Sentencing and Courts Bill	HC 90 HL 5
2nd	Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 3 (Public Order)	HC 331 HL 23
3rd	The Government’s Independent Review of the Human Rights Act	HC 89 HL 31
4th	Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill (Part 4): The criminalisation of unauthorised encampments	HC 478 HL 37
5th	Legislative Scrutiny: Elections Bill	HC 233 HL 58
6th	Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill (Parts 7 and 8): Sentencing and Remand of Children and Young People	HC 451 HL 73
7th	Legislative Scrutiny: Nationality and Borders Bill (Part 1) – Nationality	HC 764 HL 90
8th	Proposal for a draft Bereavement Benefits (Remedial) Order 2021: discrimination against cohabiting partners	HC 594 HL 91
9th	Legislative Scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement	HC 885 HL 112
10th	Legislative Scrutiny: Judicial Review and Courts Bill	HC 884 HL 120
11th	Legislative Scrutiny: Nationality and Borders Bill (Part 5)—Modern slavery	HC 964 HL 135
12th	Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office DecisionMaking, Age Assessments, and Deprivation of Citizenship Orders	HC 1007 HL 143
13th	Human Rights Act Reform	HC 1033 HL 191
1st Special Report	The Government response to covid-19: fixed penalty notices: Government Response to the Committee’s Fourteenth Report of Session 2019–21	HC 545
2nd Special Report	Care homes: Visiting restrictions during the covid-19 pandemic: Government Response to the Committee’s Fifteenth Report of Session 2019–21	HC 553
3rd Special Report	Children of mothers in prison and the right to family life: The Police, Crime, Sentencing and Courts Bill: Government Response to the Committee’s First Report	HC 585
4th Special Report	The Government response to covid-19: freedom of assembly and the right to protest: Government Response to the Committee’s Thirteenth Report of Session 2019–21	HC 586
5th Special Report	Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 3 (Public Order): Government Response to the Committee’s Second Report	HC 724
6th Special Report	Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 4 (Unauthorised Encampments): Government Response to the Committee’s Fourth Report	HC 765
7th Special Report	Legislative Scrutiny: Elections Bill: Government Response to the Committee’s Fifth Report	HC 911
8th Special Report	Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill (Parts 7 and 8): Sentencing and Remand of Children and Young People: Government Response to the Committee’s Sixth Report	HC 983
9th Special Report	Human Rights and the Government’s Response to Covid-19: Digital Contact Tracing: Government Response to the Committee’s Third Report of Session 2019–21	HC 1198
10th Special Report	Legislative Scrutiny: Nationality and Borders Bill: Government Responses to the Committee’s Seventh, Ninth, Eleventh and Twelfth Reports	HC 1208

Session 2019–21

Number	Title	Reference
1st	Draft Jobseekers (Back to Work Schemes) Act 2013 (Remedial) Order 2019: Second Report	HC 146 HL 37
2nd	Draft Human Rights Act 1998 (Remedial) Order: Judicial Immunity: Second Report	HC 148 HL 41
3rd	Human Rights and the Government’s Response to Covid-19: Digital Contact Tracing	HC 343 HL 59
4th	Draft Fatal Accidents Act 1976 (Remedial) Order 2020: Second Report	HC 256 HL 62
5th	Human Rights and the Government’s response to COVID-19: the detention of young people who are autistic and/or have learning disabilities	HC 395 (CP 309) HL 72
6th	Human Rights and the Government’s response to COVID-19: children whose mothers are in prison	HC 518 HL 90
7th	The Government’s response to COVID-19: human rights implications	HC 265 (CP 335) HL 125
8th	Legislative Scrutiny: The United Kingdom Internal Market Bill	HC 901 HL 154
9th	Legislative Scrutiny: Overseas Operations (Service Personnel and Veterans) Bill	HC 665 (HC 1120) HL 155
10th	Legislative Scrutiny: Covert Human Intelligence Sources (Criminal Conduct) Bill	HC 847 (HC 1127) HL 164
11th	Black people, racism and human rights	HC 559 (HC 1210) HL 165
12th	Appointment of the Chair of the Equality and Human Rights Commission	HC 1022 HL 180
13th	The Government response to covid-19: freedom of assembly and the right to protest	HC 1328 HL 252
14th	The Government response to covid-19: fixed penalty notices	HC 1364 HL 272
15th	Care homes: Visiting restrictions during the covid-19 pandemic	HC 1375 HL 278
1st Special Report	The Right to Privacy (Article 8) and the Digital Revolution: Government Response to the Committee’s Third Report of Session 2019	HC 313
2nd Special Report	Legislative Scrutiny: Covert Human Intelligence Sources (Criminal Conduct) Bill: Government Response to the Committee’s Tenth Report of Session 2019–21	HC 1127
3rd Special Report	Legislative Scrutiny: Overseas Operations (Service Personnel and Veterans) Bill: Government Response to the Committee’s Ninth Report of Session 2019–21	HC 1120
4th Special Report	Black people, racism and human rights: Government Response to the Committee’s Eleventh Report of Session 2019–21	HC 1210
5th Special Report	Democracy, freedom of expression and freedom of association: Threats to MPs: Government Response to the Committee’s Third Report of Session 2019	HC 1317
6th Special Report	Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 4 (Unauthorised Encampments): Government Response to the Committee’s Fourth Report	HC 765
7th Special Report	Legislative Scrutiny: Elections Bill: Government Response to the Committee’s Fifth Report	HC 911

---

Footnotes

1 UNHCR, Refugee Statistics, 27 October 2022

2 In this report we use the clause numbers of the Bill as introduced in the House of Lords as Bill 133 of 2022–23.

3 Illegal Migration Bill - Hansard - UK Parliament

4 Convention rights is the term used in the HRA 1998 to refer to the rights set out in the European Convention on Human Rights that have been effectively incorporated into domestic law by the HRA 1998.

5 Home Office, Illegal Migration Bill: Supplementary European Convention on Human Rights Memorandum (25 April 2023)

6 Illegal Migration Bill - Explanatory notes

7 Illegal Migration Bill - Explanatory notes

8 UNHCR, Refugee Statistics, 27 October 2022

9 UNHCR, Refugee Statistics, 27 October 2022

10 UNHCR, Ukraine situation Flash Update #44, 6th April 2023

11 UNHCR - Refugee Statistics

12 UNHCR, Ukraine situation Flash Update #44, 6th April 2023

13 Q22

14 Oral evidence taken before the Joint Committee on Human Rights on 29th March 2023

15 Safe and legal routes to the UK for people seeking protection, CBP 9630, House of Commons Library, 25 January 2023

16 Home Office, Ukraine Family Scheme, Ukraine Sponsorship Scheme (Homes for Ukraine) and Ukraine Extension Scheme visa data, 1st June 2023

17 Safe and legal routes to the UK for people seeking protection, CBP 9630, House of Commons Library, 25 January 2023

18 Home Office, How many people do we grant protection to? 25 May 2023

19 Home Office, How many people do we grant protection to? , 25 May 2023

20 Home Office, Irregular migration to the UK, year ending December 2022.

21 In his evidence to the Committee, Dr Peter Walsh, Senior Researcher at the Migration Observatory, explained that 14% of asylum seekers in 2022 arrived through regular passenger routes with improper documentation, a small number arrived on a valid visa and applied for asylum in the UK when the situation deteriorated in their country of origin (known as sur place asylum claimants) and an unknown number overstayed their visa. Q12 [Dr Peter Walsh]

22 Home Office, How many people do we grant protection to?, 25 May 2023

23 Asylum Statistics, Number SN01403, House of Commons Library, 1st March 2023

24 Dr Walsh explained that the Home Office figure includes third-country refusals as refusals even though an initial decision has not been made. He went on to explain that “a good number of those third-country refusals end up being admitted to the UK asylum system. The Home Office has not been able to remove them within a reasonable period, which is usually six months, so they are readmitted and then they will have a decision on their claim. It is when you exclude those third-country refusals which is reasonable to do, that the success rate…has been 87%.” Q12

25 Safe and legal routes to the UK for people seeking protection, CBP 9630, House of Commons Library, 25 January 2023

26 HC Deb, 13 December 2022, col 885 [Commons Chamber]

27 HC Deb, 7 March 2023, col 151 [Commons Chamber]

28 Home Office, How many people do we grant protection to? , 25 May 2023

29 Q23

30 Q3

31 Joint Committee on Human Rights, Legislative Scrutiny: Illegal Migration Bill - Call for Evidence

32 “Illegal Migration Bill highlights how expectations of legislative scrutiny have plummeted”, Institute for Government, 13 March 2023

33 Q20

34 Letter from the JCHR Chair to the Home Secretary relating to the Illegal Migration Bill, dated 13 April 2023

35 Letter from the Home Secretary to the JCHR relating to the Illegal Migration Bill, dated 4 April 2023

36 Letter from the Home Secretary to the Chair of the JCHR relating to the Illegal Migration Bill, 2 June 2023

37 The Children’s Commissioner for England (IMB0031)

38 “Government immigration announcement ‘welcome steps towards tacking back control’, says CPS”, The Centre for Policy Studies, 7th March 2023

39 Q14

40 Refugee Law Initiative, University of London (IMB0009)

41 Q1

42 Dr. Lucy Mayblin (Senior Lecturer, Sociology at University of Sheffield); Professor Ipek Demir (Professor of Diaspora Studies at University of Leeds) (IMB0032)

43 Q14

44 Letter from Home Secretary to Chair of the JCHR relating to the Illegal Migration Bill, dated 2 June 2023

45 Dr. Lucy Mayblin; Professor Ipek Demir (IMB0032)

46 Refugee and Migrants Forum of Essex and London (IMB0056)

47 Q1

48 Dr. Lucy Mayblin (Senior Lecturer, Sociology at University of Sheffield); Professor Ipek Demir (Professor of Diaspora Studies at University of Leeds) (IMB0032)

49 Q1

50 “UK asylum and policy”, UNHCR (accessed 5 May 2023)

51 Q18

52 Q18

53 Welsh Women’s Aid (IMB0017), Safety4Sisters, Humraaz, Saheli, Rochdale Women’s Welfare Association, Nestac, Olive Pathway, Ubuntu Women Shelter, Apna Haq (IMB0019), Hibiscus (IMB0051), Women’s Resource Centre (IMB0072).

54 Home Office, Equality Impact Assessment, published 14 May 2023

55 Q22

56 Q23

57 Dr Natalie Hodgson (Assistant Professor of Law at University of Nottingham) (IMB0033)

58 Q21

59 Q14

60 Home Affairs Committee, First Report of Session 2022–2023, Channel crossings, migration and asylum, HC 199

61 Q22

62 Article 14 UDHR

63 Horvath v. Secretary of State for the Home Department [2001] 1 AC 489, 497 (Lord Hope of Craighead)

64 The 1951 Refugee Convention, Article 1

65 The 1951 Refugee Convention, Article 34

66 In February 2005, the Government announced a five year strategy for asylum and immigration: Controlling our borders: Making migration work for Britain. Part of this strategy was, from 30 August 2005, replacing the granting of immediate indefinite leave to remain for refugees with an initial grant of five years’ limited leave which is subject to review.

67 R (ST) v Secretary of State for the Home Department [2012] 2 AC 135 (“ST”), para 61

68 Vienna Convention on the Law of Treaties, Article 26

69 The UNHCR has a supervisory and co-operative role – see Article 35

70 R v SSHD, ex parte Brind [1991] 1 AC 696

71 Which are made under section 3 of the Immigration Act 1971, have to be laid before Parliament and are subject to the negative resolution procedure. While they are not strictly speaking secondary legislation, they are treated as such for all practical purposes.

72 Text of Article 31

73 “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Article 33(2) provides that the principle of ‘non-refoulement’ does not apply to a refugee where there are reasonable grounds for regarding them to be a danger to the security of the country; or where, as a result of them committing a particularly serious crime, they constitute a danger to the community of that country. Note that No such exception applies to the obligation under the ECHR not to return an individual where there is a real risk that their Article 3 rights will be violated.

74 Text of Article 34

75 UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, 26 January 2007, para. 8, available at

76 The 1951 Refugee Convention, Article 35

77 Protocol No.4 to the Convention does contain a right of free movement and prohibitions on expulsion of nationals and collective expulsion of aliens, but this protocol has never been ratified by the UK – although similar provisions in the International Covenant on Civil and Political Rights (ICCPR) are binding of the UK, such as Articles 12 and 13 ICCPR.

78 Al Nashiri v Poland, Application No. 28761/11, 16 February 2015, § 576. Removal to face the death penalty also engages Article 1 of Protocol 13, the abolition of the death penalty.

79 Soering v UK Application No. 14038/88, 7 July 1989

80 See Harkins v. the United Kingdom (dec.) Application No. 71537/14 [GC], §§ 62–65

81 See M.S.S. v. Belgium and Greece [GC], §§ 265–322

82 For example, if the individual claiming asylum does not face persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, but instead faces a real risk of a breach of their Article 3 ECHR rights arising from indiscriminate violence.

83 Hode and Abdi v. the United Kingdom, [Application no. 22341/09] 2012, § 47

84 Hode and Abdi v. the United Kingdom, [Application no. 22341/09] 2012, § 47

85 United Nations, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Committee Against Torture -General Comment No. 4, 4 September 2018, para 9

86 CAT General Comment No. 4, §12; CAT General Comment No. 1, §2; CCPR General Comment No. 31, §12, Husain Ibrahimi and Mohamed Abasi v. The Secretary of State for the Home Department [2016] EWHC 2049, §16

87 United Nations Convention on the Rights of the Child, Articles 1 and 2

88 Joint Committee on Human Rights, Sixth Report of Session 2021–22, Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill (Parts 7 and 8), HC 451 and HL Paper 73, para 88

89 ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at [24]

90 Rantsev v Cyprus and Russia (2010) 51 EHRR 1, para 282

91 Illegal Migration Bill, cover page [Bill 262 (2022–23)]

92 Illegal Migration Bill, cover page [Bill 133 (2022–23)]

93 ‘Convention rights’ are defined in s.1 of the Human Rights Act 1998 as the Articles set out in Schedule 1 to that Act.

94 Human Rights Act 1998, section 19(1)(a)

95 Human Rights Act 1998, section 19(1)(b). Statements made under s19(1) may be changed as a Bill makes its way through Parliament.

96 Oral evidence taken before the Joint Committee on Human Rights on 14 December 2022, HC (2022–23) 611, Q34

97 See, for example, R (ex parte Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15

98 The Bill was introduced with a s.19(1)(a) statement. However, in light of a House of Lords amendment about retaining the prohibition on promoting homosexuality in schools, the statement was changed to a s.19(1)(b) statement upon entry to the Commons. See HC Deb, 11 April 2000, cols 197–198 and 214 [Commons Chamber]

99 An amendment in the House of Lords would have allowed close relatives (who were therefore unable to marry) to form civil partnerships. See HL Deb, 24 June 2004, cols 1361–1366 [Lords Chamber]. Due to this amendment, a statement under s.19(1)(b) was made when the Bill moved from the Lords to the Commons. See Joint Committee on Human Rights, Twentieth Report of Session 2003–2004, Scrutiny of Bills: Eighth Progress Report, HC 1187 / HL 182, para 2.1. The amendment was removed before the Bill received Royal Assent.

100 In the Commons, a new clause was added to the Bill by amendment. Clause 8 required the Secretary of State to make regulations to provide for marriage between same-sex couples being lawful in Northern Ireland. However, the clause made no equivalent provision in respect of legalising civil partnerships between heterosexual couples. In R (ex parte Steinfeld) v Secretary of State for International Development [2018] UKSC 32 the Supreme Court had determined that the preclusion of heterosexual couples from entering into civil partnerships was incompatible with Article 14 ECHR read with Article 8 ECHR. Therefore, when the Bill moved from Commons to the Lords, the Lords Minister made a s.19(1)(b) statement in relation to this clause. See Northern Ireland (Executive Formation) Bill, [HL Bill 190 (2017–2019)]

101 The then Secretary of State for Culture, Media and Sport, the Rt Hon Tessa Jowell MP, made a statement that she was unable to make a statement that the provisions of the Communications Bill were incompatible with the Convention rights, but only because of one particular clause. This clause maintained a ban on political advertising despite recent caselaw from the European Court of Human Rights (ECtHR) finding a similar provisions in Switzerland incompatible with the ECHR. The Government indicated it wished to proceed with the provision and, after the Bill received Royal Assent, the Government successfully defended the compatibility of this provision with the ECHR in R (ex parte Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15. See Joint Committee on Human Rights, First Report of Session 2002–2003, Scrutiny of Bills: Progress Report, HC191 / HL24, para 11. A s.19(1)(b) statement was also made in the House of Lords: Communications Bill, [HL Bill 41 (2002–03)]

102 This Bill proposed that the House of Lords should be transformed into a mainly elected upper chamber. However, despite the ECtHR decision in Hirst v UK (No.2) (2006) 42 EHRR 41 that the UK’s blanket ban on prisoner voting was in breach of Article 3 of Protocol 1 to the ECHR, the Bill proposed to maintain that ban in respect of the elections of this upper chamber. See House of Lords Reform Bill, Clause 6, [HC Bill 52 (2012–2013)]. A s.19(1)(b) statement was therefore made in the Commons. The Bill was subsequently withdrawn. See House of Lords Reform Bill 2012–13: decision not to proceed, Standard Note SN/PC/06405, House of Commons Library, September 2012

103 Home Office, Illegal Migration Bill: European Convention on Human Rights Memorandum (7 March 2023), para 47

104 Home Office, Illegal Migration Bill: Supplementary European Convention on Human Rights Memorandum (25 April 2023) para 24

105 Ibid, paras 40 and 44

106 HC Deb, 7 March 2023, col 152 [Commons Chamber]

107 Ghaidan v Godin-Mendoza [2004] UKHL 30

108 Joint Committee on Human Rights, Ninth Report of Session 2022–23, Legislative Scrutiny: Bill of Rights Bill, HC 611/HL Paper 132

109 Immigration Law Practitioners’ Association (ILPA) (IMB0061)

110 Courts below the High Court would not even be able to do this, as declarations of incompatibility are not available to them under section 4 HRA.

111 Letter from the Home Secretary to Chair of the JCHR, dated 2 June 2023

112 Joint Committee on Human Rights, Ninth Report of Session 2022–23, Legislative Scrutiny: Bill of Rights Bill, HC 611/HL Paper 132

113 Immigration Law Practitioners’ Association (ILPA) (IMB0061)

114 British Institute of Human Rights (IMB0013)

115 Liberty (IMB0075)

116 Hode and Abdi v. the United Kingdom, 2012, § 47

117 Note that there is a legal distinction between entering and arriving. Section 11 of the Immigration Act 1971 provides: A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained under the powers conferred by Schedule 2 to this Act or section 62 of the Nationality, Immigration and Asylum Act 2002 or on immigration bail within the meaning of Schedule 10 to the Immigration Act 2016. Note that condition 1 was expanded by way of Government amendment at Report stage in the Commons to include persons who are subject to a travel ban imposed by the UN or UK and to whom section 8B of the Immigration Act 1971 applies.

118 UNHCR, UNHCR Legal Observations on the Illegal Migration Bill (Updated) (2 May 2023), para 29

119 Helen Bamber Foundation, and Asylum Aid (IMB0003), para 6

120 Clause 2(2)(a)(ii)

121 Freedom from Torture (IMB0065)

122 The Refugee Convention, 1951: The Travaux Preparatoires Analysed with a Commentary by Dr Paul Weis

123 Letter from Minister Jenrick about amendments to the Illegal Migration Bill, to Stephen Kinnock MP, 24 April 2023.

124 Law Society (IMB0026) para 10

125 Letter from Home Secretary to Chair of the Joint Committee on Human Rights relating to the Illegal Migration Bill, dated 2 June 2023

126 Dr Peter Walsh, Q15

127 UNHCR Legal Observations on the Illegal Migration Bill, 22 March 2023, para 30

128 UNHCR Legal Observations on the Illegal Migration Bill, 22 March 2023, para 6

129 UNHCR Legal Observations on the Illegal Migration Bill, 22 March 2023, para 33

130 Clause 21(3)

131 Refugee Council, The Truth About Channel Crossings, March 2023

132 UNHCR Legal Observations on the Illegal Migration Bill, 02 May 2023, para 10

133 Professor Costello, Q15

134 B010 v Minister of Citizenship and Immigration (2015) SCC 58

135 Clause 2(5)

136 Joint Committee on Human Rights, Twelfth Report of Session 2021–22, Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) - Asylum, Home Office Decision-Making, Age Assessments, and Deprivation of Citizenship Orders, HC 1007 / HL Paper 1432,

137 Letter from Home Secretary to Chair of the Joint Committee on Human Rights relating to the Illegal Migration Bill, dated 2 June 2023

138 Summary Conclusions: Article 31 of the 1951 Convention (adopted at the expert roundtable organised by the UNHCR and the Graduate Institute of International Studies, 8–9 Nov 2001), para 10(c)

139 J.C. Hathaway, The Rights of Refugees under International Law (2nd edition CUP, 2021) 498–500

140 Natalie Hodgson (IMB0033), para 13, Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, ‘Summary Record of the Thirteenth Meeting’ (10 July 1951) UN doc A/CONF.2/SR.13, 14–15 (Mr Colemar, France).

141 Professor Costello, Q15

142 R (Adimi and others) v CPS and Secretary of State for the Home Department [2001] QB 667

143 According to Lord Bingham: “It seems to me that Adimi is fully supported by such authority as there is, both before and since, and was rightly decided.”

144 R v Asfaw [2008] UKHL 31, which considered the test currently applicable in domestic criminal law under the Immigration and Asylum Act 1999 s.31

145 R v Mateta [2014] 1 WLR 1516

146 Q15

147 Refugee Law Initiative, University of London (IMB0009)

148 Letter from the JCHR Chair to the Home Secretary relating to the Illegal Migration Bill, dated 13 April 2023

149 Letter from Home Secretary to Chair of the Joint Committee on Human Rights relating to the Illegal Migration Bill, 2 June 2023

150 Letter from Home Secretary to Chair of the Joint Committee on Human Rights relating to the Illegal Migration Bill, 2 June 2023

151 Institute for Research into Superdiversity, University of Birmingham (IMB0008), para 2

152 Sub-section 2

153 Sub-section 5

154 Clause 53(7)

155 For example, in 2021 the ECtHR received 1,020 requests for interim measures and granted 625. In respect of the UK, between 2019 and 2021 Rule 39 interim measures were applied for in 180 cases against the UK and granted in just 7 of those cases.

156 “The European Court grants urgent interim measure in case concerning asylum seeker’s imminent removal from the UK to Rwanda”, European Court of Human Rights, 14 June 2022

157 European Court of Human Rights, “Further requests for interim measures in cases concerning asylum-seekers’ imminent removal from the UK to Rwanda”, 15 June 2022

158 The Judicial Power Project were reported as saying: “It is intolerable that the UK’s freedom to deport unlawful asylum-seekers is to be suspended, possibly for years, on the say-so of one (anonymous?) judge before whom the UK did not even have a right of audience.” ”Strasbourg’s Rwanda ruling divides public law specialists”, Law Gazette, 15 June 2022

159 Paladi v. Moldova, Application No. 39806/05; (2008) 47 EHRR 15: “The Court reiterates that the obligation laid down in Article 34 in fine requires the Contracting States to refrain…from any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure…”, para 87

160 Home Office, Supplementary European Convention on Human Rights Memorandum (April 2023), para 51

161 ECtHR Press Release issued by the Registrar of the Court, ECHR 149 (2023) 17 May 2023, ‘European Court President attends Reykjavik Summit’

162 For the purposes of the Bill, an unaccompanied child is defined by clause 3(3) as a person who meets the four clause 2 conditions, is under the age of 18 and, at the time of their arrival in the UK, there is no individual aged 18 or over who has care of them. For the purposes of this definition, the child will be considered to be accompanied whether or not the adult who has care of the child is their parent. What constitutes ‘having care’ of a child is not defined in the Bill.

163 Provisions impacting the support and accommodation of unaccompanied children, and age assessments, are dealt with in Chapter 7.

164 Letter from Home Secretary to Chair of the Joint Committee on Human Rights, 2 June 2023

165 Clause 3(3)(a)

166 Clause 3(3)(b). Meaning a country listed in section 80AA(1) of the Nationality, Immigration and Asylum Act 2002 (safe States for the purposes of section 80A of that Act) and it is a country of which the person is a national, or a country in which the person has obtained a passport or other document of identity

167 A protection claim is a claim that removal of a person would breach the UK’s obligations under the Refugee Convention or in respect of a person eligible for a grant of humanitarian protection

168 Meaning a country of which the person is a national or citizen, a country or territory in which the person has obtained a passport or other document of identity, or a country or territory in which the person embarked for the United Kingdom.

169 Home Office, Supplementary European Convention on Human Rights Memorandum (April 2023), para 24

170 The United Nations Convention on the Rights of the Child, Article 3

171 UK Committee for UNICEF, (IMB0034) p2

172 United Nations Network on Migration, Position paper - Ensuring Safe and Dignified Return and Sustainable Reintegration, March 2021

173 Illegal Migration Bill, clause 3(7) and (8)

174 Explanatory Notes to the Illegal Migration Bill [Bill 262 (2022–23) —EN] at paragraph 47

175 Clause 4(1)

176 Clause 4(2)

177 Clause 4(4)

178 Clause 4(1)(d)

179 Under section 94 Nationality and Immigration Act 2002, asylum claims still have to be properly considered. However, there is also a power in primary legislation to declare claims as inadmissible. Section 33 and Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (AITCA 2004) introduced an exception to the rule that is unlawful to remove a person from the UK who has claimed asylum and not had that claim resolved. Asylum claims can be certified by the Secretary of State for removal to a State that is deemed to be safe. A safe third country can be listed either on the list of safe states set out within Schedule 3, or they can be identified by Order, or they can be designated on a case-by case basis as safe for an individual. Such applicants who cases are declared inadmissible are denied in-country asylum appeal rights.

180 NIAA 2002, section 80B and 80B(7)

181 Home Office, National statistics, ‘How many people do we grant protection to?’ 23 February 2023

182 UNHCR, UNHCR Observations on the New Plan for Immigration policy statement of the Government of the United Kingdom, May 2021.

183 MSS v Belgium and Greece, GC, Application no. 30696/09, ECHR 21 January 2011

184 Under section 94 of the Nationality, Immigration and Asylum Act 2002, the Secretary of State may certify protection claims (i.e. asylum claims or claims based on humanitarian grounds) or human rights claims, once they have been considered, as “clearly unfounded”. A case is clearly unfounded if it cannot, on any legitimate view, succeed.

185 Defined in clause 4(5) - i.e. any claim that a person’s removal to their country of origin or where they have a passport would be unlawful under section 6 HRA

186 I.e. their country of nationality, citizenship, or from which they have a passport/ID

187 Clauses 37–47

188 Shamayev and Others v. Georgia and Russia, Application No. 36378/02, para 448, ECHR 2005-III

189 Jabari v. Turkey, Application no. 40035/98, 11 July 2000, para 50

190 Čonka v. Belgium, Application no. 51564/99, paras 81–83, ECHR 2002-I, and Gebremedhin [Gaberamadhien], para 66

191 Clause 7(2)

192 List of safe countries is set out in clause 57(3) which will amend section 80AA(1) NIAA 2002 and includes the 27 EU MSs plus Albania, Iceland, Liechtenstein, Norway and Switzerland.

193 We note that there is a treaty in place between the UK and Albania for the ‘readmission of persons’. This Treaty will allow for the return of both Albanian citizens, persons with right of abode in Albania as well as third-party nationals, who have a verified connection to Albania, where they are found to be in violation of the immigration laws, policies and procedures in the UK. The Treaty is reciprocal and will also allow for the return of British Citizens, persons with right of abode in the UK and third-party nationals, who have a verified connection to the UK, where they are found to be in violation of the immigration laws, policies and procedures in Albania.

194 Home Office, National Statistics, How many people do we grant protection to? Published February 2023. ‘Outcomes of asylum applications’, Section 3.1 ‘At Initial Decision’.

195 UNHCR legal observations on the Illegal Migration Bill, 02 May 2023, para 17

196 Rainbow Migration (IMB0014) para 2

197 Joint Committee for the Welfare of Immigrants (IMB0041) p2, Country Guidance case of TD and AD (Trafficked women) CG[2016]UKUT 00092

198 Letter from the JCHR Chair to the Home Secretary relating to the Illegal Migration Bill, dated 13 April 2023

199 Letter from the Home Secretary to the Chair of the JCHR relating to the Illegal Migration Bill, dated 2 June 2023

200 These 25 countries largely replicate an existing list of safe countries, with the addition of Rwanda and exclusion of Ukraine set out in the Nationality, Immigration and Asylum Act 2002, s94(4). This list is used to identify safe countries of origin. Asylum and human right claims by citizens of those countries are presumed “clearly unfounded”. It continues in force and is not directly affected by the new list. The cases of Thangarasa and Yogathas [2002] UKHL 36 and ZL and VL v SSHD [2003] EWCA Civ 25 provide that this means a claim which is so clearly without substance that it is bound to fail

201 Memorandum of Understanding between The Government of the United Kingdom of Great Britain and Northern Ireland and The Government of the Republic of Rwanda For the Provision of an Asylum Partnership Arrangement, 6 April 2023

202 Clause 5(3)(c) and (d)

203 Clause 5(7) and (9)

204 Helen Bamber Foundation, Asylum Aid (IMB0003), para 12, citing R (Jamar Brown (Jamaica)) v SSHD [2015] UKSC 8

205 Rainbow Migration (IMB0014) para 2

206 Evangelical Alliance (IMB0035) para 19

207 Redress (IMB0018) para 9

208 Section 94(5) NIAA 2002

209 R (on the application of Jamar Brown (Jamaica)) (Respondent) v Secretary of State for the Home Department (Appellant) [2015] UKSC 8

210 UNHCR Legal Observations on the Illegal Migration Bill (2 May 2023) para 57, and Home Office How Many People Do We Grant Protection To? (23 February 2023)

211 UNHCR, Legal Considerations Regarding Access to Protection and a Connection between the Refugee and the Third Country in the Context of Return or Transfer to Safe Third Countries (April 2018): “Refugees may be returned or transferred to a state where they had found, could have found or, pursuant to a formal agreement, can find international protection. The 1951 Convention relating to the Status of Refugees and its 1967 Protocol do not prohibit such return or transfer.”

212 UNHCR, Legal Considerations Regarding Access to Protection and a Connection between the Refugee and the Third Country in the Context of Return or Transfer to Safe Third Countries (April 2018): “transfers to third countries should be aimed at enhancing burden- and responsibility-sharing and international/regional cooperation, and not be burden shifting.”

213 “UN Refugee Agency Opposes UK Plan to Export Asylum”, UNHCR, 14 April 2022

214 “UN Refugee Agency Opposes UK Plan to Export Asylum”, UNHCR, 14 April 2022: UNHCR among other commentators, has consistently expressed concerns about the legality and appropriateness of sending asylum seekers to Rwanda.

215 A four-day hearing took place from 24–28 April in the Court of Appeal.

216 AAA and others v SSHD [2022] EWHC 3230 (Admin)

217 UNHCR Legal Observations on the Illegal Migration Bill (2 May 2023), para 53

218 Clause 6(1)

219 Clause 6(4)

220 Trade Union Congress (IMB0029), page 2

221 R v Secretary of State for the Home Department ex parte Limbuela [2005] UKHL 66

222 NACCOMM (No Accommodation Network), (IMB0064) p1

223 NACCOMM (No Accommodation Network), (IMB0064) p1

224 NACCOMM (No Accommodation Network), (IMB0064), p2

225 In re Wasfi Suleman Mahmod [1995] Imm AR 311, 314 Laws J, observed: “While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the court according to high standards.”

226 Lord Bingham, the former Lord Chief Justice and Senior law Lord, described freedom from executive detention as “arguably the most fundamental and probably the oldest, the most hardly won and the most universally recognised of human rights.” Tom Bingham, “Personal Freedom and the Dilemma of Democracies”, I.C.L.Q. (2003), 52(4), pp 841–858

227 These powers include: the power to detain an illegal entrant or person liable to removal under the Immigration Act 1971 (as amended), Schedule 2, paragraph 16(2); powers to detain under the authority of the Secretary of State, under the Nationality, Immigration and Asylum Act 2002, section 62; and powers to detain people liable to deportation under the Immigration Act 1971, Schedule 3, paragraph 2, and the UK Borders Act 2007, section 36.

228 A. and Others v. the United Kingdom, App no. 3455/05 [GC], para 164

229 Home Office, Illegal Migration Bill: overarching factsheet (Updated 28 April 2023) see also HC Deb 13 December 2022 cc885–913

230 Helen Bamber Foundation and Asylum Aid (IMB0003)

231 Q18. Official figures show that there were 2,192 bed spaces available across the eight operating Immigration Removal Centres, in December 2022 - PQ UIN101782, answered on 7 December 2022

232 See Chapter 2

233 “This includes developing a new immigration removal centre in Oxfordshire on the former site of Campsfield House, and a new immigration removal centre at Gosport, Hampshire, on the former site of Haslar.” Letter from the Home Secretary to Chair of the JCHR, dated 2 June 2023. See also “Second immigration removal centre could reopen next year”, BBC News, 28 September 2022

234 Home Secretary Suella Braverman on the Today Programme, BBC Radio 4, 26 April 2023

235 Home Office figures from December 2022 record that 166,261 individuals were in the UK awaiting a decision on their asylum claim.

236 Taskforce on Victims of Trafficking in Immigration Detention (IMB0040)

237 Short-term holding facilities – these are secure places to hold people (typically upon arrival to the UK) pending examination or a decision to grant, cancel or refuse permission to enter, or pending their removal. Different time limits apply depending on the categorisation of the facility, up to a maximum of seven days.
Immigration Removal Centres – these are places to detain people while their immigration cases are processed or pending removal from the UK. There is no statutory time limit on the length of detention.
Pre-departure accommodation – this type of secure accommodation is used to detain families with children under 18 as a last resort to enforce their removal from the UK. There is a statutory requirement to consult the Independent Family Returns Panel on each decision to detain a family in these facilities. There are statutory time limits on how long families can stay in pre-departure accommodation (72 hours or up to seven days in cases personally authorised by a government minister).

238 Letter from the Home Secretary to Chair of the JCHR relating to the Illegal Migration Bill, dated 2 June 2023

239 Home Office press announcements, 29 March 2023 and 5 April 2023

240 Doctors of the World UK (IMB0021); Bail for Immigration Detainees (IMB0049); Taskforce on Victims of Trafficking in Immigration Detention (IMB0040).
Dr Jo Wilding, Lecturer in Law at the University of Sussex, and Dr Shahrzad Fouladvand, Senior Lecturer in International Criminal Law at the University of Sussex, commented on the unsuitability of these facilities for detaining asylum seekers: “Many of these are remote from any kind of support services. As with the processing centre at Manston, many of these places are wholly unsuitable for detaining people for any more than a few hours. In particular, they typically give rise to serious public health concerns but may also give rise to breaches of Article 3 ECHR [the prohibition on inhuman and degrading treatment].” (IMB0023)

241 Together with the Chairs of three other Select Committees, our Chair wrote to the Home Secretary in November 2022 setting out our “deep concerns about the dire conditions in which people are currently being held at Manston asylum processing centre”: Letter From the Chairs of the Committees on Home Affairs, Women and Equalities, Justice and the Joint Committee on Human Rights to the Home Secretary related to small-boat Channel crossings and conditions at Manston asylum processing centre, dated 2 November 2022; Letter dated 2 November 2022

242 Illegal Migration Bill: children factsheet, Home Office, 11 May 2023

243 Borders, Citizenship and Immigration Act 2009, Section 54A

244 Independent Family Returns Panel, “About Us,” (accessed 5 May 2023)

245 UK Committee for UNICEF (IMB0034)

246 Refugee and Migrant Children’s Consortium (RMCC), and Coram Children’s Legal Centre (IMB0053)

247 Illegal Migration Bill: children factsheet, Home Office, 11 May 2023

248 Delegated Powers and Regulatory Reform Committee, 34th Report of Session 2022–23, HL Paper 198

249 UK Committee for UNICEF (IMB0034)

250 UNICEF (IMB0034). The evidence also emphasises “the harm inherent in any deprivation of liberty and the negative impact that immigration detention can have on children’s physical and mental health and on their development, even when they are detained for a short period of time or with their families.” Similar concerns about the powers to detain children under the Bill and their compatibility with Article 37 UNCRC were raised by the Children’s Commissioner (IMB0031)

251 R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 W.L.R. 704

252 Immigration Law Practitioners’ Association (ILPA) (IMB0061)

253 R(A) v SSHD [2007] EWCA Civ 804, per Toulson LJ at §62

254 SSHD v Fardous [2015] EWCA Civ 931

255 Including JUSTICE (IMB0068); Northern NRPF Network (IMB0019); Taskforce on Victims of Trafficking in Immigration Detention (IMB0040); Immigration Law Practitioners’ Association Response (IMB0061)

256 IMB0049 and IMB0040 IMB0049 and IMB0040

257 Jesuit Refugee Service UK (IMB0006)

258 R (AC (Algeria)) v SSHD [2020] EWCA Civ 36

259 JN v UK, app.no. 37289/12, at paras 97–99

260 Taskforce on Victims of Trafficking in Immigration Detention (IMB0040)

261 Article 5(4) of the European Convention on Human Rights

262 New paragraph 3A(4) to Schedule 10 to the Immigration Act 2016

263 Letter from the Home Secretary to Chair of the JCHR relating to the Illegal Migration Bill, dated 2 June 2023

264 Courts and Tribunals Judiciary, Bail guidance for judges presiding over immigration and asylum hearings, 11 June 2012

265 JUSTICE (IMB0068)

266 Clause 13(4), inserting new paragraph 3A(3)(b) into Schedule 10 of the Immigration Act 2016

267 JUSTICE noted that “this significantly alters the position set out by the Supreme Court in Lumba v SSHD which found that it was for the SSHD to prove detention was lawful ... Clause [12] gives the SSHD carte blanche to make error-strewn detention decisions without accountability.” (IMB0068)

268 Bail for Immigration Detainees (IMB0049)

269 Illegal Migration Bill Explanatory Notes, para 34

270 As Baroness Hale explained in R. (on the application of Jalloh) v Secretary of State for the Home Departent [2020] UKSC 4: “The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights (“ECHR”). A person who was unlawfully imprisoned could, and can, secure his release through the writ of habeas corpus.”

271 Including the British Institute of Human Rights (IMB0013); the Public Law Project (IMB0020), Amnesty International UK (IMB0055); the Taskforce on Victims of Trafficking in Immigration Detention (IMB0040); the Immigration Law Practitioners’ Association (IMB0061) and the Law Society, who told us that:”Habeas corpus has historically not been used to challenge unlawful use of a detention power that exists in law. As this Bill creates a detention power, it is unclear that habeas corpus would offer a remedy in all cases where the detention power has been used unlawfully. Judicial review remains the most appropriate means of challenging unlawful detention” (IMB0026)

272 R. v Secretary of State for the Home Department Ex p. Cheblak [1991] 1 W.L.R. 890, [1991] 2 WLUK 54

273 R. v Secretary of State for the Home Department Ex p. Muboyayi [1992] Q.B. 244, [1991] 6 WLUK 261

274 [2019] EWHC 394 (Admin)

275 Home Office, Biological evaluation methods to assist in assessing the age of unaccompanied asylum-seeking children (October 2022), para 3.2

276 See: Home Office, The operation of the National Age Assessment Board and sections 50 and 51 of the Nationality and Borders Act 2022 (March 2023), p 7–8

277 Home Office, Biological evaluation methods to assist in assessing the age of unaccompanied asylum-seeking children (October 2022), para 3.17

278 Home Office, ‘Illegal Migration Bill: children factsheet’, accessed 22 May 2023

279 B v London Borough of Merton [2003] EWHC 1689 (Admin)

280 AS v London Borough of Croydon [2011] EWHC 2091 at paragraph [19]; R (FZ) v London Borough of Croydon [2011] EWCA Civ 59 at [2]; J v Secretary of State for the Home Department [2011] EHWC 3073 (Admin) at [13]

281 R (FZ) v London Borough of Croydon [2011] EWCA Civ 59

282 A v London Borough of Croydon [2009] EWHC 939 (Admin); R (NA) v London Borough of Croydon [2009] EWHC 2357 (Admin) at [50]; R (FZ) v London Borough of Croydon [2011] EWCA Civ 59 at [25]

283 B v London Borough of Merton [2003] EWHC 1689 (Admin) at [27], [37] and [38]; R (FZ) v London Borough of Croydon [2011] EWCA Civ 59 at [3]

284 B v London Borough of Merton [2003] EWHC 1689 (Admin) at [55]

285 B v London Borough of Merton [2003] EWHC 1689 (Admin) at [37]

286 Home Office, The operation of the National Age Assessment Board and sections 50 and 51 of the Nationality and Borders Act 2022 (March 2023), p 8

287 Nationality and Borders Act 2022, section 50(6)

288 Home Office, The operation of the National Age Assessment Board and sections 50 and 51 of the Nationality and Borders Act 2022 (March 2023), p 8

289 Nationality and Borders Act 2022, section 51(4)

290 Home Office, Supplementary European Convention on Human Rights Memorandum (April 2023), para 24

291 Clause 55(1)

292 Clause 55(4)

293 Clause 55(5)(a)

294 Clause 55(5)(c)

295 Helen Bamber Foundation, Disbelieved and denied: Children seeking asylum wrongly treated as adults by the Home Office (April 2023), p 4)

296 Oral evidence taken before the Joint Committee on Human Rights on 23 November 2022, HC 821, Q26

297 Home Office, Supplementary European Convention on Human Rights Memorandum (April 2023), para 24

298 Darboe and Camara v Italy (Application no. 5797/17) at [177]–[183]

299 Positive obligations under the ECHR require the state to take necessary steps in order to safeguard a right or to adopt reasonable and suitable measures to protect an individual’s rights.

300 Darboe and Camara v Italy (Application no. 5797/17)

301 Ibid, at [148], [156] and [157]

302 Ibid, at [198]-[199]

303 Home Office, Supplementary European Convention on Human Rights Memorandum (25 April 2023), para 25

304 R (on the application of Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42

305 Although immigration decisions usually fall outside of the ambit of Article 6, age assessments within the ambit of clause 55 will not necessarily be immigration decisions; they could, for example, be decisions by a local authority about whether their obligations to a child in need under the relevant provisions of the Children Act 1989 are engaged. See Maaouia v France [GC] (application no. 39652/98) at [38]; Mamatkulov and Askarov v Turkey [GC] (application nos. 46827/99 and 46951/99) at [82]–[83]

306 Home Office, Supplementary European Convention on Human Rights Memorandum (25 April 2023), para 24

307 Clause 55(7) read with Nationality and Borders Act 2022, section 49.

308 Home Office, ‘Policy paper: Illegal Migration Bill: children factsheet’, accessed 22 May 2023. The Home Office has not stated how many of these findings were successfully appealed

309 See, e.g., R (on the application of BAA) v Liverpool City Council [2023] EWHC 252 (Admin); R (on the application of AH) v Kent County Council [2021] EWHC 878; R (on the application of AS) v Liverpool City Council [2020] EWHC 3531 (Admin)

310 Explanatory Notes to the Nationality and Borders Act 2022, paras 532 - 533

311 Clause 56(2)(b)

312 Royal College of Paediatrics and Child Health, Refugee and asylum seeking children and young people - guidance for paediatricians (last updated September 2022), accessed on 27 April 2023

313 Council of Ministers, Recommendation CM/Rec(2022)22 of the Committee of Ministers to member States on human rights principles and guidelines on age assessment in the context of migration (14 December 2022)

314 Joint Committee on Human Rights, Twelfth Report of Session 2021–22, Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) - Asylum, Home Office Decision-Making, Age Assessments, and Deprivation of Citizenship Orders, HC 1007 / HL Paper 143

315 Joint Committee on Human Rights, Twelfth Report of Session 2021–22, Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) - Asylum, Home Office Decision-Making, Age Assessments, and Deprivation of Citizenship Orders, HC 1007 / HL Paper 1432, para 218

316 Joint Committee on Human Rights, Tenth Special Report of Session 2021–22, Legislative Scrutiny: Nationality and Borders Bill: Government Responses to the Committee’s Seventh, Ninth, Eleventh and Twelfth Reports, HC 1208, p 40

317 Illegal Migration Bill, As Amended (Amendment Paper: Report Stage), Member’s explanatory statement to Gov NC25, p 7

318 Joint Committee on Human Rights, Twelfth Report of Session 2021–22, Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) - Asylum, Home Office Decision-Making, Age Assessments, and Deprivation of Citizenship Orders, HC 1007 / HL Paper 143, para 212–221

319 Darboe and Camara v Italy (Application no. 5797/17) at [152] - [154]. See also UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, Joint general comment No.3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No.22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration (16 November 2017), paragraph 32

320 Department for Education, ‘Children looked after in England including adoptions’, accessed 20 April 2023

321 Department for Education and Home Office, Safeguarding Strategy: Unaccompanied asylum seeking and refugee children (November 2017), p 4

322 Illegal Migration Bill, clause 3(3)(c)

323 Illegal Migration Bill, clause 3(4) read with clause 3(3)(c)

324 Home Office, Immigration Rules part 11: asylum (accessed 18 April 2023), para 352ZD

325 Illegal Migration Bill, clause 4(2). Although clauses 2(11)(a) and 3(1) exempt unaccompanied children meeting the clause 2 conditions from the duty to remove set out in clause 2(1), an unaccompanied child by definition meets the clause 2 conditions (clause 3(3)(a)) and therefore falls within the ambit of the inadmissibility criteria of clause 4(2).

326 See clause 2(7) which states that limited leave ton enter or remain given under the immigration rules to an unaccompanied child is to be disregarded when determining whether a person meets the four condition under clause 2. See also the Explanatory Notes to the Illegal Migration Bill [Bill 262 (2022–23)] —EN, paragraphs 46–48.

327 The duties and requirements of clauses 15–18 apply to England. Clause 19 gives the Secretary of State the power to make regulations enabling those clauses to apply to Wales, Scotland and/or Northern Ireland. This power is a broad Henry VIII power, allowing the Secretary of State to amend, repeal or revoke any enactment, including any enactment in the Illegal migration Bill itself, with the exception of conferring functions on Welsh Ministers, Sottish Ministers, Northern Ireland Ministers or departments.

328 Clause 3(5) defines what an ‘unaccompanied child’ is for the purposes of the Bill. One of the requirements is that the child meets the four conditions in clause 2.

329 ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at [24]

330 See, for example, Children Act 1989, section 23C

331 Independent Chief Inspector of Borders and Immigration, An inspection of the use of hotels for housing unaccompanied asylum-seeking children (UASC): March–May 2022 (October 2022), p 5

332 Illegal Migration Bill, clause 15(2)

333 Explanatory Notes to the Illegal Migration Bill [Bill 262 (2022–23)] —EN, paragraph 100

334 PQ 142660 [Asylum: Children], 24 February 2023

335 Letter from fifty-one organisations to Member of the Committee, dated 3 March 2023

336 PQ HL504 [Asylum: Children], 20 February 2023

337 Children’s Commissioner (IMB0031) para 9

338 See, e.g., Letter from fifty-one organisations to Member of the Committee, dated 3 March 2023

339 An overview of child protection legislation in England, Standard Note SN06787, House of Commons Library, February 2020, page 4

340 Children’s Commissioner (IMB0031) para 13

341 Children Act 1989, section 17

342 Children Act 1989, section 22G(2)(b)

343 Children Act 1989, section 22(3A)

344 Children Act 1989, section 26

345 Explanatory Notes to the Illegal Migration Bill [Bill 262 (2022–23) —EN, paragraph 101

346 Explanatory Notes to the Illegal Migration Bill [Bill 262 (2022–23) —EN, paragraph 101

347 Children’s Commissioner (IMB0031) para 7

348 Letter from the Home Secretary to the Chair of the Joint Committee on Human Rights, 2 June 2023, page 10

349 Ibid

350 See, e.g., M.S.S. v Belgium and Greece (30696/09); Khan v France (12267/16); Darboe and Camara v Italy (5797/17)

351 Darboe and Camara v Italy (5797/17) at [167] - [183]

352 Independent Chief Inspector of Borders and Immigration, An inspection of the use of hotels for housing unaccompanied asylum-seeking children (UASC): March–May 2022 (October 2022)

353 Ibid, paragraph 4.7

354 Ibid, paragraph 4.8

355 Ibid, paragraph 4.7

356 Ibid, paragraph 4.23

357 HC Deb, 7 March 2023, cols 151–152 [Commons Chamber]; HC Deb, 22 May 2023, col 14 [Commons Chamber]

358 Letter from the Home Secretary to the Chair of the Joint Committee on Human Rights, 2 June 2023, page 11

359 Home Office, ‘Vessel to accommodate migrants: The Home Office has announced that a barge in Portland Port, Dorset, will accommodate migrants’, accessed 24 May 2023

360 Home Office, ‘Accommodation sites factsheet - April 2023’, accessed 24 May 2023

361 Together with the Chairs of three other Select Committees, our Chair wrote to the Home Secretary in November 2022 setting out our “deep concerns about the dire conditions in which people are currently being held at Manston asylum processing centre”: Letter from the Chairs of the Committees on Home Affairs, Women and Equalities, Justice and the Joint Committee on Human Rights to the Home Secretary concerning small-boat Channel crossings and conditions at Manston asylum processing centre, dated 2 November 2022

362 R (ex parte Medway Council) v Secretary of State for the Home Department and Secretary of State for Education [2023] EWHC 377 (Admin) at [39]

363 United Nations Convention on the Rights of the Child, Articles 1 and 2

364 Letter from the Home Secretary to the Chair of the Joint Committee on Human Rights, 2 June 2023, page 11

365 Clause 2(7) makes clear than any limited leave to enter or remain under the immigration rules to an unaccompanied child is to be disregarded in considering whether that person fulfils the clause 2 conditions, namely that the person requires leave to enter or remain in the UK but does not have it.

366 Children’s Commissioner (IMB0031) para 24. This argument is supported by the UK Committee for UNICEF (IMB0034) para 26: “Giving unaccompanied children just a temporary exclusion from removal would prevent them from having their durable solution identified and realised and leave them in a situation of permanent limbo.”

367 The Association of Directors of Children’s Services (IMB0005) para 6

368 See, for example, The Association of Directors of Children’s Services (IMB0005) para 5; Children’s Commissioner (IMB0031) para 25.

369 Clause 4

370 Clause 11

371 Clause 21(3)(b) and clause 22(1)(c)

372 Clause 21(3)(b)

373 Clause 22(1)(c)

374 Commons Hansard, Illegal Migration Bill Second Reading, 13 March 2023, Suella Braverman: “[L]ast year there were 17,000 referrals, which took on average 543 days to consider. The most referred nationality in 2022 were citizens of Albania, a safe European country, a NATO ally and a signatory of the European convention against trafficking. In 2021, 73% of people detained for removal put forward a modern slavery claim, which compares with a figure of just 3% for those not in detention. We have also seen a number of foreign national offenders who, after serving their sentences for some of the most despicable crimes, such as murder and rape, have, on the point of removal, put in a last-minute claim of modern slavery to thwart their deportation. The fact is that our modern slavery laws are being abused.”

375 Commons Hansard, Illegal Migration Bill Report Stage, 26 April 2023, Theresa May MP. Also see Home Affairs Select Committee oral evidence session on Human Trafficking, HC 1142, 26 April 2023, with Andrea Salvoni, Deputy Co-ordinator for Combating Human Trafficking, Organisation for Security and Co-operation in Europe; and Dr Schwarz, Associate Director of the Rights Lab, University of Nottingham.

376 ECHR memo, Illegal Migration Bill, para 47

377 European Court of Human Rights, ‘Guide on Article 4 of the European Convention on Human Rights: Prohibition of slavery and forced labour’ (updated on 31 August 2022). See also Chowdury and Others v Greece, Application No. 21884/15, 30 March 2017, para 87; Rantsev v Cyprus and Russia [2010] ECHR 25965/04 (7 January 2010), para 285; J and Others v Austria, Application No. 58216/12, 17 January 2017, para 106.

378 VCL and AN v United Kingdom, Applications nos. 77587/12 and 74603/12, 16 February 2021, paras 152 – 153; J and Others v Austria, Application No. 58216/12, 17 January 2017, paras 109–111.

379 VCL and AN v the United Kingdom, Applications nos. 77587/12 and 74603/12, 16 February 2021, para 152; Ranstev v Cyprus and Russia [2010] ECHR 25965/04 (7 January 2010), paras 286 and 288.

380 Chowdury and Others v Greece, Application No. 21884/15, 30 March 2017, para 110.

381 European Court of Human Rights, ‘Guide on Article 4 of the European Convention on Human Rights: Prohibition of slavery and forced labour’ (updated on 31 August 2022) para 69. Rantsev v Cyprus and Russia, para 288.

382 European Court of Human Rights, ‘Guide on Article 4 of the European Convention on Human Rights: Prohibition of slavery and forced labour’ (updated on 31 August 2022) paras 60 and 69. See also VCL and AN v the United Kingdom, para 152; Ranstev v Cyprus and Russia, paras 286 and 288.

383 S.M. v. Croatia [GC], Application no. 60561/14, 25 June 2020, para 296–303

384 ECHR memo, Illegal Migration Bill

385 Nationality and Borders Act 2022, Section 61 or 62

386 Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) (IMB0024), para 5

387 Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) (IMB0024), para 7

388 MS Pakistan [2020] UKSC 9, para 35

389 Modern Slavery and Human Rights Policy and Evidence Centre (IMB0011), para 22

390 GRETA, ‘9th General Report on GRETA’s Activities’, (March 2020) para 161.

391 R (on the app of KTT) v SSHD [2021] EWHC 2722 (Admin)

392 ECPAT UK (IMB0038), para 15, citing the Explanatory report to ECAT, para186

393 ECHR memo, Illegal Migration Bill

394 Letter from the JCHR Chair to the Home Secretary relating to the Illegal Migration Bill, dated 13 April 2023

395 Letter from the Home Secretary to the Chair of the JCHR relating to the Illegal Migration Bill, dated 2 June

396 Modern Slavery and Human Rights Policy and Evidence Centre (IMB0011), para 28

397 Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) (IMB0024), para 13

398 Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) (IMB0024)

399 Modern Slavery and Human Rights Policy and Evidence Centre (IMB0011) para 17, citing ECAT Explanatory Report, para 175.

400 Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, Article 8

401 The Children’s Commissioner for England (IMB0031)

402 Anti-slavery International, and Anti-Trafficking Monitoring Group (ATMG) (IMB0036) para 5

403 ECPAT UK (IMB0038), para 10

404 Illegal Migration Bill, clause 29(3), inserting a new section 8AA(2)(a)(i) into the Immigration Act 1971

405 Illegal Migration Bill, clause 29(3), inserting a new section 8AA(2)(a)(ii) into the Immigration Act 1971

406 Üner v The Netherlands [GC] (application no. 46410/99) at [54]; Maslov v Austria [GC] (application no. 1638/03) at [68]

407 M.A. v Denmark (6697/19) at [131]

408 Ibid

409 M.A. v Denmark (6697/19) at [131]–[135]

410 Dr William McCready (IMB0048) para 10; Amnesty International UK (IMB0055) para 19

411 M.S.S. v Belgium and Greece [GC] (application no. 30696/09) at [262]; B.A.C. v Greece (application no. 11981/15) at [37]–[40]; Maslov v Austria [GC] (application no. 1638/03) at [63]

412 Amnesty International UK (IMB0055) para 19; Dr William McCready (IMB0048) para 13

413 Home Office, ‘Immigration Rules’, paragraph 9.8.7, accessed 2 May 2023

414 Savran v Denmark [GC] (application no.57467/15) at [182]; Radovanovic v Austria (application no. 42703/98) at [37]; Külekci v Austria (application no. 30441/09) at [51]; Khan v Denmark (application no. 26957/19) at [79]. NB: these cases concerned expulsion orders and re-entry bans as a result of criminal conduct. It is likely that the Court will apply a higher threshold for fairly balancing an individual’s Article 8 rights where they have committed no crime.

415 Home Office, Illegal Migration Bill: European Convention on Human Rights Memorandum (7 March 2023), para 51

416 Clause 29(3)(i); clause 29(4)(i) and clause 29(5)

417 Immigration Law Practitioners’ Association (IMB0061) para 14. This point was also noted by Amnesty International UK: Amnesty International UK (IMB0055) para 26

418 Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 at [10] and [11]. Although this was a Scottish case, these principles have been recognised in other cases restated and approved in other cases. See, e.g., NA (Bangladesh) and others v Secretary of State for the Home Department [2021] EWCA Civ 953 and RJG v Secretary of State for the Home Department [2016] EWCA Civ 1042

419 Illegal Migration Bill, clause 35 [Bill 262 (2022–23)]

420 Karassev v Finland (31414/96); Slivenko v Latvia (418321/99) [GC] at [77]; Genovese v Malta (53124/09) at [30]

421 Ibid

422 See Immigration Law Practitioners’ Association (IMB0061) para 14; Amnesty International UK (IMB0055) para 26

423 Under s94 of the Nationality, Immigration and Asylum Act 2002 the Home Office has the power to declare a human rights or protection claim as “clearly unfounded”. According to policy this will be done if a caseworker is satisfied that the claim cannot, on any legitimate view, succeed.

424 UNHCR Legal Observations para 53

425 R (Byndloss) v Secretary of State for the Home Department [2017] UKSC 42

426 MSS v Belgium and Greece, GC

427 Letter from the Home Secretary to Chair of the JCHR relating to the Illegal Migration Bill, dated 2 June 2023

428 This definition was inserted into the Bill at Report Stage in the Commons. A serious harm suspensive claim could be issued alongside or instead of a claim that removal to a third country would violate Convention rights.

429 [Clause 45(2)-(3)]

430 ECHR, Guide on the case-law of the European Convention on Human Rights

431 And the effective exercise of the applicant’s rights would be hindered in breach of Article 34 ECHR

432 I.e. onward removal from the country or territory specified in the third country removal notice to another country or territory where P would face a real, imminent and foreseeable risk of [serious and irreversible harm]

433 See R (Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 discussed in para 332 above.

434 Amnesty International UK (IMB0055)

435 Khasanov and Rakhmanov v. Russia [GC], §93

436 Ilias and Ahmed v. Hungary [GC], §§ 130–138

437 Paposhvili v Belgium (41738/10) [2017] Imm. A.R. 867; [2016] 12 WLUK 304 (ECHR (Grand Chamber))

438 IMB0020. We note that a retrial for serious offences under section 78 of the Criminal Justice Act 2003 requires there to be “new and compelling evidence against the acquitted person”.

439 Freedom from Torture (IMB0065)

440 Harkins v. the United Kingdom (dec.) [GC], §§ 62–65

441 Colin Yeo gave us an example in his oral evidence: “If you are saying, ‘My family life here in the UK will be ruptured by [being sent to Rwanda], and my spouse and children cannot come to Rwanda with me’, the Home Office will be saying, ‘We are not the ones who are breaking your family life. It is your spouse and the child’s decision not to go with you to Rwanda that is breaking your family life’. Again that may seem surprising but it is how these cases work.”

442 Clause 39 and clause 63(4)

443 Illegal Migration Bill Delegated Powers Memorandum, para 69

444 Amnesty International UK (IMB0055)

445 The Law Society (IMB0026)

446 Public Law Project (IMB0020). Freedom from Torture explained that survivors of torture would be “disproportionately disadvantaged” by the need to present their claims within such strict deadlines:
“Survivors of trauma face substantial barriers to disclosure, and the prospect of discussing past traumatic experiences in the absence of any familiar professional support and in a hostile environment, is likely to entirely frustrate the process.” Freedom from Torture (IMB0065)

447 See IM v France App.No. 9152/09 in which a five-day limit for lodging an initial asylum application and a 48-hour time-limit for an appeal were found to violate these provisions. See also MSS v Belgium and Greece App.No. 30696/09

448 “The Illegal Migration Bill will change the law to make it unambiguously clear that, if you enter the UK illegally, you should not be able to remain here. Instead, you will be detained and promptly removed either to your home country or to a safe country where any asylum claim will be considered” (emphasis added). Illegal Migration Bill: overarching factsheet; see also HC Deb 13 December 2022 cc885–913

449 Redress (IMB0018)

450 Clause 54

451 Dr Jo Wilding & Dr Shahrzad Fouladvand, University of Sussex (IMB0023) They highlighted a “large deficit in asylum legal advice in England and Wales, of at least 25,000 or 45% between new asylum applications made…and new legal aid files opened”; “100 fewer offices holding contracts for immigration and asylum work in England and Wales (as of February 2023) than was the case when the contracts were awarded in September 2018”; “a serious geographical shortage in most of the UK”; and “a serious shortage of public law provision in much of the UK outside London and Edinburgh.”

452 JUSTICE (IMB0068), referring to Detention Action v SSHD [2015] EWCA Civ 840

453 Detention Action v SSHD [2015] EWCA Civ 840

454 Helen Bamber Foundation and Asylum Aid (IMB0003)

455 JUSTICE (IMB0068)

456 Clause 49

457 Freedom from Torture (IMB0065)

458 Public Law Project (IMB0020). We note the words of Lord Bingham in the case of Ex parte Onibiyo [1996] QB 768: “The risk to an individual if a state acts in breach of this obligation [not to send a refugee back to face persecution] is so obvious and so potentially serious that the courts have habitually treated asylum cases as calling for particular care at all stages of the administrative and appellate processes.”

459 Letter from Minister Jenrick MP to Stephen Kinnock MP about amendments to the Illegal Migration Bill, dated 24 April 2023

460 Article 8(2): “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

461 Letter from Minister Jenrick MP to Stephen Kinnock MP about amendments to the Illegal Migration Bill, dated 24 April 2023

462 Home Office, Illegal Migration Bill: Supplementary European Convention on Human Rights Memorandum (25 April 2023), para 40

463 Asylum and Immigration (Treatment of Claimants, etc) Act 2004, Section 8

464 Committee on Human Rights, Twelfth Report of Session 2 Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office Decision Making, Age Assessments, and Deprivation of Citizenship Orders

465 Clause 60(2)(c)

466 Home Office, ‘Safe and legal routes’, accessed 22 May 2023

467 Nationality and Borders Act 2022, section 14

468 Home Office, Immigration Rules, paragraphs 30C, 9.13.1 and 9.20.2

469 Refugee Resettlement in the UK, Briefing Paper 8750, House of Commons Library, March 2020

470 Refugee Resettlement in the UK, Briefing Paper 8750, House of Commons Library, March 2020; Home Office, ‘Funding Instructions for local authorities in support of the United Kingdom’s Resettlement Schemes: Financial Year 2022–2023’, accessed 17 April 2023

471 Home Office, UK Refugee Resettlement: Policy Guidance (August 2021), p 4

472 See Home Office, ‘Safe and Legal Routes’, accessed 28 April 2023

473 Home Office, ‘Safe and legal routes’, accessed 22 May 2023; Home Office, ‘How many people do we grant protection to?’, accessed 2 May 2023. Between 2015 and the year ending December 2022, 44,659 family reunion visas had been granted to family members of refugees. As noted in Chapter 9, failure to allow family reunifications as a result of the lifelong ban under clause 29 may breach Article 8 ECHR.

474 Ibid

475 Letter to the Speaker of the Houses of Parliament and Lords of United Kingdom, from Dunja Mijatovic, Commissioner for Human Rights of the Council of Europe, regarding the Illegal Migration Bill, dated 24 March 2023