1. The Immigration Bill was brought from the
Commons on 30 January 2014 and had its second reading in the House
of Lords on 10 February. It is currently being considered by a
committee of the whole House.
2. The bill makes provision for a variety of
aspects of immigration law. This report draws three clauses of
the bill to the attention of the House.
3. Legislation in force lists 14 different immigration
decisions in respect of which there is a right of appeal. These
include refusals of entry, refusals to vary leave to enter and
remain, and decisions to remove and deport. Clause 11(2) will
replace this variety of appeal rights with a right to appeal where
the Secretary of State has: refused a protection claim made by
a migrant; refused a human rights claim made by a migrant; or
revoked a protection status. Clause 11(4) provides that the only
grounds on which the appeal rights in clause 11(2) may be exercised
are human rights grounds.
4. Although this is not provided for on the face
of the bill, the Government's policy is that in other cases (where
there is no right of appeal to the Tribunal) there may be an administrative
review. The administrative review process would in appropriate
cases be subject to judicial review. A Home Office Factsheet
(October 2013) accompanying the bill states that the administrative
review will be "performed by someone other than the original
decision maker. While a review is pending the person in question
will not be required to leave the country. If the migrant has
permission to work or study they will normally be able to continue
to do so while the review is pending".
5. Clause 11 constitutes a significant streamlining
of appeal rights in respect of immigration decisions. There is
no ouster of judicial review in the bill, so the constitutional
question is whether clause 11 undermines the common law right
of access to justice. The Joint Committee on Human Rights
concluded that it did.
The Government disagree: their view is that in the cases where
it is most neededi.e. cases raising questions of rightsa
full right to appeal is preserved.
In other cases there may be access to the courts via the ordinary
law of judicial review. That said, it is on any view disturbing
that a high proportion of immigration appeals to the Tribunal
currently succeed (indicating, perhaps, that many administrative
decisions are wrongly made): in 2012-13 50% of entry clearance
appeals succeeded, as did 49% of managed migration appeals and
32% of deportation appeals. Given this record, it may be questioned
whether administrative review will be sufficient.
6. Clause 11(5) provides that the Tribunal may
not consider a "new matter" on appeal unless the Secretary
of State consents: according to the bill's explanatory notes,
this is to prevent appellants from raising new grounds before
the Tribunal until the Secretary of State has had a chance to
consider them. The Government
accept that new evidence that supports grounds of appeal should
be capable of being raised for the first time at the appeal. Clause
11(5) is targeted, in the Government's view, not at new evidence
but at new grounds or reasons for wanting to enter or remain in
the UK. However, concern remains about whether clause 11(5) is
compatible with the right of access to court and the rule of law.
Given that the Secretary of State would be a party to any relevant
appeal, there is also a concern as regards equality of arms and
common law principles of natural justice.
7. The phrase "unless the Secretary of State
consent" in clause 11(5) suggests that in
the absence of such consent it would be unlawful for the Tribunal
to consider the matter in question. Yet the purpose of the clause
is not to grant to the Secretary of State a veto over matters
that may be considered by the Tribunal, but merely to ensure that
the Tribunal does not consider grounds or reasons which have not
first been considered by the Secretary of State. On this view,
clause 11(5) as currently drafted appears to go further than is
required in order to meet the Government's stated purpose.
8. We draw these matters to the attention
of the House.
9. Clause 14 is a constitutional innovation.
In order to understand why, we need to set out some background.
10. For several years Home Office ministers have
been concerned about court and tribunal rulings which have prevented
them from deporting people. There is a presumption, for example,
that migrants who are convicted of serious criminal offences will
be deported upon release from imprisonment. In a series of cases
it has been ruled that particular deportations in these circumstances
disproportionately interfere with the right to family life under
article 8 of the European Convention on Human Rights and are therefore
unlawful. Proportionality is a general legal principle. In essence,
it requires the court to ask the following questions: (i) whether
the objective is sufficiently important to justify the limitation
of a fundamental right; (ii) whether it is rationally connected
to that purpose; (iii) whether a less intrusive measure could
have been used; and (on some accounts) (iv) whether, having regard
to these matters and the severity of the consequences, a fair
balance has been struck between the rights of the individual and
the interests of the community.
For present purposes, point (iv) is the most contested aspect
of proportionality. The House of Lords ruled in a unanimous opinion
in a leading case in immigration law in 2007 that this aspect
of the doctrine "should never be overlooked or discounted".
The constitutional difficulty with this element of proportionality
was captured by Laws LJ in a recent judgment, when he said: "there
is real difficulty in distinguishing this from a political question
to be decided by the elected arm of government".
11. This is not the place for a full rehearsal
of how proportionality has come to feature in our domestic public
law. For present purposes three points suffice. First, proportionality
is a relatively recent arrival as a ground of judicial review
in our domestic public law (although it has a longer heritage
as a matter of European law). Secondly, it can be a more invasive
technique of judicial review than the traditional common law grounds
of review (often referred to as Wednesbury unreasonableness).
Thirdly, it is a test that mixes elements of legal inquiry with
more political questions that, as Laws LJ put it, are properly
"to be decided by the elected arm of government".
12. These are delicate matters of constitutional
balance and judgement. Nonethelessand this is the crux
of the matter as far as the Immigration Bill is concernedthere
is nothing in any of the domestic jurisprudence to suggest that
proportionality is exclusively a matter for the courts. Parliament
also has a meaningful contribution to make in ensuring compliance
with the requirements of the Convention, including the principles
of legal certainty and proportionality. This is reflected in the
Human Rights Act 1998 itself, in the courts' case law and in constitutional
practice. Under the Act ministers and Parliament review the compatibility
of bills with Convention rights.
The judicial role comes into play only after a bill is enacted.
In numerous cases the Supreme Court has recognised that there
is a constitutionally important role for parliamentarians in deciding
how individual rights and the public interest should be balanced.
In AXA General Insurance, for example, Lord Hope of Craighead
noted that "elected members of a legislature
placed to judge what is in the country's best interests as a whole"
not least because of "the advantages that flow from the depth
and width of the experience of
elected members and the
mandate that has been given to them by the electorate".
13. In October 2011 the Home Secretary said in
her speech at the Conservative party conference that the courts
were "misinterpreting" their powers under the Human
Rights Act to prevent her from deporting "foreign criminals"
from the UK on the basis that such deportations were a disproportionate
interference with the right to respect for family life under article
8 of the European Convention on Human Rights. The Secretary of
State amended the Immigration Rules to address the matter in June
2012. A Home Office publication, Statement of Intent: Family
Migration, published alongside the revised Rules, explained
how the revised Immigration Rules would "set out proportionate
requirements that reflect, as a matter of public policy, the Government's
and Parliament's view of how individual rights to respect for
private or family life should be qualified in the public interest".
The Government hoped that this would mean that "failure to
meet the requirements of the rules will normally mean failure
to establish an article 8 claim".
The Statement of Intent emphasised that "the courts
will continue to determine individual cases according to the law
but, in doing so, they will be reviewing decisions taken under
Immigration Rules which expressly reflect article 8". The
rules would "for the first time reflect the view of the Government
and Parliament" as to how article 8(1) should, as matter
of public policy, be qualified in the public interest under the
terms of article 8(2).
The Statement of Intent recognised that "this does
not mean that the Secretary of State and Parliament have the only
say on what is proportionate".
14. In MF (Nigeria) v SSHD the Upper Tribunal
held that MF's deportation (he had been convicted of handling
stolen goods) would be a disproportionate interference with his
step-daughter's article 8 right to family life. His deportation
fell within the revised Immigration Rules but was nonetheless
held to be unlawful, the Upper Tribunal ruling that the new rules
could not be construed as providing a complete code for article
8 claims. The Secretary of State's appeal to the Court of Appeal
The court held that the Human Rights Act requires that new rules
must be interpreted consistently with Strasbourg jurisprudence.
It would appear from MF (Nigeria) that the Government's
attempt to use the Immigration Rules to settle how the courts
should rule on the proportionality of decisions to deport foreign
national criminals may have been unsuccessful. Hence clause 14
of the Immigration Bill.
15. Clause 14 sets out in primary legislation
what the public interest factors are in immigration decisions
that engage article 8 (private and family life) considerations.
Within clause 14 there are specific provisions concerning foreign
criminals. The clause provides that the maintenance of effective
immigration controls is in the public interest because migrants
are less of a burden on taxpayers and are better able to integrate
into society. In making decisions about the impact of immigration
decisions on article 8 rights, "little weight should be given"
to a private life or to a relationship formed by a person at a
time when the person is in the UK unlawfully. Likewise when the
person's immigration status is "precarious". Further,
clause 14 provides that "the deportation of foreign criminals
is in the public interest". The more serious the offence
committed, the greater the public interest in deportation. A range
of detailed provisions explain how this public interest should
be weighed in different circumstances.
16. The Joint Committee on Human Rights noted
that "there is nothing inherently incompatible with the Convention
in Parliament spelling out
its detailed understanding of
the requirements of relevant Convention rights in particular contexts.
Indeed, such an exercise could be considered to be Parliament's
fulfilment of the important obligation imposed upon it by the
principle of subsidiarity".
It stated that "the provisions in the bill which seek to
guide courts and tribunals in their determination of article 8
claims in immigration cases do not purport to go so far as to
determine individual applications in advance or to oust the courts'
17. The JCHR also commented on the provisions
purporting to tell courts and tribunals that "little weight"
should be given to certain considerations: "that appears
to us to be a significant legislative trespass into the judicial
conclusion speaks directly to the core constitutional principle
of the separation of powers. However, we note that the provisions
of clause 14 will, if enacted, fall to be interpreted and applied
in particular cases by the courts in the ordinary way. In so doing
the courts will be bound under section 3 of the Human Rights Act
1998 to read and give effect to clause 14 compatibly with Convention
rights (so far as it is possible to do so).
18. On any view clause 14 is a significant
innovation. We draw it to the attention of the House.
19. As the law stands no-one may be deprived
of their citizenship if the result of that deprivation would be
that the person becomes stateless.
Those British citizens who hold dual nationality may be deprived
by the Secretary of State of their British citizenship (because
even after deprivation they would continue to hold the nationality
of the other state of which they are a citizen). If the Secretary
of State wishes to deport a dual national from the UK because
in the Secretary of State's view that person's presence in the
UK is no longer conducive to the public good (for example, for
reasons of national security), the Secretary of State must first
deprive the dual national of his or her British citizenship. This
is because British nationals may not lawfully be deported from
the UK: only persons subject to immigration control may be lawfully
20. There have been cases where the Secretary
of State has sought to act in this way but where the matter has
been successfully appealed to the courts. The most important is
Al-Jedda v SSHD.
Born an Iraqi citizen in 1957, Al-Jedda was granted British nationality
in 2000. The effect of this was that, under Iraqi law, he lost
his Iraqi citizenship. He now lives in Turkey. From 2004-07 he
was detained without charge by British forces in Iraq, on suspicion
of membership of a terrorist group. The House of Lords upheld
the lawfulness of his detention in 2007, but Al-Jedda successfully
took the matter to the European Court of Human Rights. The Secretary
of State wished to deprive Al-Jedda of his British citizenship,
arguing in essence (here we are summarising a complex legal argument)
that to do so would not render him stateless as he could apply
to the Iraqi authorities for re-instatement of his Iraqi nationality.
In October 2013 the UK Supreme Court unanimously rejected this
argument. In so doing Lord Wilson, giving the judgment of the
court, spoke of "the evil of statelessness"
and cited, among other authorities, article 15(1) of the Universal
Declaration of Human Rights, which provides that "Everyone
has the right to a nationality".
21. Clause 60 of the bill would amend section
40 of the British Nationality Act 1981 ("BNA") such
that the Secretary of State would be empowered to deprive someone
of their citizenship, even if that would make them stateless,
as long as two conditions are met: that the person is a naturalised
British citizen and that the deprivation is conducive to the public
good because the person has conducted himself in a manner which
is "seriously prejudicial to the vital interests of the United
22. In 1966 the UK ratified the UN Convention
on the Reduction of Statelessness ("the 1961 Convention").
Article 8(1) of this Convention prohibits a state from depriving
a person of his nationality if such were to cause him to be stateless.
There are two exceptions. The first is if the nationality had
been obtained by misrepresentation or fraud. The second applies
if domestic law at the time of ratification permitted deprivation
on grounds of conduct seriously prejudicial to the vital interests
of the state.
23. The explanatory notes to the bill state that
the amendment of BNA s. 40 by clause 60 would return the law to
how it was in 1966, when the UK ratified the 1961 Convention.
BNA s. 40, as it is currently in force (having been amended on
several occasions), goes "further than [is] necessary in
order to honour the UK's existing international obligations".
24. If this analysis is correctand it
rests upon a unanimous decision of the UK Supreme Court from 2013it
would seem to follow that the amendment provided for in clause
60 is compatible with the UK's international law obligations.
25. Despite this, the House may wish to scrutinise
the provision carefully. It was introduced into the bill only
at report stage in the House of Commons: it was not therefore
subject to scrutiny by a Public Bill Committee in that House.
The shadow Home Secretary tabled a manuscript amendment which
would have put in place an explicit requirement for judicial assessment
of any decision by the Secretary of State to exercise the new
clause 60 power. Responding to this amendment, the Secretary of
State confirmed that there would be a full right of appeal, and
that "people need not have been convicted of an offence to
be deprived of their citizenship".
A number of questions may be asked about clause 60, including
- Is it a response to a general
problem or is it designed to address only the particular case
of Al-Jedda; if the former, could the Government provide
details of further instances?
- Is it intended that the power be exercised only
in respect of naturalised citizens who are not in the United Kingdom?
- What would happen to any naturalised citizen
in the United Kingdom who is made stateless by the exercise of
the power? Would such a person be able to work / be housed / have
access to healthcare, etc?
- What would happen to any dependants of a person
who is rendered stateless by the exercise of the power?
- Should the new power be exercisable not by the
Secretary of State but by a court on the application of the Secretary
26. The House may wish to bear these questions
in mind as it scrutinises clause 60.
1 Joint Committee on Human Rights, Legislative Scrutiny:
Immigration Bill (8th Report, Session 2013-14, HL Paper 102,
HC 935), paragraph 39. Back
See, for example, the comments of the minister Lord Taylor of
Holbeach: HL Deb, 10 February 2014, col 416. Back
Explanatory notes (HL Bill 84-EN), paragraph 80. Back
Joint Committee on Human Rights, Legislative Scrutiny: Immigration
Bill (8th Report, Session 2013-14, HL Paper 102, HC 935),
paragraph 45. Back
Bank Mellat v HM Treasury (No 2)  UKSC 39, paragraph
Huang v SSHD  UKHL 11, paragraph 19. Back
R (Miranda) v SSHD  EWHC 255, paragraph 40. Back
Human Rights Act 1998, section 19. Back
 UKSC 46, paragraph 49. Back
Statement of Intent: Family Migration (June 2012), paragraph
Ibid., paragraphs 10-11. Back
Ibid., paragraph 39. Back
 EWCA Civ 1192. Back
Op. cit., paragraph 55. Back
Op. cit., paragraph 56. Back
Op. cit., paragraph 60. Back
British Nationality Act 1981, section 40(4). Back
 UKSC 62. Back
Paragraph 12. Back
Al-Jedda v SSHD, paragraph
HC Deb, 30 January 2014, col 1045. Back