Immigration Bill - Constitution Committee Contents

Rule of law


18.  That the law be clear, certain and predictable are central requirements of the rule of law. It would be difficult, however, to argue convincingly that these requirements are satisfied by UK immigration law which stands out as a particularly Byzantine field. The Immigration Bill is a case in point. It is lengthy and complicated—running to 168 pages in total, it consists of 65 clauses and 12 schedules—while its complexity is exacerbated by the fact that much of the Bill will take effect by means of amending or inserting new provisions into several existing, and already highly complex, pieces of immigration legislation. This issue of complexity is compounded by the frequency with which the law changes in this area. The Bill will be enacted in the wake of, and will make changes to, the Immigration Act 2014, which was itself a very substantial and complicated piece of legislation.

19.  The disparate and complex nature of the legislation in this area is of real concern from a rule of law perspective. Whilst we recognise that this issue goes far beyond the provisions of this particular Bill, we wish to draw to the attention of the House this general concern, and our view that further thought must be given to this matter so as to make immigration law accessible and fit for purpose.


20.  Schedule 7 of the Bill creates two concurrent legal bases upon which immigration bail (that is, bail granted to immigration detainees) may be granted. First, it authorises the Secretary of State to grant bail.[10] Second, it authorises the First-tier Tribunal to grant bail if an application is made to the Tribunal for a grant of bail.[11] The power to grant bail includes a power (and an obligation) to set bail conditions. In its ECHR Memorandum, the Government acknowledges that such conditions may restrict a person's liberty by, for example, requiring them to reside at a particular address or not to leave a defined geographical area.[12]

21.  Where bail has been granted and bail conditions set by the Tribunal, schedule 7 provides for decisions of the Tribunal concerning bail conditions to be, in effect, overridden by the Secretary of State, who can:

·  impose a condition pertaining to residence in a case in which the Tribunal chose to impose no such condition;

·  substitute a residence condition that is different from any such condition imposed by the Tribunal;

·  impose an electronic-monitoring condition in a case in which the Tribunal decided to grant bail free from any such condition.

22.  The Government's Explanatory Notes to the Bill cast some light on the policy background to this aspect of the Bill—and, in particular, the proposal to allow the Secretary of State to override a Tribunal decision not to impose an electronic monitoring condition:

    "The Conservative Party Manifesto commits the government to satellite tracking for every foreign national offender subject to an outstanding deportation order or deportation proceedings … Over 80% of foreign national offenders living in the community have been released on bail by the First-tier Tribunal … and while the Tribunal has the power to apply an electronic monitoring condition, the Secretary of State cannot require it as a condition of bail. The Bill gives the Secretary of State the ability to impose an electronic monitoring condition when the Tribunal grants bail but does not impose such a condition."[13]

23.  From this, it seems that the Government is not satisfied by the Tribunal's propensity to impose electronic-monitoring conditions, and therefore wishes to be in a position to impose such conditions even in cases in which the Tribunal does not see fit to do so.

24.  A decision of the Secretary of State to override the Tribunal in this way would be subject to judicial review. However, the constitutional question arises whether it is compatible with the rule of law for a member of the executive to be given the authority to override the decision of an independent judicial body. The Supreme Court had cause to consider this question recently in the case Evans v Attorney-General,[14] which concerned the exercise of the ministerial veto power in the Freedom of Information Act 2000. Giving one of the majority judgments in the Evans case, Lord Neuberger said that:

    "A statutory provision which entitles a member of the executive … to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom. It would cut across two constitutional principles which are also fundamental components of the rule of law … subject to being overruled by a higher court or (given Parliamentary supremacy) a statute, it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive."[15]

25.  In that case, some reliance was judicially placed upon the fact that the veto power in the Freedom of Information Act facilitated override of a decision of the Upper Tribunal, which is statutorily designated a "superior court of record". Lord Neuberger took this to mean that it has "the same status as the High Court".[16] In contrast, the First-tier Tribunal is not a superior court of record. It is, however, an independent judicial body, meaning that the prospect of ministerial interference with its decisions raises concern about the threat to the rule of law.

26.  We recognise that the position in relation to schedule 7 of the Bill is complicated by the existence of concurrent bail-granting and condition-setting powers. This means that if, for instance, the Secretary of State were to impose an electronic-monitoring condition (the Tribunal first having granted bail free from any such condition), the Secretary of State would be doing something that it would, in the first place, have been for her to do had the question of bail been dealt with by her instead of upon an application to the Tribunal. Ultimately, however, this does not detract from the fact that once the Tribunal has ruled on bail conditions, schedule 7 permits the executive to unpick or override certain aspects of a judicial decision.

27.  It is also worth noting that, unlike the matter at stake in the Evans case, electronic-monitoring and residence conditions engage considerations of individual liberty—something that arguably renders the prospect of executive intervention more constitutionally dubious.

28.  We are concerned that schedule 7, which would allow a Minister to override or alter independent judicial decisions about immigration bail conditions, is in tension with the principles of the rule of law. The usual process, should a Minister have concerns about a judicial decision, would be to appeal against it. The House may wish to ask the Government to clarify how their proposals comply with the rule of law. The House may also wish to ask the Government why, if the intention is to ensure the use of certain bail conditions for particular offenders (such as satellite monitoring for foreign nationals), they do not simply propose new criteria for the First-tier Tribunal to take into account when setting bail conditions.


29.  Schedule 7 also gives rise to another matter relating to the rule of law: retrospective legislation. It replaces certain existing legislative provisions relating to immigration bail, including paragraphs 22 and 29 of schedule 2 to the Immigration Act 1971, which are concerned with the release on bail of an individual who "is detained" or is "being detained" under certain other provisions of the 1971 Act.

30.  It is accepted that the power to impose bail conditions also extends to someone who could be detained even if they are not actually detained immediately prior to the grant of bail. However, the Court of Appeal recently held that the powers conferred by paragraphs 22 and 29 to impose bail conditions should extend only to individuals who are or could be lawfully subjected to immigration detention pending deportation.[17] The Court further held that where, as in the case it was considering, there was no realistic prospect of the person's deportation taking place, subjecting them to immigration detention pending deportation would not be lawful. Once the legal basis for detention falls away, so does the legal basis for imposing bail conditions, the power to impose such conditions being dependent upon the possibility of lawful detention. The effect of the Court of Appeal's judgment is therefore to make the imposition of bail conditions unlawful in circumstances in which the person concerned could not lawfully be subject to immigration detention.

31.  The Immigration Bill addresses this matter by providing that bail conditions can be set in relation to individuals who are either "detained" or "liable to detention" under relevant immigration powers. A person is liable to detention if he could be detained were it not for the fact that a legal issue or practical difficulty presently precludes or impedes his removal from the UK.[18] Once the Bill comes into force, it will therefore be possible to impose bail conditions upon people who cannot actually be detained because of impediments to their deportation.

32.  However, before those provisions of the Bill come into force, immigration bail will continue to be granted under (among other powers) the powers granted by paragraphs 22 and 29 of schedule 2 to the Immigration Act 1971. Clause 32(3) of the Bill—which, unlike most of the Bill, enters into force immediately upon enactment[19]—therefore provides that the 1971 Act powers can be used "even if the person can no longer be detained" provided that he is "liable to detention". Clause 32(3), on its own, will only permit those liable to detention to be subjected to immigration bail once the Bill has been enacted. The Government, however, is concerned about the position in respect of those liable to detention upon whom immigration-bail conditions were imposed prior to the Bill's enactment. Clause 32(5) therefore provides that: "The amendment made by subsection (3) is to be treated as always having had effect." This is intended to be a transitional arrangement: when the new immigration-bail regime contained in the Immigration Bill comes into force and repeals the 1971 Act immigration-bail powers, clauses 32(3)-(5) of the Immigration Bill will themselves automatically be repealed.[20] Nevertheless, for as long as clauses 32(3)-(5) are in force, they will have retrospective effect.

33.  The Government acknowledges this in its Explanatory Notes to the Bill:

    "This clause is retrospective in its effect because it is intended to clarify the law following a recent Court of Appeal judgment … on when immigration bail conditions can be imposed. The Court of Appeal judgment disturbed previously settled case law in this area. If the Court of Appeal's judgment stands (it is under appeal) then it will have a significantly limiting impact on judges' and the Home Office's ability to impose bail conditions and manage individuals, including those who pose a risk to the public where deportation is being pursued."[21]

34.  The statement that these provisions "clarify" the law is questionable. The Court of Appeal has determined what the relevant provisions of the Immigration Act 1971 mean—and what, in law, they have always meant. The Government now wishes to revise what those provisions mean. The effect of clause 32(5) will therefore be to change the law and to do so retrospectively. The extent to which retrospective legislation is constitutionally concerning varies, retrospective criminal legislation being particularly egregious. Clause 32(5) of the Immigration Bill does not fall into that category. However, the rule of law requires government to act according to law, and from that perspective the retrospective provision of a legal basis for executive action is constitutionally suspect and calls for a clear justification. To the extent that such a justification is provided by the Government, it appears to turn upon considerations of administrative convenience and to rely upon the fact that the Court of Appeal's judgment disturbed what the Government considered to be a settled understanding of the legal position. We recognise that the Government was acting in accordance with its understanding of the law, but once that action has been judged to be unlawful we would expect a greater justification for changing the law with retrospective effect than simple administrative convenience.

35.  As we have previously stated, there needs "to be a compelling reason in the public interest for a departure from the general principle that retrospective legislation is undesirable."[22] The House may wish to assure itself that sufficient justification has been advanced for the use of retrospective legislation in this instance.

36.  There is one further provision in the Bill that might, perhaps, be considered to have retrospective effect. Clause 13 inserts new provisions into the Immigration Act 2014 creating a number of criminal offences relating to the leasing of premises. New section 33A(1) provides that a landlord under a residential tenancy agreement[23] commits an offence if two conditions are satisfied. The conditions are that (a) the premises are occupied by a person who, because of their immigration status, is disqualified from occupying premises under a residential tenancy agreement, and (b) the landlord knows or has reasonable cause to believe that the person concerned is so disqualified. The Bill inserts new provisions into section 35 of the 2014 Act, the effect of which is to cause section 33A to apply to residential tenancy agreements made prior to the entry into force of clause 13 of the Immigration Bill.

37.  This does not mean that clause 13 will have retrospective effect in the sense of imposing criminal liability in relation to things that happened before it entered into force. If a disqualified person occupied a landlord's premises until the day before clause 13 entered into force, the landlord would not become guilty of a criminal offence upon the subsequent entry into force of clause 13. If, however, a disqualified person remained in occupation after clause 13 entered into force, the landlord would commit a criminal offence even though the occupation was under a residential tenancy agreement that was made prior to the coming into force of clause 13. In this sense, clause 13 might be considered to have retrospective effect, in that it can cause criminal liability to accrue on the basis of an arrangement that was entered into prior to the entry into force of the provision; albeit that liability would only arise if occupation pursuant to that arrangement persisted following the coming into force of clause 13.

38.  Overall, however, we recognise that the effect of clause 13 is to impose criminal liability only in respect of landlords' conduct following the entry into force of the provision, and do not consider this provision raises rule of law concerns.

10   Immigration Bill, schedule 7, paragraphs 1-2 Back

11   Immigration Bill, schedule 7, paragraph 3 Back

12   Home Office, Immigration Bill: ECHR Memorandum (17 September 2015) para 87: [accessed 22 December 2015]  Back

13   Explanatory Notes to the Immigration Bill, para 23 Back

14   R (Evans) v Attorney-General (2015) UKSC 21 Back

15   R (Evans) v Attorney-General (2015) UKSC 21, para 51  Back

16   R (Evans) v Attorney-General (2015) UKSC 21, para 2  Back

17   R (B) v Secretary of State for the Home Department (No 2) (2015) EWCA Civ 445. In November 2015, the Supreme Court gave permission to appeal in this case.  Back

18   Immigration Act 2002, section 67  Back

19   Most provisions of the Bill enter into force on 'on such day as the Secretary of State appoints by regulations': Immigration Bill, clause 63(1).  Back

20   Immigration Bill, clause 32(6)  Back

21   Explanatory Notes to the Immigration Bill, para 168  Back

22   Constitution Committee, Banking Bill (3rd Report, Session 2008-09, HL Paper 19), para 7 Back

23   As defined by the Immigration Act 2014, section 20  Back

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