Immigration Bill - Constitution Committee Contents

Human rights

39.  Several aspects of the Immigration Bill raise human-rights considerations. For instance, the Government acknowledges in its ECHR memoranda that the following aspects of the Bill engage Convention rights:

·  Clause 14—which, in certain circumstances, permits landlords to obtain possession of properties without a court process—engages a number of Convention rights, including Article 3 (inhuman and degrading treatment), Article 8 (private and family life and the home) and Article 1, Protocol 1 (property).

·  Clause 19 and schedule 4—which provide for freezing orders to be obtained in respect of illegal migrants' bank accounts—engages Article 6 (due process). This is so because it will be possible to obtain freezing orders on an ex parte basis, that is, in court proceedings to which the account-holder is not a party. (There is, however, a right of appeal.)

·  Clause 32 and schedule 7—which provide for the new immigration-bail regime—engage a number of Convention rights, including, as noted above, Article 5 (liberty) and Article 8 (private and family life and the home).

·  Clauses 37-38 and schedules 8-9—which limit the support that can be provided to certain categories of migrants—engage several Convention rights, including, as noted above, Article 3 (inhuman and degrading treatment).

40.  The House will no doubt wish to give these issues close consideration during the course of the Bill. We do not intend to comment on these matters in more detail since the Joint Committee on Human Rights (JCHR) will undoubtedly be covering these issues as part of its scrutiny of the Bill.


41.  There is, however, one human rights matter that we draw to the attention of the House. This relates to the provision made by clause 34 in relation to the "certification" of human rights claims. For present purposes, a "human rights claim" means a claim that removal from the UK or refusal of entry into the UK would be unlawful under the Human Rights Act 1998.[24] In cases in which the Secretary of State rejects a human rights claim, there is a right of appeal to the First-tier Tribunal against the Secretary of State's decision. However, when a human rights claim is made by a person liable to deportation under section 3(5)-(6) of the Immigration Act 1971, the Secretary of State can "certify" the claim if she considers that removal to the country in question pending the completion of any appeal process would not itself be unlawful under the HRA.[25] Once a human rights claim has been so certified, any appeal against the Secretary of State's initial rejection of the claim (as distinct from any challenge to the decision to certify the claim)[26] must be brought or continued from outside the UK.[27]

42.  This regime leverages the distinction drawn in ECHR jurisprudence between circumstances in which a suspensive appeal process is required and those in which a non-suspensive process suffices. The Government acknowledges in its ECHR Memorandum that human rights claims made on the basis of Article 2 (right to life) or Article 3 (torture and inhuman or degrading treatment) require an appeal process that is suspensive of any proposed removal. In other words, such appeals must be heard in-country. In contrast, a non-suspensive appeal—that is, an appeal that does not disrupt removal and is brought on an out-of-country basis—is compatible with ECHR case law when neither Articles 2 nor 3 are engaged.

43.  The arrangements described above were put in place by the Immigration Act 2014. The Immigration Bill expands those arrangements. Whereas, at present, human rights claims can be certified only when made by persons liable to deportation, the Bill will permit certification of all human rights claims made by those who are subject to immigration control. As the Explanatory Notes put it: "The effect is to extend the certification power beyond appeals related to removals, such that it also includes circumstances where the individual is refused entry or required to leave the UK."[28]

44.  The effect of certifying a human rights claim is very significant: it means that the person concerned can be removed from or denied entry to the UK and required, should they wish to pursue the matter, to appeal on an out-of-country basis against the Secretary of State's decision to reject their human rights claim. The Solicitor-General has acknowledged that an out-of-country appeal is "less advantageous" than an in-country appeal.[29] It is a general requirement of the rule of law that the lawfulness of executive decisions should be capable of being tested either by way of an effective right of appeal or by way of judicial review. That requirement assumes particular importance when the decision in question has the sort of profound effects upon the individual that a certification decision is liable to have.

45.  Since there is no right of appeal against the Secretary of State's decision to certify a human rights claim, the only possible means of challenge is judicial review. Noting this, the JCHR, when it considered the original certification power conferred by what is now the Immigration Act 2014, expressed concern about the adequacy of judicial review in this context. On this matter, it concluded:

    "We are not satisfied with the Government's reliance on the continued availability of judicial review to challenge the Secretary of State's certification that a human rights appeal can be heard out of country, having regard to the unavailability of civil legal aid to bring such a claim and the proposed reforms of judicial review."[30]

46.  The proposed reforms to judicial review mentioned by the JCHR concerned, in particular, plans to change the law of standing so as to prevent (for example) NGOs from bringing judicial-review challenges. That change to the law did not, in the end, occur.

47.  The JCHR's concern regarding legal aid for the purpose of judicially reviewing a certification decision is, however, a distinct matter. This issue was raised with the Solicitor-General by the Public Bill Committee on the Immigration Bill. He subsequently wrote to the Chairs of the Committee indicating that legal aid is in principle available in respect of judicial-review challenges to certification decisions, provided that the case has "sufficient merit" and provided that the individual financial-means test is satisfied. The Solicitor-General also stated in his letter that "the judicial review must be of specific benefit to the individual and cannot be on a repeat immigration matter that was previously determined within one year".[31]

48.  However, the in-principle availability of legal aid in this area notwithstanding, the practical extent to which it is likely to be available in respect of judicial-review challenges to certification decisions is far from clear. This is particularly so in the light of restrictions on the availability of legal aid in circumstances in which a case does not proceed beyond the permission stage, i.e. the first stage of a judicial-review claim. Restrictions imposed in 2013[32] were quashed as unlawful by the High Court in 2015,[33] the struck-down provisions being subsequently replaced by somewhat less restrictive ones.[34]

49.  The upshot is that, through a combination of (a) certification of substantive human-rights claims and (b) the fact that opportunities for seeking judicial review of certification decisions may in practice be constrained by the limited availability of legal aid, individuals' scope for mounting effective human rights challenges in respect of immigration decisions may be significantly attenuated.

50.  We note the JCHR's previous conclusion regarding the practicality of challenging certifications by the Secretary of State. The House may wish to bear these concerns in mind when considering the provisions of the Bill that extend the certification power so that it can be applied to a wider range of human-rights claims.

24   Nationality, Immigration and Asylum Act 2002, section 113(1)  Back

25   Nationality, Immigration and Asylum Act 2002, section 94B  Back

26   There is no right of appeal against certification. However, as noted below, certification can be challenged by way of judicial review.  Back

27   Nationality, Immigration and Asylum Act 2002, section 92(3)  Back

28   Explanatory Notes to the Immigration Bill, para 176  Back

29   Public Bill Committee on the Immigration Bill, 5 November 2015  Back

30   Joint Committee on Human Rights, Immigration Bill (Twelfth Report, Session 2013-14, HC 935, HL Paper 102), para 53  Back

31   Solicitor-General's letter to Public Bill Committee on the Immigration Bill, 10 November 2015.  Back

32   Civil Legal Aid (Remuneration) (Amendment) (No 3) Regulations 2014  Back

33   R (Ben Hoare Bell Solicitors) v Lord Chancellor (2015) EWHC 523 (Admin) Back

34   Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 (SI 2015/898)  Back

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