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.
CERTIFICATION OF HUMAN RIGHTS CLAIMS
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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