Nationality and Borders Bill
1.The Nationality and Borders Bill had its second reading on 5 January. The Bill contains a variety of provisions relating to nationality, asylum and immigration. The Government describe the Bill as having three main objectives:
- to increase the fairness of the system to better protect and support those in need of asylum;
- to deter illegal entry into the UK, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger; and
- to remove more easily those with no right to be in the UK.
2.The Home Office has provided a delegated powers memorandum (“the memorandum”).1 Unfortunately, not all powers in the Bill were addressed in the memorandum and so the Home Office has also provided a supplementary delegated powers memorandum2 to deal with powers which were not covered in the original memorandum. We also comment on aspects of the memorandum in paragraphs 12 and 17 below.
3.We draw the following matters to the attention of the House.
Clause 11(8)—Differential treatment of refugees
4.Clause 11 provides for the difference in treatment of groups of refugees. The clause defines two groups for these purposes. Group 1 refugees are refugees who:
- have come to the UK directly from a country or territory where their life or freedom was threatened,
- have presented themselves without delay to the authorities, and
- if they have entered the UK unlawfully, can show good cause for their unlawful entry or presence.
Group 2 refugees are refugees who do not meet these conditions.
5.Clause 11(5) provides that the Secretary of State or an immigration officer may treat the two groups of refugees differently, and clause 11(6) includes a parallel provision for the family members of Group 1 and Group 2 refugees, allowing the Secretary of State or an immigration officer to treat such family members differently based on the refugee’s group.
6.Clause 11(8) provides that immigration rules may include provision for the differential treatment allowed for by subsections (5) and (6). Immigration rules are not made by statutory instrument, but are nevertheless subject to parliamentary scrutiny with a procedure equivalent to the negative resolution procedure applying.
7.The underlying policy objective of the differential treatment is to discourage asylum seekers from travelling to the UK from safe countries, and to encourage individuals seeking asylum to do so in the first safe country they find after fleeing persecution. The implication therefore is that the treatment of Group 2 refugees will be less favourable than that given to Group 1 refugees which will be in accordance with the current practice for refugees. Commentators such as the UNHCR have suggested that the provision made in clause 11 is incompatible with the 1951 Refugee Convention.
8.If Parliament agrees to enact the principle contained in clause 11 that Group 1 and Group 2 refugees may be treated differently in relation to claims for asylum, then it seems appropriate for that to be reflected in the immigration rules. The function of the immigration rules (as set out in section 3(2) of the Immigration Act 1971) is to make provision about:
“the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances”.
It seems reasonable therefore that provision will need to be made in the immigration rules about leave to remain for those claiming asylum in the UK. This is also consistent with the current immigration rules which include provisions about asylum.
9.However, even though the negative procedure applies generally in relation to changes to the immigration rules, we see no reason why a higher level of scrutiny should not apply in specific cases. Given the clause’s significance and the controversy surrounding it, we consider that, where it is proposed to amend the immigration rules to make different provision for different groups of refugees, the amendment should be subject to the draft affirmative procedure so that it cannot come into force until approved by both Houses.
Clause 26—Accelerated appeal procedures
10.Clause 26 is concerned with ensuring that immigration appeals, where the person appealing is in detention, are dealt with within an accelerated time frame. This is to be achieved by requiring the relevant tribunal procedure rules to make provision for an accelerated timetable for the disposal of the relevant appeals.
11.Clause 26(1) and (2) describes the cases which are to be subject to the accelerated procedure. There are 4 elements to the description:
- The appeal must fall within a list of appeals set out in clause 26(6). These include appeals by asylum seekers seeking protection on various grounds (for example, human rights grounds) against the refusal of their claim for protection, appeals by persons who have been deprived of British citizenship, as well as other kinds of immigration appeals.
- The person appealing must be in detention under one of the statutory provisions listed in clause 26(7).
- The decision appealed against is of a description specified in regulations.
- The Secretary of State must have certified the decision as being one that would likely be disposed of expeditiously.
12.On the face of it, the regulation-making power conferred by clause 26(1) (referred to in the third bullet in paragraph 11 above) is limited to describing the particular kinds of decision to which the accelerated procedures will apply. However, the description in the memorandum suggests it has a wider scope. For example, paragraph 33 of the memorandum suggests that the regulations will “specify the locations at which the accelerated detained appeals route … will operate (i.e. places of detention)”. Paragraph 34 states that the regulations will require the Secretary of State to provide written reasons to an individual when their appeal has been certified for inclusion in the accelerated detained appeals route, including the reasons why the Secretary of State considers that the appeal would likely be disposed of expeditiously. We find it difficult to understand how such matters would fall within the scope of the regulation-making power, and accordingly the House may wish to ask the Minister to explain how the description given in the memorandum is said accurately to reflect the power as it is expressed in the Bill.
13.Regulations under clause 26(1) are subject to the negative resolution procedure. This level of scrutiny is explained3 on the basis that the power will add further limitations to the limitations that are already contained on the face of the primary legislation. We do not accept this as an apt description of the power. The structure of clause 26 is to leave a significant element of the description of the cases to which the accelerated procedures are to apply to be set out solely in regulations. If the views expressed in the memorandum are right, this element of the description is liable to cover a wide range of matters. In the circumstances, we consider that the power should be subject to the affirmative resolution procedure.
Clause 68—Power to define “victim of slavery” and “victim of human trafficking”
14.Clause 68 contains the definitions which apply for the purposes of Part 5 of the Bill. Part 5 deals with modern slavery and is concerned with implementing the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT). Clause 68 includes definitions of the terms “victim of slavery” and “victim of human trafficking”. However, it does not set out the definitions on the face of the Bill, but instead provides for the terms to have the meanings given in regulations made by the Secretary of State. The regulations are subject to the affirmative resolution procedure.
15.In paragraph 81 of the memorandum, the Department explains that the definitions used in the Modern Slavery Act 2015 are inappropriate for the purposes of Part 5, because they focus on the fact that the person has been a victim of an offence under section 1 or 2 of that Act; and that such an approach is not appropriate for identifying victims in the context of implementing ECAT. The intention4 is to use the power conferred by clause 68 to define “victim of slavery” and “victim of human trafficking” in ways that are compatible with Article 4 of ECAT and Article 4 of the European Convention on Human Rights (ECHR).
16.The Department explains the reasons for taking the power in paragraph 85 of the memorandum. It states:
“The definition needs to encompass everyone caught by the definition in Article 4 of ECAT. This is an international treaty definition which is open to interpretation by the Courts. Given this, and its legal complexity, the Department needs to ensure the definition covers that cohort depending on how the Courts interpret the definition to ensure that it captures the correct group of people, and can continue to [do] so in future.”
This suggests that the intention is for the definitions to reflect the provisions in Article 4 of ECAT and Article 4 of the ECHR; but that it is necessary to leave them to subordinate legislation in case the interpretation of those Articles varies over time.
17.One thing which is noticeable about the power conferred by clause 68(1) is the absence of any express link to Article 4 of ECAT or Article 4 of the ECHR. The power is simply a power to define the terms in regulations without limiting in any way the provision which may be contained in the regulations. We consider this to be inappropriate. The policy is for the definitions of the terms “victim of human trafficking” and “victim of slavery” to reflect the provisions of Article 4 of ECAT and Article 4 of the ECHR. And the reason for providing for the terms to be defined in regulations is solely based on this policy. Nothing is said to explain why Ministers are being given an unlimited discretion to decide how the terms are defined, and given their importance to Part 5 of the Bill we consider such a power to be inappropriate.
Paragraph 3 of Schedule 4—Penalty for failure adequately to secure a vehicle
18.Paragraph 3 of Schedule 4 amends the Immigration and Asylum Act 1999 (“the 1999 Act”) to insert a new section 31A into that Act. The new section creates a civil penalty for failing adequately to secure a goods vehicle against unauthorised access.
19.The penalty may be imposed on a person responsible for a goods vehicle where both of the following conditions apply:
- the goods vehicle is not adequately secured against unauthorised access when it arrives at a place of immigration control; and
- the person has not taken the actions required by regulations for securing the goods vehicle against unauthorised access.
20.The Bill does not give any indication as to what is meant by a goods vehicle being adequately secured against unauthorised access. Instead, all of the requirements will be contained in regulations made under powers conferred by subsection (4) of the new section, with the regulations being subject to the negative resolution procedure.
21.There is nothing on the face of the Bill to indicate the kinds of measures that a carrier might be required to take in order adequately to secure a goods vehicle against unauthorised access. The matter is left entirely to regulations, and there are no limits on the kinds of provision which may be included in the subordinate legislation. Therefore, the range and types of measures which may be required, and as a result the level of expense and the burdens that are to be imposed on carriers, is left entirely to be determined in the regulations
22.In the circumstances, we consider that that the affirmative resolution procedure offers a more appropriate level of scrutiny for the powers conferred by new section 31A(4).
23.Subsection (7) of new section 31A provides for regulations to set the maximum amount of a civil penalty imposed under the section, with the regulations being subject to the negative resolution procedure.
24.This Committee has expressed the view in the past that, where the maximum for a fine or other penalty is to be set in subordinate legislation, rather than on the face of the primary legislation, then the affirmative procedure should apply.5 We see no reason for departing from that view here. Accordingly, we recommend that the power in section 31A(7) to set the maximum penalty should be subject to the affirmative resolution procedure.
1 Home Office, Delegated Powers Memorandum, 10 December 2021.
2 Home Office, Supplementary Delegated Powers Memorandum, 5 January 2022.
3 See paras 40 and 42 of the memorandum.
4 See para 83 of the memorandum.
5 On this see the Committee’s 17th Report, Session 2015–16 (HL Paper 73), on the Immigration Bill; 1st Report, Session 2012–13 (HL Paper 10), on the Groceries Code Adjudicator Bill; and 7th Report, Session 2013–14 (HL Paper 49), on the Littering from Vehicles Bill.