Illegal Migration Bill
1.This Bill had its second reading on 10 May. Its purpose is to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by requiring the removal from the United Kingdom of persons who enter or arrive in the UK in breach of immigration control.
2.The Home Office has provided a delegated powers memorandum (“the Memorandum”).1 We draw the following matters to the attention of the House.
Clause 3(7)—Power to make exceptions from the removal duty under clause 2
3.Clause 2 seeks to achieve the purpose of the Bill by requiring the Secretary of State to make arrangements for the removal of a person from the UK if they meet the conditions set out in subsection (2) of that clause. Clause 3 provides for exceptions from this duty (referred to below as “the removal duty”). It is primarily concerned with unaccompanied children who fulfil the removal conditions, where the duty is disapplied but with the Secretary of State retaining a power to remove the children concerned from the UK in a limited number of circumstances. Subsection (7) of clause 3 confers a power on the Secretary of State by regulations to make other exceptions from the removal duty. This power includes, at subsection (8), the power to make consequential provision modifying how primary legislation, including the Bill itself, applies to persons falling within such an exception.
4.Regulations under clause 3(7) are subject to the negative resolution procedure. The reason given in the Memorandum for this level of scrutiny is the fact that the power is beneficial to those affected since it can only be used to except them from the removal duty, either temporarily or permanently.2
5.This is a significant power since it will allow changes to be made to the descriptions of persons to whom the removal duty applies. There are also no conditions or limitations on how, or in what circumstances, the power may be exercised. The power to modify other legislation, which is included within its scope, is also significant to the extent that it confers a wide discretion on the Secretary of State to modify how legislation, including primary legislation, will operate in the case of those to whom an exception applies. In the light of these matters, we consider that the affirmative resolution procedure offers a more appropriate level of parliamentary scrutiny.
Clause 10—Powers to detain unaccompanied children
6.Clause 10 amends Schedule 2 to the Immigration Act 1971 and section 62 of the Nationality, Immigration and Asylum Act 2002 to confer powers to detain persons to whom the removal duty applies, pending their removal from the UK. The power to detain also extends to unaccompanied children who fulfil the removal conditions.
7.When the Bill was introduced into the House of Commons it was framed so that there were no limits on the circumstances in which an unaccompanied child could be detained. Amendments were made at report stage to limit the circumstances in which the power to detain could be exercised, recognising the particular sensitivities around the detention of unaccompanied children. Accordingly, the Bill as introduced into the House of Lords provides that an unaccompanied child may only be detained in the circumstances specified in regulations. There is also a power for the regulations to specify time limits which are to apply in relation to the detention of unaccompanied children where they are being considered for removal.
8.The regulations are subject to the negative resolution procedure. The Memorandum explains that the negative procedure is considered appropriate because “the effect of any regulations is to limit the circumstances in which an unaccompanied child may be detained or the duration of detention for the purposes of removal3”. In our view, this explanation is misconceived. The regulation making power can only be viewed as a limiting power from the perspective of the Bill as introduced into the House of Commons which conferred an unfettered power to detain unaccompanied children. However, no such unfettered power of detention exists in the Bill as introduced into the House of Lords. It is the regulations alone which will specify the circumstances in which unaccompanied children will be capable of being detained, in the absence of which there is no power to detain such children. Given the importance and sensitivity of the subject matter, we consider that the affirmative resolution procedure should apply.
Clause 14 and Schedule 2, paragraph 10—Seizure of electronic devices and the handling of legally privileged information
9.Clause 14 introduces Schedule 2 to the Bill, which confers powers on immigration officers to search for electronic devices and also powers to seize and retain such devices, and to access, copy and use information stored on them. Paragraph 10 of Schedule 2 confers a power on the Secretary of State by regulations to make provision about devices which contain or may contain items subject to legal privilege.
10.There is a presumption within each of the UK’s legal jurisdictions that a person will not be required to disclose material that is legally privileged. The Memorandum indicates4 that guidance will be given to immigration officers that, unless there is provision for its disclosure under regulations made under paragraph 10, that items subject to legal privilege should not be seized. Given the importance of the principle of non-disclosure of legally privileged material, we consider it inappropriate to rely on guidance to ensure that legally privileged material is not used under the powers conferred by Schedule 2. Instead, provision should be made on the face of the Bill prohibiting the use of items subject to legal privilege; and the power to make regulations (to the extent that it is justified- see the following paragraph) should therefore be limited to making exceptions from this principle.
11.In justifying the power conferred by paragraph 10, the Department states in the Memorandum—
“… these are new powers and consequently it is not known what level of LPP material will be encountered and therefore whether it will impact the use of the seizure powers. In these circumstances it is considered appropriate to leave such matters to regulations”.5
We do not consider this explanation is sufficient to justify powers which will allow a derogation from the principle of non-disclosure of legally privileged material. The reasons do not give any weight to the importance of maintaining the principle. There is also nothing in the way in which the powers are structured to ensure that regulations can only be used to authorise the disclosure of legally privileged material where the public interest in doing so is considered to outweigh the public interest in maintaining the principle of non-disclosure of such material. Accordingly, we consider the powers conferred by paragraph 10 of Schedule 2 to allow the use of legally privileged material are inappropriate.
Clauses 21(6), 23(6) and 24(6)—Power to issue guidance on compelling circumstances for remaining in the UK to assist with an investigation etc.
12.Clause 21 applies where the removal duty relates to a person in respect of whom a decision has been made that there are reasonable grounds to believe the person is a victim of slavery or human trafficking. In such a case, existing legislation provides for a recovery period during which they may not be removed from the UK. Clause 21 will have the effect of disapplying this prohibition against removal from the UK where the removal duty applies to the person. This is subject, however, to an exception where the person is cooperating with an investigation or criminal proceedings in respect of the relevant exploitation, and the Secretary of State considers that it is necessary for the person to be present in the UK to provide that co-operation.
13.Clause 21(5) requires the Secretary of State to assume that it is not necessary for the person to be in the UK to provide the cooperation unless the Secretary of State considers there are compelling circumstances which require the person to be in the UK for that purpose. Clause 21(6) requires the Secretary of State to have regard to guidance issued by the Secretary of State in deciding whether there are compelling circumstances.
14.Clauses 23 and 24 deal with the provision of support in Scotland and Northern Ireland respectively for a person in respect of whom the removal duty applies and a decision has been made that there are reasonable grounds to believe the person is a victim of slavery or human trafficking. Each clause disapplies any duty or power of respectively the Scottish Ministers or the Department of Justice in Northern Ireland to provide support or assistance to such a person. This is again subject to an exception where the person is cooperating with an investigation or criminal proceedings in respect of the relevant exploitation and the Secretary of State considers that it is necessary for the person to be present in the UK to provide that co-operation. Equivalent provisions exist for determining whether the person’s presence in the UK is necessary, including a requirement on the Secretary of State to assume that it is not necessary unless there are compelling circumstances. Again, there is a duty under clauses 23(6) and 24(6) for the Secretary of State to have regard to guidance in determining whether there are compelling circumstances.
15.There is no parliamentary procedure associated with guidance issued under clauses 21(6), 23(6) and 24(6). The Department gives the following reasons for the lack of any parliamentary procedure applying to the guidance—
“The guidance would be drafted in consultation with relevant law enforcement agencies and will be published. The guidance will not conflict with, or alter the scope of, the statutory framework for the application of the public order disqualification to those who meet the conditions in clause 2. Moreover, whilst a Home Office decision-maker will be required to have regard to the guidance when making a determination, the guidance will not be binding. The approach taken here is in line with, for example, the guidance under section 49 of the Modern Slavery Act 2015 which is also not subject to any parliamentary procedure”.6
16.Given the inherent lack of precision and clarity as to what might be “compelling circumstances” for a person’s presence in the UK for the purposes of an investigation or criminal proceedings, we consider that the guidance will play a fundamental role in determining how the relevant statutory provisions are construed and accordingly the scope of the exception provided for in clauses 21, 23 and 24. For this reason, we consider that guidance under clauses 21(6), 23(6) and 24(6) should be subject to parliamentary scrutiny, with the draft negative procedure offering an appropriate level of scrutiny.
Clause 37(9)—Power to amend the definition of “working day”
17.Clause 37 contains definitions which apply for the purposes of clauses 37 to 51 (which confer rights of appeal to the Upper Tribunal against a person’s immediate removal from the UK in pursuance of the removal duty). The expression “working day” is defined in clause 37(8) and is given its ordinary meaning of being any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a bank holiday. The expression “working day” is used in clauses 47 and 48 in three contexts: to set a period within which action must be taken by the Secretary of State to consent to new matters being raised on an appeal; to set the period within which appeals or applications must be made by the affected person; and to set the period within which the Upper Tribunal must determine appeals and applications.
18.Clause 37(9) confers a power on the Secretary of State by regulations to amend the definition of “working day” in clause 37(8). The reason for taking the power appears to be related to the possibility that the Home Office and the Upper Tribunal may be able to work on the processing of appeals on non-working days as well as on working days as currently defined in clause 37(8). Thus, the Memorandum states—
“It is envisaged that this power would be exercised to amend the definition of working days in the event that it is possible for appeals to be processed and hearings to take place seven days a week”.7
However, while that may explain the need for the power in relation to periods affecting actions to be taken by the Secretary of State and the Upper Tribunal, it does not in our view explain why any change should be made to the meaning of “working day” in so far as it relates to actions which are to be taken by the person bringing the appeal. Accordingly, we recommend the Minister is asked to explain why the power extends to “working day” where used in that context; and that, in the absence of an appropriate justification, the power is inappropriate in enabling changes to be made to the meaning of “working day” in relation to actions to be taken by the person bringing the appeal.
1 Home Office, Delegated Powers Memorandum.
2 See paragraph 12.
3 See paragraph 26.
4 See paragraph 29.
5 See paragraph 32.
6 See paragraph 49 of the Memorandum.
7 See paragraph 65.