2. Letter from the Chairman to Rt Hon David Blunkett MP,
Secretary of State for the Home Department
Nationality, Immigration and Asylum Bill
The Joint Committee on Human Rights will shortly be deciding whether or not it is necessary to consider the above Bill in detail. To assist with its decision, the Committee would be grateful for your comments on the following points. Our starting-point is of course the statement made under s.19(1)(a) of the Human Rights Act 1998; but I should make it clear that the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Act.
Whilst the Committee does not, as a general rule, intend to express any view on the underlying policy issues, its consideration of the Bill will be greatly assisted by an understanding of the factors which have led you to make a statement of compatibility under Section 19 of the Human Right Act, and more particularly, to conclude that any curtailment of rights under the Convention and other human rights which the Bill may entail is justified by reference to the wider public policy considerations set out in the Convention and other relevant human rights instruments.
Clause 4 of the Bill (deprivation of citizenship) would substitute new sections 40 and 40A for section 40 of the British Nationality Act 1981. New section 40 would, among other things, for the first time allow the Secretary of State to deprive a person born a British citizen of his or her British citizenship. The conditions for exercising the power would be (a) that 'the Secretary of State thinks' that the person had done anything seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory, and (b) that the Secretary of State does not think that it would make the person stateless. There are concerns about the impact of depriving someone of citizenship on their human rights. There are also concerns about the subjectivity of the conditions for exercising the power (although the Committee notes that clause 7 of the Bill would require reasons to be given for decisions, and clause 4 of the Billproposed new section 40A of the 1981 Actwould provide for a right of appeal).
1. In your view would depriving a person of citizenship make them more liable to suffer detriment in circumstances which would put at risk their right to be free of degrading treatment (ECHR Article 3), their right to liberty (ECHR Article 5), their right to respect for family life (ECHR Article 8), their right not to be subjected to the death penalty (ECHR Protocol No. 6), and the rights of their children under the Convention on the Rights of the Child (CRC); and, if so, what steps will be taken to ensure that these matters are taken into account when considering whether or not to deprive a person of citizenship?
1. Why do you consider it appropriate that a person could be deprived of citizenship on the subjective view of the Secretary of State, without requiring there to be objectively reasonable grounds for the Secretary of State's view?
The Committee notes that the right of appeal to an adjudicator could be taken away if the Secretary of State were to certify under proposed new section 40A(2) that the decision 'was taken wholly or partly in reliance on information which should not be made public on grounds relating to(a) the interests of national security, (b) the interests of the relationship between the United Kingdom and another country, or (c) another matter of a political kind.' Unlike the power to issue certificates cutting off appeals on similar grounds under clause 75 of the Bill, there would appear to be no alternative path of appeal to the Special Immigration Appeal Commission where a certificate has been made under proposed new section 40A(2). (See paragraph 2 of Schedule 6 to the Bill.) As such decisions may have human rights implications, it seems strange to allow the Secretary of State to remove a right of appeal from the person deprived of citizenship in these cases.
1. Is it thought to be appropriate, and if so why, to allow the Secretary of State to deprive a person of a right of appeal in circumstances where the person's human rights may be affected; and if the decision or the certificate were to be challenged in judicial review or similar proceedings, would the Government, as a matter of course, give an undertaking to a court that no steps would be taken which might put the person at risk of an infringement of his or her human rights until such time as the proceedings had been finally determined?
Accommodation centres-legal advice
There appears to be no provision under clause 25 of the Bill for residents in accommodation centres to be provided with independent, accessible, high quality, free or affordable legal advice. The Committee considers that access to such advice is likely to be essential if people's human rights are to be made real and effective, rather than merely theoretical and illusory. Proper legal advice may be all the more important in view of the proposal in clause 48 to repeal statutory requirements for automatic, routine bail hearings under the (never implemented) Part III of the Immigration and Asylum Act 1999.
1. What are the reasons for excluding independent, accessible, high quality, free or affordable legal advice from the list of services which could be provided under clause 25, and what other sources of such advice could be made available to residents in accommodation centres?
Children in accommodation centres
Children are entitled to special protection under international law. The Convention on the Rights of the Child, Article 3(1) requires that authorities make the best interests of the child a primary consideration in all actions concerning children. Article 9(1) requires States to ensure that children are not separated from their parents, except where that would be in the best interests of the child. Article 10(1) accordingly provides that applications by a child or his or her parents to enter or leave a State Party for the purposes of family reunifications are to be dealt with in a 'positive, humane and expeditious manner', and Article 10(2) requires States to 'respect the right of the child and his or her parents...to enter their own country'. When it ratified the Convention the United Kingdom reserved its freedom to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as may be deemed necessary from time to time. Nevertheless, obligations to respect the private and family life of asylum-seekers under ECHR Article 8 remain.
1. Does the Government consider that, but for the reservation to the CRC, the provisions of Part 2 of the Bill (accommodation centres) would be likely to violate rights arising under the CRC?
1. Does the Government intend to maintain, and is it satisfied of the legality of, the reservation under the CRC?
The Committee is concerned that allowing children to be accommodated at accommodation centres might give rise to a risk of violating a number of human rights unless account is taken of those rights in decisions about residence requirements and allocation to particular centres. Much would depend on the regime and facilities in each accommodation centre. It might be hoped that families would be accommodated at centres with facilities suitable for the needs of the children. Nevertheless, the Committee would be grateful for clarification as to the steps which would be taken to safeguard children's rights in a number of respects.
1. How would the following matters would be taken into account in decision-making
(a) the requirement that the best interests of the children should be a primary consideration (CRC Article 3);
(b) threats from the very nature of communal life to the right to respect for private and family life (ECHR Article 8) and the right to privacy and a family life (CRC Articles 16 and 18);
(c) the right to participate in social, leisure, recreational and cultural activities available to other children (CRC Article 31);
(d) the right to make cultural links and participate in normal community life, especially if accommodation centres were in isolated areas (CRC Article 15);
(e) the right of children to express their views in all matters affecting them, and the steps that would be taken to ensure that their views would be given due weight in accordance with their age and maturity (CRC Article 12; and
(f) generally, the right of children to benefit from appropriate protection for their rights under the CRC and other human rights instruments, as required by CRC Article 22?
The Committee is concerned about the availability of appropriate educational provision for children in accommodation centres, to meet the requirements of Article 28 of the CRC and of Article 2 of Protocol No. 1 to the ECHR, taken together with the non-discrimination provisions of those instruments.
1. Can you confirm that the Government would exercise the powers set out in clause 25 of the Bill so as to meet the United Kingdom's obligations under CRC Articles 2 and 28 and ECHR Article 14 and Article 2 of Protocol No. 1, and in particular so as to ensure that adequate and effective educational provision would be made in every accommodation centre in which any child of school age was to reside for more than a very few days, and that the quality of educational provision and facilities would be equivalent to those available in maintained schools, despite the fact that centres would not be treated as schools for the purposes of the Education Act 1996?
1. What differences do you expect there to be between the quality of educational provision made for children in accommodation centres, children of asylum-seekers in the community, and other children respectively; and if there are such differences, what is the justification for differentiating between educational provision for children in accommodation centres, children of asylum-seekers in the community, and other children?
1. What are the reasons for allowing the Secretary of State to provide facilities for a child with a statement of special educational needs under clause 25(1)(g) (medical facilities) rather than clause 25(1)(f) (education and training) (see clause 30(6))?
Accommodation for destitute asylum-seekers
The Committee has already drawn attention to the need for adequate housing, appropriate to people's needs, to be available to those who cannot obtain it for themselves, in accordance with the right to adequate housing under Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, and to prevent them suffering degrading treatment contrary to Article 3 of the ECHR. Under the Housing Act 1996, section 160A (inserted by the Homelessness Act 2002), local authorities would not be permitted to make available housing stock to house people who are subject to immigration control, such as asylum-seekers. The Secretary of State has power to provide adequate accommodation for asylum-seekers who would otherwise be unable to obtain it, and clause 35(5) would amend section 95(3)-(8) of the Immigration and Asylum Act 1999 and other legislation to ensure that accommodation could be provided for a destitute asylum-seeker whenever the person's claim to national assistance would be excluded.
This would appear to make it possible to avoid a situation in which a destitute asylum-seeker would suffer from a lack of adequate housing or degrading treatment under ICESC Article 11(1) and ECHR Article 3, but the Bill would, on its face, make support from the Secretary of State a matter of discretion rather than right.
1. Would you normally regard it as appropriate to exercise your discretion in favour of providing assistance with housing to a destitute asylum-seeker and his or her dependants where there would otherwise be a risk of a violation of rights under either or both of those provisions, together with the anti-discrimination provisions of ICESC Article 2(2) and ECHR Article 14?
People required to leave accommodation centres
Under clause 26(4) and (5) of the Bill, the Secretary of State or the manager of an accommodation centre would have power to require a destitute asylum-seeker, together with any dependant, to leave an accommodation centre if the asylum-seeker or a dependant had breached a condition of residence there. A lawful decision to require someone to leave an accommodation centre might leave them destitute (within the meaning of the Bill) without violating a Convention right. The Secretary of State could provide or assist in securing accommodation elsewhere under sections 4, 95 and 96 of the Immigration and Asylum Act 1999. But in deciding whether to do so, the Secretary of State could, but need not, take account of the fact that a condition of residence had been breached. If assistance with accommodation were denied as a result, the person (and any dependant) might be homeless. The Committee has previously accepted that 'a person who has been offered housing and has refused it, or has refused to co-operate with efforts to assist him or her, can be seen as largely responsible for any deterioration in health which results', even if that gives rise to a threat of degrading treatment. Breaching a residence condition, if sufficiently serious, might fall into this category, relieving the Secretary of State of the legal obligations arising under the ECHR and the ICESC. However, this would not necessarily help a person who has been deprived of accommodation because of the behaviour (breach of a residence requirement) of another person.
1. Would an individual's responsibility (or lack of responsibility) for the behaviour of another would be taken into account when deciding (i) whether to require them to leave an accommodation centre, and (ii) whether to assist either or both of them in obtaining alternative accommodation, and if so, how would it be taken into account?
1. Does the Government intend to clarify the correct approach to these matters in the form of written guidance, and, if so, can a copy of the guidance be provided to the Committee?
Non-accommodation support for asylum-seekers and breach of conditions
Clause 34 would allow the Secretary of State to make an order removing eligibility for support for essential living needs from asylum-seekers who are not being provided with accommodation. Removing the 'support-only option' would affect asylum-seekers currently residing with members of their family who are already settled in the United Kingdom. Such people might have to choose between continuing to live with the family but without support, and severing their family life in order to remain eligible for support. In the former case, there would be a risk of destitution and of suffering which would amount to a breach of ECHR Article 3 (degrading treatment). In the latter case, there might be an interference with the right to respect for private and family life under ECHR Article 8.
1. How would any order made under clause 34 safeguard the rights referred to above?
1. Would you be prepared to send any such order to the Committee in draft to enable it to consider the provisions before they come into force, bearing in mind that the order would be made by statutory instrument subject to annulment, rather than requiring approval before taking effect (clause 34(4))?
Clause 35(7) would allow the Secretary of State to make regulations, subject to annulment, specifying items which were to be treated as essential items for support purposes. This could be used to deprive people of support for appropriate food, clothing, or other items which would normally be considered essential items, leaving the destitute asylum-seeker undergoing suffering of a kind that might amount to degrading treatment in violation of ECHR Article 3.
1. How would any order made under clause 35(7) safeguard the right not to be subject to degrading treatment under ECHR Article 3?
1. Would you be prepared to send any such regulations to the Committee in draft to enable it to consider them before they come into force?
Clause 38 would allow the Secretary of State to deprive a person of support available under Parts 2 and 3 if he or she did not comply with conditions on which temporary admission or release from detention has been granted under Schedule 2 to the Immigration Act 1971, section 9A of the Asylum and Immigration Act 1993, and clause 48 of the current Bill. This could give rise to a violation of ECHR Article 3. The Government points out that the support could be reinstated if withdrawal gave rise to a risk of a violation of Article 3 and the person agreed to comply with the conditions. This sounds as if the Government regards it as a matter of discretion.
1. Can you confirm that support would be reinstated if refusing to reinstate it would put the applicant at risk of undergoing suffering of a kind and degree which could amount to degrading treatment contrary to ECHR Article 3?
1. The Committee understands that the Government would intend the maximum level of support to be set at 70 per cent of income support. How could this provision be implemented in a way that would avoid discriminating between classes of asylum-seekers, and between asylum-seekers and other immigrants, in relation to their standard of living, in breach of the requirements of Article 2(2) and Article 11(1) of the ICESC?
Detention pending a removal decision
Clause 45 would allow a person who is liable to removal to be detained under the authority of the Secretary of State (a) pending a decision by the Secretary of State whether to give directions for his or her removal from the United Kingdom, and, after directions have been given, pending removal, and (b) in order to exercise the Secretary of State's power to examine a person or refuse them leave to enter under section 3A of the Immigration Act 1971. Clause 45(8) provides that the power to detain would be exercisable 'where the Secretary of State has reasonable grounds to suspect that he may make a decision' to remove the person.
1. Is it intended that the power given by Clause 45(8) would be exercisable only in circumstances set out in clause 45(8)? Why does clause 45 not expressly require reasonable grounds in all cases? In your view, are the powers also subject to other restrictions, such as limitations on the time for which a person may be detained, and, if so, why they are not expressly stated on the face of the Bill?
Detention of children pending a decision on an application for asylum and while awaiting removal
Article 37 of the Convention on the Rights of the Child provides-
'States Parties shall ensure that ...
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.'
It might be considered to be arbitrary to detain a child unless there was clear evidence of a risk of the child absconding or in some other way flouting the immigration process. The Government has expressed the view that this sometimes is the case.
1. Is it intended to take account of the rights of children under Article 37 when making decisions about the detention of children under powers to be conferred by clause 45 of the Bill, and if so, how?
Restriction of bail and appeals
As already mentioned, clause 48 of the Bill would repeal the (never implemented) provisions of Part III of the Immigration and Asylum Act 1999 for routine bail hearings. These would be a valuable way of ensuring that detention did not continue for an excessively long time, and that the procedures for arranging removal were being conducted with due diligence, so as to avoid a violation of ECHR Article 5(1). This would leave people detained pending removal without an easy avenue for seeking release. Judicial review, habeas corpus and bail applications depend on effective and accessible legal advice, which may not be provided if the potential applicant is ignorant of his or her rights or the case does not satisfy the merits test for public funding.
In addition, the Bill would restrict a number of existing rights to appeal to an adjudicator against immigration decisions. In some cases, they would not be replaced by any alternative avenue of appeal, so a person's only means of seeking legal redress would be to apply for habeas corpus or judicial review. This, again, would depend on access to appropriate legal advice.
Without information about rights and access to appropriate legal advice, the rights under ECHR Article 5 are likely to be merely theoretical and illusory rather than real and effective. This risk would be heightened where the appeal was precluded by a certificate issued by the Secretary of State.
1. What steps would be taken to ensure that appropriate legal advice and assistance is provided to detainees in order to allow them to take proceedings to test the legality of their detention and to obtain their release?
There might also be a problem in relation to the suspensory effect of such applications. An appeal to an adjudicator would normally have suspensory effect. By contrast, an application for habeas corpus or judicial review is not automatically treated as suspending the removal process. Where the application is made on grounds which engage a Convention right, the protection for that rights will not be real and effective if the applicant can be removed before the case is heard.
1. Would the Government automatically give an undertaking to the court to suspend action to remove a person from the United Kingdom pending the final determination of any such application which was alleged to engage a Convention right, including applications for judicial review of certificates made by the Secretary of State under clauses 72(2), 74 and 76?
Penalties under 'authority to carry' schemes
Clause 96 would introduce a new 'authority to carry' (ATC) scheme, and would allow the Secretary of State to impose a penalty on carriers who bring people to the United Kingdom without authority under the scheme. The details of the scheme or schemes would be set out in subordinate legislation, which, to be lawful, would have to be compatible with Convention rights.
1. What are the kinds of penalties which might be imposed, and what steps, if any, would be taken to ensure that they would meet the requirements of Article 6 of the ECHR in the light of the decision in International Transport Roth GmbH and others v. Secretary of State for the Home Department that administrative powers to forfeit vehicles, etc., in which illegal immigrants had entered the country were disproportionate to any legitimate purpose the powers could serve, and violated the right to a fair hearing (ECHR Article 6(1))?
The Committee notes that you said, on Second Reading, that the Government would table an amendment to take account of the Roth decision (HC Debs, 24 April 2002, c. 355).
1. As this amendment will be intended to remove an incompatibility with a Convention right, declared by the court in Roth, by primary legislation, can you give an undertaking to ensure that this Committee receives a copy of the proposed amendment to allow it to consider the human rights implications in good time and to report to each House before the amendment is considered in Committee?
Clauses 100-110 would permit information about individuals to be disclosed in some circumstances for the purposes of immigration-related proceedings. The privilege against self-incrimination would be protected by clause 110. The collection and disclosure of personal data could engage rights under ECHR Article 8(1). The Government takes the view that the powers would be justifiable under Article 8(2), and under clauses 97(4)(e) and 98(2)(b) would provide for the powers to be exercised according to published Codes of Practice which would presumably offer safeguards against infringement of human rights by abuse of power.
1. Can you provide copies of drafts of the Codes of Practice to us at the earliest opportunity, so that the Committee may consider their contribution to safeguarding human rights?
Clause 112 would substitute new sections 25-25C for the existing section 25 of the Immigration Act 1971 (offence of assisting illegal entry).
1. Why would proposed new section 25(2) include a law affecting entitlement to travel within the State in the definition of 'immigration law' for the purpose of the offence under section 25(1), and in your view, would imposing criminal liability on someone who knowingly and for gain facilitates movements of asylum-seekers in the United Kingdom contrary to proposed new section 25(1) amount to a restriction on the movements of refugees going beyond those which are necessary, violating Article 31(2) of the Convention relating to the Status of Refugees?
Finally, please could you inform the Committee of any representations which you have received relating to the human rights implications of the Bill.
29 April 2002
1 See the White Paper, Secure Borders, Safe Havens: Integration with Diversity in Modern Britain, Cm. 5387 (London: The Stationery Office, 2001), p. 56, para. 4.34 Back
2 First Report of 2001-02, Homelessness Bill, HL Paper 30/HC 314, p. vii, para. 9 Back
3 Immigration and Asylum Act 1999, s. 96(1) Back
4 See also clause 35(7) Back
5 Clause 26(8) Back
6 First Report of 2001-02, Homelessness Bill, HL Paper 30/HC 314, p. vii, para. 9 Back
7 Explanatory Notes to the Nationality, Immigration and Asylum Bill, Bill 119-EN (London: The Stationery Office, 2002), para. 240 Back
8 White Paper, Cm. 5387, p. 67, para. 4.77 Back
9  EWCA Civ 158, CA Back
10 Explanatory Notes, paras. 241-242 Back