Joint Committee On Human Rights Seventeenth Report

8. Society of Legal Scholars (Immigration and Refugee Law Section)


SLS is one of the largest associations of law teachers in the country. It aims to advance legal science and education, which includes teaching in universities, legal research and the professional training of lawyers. The Society is divided into different sections for members with particular interests and the sections are often involved in law reform, responding to important proposals or legal developments.

SLS appreciates the opportunity afforded by the Joint Committee on Human Rights to respond to the human rights implications of the Bill, since there are a number of proposals which have raised concern. Reference has been made to a number of human rights instruments: the 1950 European Convention on Human Rights ('the Convention'), 1951 UN Convention Relating to the Status of Refugees and 1969 Protocol ('the Refugee Convention'), the 1989 UN Convention on the Rights of the Child, and the Human Rights Act 1998 ('HRA').

The Articles of the Convention referred to are as follows:

Article 3 - Prohibition of Torture (or to Inhuman or Degrading Treatment or Punishment)

Article 5 - Right to Liberty and Security

Article 6 - Right to a Fair Trial

Article 8 - Right to Respect for Private and Family Life

Article 14 - Prohibition of Discrimination

Secondary legislation

SLS draws the Committee's attention to the lack of draft regulations accompanying the Bill. This practice, adopted during the passing of the Immigration and Asylum Act 1999, prevents proper scrutiny of the legislation and is arguably undemocratic. It is possible that subsequent secondary legislation may not be human rights compliant and may not adhere to the Convention's requirement that interference with rights should be clearly 'prescribed by law'.

Part 1 - Nationality

Clause 1(1)

'Sufficient knowledge about life in the United Kingdom' begs the question 'whose life?' To borrow the language of the Second Reading debate, there could be no objection to increasing civic participation but there would be strong objection to promoting cultural uniformity. While the HRA does not deal directly with rights to cultural diversity, the rhetoric of human rights and the principle of a democratic society, which underlie many of the Articles of the Convention, involve tolerance and pluralism. The spirit if not the letter of HRA compliance would be undermined if active commitment to a multicultural society were not explicitly and actively affirmed in connection with this requirement.

Clause 1(2)

It appears that the existing power to waive the language requirement for reasons of age or physical or mental condition will continue, and apply also to the new requirement to show knowledge of a relevant language. This should be the case as there would otherwise be a potentially discriminatory bar to the acquisition of citizenship for the elderly and disabled (in contravention of Article 14 of the Convention).

Clause 3

The proposed pledge places a condition on naturalising citizens, which does not apply to citizens by birth, and which, as it stands, is not capable of fulfilment. Part of the pledge is to fulfil the 'duties and obligations' of citizenship. These are at present unspecified in the UK. This raises the prospect of a naturalised citizen being stripped of their citizenship for failure to fulfil such obligations, even though another citizen (including one naturalised at an earlier date) could not be subject to such penalty, and even though the obligations were unclear and unspecified.

Clause 4

This clause is unacceptably wide in a number of respects:

    —  A power for the Secretary of State to deprive someone of his or her nationality, even if acquired by birth, must be of doubtful legality. A status acquired by birth should not be removable by executive fiat. It might be said that acquisition of nationality by birth can be changed by legislation, as was done in the British Nationality Act 1981. At the very least, therefore, Parliament should be involved in the removal of nationality by birth, if it can be removed at all. In the 21st century, misdemeanours by a citizen should be dealt with by prosecution rather than exile. The proposal is out of step with the direction of change in Europe in analogous matters; the EU is moving towards greater rights for Third Country Nationals, and the Council of Europe recommends that long term resident aliens should not be expelled. In other words, the trend is towards creating stability and security and reducing the differentiation in rights of groups of citizens, not increasing them. As this power cannot be exercised where the Secretary of State 'thinks' that the order would make the person stateless, it will only be applied where a person has dual nationality and therefore is more likely to be applied in relation to minority ethnic groups. It cannot be necessary to remove the nationality of a minority ethnic national but not that of a majority ethnic national. Clause 6 is welcome in making nationality decisions fully subject to race discrimination protection, but leaves the burden on the individual to prove discrimination in a particular case. It would be preferable not to give the Secretary of State this excessive and potentially discriminatory power in the first place. It may be argued that, in terms of the HRA, this discrimination would not offend, as there is no Convention right on which it may bite. However, it would be preferable for the Government to look for ways to ratify Protocol 12, rather than amass further reasons for being unable to do so.

    —  The proposed basis for a decision to remove citizenship is that the Secretary of State 'thinks' that something is the case. This is far too subjective, and not a proper basis in law for the removal of a fundamental human right. There is no initial hearing for the removal of citizenship, and an appeal may be heard in closed session in the Special Immigration Appeals Commission ('SIAC') if the Secretary of State certifies that information should not be made public for national security reasons. While there is debate about whether Article 6 of the Convention applies to the usual cases before SIAC, in the case of deprivation of citizenship the principles of a fair hearing should surely apply. There should be a proper rational basis for the Secretary of State's belief and criminal standard of proof, or the higher civil standard, as in Khawaja [1984] AC 74.

    —  Grounds for the Secretary of State to invoke the SIAC procedure include 'another matter of a political kind'. Again this is far too wide and arguably unnecessary given that national security considerations are already catered for.

    —  The new section 40(3) enables the Secretary of State to remove nationality acquired by fraud, false representation or concealment of a material fact, even if this would leave a person stateless. Again, SLS would argue that prosecution should deal with such actions. The 1997 European Convention on Nationality and the 1966 International Covenant on Civil and Political Rights both provide that everyone has a right to a nationality.

Clause 11

The extension of the definition of residence 'in breach of immigration laws' will make it far more difficult for refugees to gain citizenship as time spent waiting for a decision, which can be very lengthy, will not count towards residence for naturalisation purposes. Article 34 of the 1951 UN Convention Relating to the Status of Refugees requires states to take steps to 'facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings'. The net result of this clause could be that refugees spend far longer in the UK waiting for naturalisation than do other applicants, despite the fact that they will not have the protection of any other country or a passport.

Part 4 - Detention and Removal

SLS is concerned with the continuing use of detention centres for administrative convenience and the proposed repeal of Part III of the Immigration and Asylum Act 1999 in relation to bail. The detention of dependant children is particularly problematic. Detention generally may give rise to challenges under Articles 3, 5 and 14 of the Convention.

Clause 47

This clause, renaming detention centres as removal centres, appears to be partly in response to public concern about removal of asylum seekers and partly in response to Article 5(1)(f) of the Convention, which states that:

'Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law:

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.'

By designating detention centres as removal centres, the Government is implying that 'action is being taken with a view to deportation or extradition'. However, SLS is concerned that this will not always be the case and that individuals will be detained for long periods of time in contravention of Article 5. The Court of Appeal recently addressed the issue of detention in Oakington in the case of R v Secretary of State for the Home Department, ex parte Saadi and Others [2001] 4 All ER 96, overturning the judgment of Collins J in the Administrative Court. While finding that detention in Oakington was not disproportionate, the Court of Appeal's decision was based on the relatively short period asylum seekers spent in detention (normally seven days). SLS agrees with the logic of the decision of Collins that detention of asylum seekers in the UK (whether short or long term) does not comply with Article 5(1)(f). The language of Article 5(1)(f) suggests that detention must be to prevent an individual from effecting an unauthorised entry. Once it is accepted that an application for asylum has been made, and there is no risk that the applicant will abscond, it is impossible to understand how the applicant should be detained to prevent his or her effecting an unauthorised entry. However, the Court of Appeal decision has been appealed to the House of Lords and will be heard in May/June 2002. The judgment undoubtedly will be extremely important in determining the human rights compliance of the Government's detention policy.

Clause 48

SLS is disappointed with the proposed repeal of Part III of the 1999 Act on routine bail hearings. Detention for immigration or asylum purposes requires independent scrutiny. It is SLS's understanding that Part III was incorporated in order to ensure compliance with the Human Rights Act 1998 and to introduce the requisite scrutiny. Jack Straw, the former Home Secretary, agreed as much when he claimed during debate on the 1999 Act that the bail provisions of Part III ensured compliance with the Convention. SLS is unclear how the position has changed and suggests that removal of routine bail hearings increases the likelihood that the UK's detention policy is in breach of Article 5. Consideration should also be given to compliance with Articles 3 and 14.

SLS notes that Article 6 of the Convention (right to a fair trial) requires that detainees should have effective representation and that funds should be available for representation at bail hearings.

Clause 50

See above under clause 47.

SLS notes, with regret, the UK's continuing reservation to the 1989 Convention on immigration grounds and is concerned that the placing of children in induction centres, with their limited facilities, does not take account of the rights of children under both domestic law and the 1989 UN Convention on the Rights of the Child. It does not appear that the best interests of the child have been given primary consideration as required by Article 3 of the 1989 Convention, nor that his or her rights to education or to physical, mental, spiritual, moral and social development are necessarily being protected (Articles 28 and 27).

Clause 55

The revocation of leave to enter or remain is of concern to the SLS. The standard of proof is, once again, that the 'Secretary of State thinks' and is therefore too low. The consequence of this clause is that an individual may lose the entitlement to work or to obtain social security and may therefore become destitute. This clause may be in breach of Article 3 of the Convention ('No one shall be subjected to torture or to inhuman or degrading treatment or punishment'), or at least the spirit of the Article, since the removal of work and benefit entitlements could constitute degrading treatment.

Part 5 - Immigration and Asylum Appeals

Clause 74

The removal, rather than limitation, of a right of appeal where the Secretary of State certifies that an individual had an opportunity to raise grounds in an earlier appeal and that in his or her opinion, the individual is seeking to appeal to delay removal. This clause raises questions in relation to the prohibition against refoulement contained in Article 33 of the 1951 Refugee Convention and the rights enshrined in Article 3 of the Convention. The rejection of or agreement with the certification by the Secretary of State should be a matter for the adjudicator to determine.

Part 6 - Immigration Procedure

Clauses 96 - 110

SLS has general concerns about the human rights implications of these clauses which appear to grant very broad powers of access to confidential information on individuals and exchange of data. The privacy safeguards provided by the 1981 EU Data Protection Convention and the 1995 Data Protection Directive, which form the basis of the Data Protection Act 1998, are of relevance here, as is Article 8 of the Convention. The nature of the information to be provided is not entirely clear, nor is the use to which it may be put. There appears to be no facility for an individual to discover what information has been provided or to challenge the accuracy of the information supplied. Although the Government argues that these powers are justifiable under Article 8(2) (interference with the right to privacy in the interests of the economic well-being of the country and for the prevention of crime and disorder), SLS argues that that the Government should pay greater heed to the human rights implications of Article 8 in relation to these clauses and that they are disproportionate as they stand. In the case of asylum seekers, the dangers of disseminating confidential information should not be underestimated and dissemination should only take place where proportional and absolutely necessary.

Part 7 - Offences

Clauses 119-120

Powers of entry and search of business premises are granted to immigration officers and some of these powers are exercisable without a warrant and therefore without prior judicial control. This lack of judicial control raises issues under Article 8 of the Convention, although the Government once more justifies potential interference with Article 8 rights on the basis that it is necessary for the prevention of crime (as permitted by Article 8(2)). It is certainly the case that the powers must be shown to be proportionate and necessary, and it is suggested that greater safeguards need to be incorporated in the Bill than is the present case.

May 2002

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2002
Prepared 21 June 2002