Joint Committee On Human Rights

Joint Committee On Human Rights Thirteenth Report

Bills drawn to the special attention of both Houses

Government Bills

1 UK Borders Bill

Date introduced to House of Commons

Date introduced to House of Lords

Current Bill Number

Previous Reports

25 January 2007

10 May 2007

HL Bill 68

None

Background

1.1 This is a Government Bill introduced into the House of Commons on 25 January 2007 and, following its passage through the Commons, into the House of Lords on 10 May 2007. Baroness Scotland has made a statement of compatibility under s. 19(1)(a) of the Human Rights Act 1998. The Explanatory Notes accompanying the Bill set out the Government's view of the Bill's compatibility with the Convention rights at paragraphs 168-209.

1.2 The main purpose of the Bill is to implement aspects of the Home Office's Review Fair, Effective, Transparent and Trusted: Rebuilding Confidence in our Immigration System (July 2006). Pursuant to our commitment in our Future Working Practices Report to undertake more pre-legislative scrutiny work,[1] we considered the Review document in the autumn of 2006 and we took evidence on certain aspects of it from Baroness Scotland, Minister of State at the Home Office, on 30 October 2006.[2]

1.3 The Bill is described by the Government as part of a package of measures to underpin the Border and Immigration Agency which includes new powers and exploitation of identity technology, in particular to tackle illegal working.

1.4 On our preliminary consideration of the Bill we identified a number of potentially significant human rights issues concerning (1) immigration officers' powers to detain, search and seize (2) biometric registration of persons subject to immigration control (3) the deportation of foreigners convicted of criminal offences (4) reversal of the burden of proof and (5) power to search for evidence of nationality. We wrote to the Home Secretary on 13 March 2007 in relation to these issues, asking for a fuller explanation of the Government's view that certain provisions in the Bill are human rights compatible.[3] The Minister responded by letter dated 27 April 2007 enclosing a detailed memorandum from the Home Office in response to our questions.[4] We are grateful to the Minister for his full response. We have also been assisted in our consideration of the Bill by a number of parliamentary briefings with which we have been provided and we are grateful to the organisations who provided us with this material.[5] In light of that material and the Government's response to our questions we now report to both Houses in relation to the most significant human rights issues which in our view the Bill raises.

1.5 We recognise that it is well established in international human rights law that states have the right to control the entry, residence and expulsion of foreign nationals.[6] However, the right is not unlimited.[7] They are also under a positive obligation, in certain circumstances, to take positive steps to protect individuals' human rights from the harm which may be done to them by, for example, criminals, terrorists or people traffickers from other countries. We therefore accept that increasing border security is not only a legitimate aim recognised in human rights law but may even be required by human rights law where it can be shown that current controls are inadequate to protect human rights. Our task is to subject such measures to careful scrutiny to ensure that the necessity for measures which interfere or potentially interfere with human rights has been demonstrated, that they satisfy the basic requirements of legality and that any interferences with fundamental rights to which they might give rise are likely to be proportionate.

(1) Immigration Officers' powers to detain, search and seize

1.6 The Bill enables the Secretary of State to designate Immigration Officers as having the power to detain an individual at a port if the officer thinks that the individual may be liable to arrest by a constable without a warrant,[8] or is subject to a warrant for arrest.[9] The officer must arrange for a constable to attend as soon as is reasonably practicable,[10] and the individual may not be detained for longer than three hours.[11] The officer has power to search the detained individual for, and to retain, anything that might be used to assist escape or to cause physical injury, and can use reasonable force. The officer must retain anything found on a search which the officer thinks may be evidence of the commission of an offence, and when the constable arrives must deliver to the constable both the individual and anything retained on a search. The Bill makes it an offence to abscond from such detention, and to assault or obstruct an immigration officer exercising any of these powers. The Secretary of State may only designate officers who he or she thinks are fit and proper for the purpose and "suitably trained".[12] Such designation can be revoked by the Secretary of State.[13]

1.7 The Explanatory Notes to the Bill accept that the new power of detention pending the arrival of a police constable engages the right to liberty in Article 5 ECHR, but state that the Government considers that its use will be "in accordance with a procedure prescribed by law" as required by Article 5, because "the new power is set out in legislation which specifies when it can be exercised and the limitations on its use."[14] Article 5(1)(f) ECHR permits "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", in other words, immigration detention, but the Government does not seek to rely on this exception in Article 5. The Explanatory Notes state that the detention falls within the permitted exception in Article 5(1)(c) ECHR (detention for the purpose of bringing the person before the competent legal authority on reasonable suspicion of having committed an offence or when reasonably considered necessary to prevent his committing an offence or fleeing having done so) and may also fall within Article 5(1)(a) where there is an outstanding warrant for arrest.[15]

1.8 The Explanatory Notes also accept that the powers of immigration officers to search individuals and to seize anything that might be used to assist escape or to cause physical injury, or which the immigration officer thinks may be evidence of the commission of an offence, have the potential to interfere with the right to respect for private life in Article 8 ECHR and the right to peaceful enjoyment of possessions in Article 1 Protocol 1.[16] However they state that any interference with those rights can be justified, because the powers pursue the legitimate aim of protecting public safety, the economic well-being of the country and/or the prevention of disorder or crime and are proportionate. The explanation given is that the power to search is for specific and limited purposes and will be carried out by Immigration Officers who the Secretary of State has concluded are capable of, properly trained for and fit and proper to exercise the powers.

1.9 The Explanatory Notes do not, however, contain any more detailed explanation of the necessity for the new powers to detain, search and seize. We therefore asked the Minister for a more detailed explanation of why these new powers for immigration officers are required. The Government's response is that the new powers are necessary in order to strengthen border security.[17] At present, immigration officers have only limited powers to intervene against those involved in criminality, limited to those who commit offences under the Immigration Acts and are of interest to the police. They cannot intervene in respect of individuals who are the subject of a warrant for arrest or otherwise liable to arrest by a police constable. The new powers "will ensure that those subject to arrest by the police do not evade intervention simply because a police officer is not in the immediate vicinity."[18]

1.10 We note that the Government has not provided any evidence that this problem exists or, if it does, of the scale of the problem. We accept that increasing border security is a legitimate aim capable in principle of justifying interferences with human rights, but the necessity for new powers to interfere with human rights should be clearly demonstrated by reference to cogent evidence. Conferring police powers, including powers to deprive of liberty and to interfere with other Convention rights, on officials who are not police officers and for purposes which do not relate to those officials' primary purpose is a significant step and we would expect to see clear and convincing evidence of the need to take such a step. We draw this matter to the attention of each House.

1.11 The power of a constable to arrest under s. 24 of PACE is closely regulated by Code G of the PACE Codes of Practice.[19] This Code prescribes a number of important requirements regulating the way in which the power is exercised, concerning, for example, the information to be given to a person on arrest, and the making of a record of the reasons for arrest. Police powers to search and seize are also subjected to rigorous controls contained in the relevant PACE code of practice (Code A). The Bill makes no provision for either these Codes or any other code of practice to apply to the exercise of the proposed new powers to detain, search and seize. We therefore asked the Government for more information about the limitations on the new power of immigration officers to detain, search and seize, including whether the relevant PACE Code of Practice will apply and, if not, whether equivalent requirements will apply.

1.12 In response, the Government points to the fact that the power to detain may only be exercised in the circumstances specified in the Bill and only by immigration officers designated by the Secretary of State for this purpose.[20] Only officers who the Secretary of State thinks are fit and proper for the purpose and who are suitably trained can be designated, and designation can be revoked at any time if the officer fails to perform to the required standard. The Government also points out that the three hour period is a maximum: it is anticipated that in most cases detention will be for much less than three hours.[21]

1.13 The PACE Codes of Practice will not apply, because the Government does not believe that it is necessary for immigration officers exercising the new power of detention to be subject to those codes.[22] The Government says that whether immigration officers should be subject to PACE codes of practice depends on the functions that they are undertaking. When exercising certain specified powers under the Immigration Acts, including powers to arrest, question, search or take fingerprints from a person, to enter and search premises or to seize property found on a person or premises, immigration officers must already have regard to the PACE codes of practice and Northern Ireland equivalents.[23] However, the Government argues that there is no need for the PACE Codes to apply to the new powers for immigration officers under the Bill because it is not intended that officers will take on the substantive tasks of a constable, such as questioning, arrest, investigation or specific evidence collection. The new powers are being provided to support the police at the border by enabling designated immigration officers to detain individuals pending the arrival of a police officer, and to search and retain any items that an individual may use to assist escape or to cause physical injury to him or herself or to another person. No questioning or investigation will occur during this period and it will be for the police constable, when they arrive, to make all substantive enquiries about the person and to decide whether they should be arrested. The Government points out that immigration officers' existing powers to detain for immigration reasons[24] are not subject to PACE codes, nor are the powers of Authorised Search Officers to search and seize.[25]

1.14 Instead of the PACE Codes of Practice, designated immigration officers will be required to follow "Standard Operating Procedures" which will be drafted in conjunction with police colleagues and will provide a clear framework within which officers will be expected to operate. These procedures will, for example, set out when it is appropriate for officers to use the powers of detention and what the limitations are when exercising them, and give detailed instructions on the processes that officers must follow, including when searching individuals.[26]

1.15 We accept that immigration officers' existing powers to detain, search and seize for immigration purposes are not subject to the PACE Codes of Practice. We note, however, that on the Government's own account the very purpose of conferring the new powers on immigration officers by the Bill is to provide them with powers which are exercisable in connection with criminal offences other than immigration offences. Such a role, in support of the police, appears to us to be in the nature of a general policing function and we therefore think it is appropriate that the PACE Codes of Practice should apply to regulate the use of these powers to detain, search and seize, in view of their impact upon Convention rights. We note that the Standard Operating Procedures which it is said will regulate the exercise of the powers have yet to be drawn up and will not be subjected to any parliamentary scrutiny, nor to any requirement that they be publicly accessible.

1.16 We are therefore concerned about the Government's reliance on Standard Operating Procedures on a number of counts: whether they will be sufficiently accessible by the public to satisfy the principle of legal certainty; whether they will receive sufficient public scrutiny when being devised; and whether their content will be sufficient to make it unlikely that the powers will be used in a way which interferes with the various Convention rights affected. We therefore recommend that the Bill be amended to provide that the relevant PACE Codes of Practice apply to the new powers of immigration officers to detain, search and seize pending the arrival of a police constable.

1.17 The Explanatory Notes also do not elaborate on what is meant by "suitably trained".[27] We therefore asked the Minister what training an immigration officer will receive in order to be eligible for designation by the Secretary of State as having the additional powers of detention, search and seizure.

1.18 The Government replied that specific training requirements are under development, but that the training will be "similar in many respects to the training that is currently given to immigration officers who exercise powers of arrest under the Immigration Acts", although it will be tailored to the specific detention functions that designated officers will be exercising.[28] Those functions are treated by the Government as being quite distinct from the function of arrest, which will be carried out by a police constable. The Government has offered to make the detail of the training schedule available when it is developed.

1.19 We welcome the Government's offer to make the detail of the training schedule available when it is developed and we look forward to receiving it in due course. However, we have concerns about the Government's distinction between detention for up to three hours pending the arrival of a police constable on the one hand and arrest on the other. The new power to detain is only exercisable by an immigration officer if he or she thinks that the person concerned may be liable to arrest by a police constable or is subject to a warrant of arrest. These grounds for exercise of the new power require the immigration officer to acquire a specialism beyond his or her existing expertise in relation to immigration offences. As we have made clear above, we regard it as clearly being in the nature of a policing function. For the same reasons as we have stated above for our view that the PACE Codes of Practice should apply, in our view immigration officers should receive appropriate training reflecting the nature of this new function, including in the detail of the relevant Codes of Practice.

(2) Biometric registration of persons subject to immigration control

1.20 The Bill enables the Secretary of State to make regulations requiring a person subject to immigration control to apply for the issue of a "biometric immigration document"[29] - a document recording information about his or her external physical characteristics, including fingerprints and features of the iris or any other part of the eye. A "person subject to immigration control" means a person who requires leave to enter or remain in the UK, whether or not leave has been given. Regulations may require a biometric immigration document to be used for specified immigration purposes, in connection with specified immigration procedures or "in specified circumstances where a question arises about a person's status in relation to nationality or immigration."[30] The Regulations must make provision about the use and retention of such biometric information by the Secretary of State,[31] and may permit "the use of information for specified purposes which do not relate to immigration".[32]

1.21 As the Explanatory Notes acknowledge, these provisions are likely to be an interference with the right to respect for private life, but in the Government's view the interference is justified and proportionate.[33] The Notes say that the proposals will be "in accordance with the law" because the provisions will be set out in primary and secondary legislation, and the intention is to ensure that the requirements of the regulations are formulated with sufficient precision so that their ambit is absolutely clear, accessible and foreseeable. The proposed powers are said to be necessary for the maintenance of immigration control by ensuring the integrity of documents which are evidence of a person's immigration status, and which are used to combat illegal working. They are therefore necessary for the economic well-being of the country and the prevention of crime. The Government also believes that requiring those who wish to be in the UK to have a secure, reliable biometric immigration document as evidence of their status is a proportionate way of achieving those objectives.

1.22 This part of the Bill contains extremely open-ended powers capable of being exercised in ways which interfere with Article 8 rights, but there is very little detail on the face of the Bill enabling us to assess the likely compatibility of the new powers with Article 8 and no draft regulations have been published alongside the Bill.[34] We therefore wrote to the Minister asking for more details about the Government's precise intentions.

1.23 In its response the Government states that it wishes to reassure us that both the proposals about biometric registration in the Bill and any secondary legislation and powers provided will be compatible with Article 8 ECHR, but the detail of the Regulations is still to be finalised. The Government's main objective is to ensure that all those who are subject to immigration control have a secure biometric immigration document ("BID)" which confirms their immigration status and identity. The intention is that production of the BID will only be required in specified situations where immigration status needs to be established. It will link in to the national identity scheme and will enable other government departments, as well as employers and other government agencies, to realise the benefits, for example by simplifying the process of establishing whether a person is eligible for employment or state benefits. The Government believes that this will substantially reduce fraud through the use of multiple identities and fraudulently obtaining a national insurance number.

1.24 The Government's response indicates that it expects the BID to be a highly secure card which will contain the holder's unique biometric data samples, such as fingerprints and facial image (but not DNA), and biographical information such as name, immigration status, nationality and date and place of birth. The Government points out that the information will be stored on a central database, and will be able to be retained for as long as it is used for purposes under the Immigration Acts, but will be destroyed if it is no longer of use for the purposes being sought.

1.25 In the absence of more detail on the face of the Bill or any draft regulations prescribing important details of the proposed scheme, we find it impossible to assess the compatibility of the proposed biometric registration scheme with the right to respect for private life in Article 8 ECHR. We note, for example, that the following important details of the proposed scheme are nowhere specified:

the type of biometric information which will be required to be provided;
the purposes for which such information may be used, which will apparently include use for purposes which do not relate to immigration, such as access to state benefits;
the extent to which the requirements apply to children under the age of 16;
the length of time for which such information may be retained.[35]

1.26 In our predecessor Committee's reports on the Identity Cards Bill, it repeatedly expressed its concerns about the potentially discriminatory impact of introducing compulsory registration for non-nationals before nationals.[36] This was in part due to the fact that compulsory registration for foreign nationals may lead to British citizens from visible minority ethnicities being subject to more frequent demands to produce an ID card or allow checks against the Register.[37] In our view, the introduction of the biometric immigration document gives rise to the same concern about de facto racial profiling. Even though the Bill does not make it a requirement that such a document be carried, the fact that such a document exists for non-nationals and can be requested to prove entitlement to services makes it highly likely in our view that members of black and minority ethnic communities in the UK will be disproportionately required to prove their immigration status. We draw this matter to the attention of each House.

1.27 This part of the Bill also contains a power to make the Regulations apply only to a specified class of persons subject to immigration control (e.g. to persons making a specified kind of application for immigration purposes).[38] The Explanatory Notes make clear that the requirement for those subject to immigration control to apply for a biometric immigration document will be rolled out to different categories of those subject to immigration control incrementally.[39] The Notes state that in the Department's view this different treatment is not discriminatory, or, if wrong about this, that any discrimination is justified. They say that the precise order and categories for the phases of implementation are still being developed, but they will be determined by rational criteria, such as which categories present the greatest risk to immigration control. They may also be determined by practical considerations, such as the availability of the necessary technology and resources for particular applicants. In the department's view, such an incremental implementation, according to rational criteria, is in principle compatible with Article 14 ECHR.[40]

1.28 We asked the Government to provide more information about the "rational criteria" according to which it intends to phase the implementation of this requirement, with a view to assessing whether there is a risk of discrimination which lacks objective and reasonable justification (i.e. incompatibility with Article 14 ECHR in conjunction with Article 8). The Government replied that the precise order and categories that will be introduced into the gradual roll out have yet to be finalised, and that the latest risk assessments showing where there is abuse of immigration control will be reviewed closer to the time of implementation. However, examples of the sorts of rational criteria that the Government has in mind include:

Select applicants from within immigration categories where there is evidence of abuse of the system
Volumes of applicants within particular immigration categories (to keep numbers manageable in the initial years)
Impact on employers and other sponsors
Impact on communities and individual applicant groups, and
Operational ease of processing applicants from particular immigration categories.

1.29 In addition to our concern, expressed above, about the danger of de facto racial profiling as a result of the introduction of a biometric registration scheme for non-EEA nationals, we are also concerned that its phased implementation gives rise to a further risk of de facto racial profiling. In the Roma Rights case, the House of Lords found the Home Office's policy of targeting Roma for pre-entry clearance at Prague airport to be inherently racially discriminatory and therefore unlawful.[41] To be lawful, it will be vital that race or ethnicity plays no part in the profiles used by the Government to decide the order in which it phases implementation of the biometric immigration document. This will require very careful scrutiny when the time comes to implement the scheme. We draw this matter to the attention of each House.

(3) Deportation of foreigners convicted of criminal offences

1.30 The Bill gives effect to the Home Secretary's commitment in his statement of 23 May 2006 to create a "direct link" between deportation and the commission of a crime of the appropriate level of severity (described in the Bill as "automatic deportation" although in practice far from automatic).[42] It also reduces the scope for challenging such "automatic deportation" decisions through the appeals system. We subjected these proposals to pre-legislative scrutiny. We took evidence from Lord Falconer and Baroness Ashton on 30 October 2006 and commented briefly on the proposal in our report on The Human Rights Act: the DCA and Home Office Reviews.[43]

1.31 In our earlier report we observed that there was little, if any, scope for changing the approach to the deportation of EU and EEA nationals, which is governed by EU law,[44] and that even in relation to non-EU and non-EEA nationals Article 8 ECHR imposes a minimum requirement which prevents deportation of offenders where it is disproportionate having regard to matters such as the seriousness of their offence, their propensity to reoffend, the offender's age, their length of residence in the UK, their degree of social and cultural integration in the UK and the extent of their links with their country of origin.[45]

1.32 Most of the human rights compatibility concerns raised by us with ministers in our pre-legislative scrutiny exercise have been met in the Bill. The exceptions to the making of an automatic deportation order include where deportation would be in breach of the Human Rights Act 1998 or the Refugee Convention.[46] When deciding whether or not he or she must make an "automatic" deportation order, it follows that the Secretary of State must consider whether removal would be in breach of any ECHR rights, including Article 8, and the Refugee Convention. A person in respect of whom an automatic deportation order is made who makes an arguable human rights claim will also continue to enjoy a right of appeal on those grounds from within the UK against the making of the deportation order.

1.33 On our preliminary consideration of the Bill we identified a potential human rights compatibility concern arising from the potentially retrospective operation of the new deportation provisions. The Bill provides that the provisions on automatic deportations may be applied to people convicted of offences before the Bill becomes law who are in custody at the date the Act comes into force.[47] The Explanatory Notes state that this is human rights compatible either because deportation is not a "penalty" within the meaning of Article 7 ECHR (prohibition on retrospective penalties) or there is no retrospectivity because any person liable to automatic deportation under the Bill was also liable to discretionary deportation at the time they were convicted.

1.34 We wrote to the Minister asking for a more detailed explanation as to why in the Government's view this provision does not have retrospective effect. In response the Minister said that any person who would fall within the Bill's provisions on automatic deportation is currently capable of being deported under the existing power to deport on the ground that their deportation is conducive to the public good. In light of this explanation we accept that the provision in question does not have retrospective effect. However, the Minister's answer does raise the obvious question as to why it is necessary to legislate at all on this subject if the powers already exist. As HM Chief Inspector of Prisons reported in her thematic report on Foreign National Prisoners, the failure to consider many foreign national prisoners leaving prison for deportation "was not because of a gap in legislation or powers. It was an acute symptom of the chronic failure of two services to develop and implement effective policies and strategies."[48]

1.35 We have one human rights compatibility concern about the provisions in the Bill concerning the automatic deportation of foreign national prisoners. The provisions do appear to us to give rise to a risk of prolonged post-sentence immigration detention, potentially in breach of the right to liberty in Article 5 ECHR. This is because the Bill provides that a person who has already served a period of imprisonment may be detained under the authority of the Secretary of State while the Secretary of State considers whether he must make an automatic deportation order and pending the making of such an order where he or she decides that such an order must be made.[49] The Secretary of State has a wholly open-ended discretion as to the timing of such an order.[50] HM's Inspectorate of Prisons, in its work on foreign national prisoners, has found that a number of foreign nationals have been held in prisons and immigration removal centres far past their sentence expiry dates, awaiting a decision on whether or not they will be deported.[51] Such prolonged post-sentence detention carries a high risk of breach of the right to liberty in Article 5 ECHR. We recommend that in order to avoid the risk of foreign national prisoners spending long periods in detention after expiry of their sentence in breach of Article 5 ECHR, clause 33(1) of the Bill be amended to lay down a specific time frame within which the Secretary of State must decide whether or not he is required to make a deportation order. The aim should be for the Secretary of State to make that decision as early as possible following a foreign national prisoner's commencement of his or her sentence of imprisonment.

(4) Support for asylum seekers

1.36 The Bill contains an important human rights enhancing provision which ensures that failed asylum seekers do not suffer destitution by being ineligible for support pending the outcome of their appeal against the refusal of asylum. Clause 17 of the Bill provides that a person whose claim for asylum has been refused and who is pursuing an appeal against an immigration decision will remain an "asylum seeker" for the purposes of asylum support legislation.[52] The effect is that until their appeal is determined they will be eligible for support on the same basis as asylum seekers who have not yet received a decision on their claim. The provision is to be treated as always having had effect[53] and the Bill provides that this provision comes into force on the day on which the Act is passed.[54]

1.37 We welcome this provision as an important recognition of the right of asylum seekers to receive subsistence support pending the final determination of their claim. In our recent report on The Treatment of Asylum Seekers we reported that we had been persuaded by the evidence that the Government has been practising a deliberate policy of destitution in relation to asylum seekers and that such deliberate use of inhumane treatment is unacceptable.[55] Refused asylum seekers pursuing an appeal receive no support as the law is currently interpreted and we welcome the Government's recognition that such destitution is unacceptable. However, we made a number of other recommendations for legislative changes at the earliest opportunity to end the deliberate use of destitution as an instrument of policy. In our view the present Bill provides such an opportunity to implement some of these proposals. We therefore recommend that, to reduce the risk of asylum seekers being subjected to inhuman and degrading treatment contrary to Article 3 ECHR, and to ensure that they are treated with common humanity as the common law requires, the Bill be amended to provide for, for example:

the repeal of s. 55 of the Nationality, Immigration and Asylum Act 2002[56]
the repeal of s. 9 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004[57]
the extension of support under s. 95 of the Immigration and Asylum Act 1999 to refused asylum seekers and the repeal of the voucher scheme in s. 4 of that Act.[58]

1.38 In our inquiry into the Treatment of Asylum Seekers we also received evidence showing that asylum seeking children suffer a lower level of protection in relation to a range of rights compared to other children.[59] We considered that one way of attempting to redress this unequal protection of the human rights of asylum seeking children was to extend the duty contained in s. 11 of the Children Act 2004, which requires public bodies to have regard to the need to safeguard and promote the welfare of children when discharging their functions and providing services, so that it includes authorities providing support for asylum seekers, the Immigration Service and Immigration Removal Centres. We consider this Bill to be an opportunity to implement this recommendation. We recommend that the Bill be amended by the addition of a new clause extending the duty in s. 11 of the Children Act 2004 to those providing welfare and support services to asylum seeking children, including the National Asylum Support Service, the Immigration Service and Immigration Removal Centres.

(5) Human trafficking

1.39 The Bill contains one provision[60] designed to strengthen the law against people trafficking by extending the scope of the criminal offences of trafficking people for exploitation.[61] According to the Explanatory Notes, the Bill amends these offences to ensure that acts committed after a person has arrived in the UK but before they have entered the UK are covered and removes the limitations on the territorial application of the offences to ensure that facilitating arrival or entry into the UK of a person for the purposes of exploitation, regardless of where the facilitation took place and irrespective of the nationality of the facilitator, are caught by the offences.[62]

1.40 We welcome the Bill's extension of the scope of the existing trafficking offences, which implements one of the proposals in the Government's UK Action Plan on Trafficking of Human Beings. We are disappointed, however, that the opportunity has not been taken in this Bill to introduce more effective protection for the victims of trafficking. In our recent report on Human Trafficking, we concluded that the current level of protection provided to trafficking victims is far from adequate from a human rights perspective.[63]We are grateful to the Government for its positive response to our recommendation to sign the Council of Europe Convention on Action against Trafficking in Human Beings, and its publication of the UK Action Plan on Trafficking. We think it is important, however, that our recommendations are considered as a whole and not cherry-picked by the Government. We made a number of recommendations about improving the legislative framework for protecting trafficking victims, and in our view the current Bill provides an opportunity to make some of these improvements. In particular, we recommend that the Bill be amended to improve protection for trafficking victims by providing, for example, that:

where there are reasonable grounds to believe that a person is a victim of trafficking that person shall not be removed from the UK until the process for identifying whether they are such a victim is complete;
a recovery and reflection period of 3 months should be granted to a person who has been identified as being a victim of trafficking, during which time no immigration enforcement measures shall be taken against them; and
renewable residence permits of up to 6 months' duration be granted to victims of trafficking.

1.41 We also find disappointing the lack of a clear timetable for implementing the Government's Action Plan on Trafficking and implementing all the requirements of the Convention against Trafficking. We welcome the Minister's offer during the Report stage debate on the Bill[64] to provide us with regular updates on the timetable and the Government's progress against that timetable.

1 Twenty-third Report of Session 2005-06, The Committee's Future Working Practices, HL Paper 239/HC 1575 at paras 57 and 77. Back

2 Thirty-second Report of Session 2005-06, The Human Rights Act: the DCA and Home Office Reviews, HL Paper 278/HC1716, Ev1-19. Back

3 Appendix 1a. Back

4 Appendix 1b. Back

5 We have considered parliamentary briefing material from Animate Project, Bail for Immigration Detainees, the Foreign National Prisoners' Network, the Immigration Law Practitioners Association, the Joint Council for the Welfare of Immigrants, JUSTICE, Liberty, the Northern Ireland Human Rights Commission, the Refugee Children's Consortium, the Refugee Council and Universities UK. Back

6 See eg. Chahal v UK (1996) 23 EHRR 413 at para. 73. Back

7 See e.g., East African Asians v. United Kingdom (1973) 3 EHRR 76, E Com HR and R. (on the application of European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 AC 1. It is important to note that the UK has not signed Protocol No. 4 to the ECHR which guarantees, amongst other things, the right to freedom of movement. Back

8 Under s. 24(1), (2) or (3) of the Police and Criminal Evidence Act 1984 ("PACE") and Northern Ireland equivalent. Back

9 Clauses 1 and 2. Back

10 Clause 2(2)(a). Back

11 Clause 2(3). Back

12 Clause 1(2). Back