Select Committee on Delegated Powers and Deregulation Twenty-Seventh Report


Memorandum by the Immigration Law Practitioners' Association on Government Amendments tabled for Report Stage of the Immigration and Asylum Bill

PART I

AMENDMENTS 1 (NOW CLAUSE 4 OF THE BILL) AND 289 ( TO SCHEDULE 13- MOVED AND WITHDRAWN AT REPORT STAGE) ACCOMMODATION FOR THOSE TEMPORARILY ADMITTED OR RELEASED FROM DETENTION

Amendment 289 provides for regulations both to prohibit people living in particular accommodation or areas, requiring them to live in particular accommodation and needing permission for an absence. The government stated in parliament "People will be free to come and go, subject to any conditions imposed" (Hansard H.L Report 18 October 1999 Col 751) The Home Office press release 331/99 21 October 1999 colours this remark: "In certain circumstances applicants would be able, without prior approval, to leave without escort for specific purposes and periods".

The government gave its view that as the law stands restrictions can only be imposed "to maintain contact and prevent absconding"(Hansard H.L Report 18 October 1999 Col 751) The amendments propose to restrict the liberty of those whom it is not feared will abscond or fail to maintain contact. This is an entirely new concept in immigration law.

The government stated that it is intended to provide the power to deal with two discrete situations: to cope with any public order problem which might arise and to deal with applications in 'a matter of days rather than weeks' after arrival. Both these are radical new departures in immigration control and the detail of the new powers should be on the face of the Bill.

Amendment 289 provided for these regulations to be under the negative resolution process. ILPA believes this is inadequate for Parliamentary scrutiny of a very wide new power which restricts liberty without the supervision and ability to challenge detention for which Part III of the Bill provides in cases of those whom it is feared will abscond.

AMENDMENT 7: NEW CLAUSE AFTER THEN CLAUSE 6: EXCLUSIONS UNDER INTERNATIONAL OBLIGATIONS (MOVED AND WITHDRAWN AT REPORT STAGE)

This clause would formalise existing international co-operation in excluding people already covered by a formal EU or UN ban. While this seems unobjectionable to ILPA, noting in particular the requirement for affirmative resolution, we are unclear as to whether orders made under this clause could be used to widen the existing power to exclude and also whether they could be extended to exclude people refused entry to any EU country, other than as a result of formal EU or UN bans and should wish to see a clearer delineation of the powers on the face of the Bill.

AMENDMENT 6 TO THEN CLAUSE 4 (NOW CLAUSE 5, MOVED, VOTED ON AND ACCEPTED AT REPORT STAGE)

We note that the government has followed the Committee's suggestion and placed exemptions from fees on the face of the Bill. We note however that the definition of dependants is left to regulations. It would seem possible to place the main categories of dependants (dependants upon the asylum application, those abroad but eligible to apply for family reunion with the refugee) on the face of the Bill, albeit with a residual power to include others in the category of dependants by regulation.

AMENDMENT 15: NEW CLAUSE AFTER CLAUSE 11: ESCORTS (MOVED AND WITHDRAWN AT REPORT STAGE)

The amendment would allow regulations to provide for carriers to be liable for the costs of escorts of people being forced to leave the UK. The decision on whether an escort or escorts were necessary would be for the immigration authorities but the cost could be passed on to an airline which might have brought a passenger in, completely legally and openly, many years earlier. We note that carriers have not had an opportunity to comment on a new clause which imposes extra costs on them and that no details of the government's plans appear on the face of the Bill.

AMENDMENT 30: NEW CLAUSE AFTER THEN CLAUSE 25: DEFENCES BASED ON ARTICLE 31(1) OF THE REFUGEE CONVENTION (MOVED AND WITHDRAWN AT REPORT STAGE)

There were two attempts to amend the Bill in light of court decisions on the illegality of prosecuting refugees for using forged documents in their entry to the UK, this amendment and amendment 29. One of ILPA's concerns with amendment 30 is the power to add or remove offences to which Article 31 may be pleaded in defence, by order, rather than by amendment of the legislation. This would make it less likely that individuals and lawyers would know of any changes and therefore be less able to use this defence. The power to remove offences by order appears in any event to be inappropriate. If, for example, an offence under the Fraud Act has been identified as an offence where an Article 31 defence might be relevant, how could it cease to be so? The subsection is not needed to deal with future repeals of the relevant provisions of the criminal law which could be dealt with in the normal way, by schedules of repeals to the act repealing the particular offence.

PART II

AMENDMENT 42 TO THEN CLAUSE 34 (NOW CLAUSE 36 - MOVED, VOTED ON AND ACCEPTED AT REPORT STAGE)

ILPA notes that this amendment provides for powers to make an order to disapply penalties for undocumented passengers where passengers embarked at specified places or countries, where there is an international agreement to allow the operation of UK immigration control abroad, but has no comments on this.

PART III

AMENDMENT 47 - TO THEN CLAUSE 38 (NOW CLAUSE 41) PROVIDING A REGULATION MAKING POWER TO MODIFY THE APPLICATION OF THE SECTION PROVIDING FOR ROUTINE BAIL HEARINGS (MOVED, VOTED ON AND ACCEPTED AT REPORT STAGE )

The clause that is now clause 41 provides that the Secretary of State must arrange a routine bail hearings for persons detained under the Immigration Acts. Everyone gets two routine bail hearings, one a week after they have been detained, one approximately a month after they have been detained. This amendment provides for the Secretary of State to make provision modifying the application of Clause 41 in cases where a routine bail hearing is adjourned, to enable medical reports to be obtained "or for any other reason". No comments were made in the House of Lords in relation to the delegated powers issues raised by this amendment, perhaps in part because it formed part of an enormous grouping, debated at a very late hour.

ILPA is concerned by the breadth of the powers delegated under this clause. In particular we do not consider that the right to a second routine bail hearing should ever be lost, as the amendment envisages. It is not in our view appropriate to make provision to delay consideration of whether the person could in any event be released at the first hearing, nor to deny them the opportunity of a second hearing. If special provision is to be made for adjournments, this should be made expressly on the face of the Bill and not left to regulations. If, for example, a medical report could be obtained before the second routine bail hearing, provision could be made on the face of the Bill to convene a separate hearing to examine it at once. The prospect of cases being, in the words of Lord Falconer "adjourned and adjourned" in such circumstances appears to disadvantage those identified by the government in the White Paper as those they were especially reluctant to detain - those with evidence of torture or physical or mental illness.

AMENDMENT 58 REPLACING THE THEN CLAUSE 47 (MOVED, VOTED ON AND ACCEPTED AT REPORT, NOW CLAUSE 50 OF THE BILL)

These amendments remove the then Clause 47 of the Bill and replaced it with a new clause designed to make provision for bail hearings other than routine bail hearings. Concerns have been expressed throughout the passage of this bill as to whether there would be different procedures for routine and elective bail hearings. This issue has become all the more pressing in the light of the introduction at Lords Committee stage, of a new clause, now clause 40, which provides for a presumption of bail - would this apply to elective bail hearings or not?

Rather than amend each and every relevant section of Part III to provide that it should apply to elective bail hearings the government have, by amendment 58, taken powers to allow the Secretary of State to make provision in regulations for such hearings. The amendment refers and refer simply to the Secretary of State having regard to the desirability of making provision similar to the provision in Part III for routine bail hearings.

We are concerned by this approach. Once again, no issues relating to delegated powers were raised in the debate in the House of Lords on this issue, but once again the amendment formed part of an enormous grouping, debated late at night. Matters so fundamental as the liberty of the individual, the presumption of liberty, procedure to be followed at bail hearings, including the rights to representation and to an oral hearing, are being delegated to regulations. The contents of Part III attest to the fact that such matters are matters for primary legislation, not least in the fact that it was parliamentary scrutiny which eventually produced, during the passage of the Bill, a presumption of bail and to a review of the exceptions to that presumption. Such matters are no less matters for primary legislation when they concern routine bail hearings than when they concern elective bail hearings. Moreover, it is far from clear that it means the original problem identified, the danger of having the same application for release considered under two different regimes.

PART IV

    We have no comments on delegated powers and deregulation issues under this part.

PART V

    We have no comments on delegated powers and deregulation issues under this part.

PART VI

GOVERNMENT 120 & 122

We note the government's explanation that these are drafting amendments, not amendments to reflect the concerns raised by the Committee, which have not been addressed.

AMENDMENTS 123 AND 124 (MOVED AND WITHDRAWN) NEW SCHEDULE BEFORE SCHEDULE 8 "PROVISION OF SUPPORT: REGULATIONS"

These amendments insert a new schedule "Provision of Support: Regulations" before Schedule 8 allowing the Secretary of State to make regulations for the provision of support.

Lord Williams of Mostyn described the amendments thus "Essentially, this is a framework for powers to make regulations governing the powers and operation of the scheme" (Hansard HL Report 20 10 99, Col 1161). However, while the new schedule appears to provide more detail about the scheme, this is essentially illusory. The "General Regulation-making power" given by paragraph 1 of the new schedule essentially allows the Secretary of State to make any regulations he chooses for the provision of support. The eleven subsequent paragraphs in no way circumscribe this power, they simply provide a non-exhaustive list of matters for which the regulations "may" provide.

While the new schedule thus does nothing to constrain the Secretary of State's regulation-making powers, it does provide an opportunity to reflect on some the issues that might form the subject-matter of regulations.

GENERAL NOTE ON AMENDMENTS TO SCHEDULE 8 (ALL MOVED, VOTED ON AND ACCEPTED AT REPORT STAGE)

These are concerned with support during the period before the new support scheme comes into force, the "interim period" described in schedule 8. This period was planned to commence in December, although whether it happens at all has now been called into question by the defeat of the government and the acceptance of amendment 118 which provides for benefits to be restored during any interim period. It was agreed in the House of Lords that these amendments would be moved and voted on at Report stage, but that nonetheless there would be a need to re-examine them in the light of any comments from the Committee (see Hansard H.L Report, 20 October 1999 Cols 1205ff)

It is also notable that the interim period is in effect open-ended - it could run for years without the new support scheme coming into force.

As with amendments 123 and 124, discussed above, no detail is in fact being provided - there is a general regulation power and these amendments merely set out what regulations "may" contain. We do note however that the amendments to Schedule 8 appear to reveal a desire to make the interim scheme mirror the main support scheme as closely as possible - there may be a "destitution" test for accessing support; people could be deprived of support for failure to comply with the conditions on which support is provided or when their cases reach a particular stage; local authorities can be prohibited from taking prescribed matters into account when deciding whether or not to provide support. Aside from specific concerns set out below we note a general concern that this appears to undermine the assurances given by Ministers in the House of Commons that families with children would not be placed in the support scheme until such time as their cases were being determined within 6 months. While families may not be placed in the support scheme, they are being placed in a scheme designed to mirror it as closely as possible, and thus all the same concerns arise about the effects on children of living in this way for protracted periods.

GOVERNMENT AMENDMENT 125 , 129, 135 136 TO SCHEDULE 8

The amendments appear to give a power to make regulations to provide that some, but not all, local authorities will be called upon to provide support during the interim period, but gives no indication as to how authorities will be selected.

The powers under amendment 136 to impose quotas on local authorities and to provide for the transfer of cases between them are wide-ranging. As with amendments 123 and 124, in reality no detail is provided on the face of the statute - there is a general regulation making power and the further amendments merely detail what these regulations "may" contain. Given the short lead-in time before the interim system will begin to operate, we should have expected to see more detail on the face of the legislation.

GOVERNMENT AMENDMENTS TO SCHEDULE 8, 128, 132, 133, 134, 135

All these regulations are concerned with the interim period. The provisions are provisions broadly similar to those applicable to the new support system that were criticised by the Committee in their report. However, there are particular concerns with regard to the interim period.

Amendment 132 would allow for regulations to provide for circumstances in which support "must or may" be discontinued during the interim period. The government has repeatedly stated that it is prepared to make sums available to the voluntary sector to make provision for those from whom support is withdrawn. It remains far from certain that the voluntary sector will agree to enter into such arrangements. However, what is clear is that no arrangements are in place at the moment, nor indeed any memoranda of understanding signed. If regulations provide for all support to be withdrawn in December under the interim arrangements, there will be no other provision in place.

The government stated that it plans to issue a consultation paper on regulations in November (Hansard HL Report 20 10 99, Col 1161). There is no time for informed notice to be taken of comments on the paper before the interim period commences in December. In these circumstances we regard the regulation powers set out in amendments 133, 134 as even more problematic than those to be applied to the main support scheme: regulations as to the level of support to be provided, the conditions on which it is to be provided and the matters local authorities must disregard in making provision for support.

AMENDMENT 166 TO THEN CLAUSE 97 (NOW CLAUSE 100 MOVED, VOTED ON AND ACCEPTED AT REPORT STAGE)

This appears to allow the Secretary of State to set up a whole new "dispute resolution procedure", and moreover for disputes to which he will be a party, with almost no detail on the face of the statute as to what such a procedure might contain.

AMENDMENT 175 TO THEN CLAUSE 99 ( NOW CLAUSE 102, MOVED, VOTED ON AND ACCEPTED AT REPORT STAGE)

Appeals to asylum support adjudicators were initially confined to appeals on the refusal of support. ILPA welcomes the government's decision to create the possibility of asylum seekers being able to appeal to the new Support Adjudicators against the location of the accommodation offered them. However we note that what is now sub-clause 103 would allow the whole appeals procedure to be modified by the Secretary of State by regulation in respect of such appeals. There are already substantial regulation-making powers under Clause 103, but this amendment appears to go further and could permit modification of the regulations with respect to matters covered by Clause 102. This could lead to modifications of such matters as the circumstances in which an appeal can be brought, the need to give reasons in writing, the decision the adjudicator can make on the appeal, the circumstances in which a further appeal can be brought and the payment of travelling expenses to appeals.

AMENDMENT 186 TO THEN CLAUSE 111 (NOW CLAUSE 114, MOVED, VOTED ON AND ACCEPTED AT REPORT STAGE)

While welcoming the possibility that this amendment envisages of certain persons being allowed to continue to receive benefits, this amendment does raise the possibility of considerable confusion. ILPA is particularly worried as to what might happen if a person continues to receive a benefit not large enough to live on, and whether this would impact on their ability to obtain Part VI support.

PART VII

AMENDMENTS 226 AND 228

These amendments concern the destruction of finger-prints and would allow fingerprints to be kept for more than ten years, previously the maximum period. We note that no indications are given on the face of the Bill as to the circumstances in which finger-prints would be retained for more than 10 years.

PART VIII

AMENDMENTS 237 AND 255

Amendment 237 means that detention centre rules will not apply to "short-term holding facilities". Amendment 255 allows the Secretary of State to extend the rules by regulation for some, but not all short term holding centres. The Secretary of State is expressly not allowed to extend the rules to directly managed short term holding centres where the functions have been contracted out. These contracted out functions are not subject to the same safeguards as fully contracted out centres.

This means that the protection is offered to detainees will not apply to those held in short term facilities, normally at the beginning of their claim for asylum or at the very end when removal is imminent. These people are probably the most vulnerable of all asylum-seekers/immigration detainees. No justification is given for this retrograde step.

PART IX

    ILPA has no comments on delegated powers and deregulation under this part.

PART X

    ILPA has no comments in relation to delegated powers and deregulation under this part.


 
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