Parliamentary Briefing on
the Immigration Bill
FEBRUARY 2014
Contact details:
Parliamentary lead: Finola Kelly
Tel: 0207 832 7826
Finola.Kelly@equalityhumanrights.com
Legal lead: Sarfraz Khan
Tel: 0161 829 8414
Sarfraz.khan@equalityhumanrights.com
1
TABLE OF CONTENTS
1. Power to remove UK citizenship - clause 60………… .2
2. Removal and enforcement powers…………………… .3
3. Bail ………………………………………………………. 5
4. Reducing the scope of appeal rights…………………. .6
(i)
Raising new matters ……………………………….. 7
(ii)
Out of country appeals……………………………....7
5. Marriage and civil partnerships…………………………8
6. Residential tenancies …………………………………..10
NHS financial charges…………………………………..11
7. Retention and use of biometric personal data………..12
Our equality and human rights analysis of the Bill
This briefing aims to provide an analysis of the equality and human
rights implications of measures contained in the Immigration Bill. In
practice the compliance with equality and human rights law will depend
on how the measures in the Bill, and associated regulations, orders,
rules, policies and guidance (still to be devised) are implemented. This
analysis highlights areas of potential risk, identifying where the proposed
measures would be incompatible with equality or human rights law.
1.
Power to remove UK citizenship - clause 60
The power to strip a naturalised British national (who is not a national of
another country) of their citizenship would render them stateless.
Rendering a person stateless is a draconian power with severe
consequences for family and dependents, although the precise
consequences are not clear either for those residing in the UK or for
those abroad. Under international law statelessness is only permitted in
extremely exceptional cases, as the Secretary of State accepts.
In our analysis further safeguards are required on the face of the
legislation to ensure that the power to strip a person of British citizenship
acquired through naturalisation is used compatibly with human rights
2
obligations and in order to reduce its vulnerability to challenge through
the courts on article 8 and other human rights grounds.
We note the Secretary of State has existing powers under the British
Nationality Act 1981 to deprive a person with dual nationality of their
British citizenship and to refuse to issue a passport to a British citizen on
proscribed grounds.
The Government submits that the power will comply with human rights
obligations - including the UN Convention on the Reduction of
Statelessness which the UK has signed and ratified in 1961 - because it
can only be exercised where it is conducive to the public good and the
UK’s vital interests are threatened. The Government has recently
confirmed that the UK will not sign up to the 1997 European Convention
on Nationality which permits only one ground for a person to be made
stateless, misrepresentation.1
In our analysis, safeguards will need to be attached to this power to
ensure that it is used in compliance with European Convention on
Human Rights (ECHR) and international law obligations. It is not
sufficiently clear what factors and considerations will apply, or to what
purposes (other than punitive) the power is designed to be used.
Key considerations include:
Whether the affected person, their family and dependants would
lose employment, housing, access to services
Whether the stateless person could secure other nationality
Whether the person could be deported safely, and if so, is it
reasonable to expect children and family to relocate
Whether the Secretary of State proposes to financially support the
person and their family
Whether a less draconian alternative could be applied
Whether the power can be exercised in respect of persons outside
the UK.
Another important aspect is whether closed material procedures will be
used in proceedings challenging the exercise of the power. If a
naturalised British national is to be deprived of citizenship on the basis of
evidence that is not disclosed to him or his legal representatives, this
could result in injustice.
1
Defined as fraudulent conduct, providing false information or concealing a material fact.
3
2.
Removal and enforcement powers
The Bill clarifies that individuals without the right to enter or reside in the
UK (including families and dependents) are liable to be removed by
direction of the Secretary of State. The Government envisages issuing
separate removal notices to family members. We welcome the
Government’s clarification that the definition of a family member will be
broad and consistent with other aspects of immigration law, and will
exclude those no longer in a family relationship and victims of domestic
violence. Nevertheless, we urge the Government to amend clause
1(6)(c) as proposed by the Joint Committee on Human Rights (see
Annex A). This would better reflect the Government's intention to provide
separate removal notices to family members in all cases.2
In addition to bolstering immigration officers’ powers to search
detainees, search third party premises and seize and retain property &
documentation, the Bill proposes to extend immigration officers powers
to use reasonable force under any Immigration Act.3 Currently the power
to use reasonable force is limited to the exercise of functions under two
immigration acts. Given the wide variety of future circumstances in which
the power could be used, this may present risks of human rights
violations, particularly since what constitutes 'reasonable force' is not
sufficiently clear.
The Government has given assurances that the exercise of reasonable
force powers will only be used proportionately to pursue legitimate aims
in accordance with rules and guidance and the right to respect for
private and family life. Thus they will not reach the threshold to breach
the convention rights of protecting life and freedom from torture,
inhuman or degrading treatment.
We recommend that those safeguards be embedded through clear and
thorough rules, guidance and training for immigration officers. The
powers should be accompanied by rigorous and effective oversight
mechanisms to ensure any problems are prevented, identified and,
where necessary, wider lessons are learned.
3.
Bail
The Bill proposes that a renewed request for bail to the First Tier
Tribunal within 28 days of a previous unsuccessful request will be
rejected unless there has been a change in circumstances. In addition,
2
JCHR Legislative Scrutiny: Immigration Bill Eighth Report of Session page 13.
http://www.publications.parliament.uk/pa/jt201314/jtselect/jtrights/102/102.pdf
3 The Government has confirmed that these powers do not include detention and that warrants are
required for searches of third party premises.
4
the provisions allow the Secretary of State to prevent bail being granted
within the period of 14 days prior to removal.
The Government considers these provisions to be compatible with the
ECHR because they limit rather than remove the power of the courts to
grant bail4 and in reaching the decision the Secretary of State is still
bound by section 6 of the HRA not to act in a way which is incompatible
with the ECHR. Furthermore, although bail is the quickest way to secure
release from unlawful detention, it is still possible to challenge the
lawfulness of detention by habeas corpus or judicial review.
The Commission accepts that Article 5(1)(f) authorises detention of nonnationals for the purpose of removal and border control and that
technically habeas corpus and judicial review, are the means to
challenge unlawful detention.
Nevertheless, the application of the proposed measures have the
potential to significantly increase the risk of violations of Article 5(1) and,
in cases where children are involved, Article 8 of the Convention and
Article 3 of the Convention on the Rights of the Child (the best interests
of a child must be a primary consideration), particularly where the
detention is for administrative convenience.
Detention of asylum seekers under the detained fast track process
(DFT) is often lengthy, and there are significant difficulties in accessing
legal advice and representation to challenge arbitrary detention through
the courts and tribunals, likely to be compounded by the reduction in
entitlement to civil legal aid. The relatively high proportion of torture
victims released on appeal indicates systemic problems in terms of
screening and initial decision-making. The former UK Border Agency
has breached Article 3 (inhuman and degrading treatment) on at least 4
occasions arising from its treatment of mentally ill patients.5
We believe the presumption of liberty and use of detention as a last
resort are not given sufficient weight under the current DFT policy and
practice and that it contravenes articles 3, 5 and 14 of the ECHR due to
arbitrary decision-making resulting in unlawful detention6.
4
Paragraphs 25 & 26 Home Office Memorandum on Human Rights
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/249270/Immigration_Bil
l_-_ECHR_memo.pdf
5
ILPA Briefing for the Immigration Bill, House of Lords Second Reading 10 February 2014 – page 4
footnote 17.17 R (HA) (Nigeria) v SSHD [2012] EWHC 979; R (S) v SSHD [2011] EWHC 2120
(Admin); R (D) v SSHD [2012] EWHC 2501(Admin); R (BA) v SSHD [2011] EWHC 2748 (Admin).
6
As detailed in our legal submissions to the High Court in a recent case brought by Detention Action
challenging the DFT system on human rights grounds.
5
We would urge that consideration be given to measures to accord with
the requirements of due process, periodic review and duration of
detention under article 5 ECHR, and to protect the rights of vulnerable
groups (such as torture victims, victims of sexual violence and victims of
trafficking).
4. Reducing the scope of appeal rights
The proposals will reduce, appreciably, the circumstances in which an
individual can appeal against an immigration decision. The Government
states7 that because clause 11 maintains a right of appeal against the
refusal of a human rights or humanitarian claim, a person has an
effective remedy in compliance with ECHR and minimum standards
apply in refugee status cases8.
The Commission welcomes the fact that human rights and humanitarian
grounds of appeals will not be restricted but, in other cases, we believe
the administrative review system and the short timescales for
challenging decisions are unlikely to meet the common law requirement
for independent oversight of executive decisions and action.
Judicial review is not an adequate substitute for the current appeal
system. The judicial review case load will inevitably be increased by
removal of appeal rights, by an estimated 5600 cases per year.9 This will
coincide with new restrictions on access to civil legal aid, including the
12 month UK residence test.
In our analysis an independent, impartial and accessible body is
required to consider the high proportions of valid challenges to initial
immigration decisions for those matters that would be removed from the
FTT's jurisdiction. Statistical evidence10 indicates that 50% of entry
clearance decisions are overturned on appeal; 49% of managed
migration appeals are successful, as are 32% of deportation appeals.
There is insufficient evidence to support the Government’s view that the
7
Home Office Memorandum on Human Rights paragraph 59 page 15
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/249270/Immigration_Bil
l_-_ECHR_memo.pdf
8 Council Directive 2005/85/EC on minimum standards on procedures in member states for granting
and withdrawing refugee status. http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:326:0013:0034:EN:PDF
9
House of Commons Research Paper. Paragraph 2.1 page 13. http://www.parliament.uk/briefingpapers/RP13-59/immigration-bill
10
Home Office Impact Assessment on Reforming Immigration Appeal Rights, dated 15 July 2013.
Table 4 - page 7
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/249120/appeals_impac
t_assessment.pdf
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quality of decision-making will improve through a combination of internal
administrative review quickly correcting internal errors.
4. (i) Raising new matters
In order to reduce the number of appeals the Tribunal will not be
permitted to consider any new grounds of appeal without Secretary of
State consent. The Bill distinguishes between new evidence (that can
proceed to appeal) and new grounds of appeal (for which SoS consent
would be required, potentially giving rise to a fresh appeal against
refusal).
Such a power is unusual and could be perceived to fetter the tribunal's jurisdiction, although
the Government has indicated it will be applied compatibly with ECHR rights. We consider
that this procedure will satisfy the requirement to provide an effective remedy (article 13) and
is not incompatible with human rights law, if exercised compatibly with ECHR rights (article
6 in particular).
However, as with other proposals, much will depend on its operation in
practice. For instance, there is no requirement for the SoS to deal with
the matter promptly within a reasonable period. For detained appellants,
this could increase the length of detention and potentially infringe article
5 ECHR rights.
4. (ii) Out of country appeals
The Government proposes to remove or deport foreign criminals before
an article 8 (right to private and family life) claim is heard provided that
they will not face ‘serious irreversible harm’. According to the European
Court of Human Rights 11 cases engaging articles 2 and 3 should be
heard in country, but cases concerning only article 8 can be heard after
the appellant has been removed if he would still have access to
“effective means of challenging” the removal order. The ECtHR
recognises that prevention of disorder and crime can justify the
expulsion of Foreign National Prisoners.
Use of this power, and associated policies and practices, could give rise
to human rights breaches.12
The Government factsheet13 states that the test of ‘serious irreversible
harm’ will be met if somebody makes a credible claim that they will be
11
De Souza Ribeiro v France Application number 22689/07
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115498#{"itemid":["001-115498"]}
12 Potentially under articles 2, 3, 6 and 8, 13 and 14 ECHR.
13 Immigration Bill Factsheet: Appeals (Clauses 11-13)
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/262789/Factsheet_05__Appeals.pdf
7
‘tortured or killed’ if they are deported. In our analysis this is not
sufficient since Article 3 ECHR protects against inhumane and
degrading treatment, not just torture. Thus it would be unlawful to deport
a person who will be at risk of any treatment which violates article 3.
Further, the harm caused by the inhumane and degrading treatment
does not have to be ‘irreversible’ for a breach of article 3 to arise.
Therefore ‘irreversible’ should be deleted from the provision in the Bill.
5. Marriage and civil partnerships
The rationale for the proposed additional powers for marriages and civil
partnerships has not been fully explained to date. We are not therefore
in a position to assess the justification of the proposed measures without
further clarification.
The proposal to refer and investigate all marriages involving a non-EEA
national could constitute an unreasonable, unnecessary and
disproportionate interference in the rights to respect for private and
family life, right to marry and the prohibition against discrimination.
The notice period for marriages and civil partnerships is to be extended
from 15 to 28 days for couples seeking to marry under the law in
England and Wales. The Home Office must be notified of all marriages
that involve a non-EEA national without indefinite leave to remain or
marriage visa. After cross referencing with intelligence and ‘risk profiles’,
the Secretary of State may extend the notice period to 70 days while she
investigates whether the marriage is a sham.
Failure to comply with any conditions imposed on the couple during the
investigation may lead to the couple being refused the necessary
documentation to marry.14 If the investigation determines the marriage is
not genuine, the non-EEA national can be deported/removed, or refused
subsequent immigration applications.
Questions have been raised by JCHR about the need for additional
legislative measures to those already available. There is also uncertainty
about the Government's evidence base about the scale of the problem.
The Government has indicated that it may seek an exemption to the
Equality Act to exercise the powers to investigate sham marriages and
civil partnerships. Although such an exemption would relieve the
Government from liability under domestic equality law, it would not
14https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/249122/sham_marria
ge_impact_assessment.pdf Page 10 - investigation
8
provide an answer to the question of compatibility with article 14 read in
conjunction with article 12 of ECHR.
From information provided by Government concerning how these
powers will be used, it appears that couples will be selected for
investigation on “agreed intelligence- based risk profiles and factors”
which will in turn be based in large part on their racial/nationality
profile.15 From an equality perspective, we seek government assurance
that the powers to refer and investigate marriages will be used in a
targeted and proportionate way, not based primarily on the grounds on
nationality. Couples should only be investigated where there are
reasonable grounds to suspect that the marriage is a sham, not simply
on the basis of their nationality.
There is no indication of what will amount to a ‘failure to comply’ with the
investigation. Greater clarity and precision as to how these provisions
will be applied in practice is required in order to further assess if they are
compatible with the ECHR. The Commission would welcome the
opportunity to work with the Government to develop a system of
identifying suspected sham marriages without discriminating against
ethnic groups.
In conclusion, although it is legitimate for the State to impose reasonable and proportionate
restrictions on the right to marry,16 referring all marriages for investigation by the Secretary
of State on the grounds that one of the parties is a non-EEA national appears to
disproportionately interfere with the article 12 right to marry. We recommend this is revisited
to ensure the power is exercised in a more targeted, proportionate way.
6. Residential tenancies
Under the bill’s proposals, landlords will be required to check the
immigration status of all prospective tenants and undertake periodic
checks, reporting any tenants without leave to remain to the Home
Office. A statutory code of practice will assist landlords to avoid unlawful
race/nationality discrimination.
The SofS retains a discretion to allow a person to rent private
accommodation notwithstanding their immigration status, although how
this discretion will be exercised is not yet defined.
Concerns have been raised by the Chartered Institute for Housing and Liberty, among others,
that given the pressures on the market, on which recent migrants rely heavily, landlords
might choose to discriminate against people who appear to be 'foreign' rather than risk the
delay or the financial penalties. 17 The Government accepts there is a risk the provisions will
15
www.gov.uk/government/uploads/system/uploads/attachment_data/file/249122/sham_marriage_impa
ct_assessment.pdf
16 O'Donoghue v United Kingdom is authority for the right of states to impose reasonable conditions
on the right to marry in order to ascertain whether the marriage is a sham.
17 Extract from Open letter from the Chartered Institute of Housing to the Housing Minister:
9
lead to some race discrimination. 18 Our experience shows that such covert discrimination
would be difficult to uncover or substantiate due to the many reasons a landlord can put
forward for refusing a tenancy.
The proposals also have human rights implications. Article 3 issues may
arise if a person is made destitute through homelessness arising from
the policy. The Government assumption that a homeless person can
return to, and secure accommodation in, their country of origin will not
hold true for all cases. Article 8 will be engaged where family members
are separated as a result of these provisions. Differential treatment on
the grounds of immigration status engages article 14.
The Commission therefore welcomes the Government's proposed pilot
of the residential tenancies checking scheme before it is implemented
any further. It will assist in better understanding the equality impact and
human rights implications of the proposed measures. We expect this
pilot to demonstrate how it will determine whether any unlawful race
discrimination is occurring and, should it occur, how it would be
monitored and eliminated.
This will go some way towards meeting the Government's statutory
obligation to give due regard to relevant equality considerations set out
in section 149 of the Equality Act 2010. Following the pilot, there may be
a need for Government to review how, or indeed whether, the scheme is
to be taken forward.
The Commission has committed to working with landlords and lettings
agencies (and/or their representatives) to disseminate information and
improve understand of their duties under the Equality Act 2010. Where
we suspect that those obligations have been breached we will promote
compliance, using our enforcement powers where proportionate and
necessary.
The Commission is willing to assist the Government in devising its proposed code of practice
with a view to consistency with the Commission's statutory code of practice concerning
service provision and the disposal and management of residential premises.
“Recent migrants overwhelmingly rely on the private rented sector and already often occupy poorer
quality lettings. It seems likely that if a prospective tenant is not obviously British, landlords may
simply reject them, given the pressures in the sector at the moment, the competition for tenancies
and the potential delay if further checks are needed.
Such discrimination will be very difficult to uncover given that landlords will be making simultaneous
enquiries about bank accounts, references etc., which will give them other grounds for rejecting an
application.
This could drive migrants, and some UK citizens, even further into poorer quality lettings with less
scrupulous landlords who are probably already in breach of the law in other respects. It could also
place extra pressure on local authorities at a time when homelessness is already growing.”
18
Home Office 'Tackling Illegal Immigration in privately rented accommodation' (10th October 2013).
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7. NHS financial charges
The basic human rights position on the introduction of an immigration
health charge is that states have the right to set legitimate conditions on
who is entitled to access free health services. Therefore we agree with
the Government 19 that because treatment which is immediately
necessary will not be withheld, the proposed measures are unlikely to
amount to a violation of articles 2 or 3 of the Convention. However in the
event of failure to protect life or inhumane and degrading treatment, the
application of the provisions may still give rise to breaches of human
rights in individual cases. 20
States can discriminate on the grounds of immigration status if the
differential treatment is reasonably and objectively justified. However,
under article 14, discrimination in the enjoyment of Convention rights on
grounds of nationality requires particularly weighty justification, and we
therefore urge the Government to elaborate on its rationale behind the
restrictions, and to outline with greater precision why the measures are
objectively and reasonably justifiable. The rationale should address the
potential economic and social costs of removing access to free
healthcare, including the risk that individuals with communicable
diseases will be deterred from seeking medical care.
We agree with JCHR that there may be some ‘double recovery’ from
migrants who will pay both the surcharge in addition to income tax and
national insurance contributions, and that the justification for this aspect
of the scheme has not clearly been made out.
People who do not have proof of citizenship, for example those who are
homeless or have a learning disability, could also encounter difficulty
proving their entitlement to free health services. This should be
addressed, where possible, through the proposed registration system.
8. Collection, retention and use of biometric personal data
The Bill introduces requirements for those applying for transit visas or for
documents as third country national family members of European
nationals to provide biometric data, such as photographs or fingerprints,
though not DNA. The data will be destroyed if the person is granted
19
Home Office Memorandum on Human Rights paragraphs 116 & 117 page 33
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/249270/Immigration_Bil
l_-_ECHR_memo.pdf
20
Committee on the Elimination of Discrimination against Women (CEDAW) decision in Alyne da
Silva Pimentel v. Brazil, the first maternal death case decided by an international human rights body,
confirms that States have a human rights obligation to guarantee that all women, irrespective of
income or racial background, have access to timely, non-discriminatory, and appropriate maternal
health services.
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citizenship, however photographs may be retained until the person
acquires a British passport, and indefinitely where the person does not.
The bill will remove the 10 year limit on retention of information and
consequently allow permit indefinite retention of biometric data in some
circumstances.
Whilst we acknowledge the Government’s legitimate aims of securing
effective immigration controls, preventing crime and disorder and
verifying the true identity of persons, the indefinite retention of data
requires very strong justification, particularly for persons not suspected
of any misconduct 21 and we consider that the justification for retaining
data indefinitely should be further scrutinised.
About the EHRC
The Equality and Human Rights Commission is the National Human
Rights Institution for GB and the National Equality Body. It has a
statutory duty to monitor compliance with equality and human rights
legislation. Under section 11(2)(d) it may advise the Government on the
likely effect of proposed change of law.
21
Catt v the Commissioner of Police of the Metropolis, High Court, (indefinite retention of information on the
National extremism database) and RMC v the Commissioner of Police of the Metropolis, Court of Appeal
(indefinite retention of photograph). In both instances the individual had not been charged or convicted of an
offence
12
Annex A
Extract from the Joint Committee on Human Rights
Legislative Scrutiny: Immigration Bill
Eight Report of Session 2013-2014
Page 12-13, paragraph 27 As follows:
27. We welcome the Government’s clarification of the intended definition
of “family member” for the purpose of the single power of removal, and
the express acceptance that the exercise of the power of removal of
such family members remains subject both to existing immigration law
and any relevant international obligations. We also welcome the
clarification that family members will always be notified if they are facing
removal, but this raises a question as to why the Secretary of State
requires a power to make regulations about “whether” a family member
to be removed is given notice. In view of the Government’s welcome
clarification that a family member who is to be removed will always be
given notice, we recommend that the regulation-making power
in clause 1(6)(c) be amended to reflect this intention. The following
amendments would give effect to this recommendation:
Page 2, line 28, leave out “whether” and insert “where”
Page 2, line 28, leave out “to be”
Page 2, line 29, leave out “and, if so”
13