Nationality , Immigration and Asylum Bill: Joint Committee On Human Rights

Nationality , Immigration and Asylum Bill: Joint Committee On Human Rights - Seventeenth Report

CONTENTS

TERMS OF REFERENCE

REPORT

The Backgound to the Bill and the Committee's Scrutiny

The Structure of the Bill

Outline of relevant human rights principles

Nationality

The Regime for Accommodation Centres

Accommodation centres and the right to liberty
Accommodation centres-legal advice
Children in accommodation centres
The right to education in accommodation centres (clauses 31 and 32)

Destitute asylum-seekers and their dependants outside accommodation centres

Accommodation for asylum-seekers in the community
The power to exclude asylum-seekers from accommodation centres
Non-accommodation support for asylum-seekers
Child refugees

Detention before removal

Detention pending a decision whether to remove
Grounds for authorising detention
Restriction of release on bail
Removal of members of families
Detention of children

Removing asylum-seekers to other EU Member States under the Dublin Convention

Appeals

Removing failed asylum-seekers to 'safe' third countries
Removing rights of appeal generally
Appeal against removal or refusal of entry deemed to be conducive to the public good

Penalties, authority to carry schemes, and criminal offences

Authority to Carry Schemes
Penalties for people whose transport is used by asylum-seekers to enter the country

New criminal offences

Conclusion

PROCEEDINGS OF THE COMMITTEE RELATING TO THE REPORT

APPENDICES

1. Memorandum from the Home Office

2. Memorandum from National Association of Citizens Advice Bureaux

3. Memorandum from Bail for Immigration Detainees

4. Memorandum from Liberty (The National Council for Civil Liberties)

5. Memorandum from Ann Dummett

6. Letter from Amnesty International United Kingdom

7. Memorandum from JUSTICE

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

9. Opinion of Nicholas Blake QC Matrix Chambers and Sandhya Drew Tooks Court Chambers

10. Memorandum from Refugee Children's Consortium

LIST OF REPORTS FROM THE COMMITTEE IN THE PRESENT PARLIAMENT

The Joint Committee on Human Rights is appointed by the House of Lords and the House of Commons to consider matters relating to human rights in the United Kingdom (but excluding consideration of individual cases) and proposals for remedial orders made under Section 10 of the Human Rights Act 1998.

Current Membership

HOUSE OF LORDS HOUSE OF COMMONS
Lord Campbell of Alloway
Lord Lester of Herne Hill

Lord Parekh

Baroness Perry of Southwark

Baroness Prashar

Baroness Whitaker
Vera Baird MP (Labour, Redcar)
Mr Norman Baker MP (Liberal Democrat, Lewes)

Jean Corston MP (Labour, Bristol East) (Chairman)

Mr Kevin McNamara MP (Labour, Kingston upon Hull)

Mr Richard Shepherd MP

(Conservative, Aldridge-Brownhills)

Mr Shaun Woodward MP (Labour, St Helens South)

Powers

The Committee's terms of reference are set out in Standing Order No. 152B of the House of Commons and the Order of the House of Lords of 3 July 2001.

Publications

The Reports and evidence of the Joint Committee are published by The Stationery Office by Order of the two Houses. All publications of the Committee (including press notices) are on the internet at www.parliament.uk/commons/selcom/hrhome.htm. A list of Reports of the Committee in the present Parliament is on the inside front cover of this Report.

Contacts

All correspondence should be addressed to The Clerk of the Joint Committee on Human Rights, Committee Office House of Commons London SW1A 0AA. The telephone number for general inquiries is: 020 7219 2797; the Committee's e-mail address is jchr@parliament.uk.

Footnotes

In the footnotes of this Report, references to oral evidence are indicated by 'Q' followed by the question number. References to written evidence are indicated by the page number as in 'Ev 12'.

The Joint Committee on Human Rights has agreed to the following Report:

NATIONALITY, IMMIGRATION AND ASYLUM BILL

The Background to the Bill and the Committee's Scrutiny

1. The Nationality, Immigration and Asylum Bill (HC Bill 119) was introduced to the House of Commons and received its first reading on 12 April 2002. It completed its Commons stages on 12 June, and was introduced to the House of Lords as HL Bill 89. It carries a section 19 statement of compatibility by Lord Filkin. The published Explanatory Notes[1] include material on the Government's view as to the particular human rights engaged by the Bill.[2] The Bill's purpose is to give effect to a number of proposals derived from the White Paper, Secure Borders, Safe Havens: Integration with Diversity in Modern Britain[3] (hereafter 'White Paper') and the consultation process which flowed from it. The Bill was heavily amended in the House of Commons, with the Government proposing substantial amendments on Report. References to clause numbers in this Report are to the Bill as introduced to the House of Lords.

2. Immigration control, naturalisation qualifications, and the provision of support for asylum-seekers are all emotive and sensitive issues. They bring into play diverse opinions about the nature of British society, methods of managing relationships between diverse social, racial, ethnic and religious communities, the best approach to regulating immigration, the proper response to the country's responsibilities in respect of people claiming refugee status. We are well aware of the emotiveness of the subjects with which the Bill deals, and of the social and political controversies which surround them. However, we are concerned the necessity to provide effective protection for human rights against the misuse of public powers. The wider policy debates are relevant to our work only as part of the background against which we have scrutinized the Bill for its human rights implications.

3. Nevertheless, we consider that the way a State treats powerless and vulnerable people is an important indicator of the vitality of its human rights culture. We recall that the Preambles to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child, all assert that recognition of the inherent dignity of all members of the human family is the foundation of equal human rights. This view also underpins the Preambles to the Charter of the United Nations and to the Universal Declaration of Human Rights. Immigrants and asylum-seekers, lacking a political base in the United Kingdom, are particularly at risk of having their dignity and rights undervalued in the legislative process and subsequent administrative action. When evaluating its human rights implications, we have therefore examined the Bill with particular care.

4. Following an initial assessment, the Chair of the Committee wrote to the Secretary of State for the Home Department on 29 April 2002 seeking answers to a number of questions about the Bill by 15 May.[4] The Home Office failed to meet that target. Its response was received on 30 May. We draw attention to the fact that this made it impossible for us to report on the Bill in time for our conclusions to be useful to the House of Commons. It is essential for Departments to comply with deadlines for their replies to our questions if we are to report in time for both Houses to be in possession of our considered views when they examine Bills. This is particularly important when a Bill has substantial human rights implications. In future, if a Department cannot meet the deadline for replying to our questions about such a Bill, especially one which is programmed in the House of Commons, the Government's business managers should ensure that the Bill's timetable is set to give time for the Committee to Report. In the meantime, we have been greatly assisted by submissions from a number of organizations and individuals, whose expertise has contributed substantially to our deliberations. This evidence is reproduced as an Annex to this Report, and we acknowledge our gratitude to its authors.

5. For the reader's convenience, section B of this Report provides an overview of the Bill, and section C offers an outline of relevant human rights principles. The Report then examines particular issues arising under the Bill—

Matters relating to nationality

The regime for accommodation centres, particularly in relation to children

Destitute asylum-seekers and their dependants outside accommodation centres

Detention before removal, particularly in relation to children

Removing asylum-seekers to other EU Member States under the Dublin Convention

Appeals

Penalties, authority to carry schemes, and criminal offences

The Structure of the Bill

6. The Bill is divided into eight Parts. The Government accepted that some aspects of the Bill might engage Convention rights under the Human Rights Act 1998, and expressed a view about compatibility in the published Explanatory Notes to the Bill. These aspects are noted in this section of the Report, and are discussed in subsequent sections.

7. Part 1 of the Bill (clauses 1-13 and Schedules 1 and 2) would amend the law on nationality and citizenship, inter alia introducing additional criteria to be met by those wishing to become UK citizens by naturalisation (knowledge of a language and knowledge about life in the United Kingdom), and a requirement that (unless waived by the Secretary of State on exceptional grounds) new British citizens swear an oath (or make an affirmation) of allegiance to the Crown and make a pledge of loyalty to the United Kingdom. Clause 4 would, for the first time, allow the Secretary of State in some circumstances to withdraw British citizenship from someone who was born a British citizen. Clause 6 would bring nationality (but not immigration) functions for the first time within the scope of the duty of public authorities not to discriminate on racial grounds under the Race Relations Act 1976 as amended. (At some future time, we may wish to consider whether immigration functions could be included within the scope of the 1976 Act.) Clause 7 would require reasons to be given for discretionary decisions about nationality, and would permit a right of appeal against such decisions, for the first time.

8. Part 2 (clauses 14-36) would allow the Secretary of State to establish 'accommodation centres' for asylum-seekers, and would make provision for their use and management and the facilities they would provide. It would be possible to require a person to leave an accommodation centre if he or a dependant breached a condition of residence. This gives rise to questions about the effect of the new regime on the human rights of destitute asylum-seekers. In relation to human rights, the Government takes the view that—

— where a person has been excluded from an accommodation centre through breach of a residence condition, the Secretary of State will have a discretion to provide accommodation or other support if the person is destitute and failure to provide support would lead to a breach of ECHR Article 3;[5]

— the requirement to reside in a particular place could engage rights under ECHR Article 8(1), but the Government considers that such a requirement would be justifiable under Article 8(2).[6]

9. A further issue arises in relation to the provision of education in accommodation centres (clauses 31 and 32).

10. Part 3 (clauses 37-51 and Schedule 3) would amend the rules relating to other forms of support for asylum-seekers, clarifying the law in some respects and replacing the current scheme of vouchers with money payments. However, clause 48 and Schedule 3 would make certain classes of person ineligible for support. The Government accepts that this could engage ECHR Article 3, but argues that the exceptions to the provisions would avoid incompatibility.[7] Clause 44 would allow the Secretary of State to deprive a person of support available under Parts 2 and 3 if the person had not complied with conditions on which temporary admission or release from detention has been granted. The Government accepts that this too could engage ECHR Article 3, but points out that the support could be reinstated if withdrawal gave rise to a risk of a violation of Article 3 and the person agreed to comply with the conditions.[8] These matters are considered further below.

11. Part 4 (clauses 52-68) would amend the law on detention and removal of people whose applications to enter or remain in the United Kingdom are being considered or have been rejected. Among other things—

— there would be power to detain pending a decision whether to remove (clause 52);

— detention centres would be redesignated as removal centres (clause 56);

— there would be restrictions on release on bail after a decision to remove but before removal (clause 57);

— there would be provision for directing the removal of members of the family of a person whose removal had been ordered (clause 62); and

— clause 68 would change the law on removing an asylum-seeker to a Member State of the EU, which would be assumed to be 'safe' for this purpose.

12. Part 5 (clauses 69-101 and Schedules 4 to 7) would amend and to some degree consolidate and rationalise the law on appeals against immigration and asylum decisions, including the circumstances in which an applicant would have to leave the United Kingdom before being permitted to appeal, and those in which no appeal would be available and the applicant would only be able to apply for judicial review. Clauses 81 to 87 would permit the Secretary of State or an immigration officer to cut off a person's right of appeal against certain immigration, deportation and refusal of entry decisions, including (clause 81) a decision to remove an asylum-seeker to a third country, by certifying (for example) that the ground of appeal has already been considered on an earlier appeal, or that the claim is clearly unfounded, etc. Clause 83 would prevent a person outside the United Kingdom from appealing on the ground that removal would violate his or her rights under the Convention on the Status of Refugees. The Government accepts that the loss of a right of appeal while within the country may affect people's Convention rights, but points out that, when a person is to be removed to another country without a right of appeal under the Immigration and Appeals Act 1999 (rather than a right of appeal under the Bill), the Secretary of State would have to certify that there was no reason to believe that the person's Convention rights would be infringed in that country.[9] That provision, in clause 101(2) and (4), appears to be merely transitional. We give further consideration to the matter below, paragraphs 93-108.

13. Part 6 (clauses 102-123 and Schedules 7 and 8) would amend the law on immigration procedures. Among other things—

— Clause 103 would allow the Secretary of State or an immigration officer to require a person to state the grounds on which he or she seeks to stay in the United Kingdom. An adjudicator hearing an appeal would then have to decide all grounds which could be the subject of an appeal under clause 70(1) (see clauses 73 and 74). An applicant for asylum is thus deemed also to have applied for leave to enter or remain in the United Kingdom on other grounds, allowing all possible arguments for allowing him or her to remain to be dealt with in the same set of proceedings.

— Clauses 107-108 and Schedule 8 would allow the Secretary of State to introduce a new 'authority to carry' (ATC) scheme, requiring carriers to seek authority to bring passengers to the United Kingdom, and would allow the Secretary of State to impose a penalty on carriers who bring people to the United Kingdom without authority under the scheme. The details of the scheme or schemes would be set out in subordinate legislation, which, to be lawful, would have to be compatible with Convention rights. The provisions would also amend the arrangements for penalising carriers who bring into the United Kingdom clandestine entrants or people without proper documents, in order to rectify an incompatibility between the present arrangements and the right to a fair hearing under ECHR Article 6(1). The Government takes the view that the latter amendments would ensure that the law is compatible with Convention rights.[10]

— Clauses 109-111 would allow travellers to be required or permitted to provide information about their physical characteristics, and would authorise that information to be collected and stored under the Immigration and Asylum Act 1999. The Government accepts that this engages the right to respect for private life under ECHR Article 8(1), but argues that the provisions are justified under Article 8(2) as being in accordance with the law and necessary in a democratic society for the prevention of crime and for the maintenance of an orderly immigration system, which is in the interests of the economic well-being of the country.[11] We accept this, and will not refer further to this matter in this Report.

— Clauses 112-121 would permit information about individuals to be disclosed in some circumstances for the purposes of immigration-related proceedings. The privilege against self-incrimination would be protected by clause 122. The collection and disclosure of personal data could engage rights under ECHR Article 8(1). The Government takes the view that the powers would be justifiable under Article 8(2).[12] We agree, and will not refer further to this matter in this Report.

14. Part 7 (clauses 124-136 would amend the law on immigration-related offences. It would also change the current law on forfeiture, following conviction of an offence of assisting illegal immigration, of vehicles, ships and aircraft in which immigrants have arrived without proper papers in the United Kingdom. Clauses 133-135 would also confer additional powers of entry, search and seizure on immigration officers and police officers investigating immigration matters. The Government accepts that these powers engage rights under ECHR Article 8(1), but considers that they are justifiable under Article 8(2).[13] We agree, and will not consider these provisions further in this report.

15. Part 8 (clauses 137-143 and Schedule 9) contain the usual supplementary provisions relating to interpretation, money, repeals, commencement, extent, and short title. They give rise to no risk of incompatibility with human rights, and are not considered further in this Report.

Outline of relevant human rights principles

16. International law recognises the right of States to control entry to their territories. However, the United Kingdom is bound in international and national law by Article 3 of the ECHR (prohibition of torture and inhuman or degrading treatment or punishment). The European Commission of Human Rights has held that systematic racial discrimination against a particular racial group in immigration control may in some circumstances amount to degrading treatment contrary to Article 3.[14]

17. The United Kingdom is bound in international law by a number of human rights obligations relating to immigration. In particular—

— ICCPR Article 12(4) protects nationals of a State by prohibiting States from arbitrarily depriving anyone of the right to enter his own country, although the United Kingdom has entered a reservation to Article 12(4) reserving its 'right to continue to apply such immigration legislation governing entry into, stay in and departure from the UK as they may deem necessary from time to time'. The operation of Article 12(4) therefore does not prevent legislation from restricting the right 'as regards persons not at the time having the right under the law of the UK to enter and remain in the UK', but this must not permit arbitrary deprivation of the right, as this would frustrate one of the purposes of Article 12(4).

— Children are entitled to special protection. The Convention on the Rights of the Child (CRC), Article 3(1) requires that authorities make the best interests of the child a primary consideration in all actions concerning children. Article 9(1) requires States to ensure that children are not separated from their parents, except where that would be in the best interests of the child. Article 10(1) accordingly provides that applications by a child or his or her parents to enter or leave a State Party for the purposes of family reunifications are to be dealt with in a 'positive, humane and expeditious manner', and Article 10(2) requires States to 'respect the right of the child and his or her parents...to enter their own country'. However, when it ratified the Convention the United Kingdom entered reservations similar in effect to those it entered to Article 12 of the ICCPR. One of the reservations, read literally, would allow the Government to disapply the CRC rights so far as they relate to people who are subject to immigration control. In our view, that would be incompatible with the object and purposes of the CRC, and so would not constitute a valid reservation. Indeed, we note that the Committee on the Rights of the Child concluded in 1995 that the reservation 'does not appear to be compatible with the principles and provisions of the Convention' on these grounds,[15] and that this view is shared by some independent experts in human rights and immigration law.[16] We comment further below on the measures which need to be taken to ensure that the proposals in the Bill do not violate rights under the CRC.

18. The United Kingdom is under an obligation, in both international and national law under ECHR Article 8(1) and the Human Rights Act 1998, to respect the rights to family life of people in de facto family relationships to the mutual enjoyment of each other's company. This is capable of affecting immigration decisions, although an interference with the right may be justified under Article 8(2) in the circumstances of an individual case. There are also obligations to ensure that people have housing which is adequate to their needs and an adequate standard of living, under ICESC Article 11(1).

19. The United Kingdom is bound by a general obligation of non-discrimination on the ground of race, etc., under ICCPR Article 26, and an obligation of non-discrimination in relation to the enjoyment and protection of rights under the respective international treaties by virtue of ECHR Article 14 and ICESC Article 2(2), and the equivalent provisions in the CRC.

20. The United Kingdom is bound by the Convention on the Status of Refugees (Geneva, 1951).

21. The United Kingdom has not ratified the Fourth Protocol to the ECHR. As a result, Article 2(1) and (4) (which provides everyone lawfully within the territory of a State shall have the right to liberty of movement and the right to choose his residence within that territory, subject to any restrictions imposed in particular areas in accordance with law and necessary in a democratic society) is not one of the Convention rights made part of national law by the Human Rights Act 1998. Nor are Article 2(2) (the right to leave the country, subject to any conditions permitted under Article 2(3)) and Articles 3 and 4 (freedom from expulsion from territory of State of which one is a national, freedom from deprivation of right to enter State of which one is a national, and prohibition on collective expulsion of aliens).

22. Similarly the right of aliens lawfully resident in the territory of a State not to be expelled without having an opportunity to exercise specified procedural rights, unless the expulsion is necessary in the interests of national security or is grounded on reasons of national security (Article 1 of the Seventh Protocol to the ECHR) does not bind the United Kingdom in international or in national law.

Nationality

23. Clause 4 of the Bill (deprivation of citizenship) would substitute new sections 40 and 40A for section 40 of the British Nationality Act 1981. New section 40 would, among other things, for the first time allow the Secretary of State to deprive a person born a British citizen of his or her British citizenship. The House of Lords Select Committee on the Constitution asked the Government about the constitutional justification for this, and was told that the Government intends the provision to remove unjustifiable distinctions between naturalised British citizenship and those who acquired their citizenship at birth.[17] The conditions for exercising the power (as amended in the House of Commons) would be (a) that 'the Secretary of State is satisfied' that the person had done anything seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory, and (b) that the Secretary of State does not think that it would make the person stateless.

24. There is no right, under international human rights law, to be a citizen of any country. Nevertheless, we were concerned that depriving someone of citizenship might indirectly have an adverse impact on their human rights. We therefore asked the Secretary of State whether depriving a person of citizenship would make them more liable to lose benefits in the United Kingdom, or to be removed to another country, in circumstances which would put at risk their right to be free of degrading treatment (ECHR Article 3), their right to liberty (ECHR Article 5), their right to respect for family life (ECHR Article 8), their right not to be subjected to the death penalty (ECHR Protocol No. 6), their right to an adequate standard of accommodation and standard of living (ICESC Article 11(1)), and the rights of their children under the Convention on the Rights of the Child (CRC); and, if so, what steps would be taken to ensure that these matters are taken into account when considering whether or not to deprive a person of citizenship.

25. In reply, the Home Office acknowledged that the impact of depriving someone of citizenship would sometimes deprive him or her of a right of abode. The person would then become subject to immigration control. However, the Home Office points out that—

— the person would have had dual nationality, and so would not become stateless if British citizenship were withdrawn,

— any decision to deport the person would be taken subsequently and separately, and would be subject to the usual protections against being subjected to the threat of inhuman or degrading treatment and the imposition of the death penalty,[18]

— the status of the person's existing children would be unaffected,[19] and

— it takes the view that the right to respect for private and family life does not require that all members of a family should be guaranteed the same nationality or citizenship.[20]

The status of children as yet unborn would be affected, and it is possible that this might engage Article 7 of the Convention on the Rights of the Child, which provides—

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

However, the Home Office draws attention to the fact that any impact on the right to a nationality would be covered by the reservation to Article 7 which the United Kingdom entered on ratifying the CRC.

26. Although (as noted in paragraph 17 above) we have some concerns about the reservations entered by the United Kingdom to the CRC (a matter considered further below, paragraphs 46-48), we accept that it is legitimate for the Government to adopt this position. At the same time, we are very conscious that depriving people of British citizenship has serious consequences. These include loss of the right to a United Kingdom passport, which may affect people's ability to travel, especially if the other State of which a person is a citizen were to deny a passport to the person for political reasons.[21] Inability to obtain a passport could make a person's alternative nationality little more than an empty shell. In addition, deprivation of British citizenship would entail loss of British diplomatic protection; loss of status; loss of the ability to participate in the democratic process in the United Kingdom; and serious damage to reputation and dignity. The Home Office argument assumes that the real threat to human rights would derive from any subsequent decisions taken as part of the immigration control process. In that process, there would usually be adequate opportunity to ensure that effect is given to Convention rights, and that other rights are given appropriate weight. However, we are concerned about the wider implications of loss of British citizenship. We also have deep concerns about other parts of the Bill which affect the protection for rights of immigrants and which are considered below. We draw these matters to the attention of each House.

27. Turning to the conditions governing the power to deprive someone of British citizenship, we were concerned that there was no requirement for the Secretary of State to show that there were objectively reasonable grounds for doing so. This seemed to us to put at risk a person's legal status without adequate safeguards against arbitrariness (although we noted that clause 7 would require reasons to be given for decisions, and would provide for a right of appeal).[22] We therefore asked the Secretary of State why it was thought to be appropriate to dispense with any requirement for objectively reasonable grounds.

28. In its reply, the Home Office referred to a long history of allowing the Secretary of State to deprive people of British nationality on the basis of a subjective view, and argued that it is entirely appropriate that the Home Secretary should be permitted to decide whether a person has done something 'seriously prejudicial to the vital interests of the UK or a British overseas territory'. The Home Office drew attention to a long-standing judicial acceptance that the Home Secretary is in the best position to decide what national security requires.

29. We cannot agree with this line of argument. The requirements which statutes imposed on Secretaries of State in earlier centuries were shaped by the different, and less demanding, standards of due process and fairness which were then accepted as being appropriate in public administration and administrative law. In the light of today's more fully developed standards of decision-making under the rule of law, not to mention enhanced protection for due process under the Human Rights Act 1998, we do not accept that it is any longer appropriate to allow a Secretary of State to deprive a person of a status as important as citizenship on the basis of the Secretary of State's purely subjective assessment. We recognize that the Secretary of State is likely to be in a particularly good position to form a judgment, and that it may in consequence be entitled to considerable respect. However, we consider that the Secretary of State should be required to justify the decision by showing that there are reasonable grounds for it. In some limited circumstances it might be appropriate to limit the burden of justifying decisions. For example, national security decisions (to which the Home Office memorandum refers) may be made on the basis of evidence which could not properly be publicly revealed. However, the Home Office has offered no support for its implied suggestion that any decision that someone has done something seriously prejudicial to the vital interests of the UK or a British overseas territory would necessarily be made on the basis of that kind of evidence. Indeed, the very breadth and indeterminacy of the phrase 'seriously prejudicial to the vital interests of the UK', etc., suggests that decisions may be made on the basis of many different kinds of evidence, and that it will often be both possible and desirable for the Secretary of State to be required to justify such decisions by reference to standards of reasonableness.

30. The Home Office has suggested that there would be adequate safeguards against arbitrary use of the power. The Secretary of State would have to give reasons for the decision, and a person who had been deprived of British citizenship could challenge it on the ground that the decision was 'Wednesbury unreasonable' (i.e. that it was so unreasonable that no reasonable Secretary of State, properly understanding the relevant facts and applicable law, could have come to that conclusion).[23] We recognize that this offers some protection against arbitrariness which results in a manifestly irrational decision, in which the reasons advanced could not properly and reasonably be regarded as supporting the decision made. However, the protection offered by the Wednesbury unreasonableness principle is unsatisfactory in this context. Instead of the Secretary of State having to establish that his or her decision had been reasonable, the aggrieved person would have to establish that the decision had been wholly unreasonable. Both the burden of proof and the standard of proof are different. As a matter of general principle, we consider that it is a far more effective guarantee against arbitrariness, and a better way of assuring good administrative decision-making (as well as being far more compatible with the rule of law which underpins human rights), to require public authorities to justify the deprivation of a person's status to a standard of reasonableness, than to require the person subject to the decision to establish that it is wholly unreasonable.

31. We therefore draw this matter to the attention of each House.

32. We asked the Secretary of State about rights of appeal in relation to deprivation of citizenship. We were concerned about provisions in clause 4, inserting a proposed new section 40A into the British Nationality Act 1981. This would allow the Secretary of State to deprive a person of the right to appeal to an adjudicator against deprivation of citizenship by certifying under proposed new section 40A(2) that the decision—

... was taken wholly or partly in reliance on information which should not be made public on grounds relating to-
(a) the interests of national security,

(b) the interests of the relationship between the United Kingdom and another country, or

The Department pointed out that in such a case there would be a right to appeal to the Special Immigration Appeals Tribunal (SIAC) under proposed new section 2(2A) of the Special Immigration Appeals Commission Act 1997, to be inserted by clause 4(2) of the Bill. In addition, proposed new section 40A(6) of the British Nationality Act 1981, to be inserted by clause 4 of the Bill as amended in Committee, would prevent a deprivation order being made until an appeal to the Commission had been concluded or the time for making such an appeal had expired.[24]

33. The procedure would therefore seem to be as follows. The Secretary of State would give notice to a person that he had decided to make a deprivation order. If the person sought to appeal, the Secretary of State would certify that the case was concerned with national security, etc., ruling out an appeal to the adjudicator. The person could then appeal to the SIAC, which would be able to consider whether the decision was justified (in the light, inter alia, of any relevant Convention rights). The SIAC would have full jurisdiction, and would be competent to deal with all issues of fact and law.[25] Only after the time for appealing had expired without an appeal being lodged, or the SIAC had held that the Secretary of State's decision had been lawful, could a deprivation order be made pursuant to the Secretary of State's decision. Having considered the matter, we are satisfied that clause 4 of the Bill, as amended in the House of Commons, is likely to offer adequate safeguards for the rights of potential appellants.

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1 HL Bill 89-EN (London: The Stationery Office, 2002) Back

2 ibid., pp 56-58, paras. 331-342 Back

3 Cm. 5387 (London: The Stationery Office, 2001) Back

4 For the text of the letter, see our Sixteenth Report of Session 2001-02, Scrutiny of Bills: Further Progress Report, HL Paper 113, HC 805, pp Ev 1-Ev 8 Back

5 Explanatory Notes, para. 332 Back

6 Explanatory Notes, para. 333 Back

7 Explanatory Notes, para. 334 Back

8 Explanatory Notes, para. 335 Back

9 Explanatory Notes, paras. 336-338 Back

10 Explanatory Notes, para. 340 Back

11 Explanatory Notes, para. 339 Back

12 Explanatory Notes, para. 341 Back

13 Explanatory Notes, para. 342 Back

14 Patel and others (The East African Asians) v. United Kingdom, Apps. Nos. 4403-19/70, 3 EHRR 76 Back

15 CRC/C/15/Add.34, para. 7 Back

16 See the Opinion by Nicholas Blake QC and Sandhya Drew, reproduced as an Annex to this Report Back

17 House of Lords Select Committee on the Constitution, Nationality, Immigration and Asylum Bill, Sixth Report of 2001-02, HL Paper 129 Back

18 Home Office Memorandum, paras. 2-3, Ev 1 Back

19 ibid., para. 5, Ev 1 Back

20 ibid., para. 4, Ev 1 Back

21 On the constitutional significance of the loss of the right to a passport, see e.g. Kent v. Dulles 357 US 116 (1958), SC of the USA, but cp. Haig v. Agee 453 US 280 (1981) Back

22 See the comments of the Society of Legal Scholars (Immigration and Refugee Law Section), reproduced as an Annex to this Report, Ev 28-32 Back

23 Home Office Memorandum, para. 8, Ev 2 Back

24 Home Office Memorandum, para. 9, Ev 2 Back

25 See, mutatis mutandis, R. (on the application of the Kurdistan Workers' Party and others) v. Secretary of State for the Home Department and other applications, [2002] EWHC 64 (Admin), 17 April 2002, Richards J Back

The Regime for Accommodation Centres

34. In the White Paper Secure Borders, Safe Havens, the Government set out a plan for 'a holistic approach to the handling of asylum seekers' applications—from arrival to the removal of failed applicants, or the integration into the community of those recognized as refugees.'[26] The first two stages in the plan were—

— induction centres, where asylum-seekers would be given information about the asylum process and their obligations under it, and would be provided with basic health screening, an appointment for an asylum interview, a travel warrant, and assistance from NASS where necessary. Arrangements would then be made for dispersal of those who could not support themselves to accommodation centres. The stay in the induction centres would be between one and seven days. Asylum-seekers would then be given application registration cards (biometric smart cards to provide identification in the reporting and interviewing processes, and when claiming support);[27]

— accommodation centres, where accommodation and welfare support would be provided for those who need it, together with health care, education, the services of interpreters, legal advice, and opportunities for purposeful activities including training in English language and IT skills. The centres would provide better facilities than are usually available under current dispersal arrangements. People would not be detained in the accommodation centres, but would not receive support if they left the centre in breach of a residence requirement. In addition, they would be warned that breach of a residence requirement might prejudice their asylum claim if it damaged their credibility. Places in accommodation centres would be allocated by reference to a range of criteria including suitability and family circumstances. If an asylum seeker applied for a place, and was offered one, he or she would be expected to take up the place, and would not be offered any alternative form of support if he or she refused it.[28]

35. The Nationality, Immigration and Asylum Bill deals only with accommodation centres (although clause 59 would make it possible for the Secretary of State to impose a restriction requiring an asylum-seeker, or his or her dependants, to reside at a specified location for up to 14 days if the person imposing the restriction believed that an induction programme would be made available at or near the location). The measures proposed in the Bill would apply to a somewhat narrower class of people than was envisaged in the White Paper. Only asylum-seekers aged 18 and over who are, or within a period to be prescribed by regulations are likely to become, destitute would be eligible for admission to the centres, together with their dependants.[29] The Secretary of State would be able to require such a person to reside at an accommodation centre as a condition of temporary admission to the United Kingdom.[30] An asylum-seeker and any dependants would be destitute for this purpose if they did not have and could not obtain food, other essential items, and adequate accommodation.[31] The Secretary of State would have power to arrange for a wide range of facilities and services to be made available at accommodation centres.[32] Under ECHR Article 3, the State has positive obligations to protect people against being subjected to treatment which is degrading; we consider these below. The United Kingdom also has an obligation to secure adequate accommodation for people who are unable to provide it for themselves, under ICESC Article 11(1). The emphasis in the Bill on the adequacy of accommodation, rather than its availability,[33] appears to be in accordance with the requirements of Article 11(1) of the ICESC, to which the Committee drew attention in its First Report.[34] The Government intends to introduce this system on a trial basis in the first instance.

36. We have considered various ways in which these plans might engage human rights. This section of the Report examines the impact on the right of asylum-seekers to liberty, the availability of legal advice, and the treatment of children, including the provision of education.

Accommodation centres and the right to liberty

37. The compatibility of the regime in the existing detention centres with the detainees' right to be free from deprivation of liberty under ECHR Article 5(1) has proved to be controversial. Under Article 5(1)(f), a person may be detained 'to prevent his effecting an unauthorised entry into the country', but it is questionable whether a person who presents himself to the authorities as soon as possible after landing and seeks asylum is trying to effect an unauthorised entry.[35] Potential incompatibilities may arise in 'induction centres' when they are established.

38. However, once an asylum seeker reaches one of the accommodation centres proposed in Part 2 of the Bill, this is unlikely to be a problem. The Government considers that the provisions relating to accommodation centres would not engage the right to liberty under Article 5(1) of the ECHR. If the conditions in accommodation centres are as foreshadowed in the White Paper, there can be little doubt that the Government is correct. Asylum-seekers—

'will be able to come and go, and will receive a small cash allowance for incidental expenses. They will also be entitled to receive visitors....

Residents will be subject to a residence requirement. This means that they will be required to reside at the allotted centre throughout the processing of their application and will be required to report regularly to confirm that they are complying with this requirement.'[36]

39. Under the Bill, the freedom to come and go could be curtailed by a condition imposed under regulations made by the Secretary of State. These could require a person not to be absent from the centre during specified hours without the permission of the manager of the centre or the Secretary of State.[37] Breach of a condition by the asylum-seeker or a dependant could lead to the asylum-seeker and any dependant being required to leave the centre.[38] After careful consideration, we have come to the conclusion that this regime would not in itself amount to a deprivation of liberty such as would engage rights under ECHR Article 5(1) or other international human rights treaties, as long as the restrictions were not so strict and far-reaching as effectively to deprive residents of their liberty.

Accommodation centres-legal advice

40. If people's human rights are to be made real and effective, rather than merely theoretical and illusory, it is essential to provide them with information about their rights, and with independent, accessible, free or affordable legal advice from experts in the field. Provision of information about people's legal position, and proper legal advice, are all the more important in view of the proposal in clause 53(6) to repeal statutory provision for automatic, routine bail hearings under the (never implemented) Part III of the Immigration and Asylum Act 1999. Yet clause 26 of the Bill does not expressly permit, much less require, the Secretary of State to ensure that people in accommodation centres receive appropriate information and advice. We therefore asked the Secretary of State for information about—

(a) the reasons for excluding independent, accessible, high quality, free or affordable legal advice from the list of services which could be provided under clause 26, and

(b) other sources of such advice which could be made available to residents in accommodation centres.

41. In its response, the Department declared its commitment to providing access to 'free, independent, quality legal advice to residents of accommodation centres', and continued—

It is intended that that advice will be provided and funded by the Legal Services Commission by virtue of the Lord Chancellor's existing statutory powers. There is therefore no need for an express power to provide legal advice to residents of accommodation centres in what is now clause 26 of the Bill.[39]
The Department would itself be empowered by clause 97 of the Bill to grant funds to bodies such as the Refugee Legal Centre, the Immigration Advisory Service and the Northern Ireland Law Centre (which already receive funds to advise immigration applicants under the Immigration and Asylum Act 1999) to enable them to provide advice in relation to appeals under Part 5 of the Bill. However, the Department envisages that most applicants would use legal advice provided either in the accommodation centre, or in the locality, by the Legal Services Commission. The Department undertakes to provide facilities within accommodation centres for use by solicitors and advice agencies.[40]

42. We welcome these good intentions, but are consider that they do not go far enough. We draw attention to two factors which would need to be addressed in order to maintain the effectiveness of safeguards for the rights of residents in accommodation centres.

43. The Department's response does not indicate how the residents of the asylum centre would be made aware of their rights under national and international law. The effectiveness of legal advice as a safeguard for human rights depends on the person knowing about the rights. This is expressly recognized in relation to children by Article 42 of the Convention on the Rights of the Child (CRC)—

States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.
There is evidence that the provision of information and education about these matters is inadequate even in the normal school curriculum and in society more widely.[41] We consider that specially active steps need to be taken to ensure that children in accommodation centres and their parents, carers or guardians are actively informed of their rights and of the means of protecting them, including the availability of legal advice. Furthermore, it seems to us that Article 42 of the CRC states a principle of general application. Human rights are not adequately protected unless people know that they have them. The State has a responsibility to encourage understanding of them. That responsibility is heaviest in relation to people who are particularly likely to be unaware of their rights, vulnerable in the light of difficult circumstances, and to a significant extent under the control of the State. We would expect the Department to be able to inform each House of the steps which would be taken, in all accommodation centres, actively to discharge the responsibility to inform people of their rights and of the accessibility of appropriate legal advice.

44. The Department acknowledges that the balance between on-site provision and local supply of legal advice would depend on the location of each accommodation centre.[42] If accommodation centres were to be located at a distance from main centres of population, as we understand is envisaged for a significant number of them, it would make it less likely that appropriately expert legal advice could be provided through local supply. Solicitors and advice agencies would also face logistical difficulties in attending at the centres to offer advice. This could easily lead to delays in receiving the advice which people need. As one of the Government's purposes in proposing the system of accommodation centres is to speed up the processing of asylum applications,[43] there may be a risk either that this objective would be frustrated by delays in giving residents access to legal advice, or that the speedier processing of the application would frustrate the Government's commitment to ensuring that residents have access to appropriate legal advice. The enjoyment of due process rights depends on effective access to appropriate legal advice. We draw these concerns to the attention of each House.

Children in accommodation centres

45. Children are entitled to special protection under international law. Article 3(1) of the CRC requires authorities to make the best interests of the child a primary consideration in all actions concerning children. Article 9(1) requires States to ensure that children are not separated from their parents, except where that would be in the best interests of the child. Article 10(1) accordingly provides that applications by a child or his or her parents to enter or leave a State Party for the purposes of family reunifications are to be dealt with in a 'positive, humane and expeditious manner'. Article 10(2) requires States to 'respect the right of the child and his or her parents...to enter their own country'. In addition to rights under the CRC, the United Kingdom has obligations under ECHR Article 8 to respect the private and family life of asylum-seekers and their children. To some extent, these obligations overlap with the ground covered by the provisions of the CRC. We bear in mind the fact that the European Court of Human Rights has, on occasions, interpreted the obligations on states in respect of family life under ECHR Article 8 in the light of the obligations arising under the CRC.

46. On ratifying the CRC, the United Kingdom reserved its freedom to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as may be deemed necessary from time to time. As noted in paragraph 17, above, the validity of the reservation, made under Article 51, is not free from doubt. Save the Children provided us with a copy of Counsel's Opinion to the effect that the reservation was likely to be unlawful, since it was expressed in unnecessarily broad terms which are incompatible with the object and purposes of the CRC, and inevitably discriminated against children on the ground of the status they are seeking (and, we would add, the national origin of the child or his or her parent or legal guardian) contrary to Article 2. Such a reservation, it was argued, would be 'incompatible with the object and purpose of the present Convention', which (as the Preamble to the CRC makes clear) is to secure the special care and assistance to which children are entitled without discrimination, and so would be disallowed under Article 51(2).[44] We therefore asked the Secretary of State whether the Government intended to maintain its reservation, and whether it was satisfied that it was valid.

47. The Department replied that the reservation is necessary to preserve the integrity of the immigration laws, by making it clear 'that nothing in the CRC is to be interpreted as creating further legal obligations in respect of those subject to immigration control or to allow entry to be gained to the United Kingdom simply in order to make use of rights under the CRC.'[45] The Department considers that the reservation would apply to children in accommodation centres, and suggests that there is a need to ensure greater contact between the Home Office and asylum-seekers and their dependants to speed up decision-making and facilitate swift integration of those allowed to remain, and removal of those who do not establish a right to remain.[46]

48. We doubt that a reservation as wide as that which the United Kingdom maintains is necessary for those purposes, or that it is compatible with the object and purpose of the CRC. We draw attention to the fact that the obligations of each State Party to the CRC under international law are owed to everyone below the age of 18 who is within the jurisdiction of the State.[47]

49. It is not clear what the Department means by the phrase 'further legal obligations in respect of those subject to immigration control'. If it implies that it is open to the State unilaterally to exclude obligations arising under international law towards a class of children defined by reference to a right of abode, we are not convinced that that position is open to the State. It would treat children subject to immigration control less favourably than other children in ensuring the rights set forth in the CRC. The class of children subject to immigration control is defined by a number of factors, among which the child's parent's or guardian's national origin and birth (in relation to which discrimination is prohibited by CRC Article 2(2)) are very significant. Being subject to immigration control may also amount to 'other status' within the meaning of CRC Article 2(2). Although the Department does not accept that the category of 'asylum-seeker' is a 'status' for the purpose of Article 2(2),[48] it seems quite possible that being 'subject to immigration control' carries sufficiently extensive legal liabilities, duties and disabilities to justify treating it as a form of legal status.

50. For these reasons, we consider that children who are subject to immigration control should be regarded as being entitled to enjoy all their rights under the CRC, and that the State has an obligation to secure their rights insofar as that can be done without necessarily granting a right to enter or remain in the United Kingdom. We are satisfied that the United Kingdom's reservation, even assuming it to be valid (which we doubt), should not be interpreted as further limiting the United Kingdom's obligations under the CRC towards children who are subject to immigration control. We draw this to the attention of each House.

51. In view of our concerns about the United Kingdom's reservation to the CRC, we asked the Secretary of State whether he considered that, but for the reservation, the provisions of Part 2 of the Bill (accommodation centres) would be likely to violate rights arising under the CRC. The Department replied that it would be open to it to have regard to the rights set out in the CRC even where the circumstances were within the terms of the reservation,[49] and undertook to 'take the best interests of the child into account in relation to accommodation centres'.[50] We draw attention to the fact that the duty of the State Party under CRC Article 3(1) is to make the best interests of the child a primary consideration in all actions concerning children. Merely taking their best interests into account would not meet the obligation under Article 3(1). In relation to other rights, we welcome the Department's assurance that, in accordance with CRC Article 9(1), children would not be separated from their parents unless it were in the child's best interests, for example for child protection reasons; where it became necessary to separate them, the child would be cared for by the local authority. We also welcome the assurance that unaccompanied asylum-seeking children would never be placed in accommodation centres.[51]

52. The Refugee Children's Consortium[52] expressed the view that allowing children to be accommodated at accommodation centres could breach several provisions of the CRC. We formed the initial view that the extent of any threat to rights would depend on the regime and facilities in each accommodation centre. We hoped and expected that families would be accommodated at centres with facilities suitable for the needs of the children,[53] and were glad to be assured by the Department that families would be accommodated in centres with suitable facilities for them, taking account of the needs of particular children.[54] To clarify the position further, we asked the Secretary of State how decisions about the imposition of residence requirements and the allocation of asylum-seekers to particular centres take would account of the rights of children under the CRC. We asked specifically about a number of obligations and rights. The Home Office replied that—

(a) it would take into account the best interests of the children. Although we reiterate that CRC Article 3(1) requires that, in all actions concerning children, the best interests of the children should be a primary consideration, we are reassured by the Department's undertaking that children would be accommodated with their families unless it was not in their best interests to do so, and that they would be placed in centres with facilities suitable to their needs.[55] The Department also suggested that it could address issues of relevance to children by way of regular discussion with bodies having regular contact with asylum-seekers, such as the Refugee Council. We are not convinced by this. In our view, there is a need to ensure that children can participate directly in decision-making about arrangements affecting them, a right guaranteed to all children by CRC Article 12. We recommend that appropriate arrangements should be put in place to consult directly children about matters affecting them, as required by Article 12. We return to this point below;
(b) communal life would not significantly affect the right to respect for private and family life (ECHR Article 8) and the right to privacy and a family life (CRC Articles 16 and 18), because families would be accommodated separately from single adults, and any slight impact would be expected to be justifiable under ECHR Article 8(2) as being in accordance with the law and necessary in the interests of the economic well-being of the United Kingdom, an effective system of immigration control being a means to that end. Furthermore, the Department considers that, by accommodating children with their parents in suitable accommodation and making provision for their well-being and support, it would be respecting rights under CRC Article 18.[56] We accept that this is a tenable view, as long as families will be accommodated separately from each other, as well as separately from single adults;

(c) the Department intends to give effect to the right to participate in social, leisure, recreational and cultural activities available to other children (CRC Article 31) by ensuring that facilities for recreation, including sports facilities, and education and religious observance are provided at accommodation centres.[57] We accept that this should suffice, as long as access to them is not subject to conditions which effectively deprive people of the essence of the right;

(d) in respect of the right to freedom of association (CRC Article 15), which includes making cultural links and participating in normal community life,[58] the Department intends that links should be developed between accommodation centres and local communities to further an understanding of the centres. This seems to us to be a way of defusing resistance to the presence of accommodation centres and their residents in the locality, but not a satisfactory means of allowing children in the centres to make cultural links and participate in normal community life. The Department also wants to administer centres in such a way that viable communities can develop in them. A limited number of languages would be spoken in each centre, and facilities and services would be available.[59] However, in our view it would be a matter of real concern if life in an accommodation centre for destitute asylum-seekers and their dependants were to be regarded as an example of that 'normal community life' with which children are entitled to make cultural links and in which they are entitled to participate. We accept that the Department intends to make efforts to make life in the centres as pleasant as possible, but such a life would be inherently abnormal by most people's standards. It would also be likely to be somewhat cut off from local communities. The proposal to educate most children inside the accommodation centres rather than in local schools (about which we say more below) would deprive the children of an important opportunity to forge links with the local community, and could delay the process of integrating into the community those who are successful in establishing a right to remain. Making links is likely to be particularly difficult if accommodation centres are located in isolated areas, as seems to be quite possible in many cases. We are concerned that this will make it difficult to meet the requirements of children's rights under CRC Article 15, and we accordingly draw it to the attention of each House;

(e) under CRC Article 12, children are entitled to express their views in all matters affecting them, and the State has a concomitant duty to ensure that their views are given due weight in accordance with their age and maturity (CRC Article 12). The Department says that it is 'considering how best the views of residents of accommodation centres, including children, can be made available to the manager of each centre and to the Secretary of State'.[60] The Department appears to envisage the children's parents acting as the main channel of children's views, at least in relation to applications for support.[61] This is hardly a satisfactory way of ensuring that all children who are capable of forming their own views can express them freely in all matters affecting them, and that those views will be given due weight in accordance with their age and maturity, as required for all children by CRC Article 12(1). Nor does it seem to ensure that the child will have the opportunity to be heard in any judicial or administrative proceedings affecting them, either directly or indirectly, as required by Article 12(2). We consider that some imaginative thinking is needed to find ways of accomplishing this. Organizations in the United Kingdom, such as Children's Rights Alliance for England and Wales, have considerable experience in facilitating processes of this kind. We recommend that the Home Office should involve such organizations closely in the planning and implementation of arrangements to guarantee compliance with rights under CRC Article 12 to children in accommodation centres, and we draw this to that attention of each House as a way of avoiding potential violations of those rights;

(f) children, particularly those seeking refugee status, have a right under CRC Article 22 to benefit from appropriate protection for their rights under the CRC and other human rights instruments. The Department accepts that nothing in the United Kingdom's reservation (on which see above) prevents the Department from giving effect to rights under the CRC, and that the rights under the ECHR guaranteed by the Human Rights Act 1998 apply to the children of asylum seekers and undertakes to respect them.[62] But this is a very limited concession. Being capable of giving effect to rights under the CRC, and being willing to respect rights under the ECHR and Human Rights Act 1998, are only parts of the State's obligation under CRC Article 22. Alongside those negative obligations, there is a positive obligation under Article 22(1) to 'take appropriate measures to ensure that a child...shall...receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.' These obligations owed to children go significantly beyond those owed to adults. It is important to establish the steps which will be taken to allow the State to discharge its positive obligations to children under CRC Article 22. It seems to us that these require careful consideration, and we accordingly draw the matter to the attention of each House.

The right to education in accommodation centres (clauses 31 and 32)

53. Children in accommodation centres would enjoy the right to education under Article 2 of Protocol No. 1 to the ECHR, which provides—

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

The United Kingdom has entered a reservation to the second sentence of Article 2, to allow it to ensure that any educational provision is efficient, but has entered no reservation to the first sentence. Under the CRC, Article 28 provides, inter alia—

1. States Parties recognize the right of the child to education, and with a view to achieving this progressively and on the basis of equality of opportunity, they shall, in particular:

(a) Make primary education compulsory and available free to all;
(b) Encourage the development of different forms of secondary education, including general and vocational education, make them freely available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;

(d) Make educational and vocational information and guidance available and accessible to all children;

(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.

54. The relevant case-law on ECHR Protocol No. 1, Article 2 can be summarized as follows.

(a) Under Article 2, everyone has a right to primary education. Secondary and tertiary education must also be available and effective, but access to it may be restricted by appropriate tests of ability.[63]

(b) The Article does not require the state itself to provide the system of education, but the first sentence of Article 2 imposes on the state an obligation to ensure that everyone has access to an effective system of education in existing educational institutions.[64]

(c) If the existing institutions are ineffective for the purpose, the state must provide appropriate institutions and make them available to all.[65]

(d) The state has a discretion as to the type of education which is provided and the way it is regulated, taking account of the needs and resources of the community and of the individuals affected, as long as the discretion is not exercised in a way that injures the substance of the right to education, making it meaningless or ineffective, or conflicts with other Convention rights.[66]

(e) ECHR Article 14 (the right to be free of discrimination in the enjoyment of other Convention rights) taken together with Article 2 of Protocol No. 1 requires that the right to education must be secured without discrimination on the ground (among others) of nationality or other status.
55. Responsibility for meeting the requirements of international treaties in relation to education currently lie mainly on local education authorities (LEAs). At present, they owe two linked duties under section 13 of the Education Act 1996. The first is an aspirational and progressive duty, which would hardly ever be justiciable (because its content is insufficiently specific), to contribute to the spiritual, moral, mental and physical development of the community. The second is a duty to fulfil the first obligation by securing efficient primary, secondary and further education for the population of their areas. There has in the past been doubt as to whether, for these purposes, people detained in detention centres were part of the community, and whether they formed part of the population of the area in which the centre was situated.

56. The new clauses seek to remove uncertainty by providing that residents of an accommodation centre would not be treated as part of the population of a LEA's area.[67] The LEA would therefore not owe a duty to secure efficient education for such people. Indeed, it would be prohibited from admitting a resident to one of its maintained schools and nurseries in most circumstances.[68] Instead, the Bill contemplates facilities for education and training being provided to residents in accommodation centres by the Home Secretary under a power (but not a duty) to be conferred by clause 26(1)(f). The facilities would not make the accommodation centre into a school for the purposes of the Education Act 1996, but would be subject to inspection as if they were being provided in a school.[69] In addition, the duty to assess the needs of children and young people with learning difficulties[70] would apply to accommodation centres.[71]

57. The LEA would retain responsibility for the education of children in accommodation centres who have special educational needs. Clause 31(3) would allow such a child with a statement of special educational needs to be admitted to a maintained school or maintained nursery named in the statement. However, under clause 31(7) the child would have to be educated by way of facilities provided for residents of the centre by the Home Secretary under clause 26 of the Bill, unless that is incompatible with the child receiving the special educational provision which his or her learning difficulty calls for, or with the efficient use of resources.

58. The LEA would also have power to provide education for a child, and to disapply clause 31, if a person who provides education to the residents of an accommodation centre recommends in writing that this should be done.[72] This would make it possible to provide school education for a child for whom (perhaps because of ability, subjects of study previous education or examination needs) the educational facilities in the accommodation centre could not adequately cater.

59. We were concerned about the fact that the Secretary of State would have only a power, rather than a duty, to provide education. It seemed important to clarify the circumstances in which education would be provided, and (in view of the discretionary nature of the provision) to satisfy ourselves that the accommodation would be appropriate (in terms of standards and curriculum) to the needs of students, and without discriminating between students in accommodation centres and those being educated in schools.

60. We therefore asked the Government to confirm that the powers of the Secretary of State would be exercised so as to meet the United Kingdom's obligations under ECHR Article 14 and Article 2 of Protocol No. 1, and also CRC Articles 2 (the anti-discrimination provision) and 28(1) (the right to education on the basis of equal opportunity, including compulsory, free primary education). We asked in particular whether adequate and effective educational provision would be made in every accommodation centre in which any child of school age was to reside for more than a few days, and whether the quality of educational provision and facilities would be equivalent to those available in maintained schools, despite the fact that centres would not be treated as schools for the purposes of the Education Act 1996. We also asked the Secretary of State what differences he expected there would be between the quality of educational provision made for children in accommodation centres, children of asylum-seekers in the community, and other children respectively, and how any such differences would be justified.

61. In its reply, the Department undertook to ensure that education in accommodation centres would meet the requirements of Articles 14 of, and Article 2 of Protocol No. 1 to, the ECHR, and that the education provided in all accommodation centres where children would reside would be of an equivalent quality to, and mirror the scope of, that provided in schools. Ofsted inspections, and their equivalents in Wales and Scotland, would ensure that standards would be consistent with those in schools. The National Curriculum, or its Welsh and Scottish equivalents, would be delivered, tailored where necessary to meet the needs of residents. The education would be intended to make integration into the ordinary school system easier, avoiding placing the children from accommodation centres at a disadvantage when they entered mainstream schooling. Clause 32 of the Bill would allow children whose educational needs could not be met in accommodation centres to be educated in schools run by the LEA. The success of accommodation centres in educating children residing there would be one of the criteria for evaluating the initial trial of the centres.[73]

62. We understand the disquiet which has been expressed at the prospect of removing the children of destitute asylum-seekers residing in accommodation centres from mainstream schools, and educating them separately in accommodation centres. It gives rise to troubling echoes of historical educational regimes in some other countries where children were educated separately on the basis of race or colour, under the now discredited pretence that the separate provision was equal. Separate education on the basis of ethnicity or national origin breeds and entrenches social and educational inequality, and inhibits or even deters integration. In that light, the proposals might breach equality rights, for example ECHR Article 14 taken together with Article 2 of Protocol No. 1, unless the separation can be shown to be objectively justifiable by reference to a legitimate aim to which it is proportionate and rationally related. The new clauses will be useful in providing additional clarity when identifying the bodies with responsibility for providing educational and training facilities to residents of accommodation centres, and may make it easier to ensure that the rights of school-age children and their parents under Article 2 of Protocol No. 1 to the ECHR were respected. We have already expressed our view that educating children exclusively in accommodation centres would deprive them of an important opportunity for children to exercise freedom of association under CRC Article 15, making social and cultural links, to develop understanding of and respect for the national values of the country, and to participate in cultural life, as required by CRC Articles 29(1)(c) and 31(1).[74] These matters call for careful judgment, and we draw them to the attention of each House.

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26 Cm. 5387, p. 53, para. 4.20 Back

27 ibid., pp. 53-54, paras. 4.21-4.24 Back

28 ibid., pp. 55-58, paras. 4.28-4.41 Back

29 Clauses 15(1), 16(1)(a). See para. 81, below, on the position of unaccompanied asylum-seeking children Back

30 Clause 21. The power to grant temporary admission is conferred by Immigration Act 1971, Sch. 2, para. 21(2) Back

31 Clause 17 Back

32 Clause 26 Back

33 See particularly clause 17(4) Back

34 First Report of 2001-02, Homelessness Bill, HL Paper 30, HC 314, paras. 3-4 and 9 Back

35 In R.. (on the application of Saadi and others) v. Secretary of State for the Home Department [2001] EWCA Civ 1512, [2002] 1 WLR 356, Collins J. held that locking up asylum-seekers to facilitate the process of administering their claims to asylum amounted to a deprivation of liberty and was not justified by Art. 5(1)(c). The Court of Appeal reversed the decision, apparently holding (although the reasoning is not entirely clear) that it is lawful to detain a person in a detention centre while the application is considered, provided that there are suitable safeguards (including access to judicial review and to the procedure for determining refugee status) and that the detention is not excessively prolonged. With regard to the length of detention, the question is whether it is disproportionate to the purpose of detention having regard to the conditions of detention and any special circumstances affecting the individual. The Court of Appeal appeared to hold that detention of asylum-seekers which satisfied those tests did not amount to a deprivation of liberty under Article 5(1). (See paras. [61]-[66] of the Court of Appeal's judgment, [2002] 1 WLR at pp. 392-394.) The applicants have appealed to the House of Lords, which heard argument in the case on 1 and 2 May 2002, and judgment is awaited Back

36 Cm. 5387, p. 57, paras. 4.36-4.37 Back

37 Clause 27(1), (2), (3)(a) Back

38 Clause 27(4), (5) Back

39 Home Office Memorandum, para. 10, Ev 2 Back

40 ibid., paras. 11-12, Ev 2-3 Back

41 Oral evidence to the Committee by Fred Tyson Brown, Andy Butler, Diana Savickaja, Joel Semakula, Gbemi Sodimu, and James Sweeney, 10 June 2002, not yet published Back

42 Home Office Memorandum, para. 11, Ev 2 Back

43 ibid., para. 14, Ev 3 Back

44 Article 51(2) states, 'A reservation incompatible with the object and purpose of the present Convention shall not be permitted.' The Opinion by Nicholas Blake QC and Sandhya Drew is reproduced as an Annex to this Report. See particularly paras. 5-13 and 25-27 of the Opinion Back

45 Home Office Memorandum, para. 13, Ev 3 Back

46 ibid., para. 14, Ev 3 Back

47 CRC, Art. 2(1) Back

48 See, e.g., Home Office Memorandum, para. 42, Ev 7 Back

49 ibid., para. 14, Ev 3 Back

50 ibid., para. 15, Ev 3 Back

51 ibid., para. 16, Ev 3 Back

52 Refugee Children's Consortium, The Nationality, Immigration and Asylum Bill: Second Reading Briefing, Ev 42-45 Back

53 See the White Paper, Cm. 5387, p. 56, para. 4.34 Back

54 Home Office Memorandum, para. 19, Ev 4 Back

55 ibid., paras. 20-21, Ev 4 Back

56 ibid., paras. 22-24, Ev 4 Back

57 ibid., para. 25, Ev 4 Back

58 See also CRC Art. 29(1)(c) (education to be directed to the development of respect for, inter alia, the national values of the country in which the child is living), and Art. 31(1) (right to participate freely in cultural life) Back

59 Home Office Memorandum, para. 26, Ev 4 Back

60 ibid., para. 27, Ev 5 Back

61 ibid. Back

62 ibid., para. 28, Ev 5 Back

63 X. v. United Kingdom, Eur. Commn. HR, (1975) 2 DR 50; 15 Foreign Students v. United Kingdom, Eur. Commn. HR, (1977) 9 DR 185;Yanasik v. Turkey, Eur. Commn. HR, (1993) 74 DR 14; Sulak v. Turkey, Eur. Commn. HR, (1996) 84-A DR 98 Back

64 Belgian Linguistic Case (No. 2) (1968) 1 EHRR 252 Back

65 Kjeldsen, Busk Madsen and Pedersen v. Denmark (1976) 1 EHRR 711 Back

66 Belgian Linguistic Case (No. 2) (1968) 1 EHRR 252; Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden, Eur. Commn. HR, (1987) 51 DR 125 Back

67 Clause 31(1) Back

68 Clause 31(2) Back

69 Clause 31(9)(a) Back

70 Education Act 1996, s. 329A, and Learning and Skills Act 2000, s. 140 Back

71 Clause 31(9)(b) and (c) Back

72 Clause 32 Back

73 Home Office Memorandum, paras. 29-34, Ev 5-6 Back

74 See para. 52(c) and (d), above Back

Destitute asylum-seekers and their dependants outside accommodation centres

63. Everyone in accommodation centres would be an asylum-seeker or a dependant of an asylum seeker, but not all destitute asylum-seekers would be in accommodation centres. A number of provisions in the Bill are concerned with support for asylum-seekers who are, for one reason or another, residing in the community. Such people are entitled, at common law, not to be left destitute (in the absence of clear words in an Act of Parliament unequivocally denying them support, or unambiguously authorising the denial or withdrawal of support).[75] They are entitled, in international law and under the Human Rights Act 1998, to be free of inhuman or degrading treatment, a right which imposes certain positive obligations on the State and on public authorities.[76] In addition, everyone is entitled in international law to 'an adequate standard of living for himself and his family, including adequate food, clothing and housing ...'[77] This entitlement is to be exercised 'without discrimination of any kind as to race, ... national or social origin, ... or other status.'[78] In the light of those rights, this section of the Report considers—

(a) the accommodation of asylum-seekers without places in accommodation centres,

(b) the accommodation of asylum-seekers who are required to leave accommodation centres, and

(c) other (including financial) support for asylum-seekers who are not accommodated in accommodation centres.
Accommodation for asylum-seekers in the community

64. We have already drawn attention, in an earlier report, to the need for adequate housing, appropriate to people's needs, to be available to those without adequate housing, in order to fulfil the requirements of ICESC Article 11(1).[79] Under the Housing Act 1996, section 160A (inserted by the Homelessness Act 2002), local authorities are not permitted to make available housing stock to house people who are subject to immigration control, such as asylum-seekers. In its reply to the Committee's inquiry about the Homelessness Bill, the Government drew attention to the availability of other forms of support for asylum-seekers, including support under the National Assistance Act 1948 (which could include housing) for people in urgent need, and the duties of local authorities towards children under the Children Act 1989. In relation to the former, we pointed out that it was not entirely clear that support under the 1948 Act would be available to all those who might otherwise be left destitute.[80] In addition, housing benefit is not payable to asylum-seekers.[81] The Secretary of State can, however, provide adequate accommodation for asylum-seekers who would otherwise be unable to obtain it,[82] and clause 38(6) would amend section 95(3)-(8) of the Immigration and Asylum Act 1999 and other legislation to ensure that accommodation could be provided for a destitute asylum-seeker whenever the person's claim to national assistance would be excluded. However, this would apply only in relation to eligible persons. Clause 48 of, and Schedule 3 to, the Bill would restrict eligibility, providing that support (including that under the National Assistance Act 1948 and the Bill itself) would not be available to people (or their dependants) if the person has refugee status in another country, or is a citizen of an EEA State, or is a failed asylum-seeker who refuses to co-operate with removal directions, or is in breach of immigration laws. On the other hand, under paragraphs 2 and 3 of Schedule 3, a person would not be ineligible if he or she is a child, or is covered by exceptions set out in regulations to made by the Secretary of State, or has rights under the ECHR or under European Community treaties which require the exercise of a power or the performance of a duty to offer support. These exceptions should be sufficient to give adequate protection to the rights of children under the CRC, and to people's rights under the ECHR and Article 11(1) of the ICESC.

65. In cases where the local authority does not provide housing under either the National Assistance Act 1948 or (where applicable) the Children Act 1989, the Bill would originally have conferred a discretion on the Secretary of State to assist, rather than imposing a duty on him. This made it possible that a destitute asylum-seeker might be reduced to circumstances in which he or she would lack adequate housing through no fault of his own. This could lead to a violation of the right to adequate housing under ICESC Article 11(1), or to the asylum-seeker enduring conditions which amount to degrading treatment contrary to ECHR Article 3 (which imposes certain positive obligations on the State to provide support for the right). As asylum-seekers inevitably form a group which is treated as having fewer rights to social housing, and are in a special category defined by reference to their position as non-British citizens seeking asylum, there might also be violations of the non-discrimination requirements of ICESC Article 2(2) taken together with Article 11(1), and of ECHR Article 14 taken together with Article 3.

66. The Department does not accept that ICESC Article 11(1) would be breached unless the conditions were such as to violate ECHR Article 3 (right to be free of degrading treatment). Nor does it accept that treating asylum-seekers differently from other people would engage any of the anti-discrimination provisions.[83] We cannot agree. The right to adequate housing under ICESC Article 11(1) cannot properly be read as requiring merely that people should not be so badly housed that it amounts to degrading treatment, unless one greatly expands the meaning of degrading treatment. Not only must accommodation not be degrading, but it must be adequate for the needs of those who have to reside in it.[84] In relation to the guarantee of non-discrimination, we note that the class of asylum-seekers is defined partly by reference to the national origin of asylum-seekers: only people who are not British citizens apply for refugee status here. Furthermore, the provisions prohibit discrimination on the ground of 'other status'. While this has not yet been interpreted as including asylum-seekers, it is important to remember that the range of grounds on which discrimination is unlawful under, for example, ECHR Article 14 is not closed, and it is strongly arguable that discrimination against asylum-seekers as such might be held to be unlawful if it had the effect of systematically denying them protection for their human rights and fundamental freedoms. The burden would be on the Department to establish that any difference in treatment could be justified by reference to objective and rational justifications.

67. In relation to the children of destitute asylum-seekers, the Department, replying to our questions about the Homelessness Bill, drew attention the duties of local authorities under the Children Act 1989 (which has equivalent provisions in Northern Ireland and Scotland). At the time when we were examining the Homelessness Bill, it was not clear whether or not the power of local authorities under the Children Act 1989 extended to providing housing for the families of children who were destitute. The Court of Appeal subsequently decided that local authorities have a discretion (but not a duty) to do so, taking account of the right of members of a family to mutual support and the enjoyment of one another's companionship (an aspect of the right to respect for family life under ECHR Article 8).[85] Clause 41 of the current Bill, as amended on Report in the House of Commons, would amend the Immigration and Asylum Act 1999 by substituting a new section for section 122. The proposed new section would for the first time impose a duty on the Secretary of State to provide support for the dependant children of an eligible asylum-seeker who applies for support. The Secretary of State would have to support the child as part of the asylum-seeker's household. In such a case, the local authority (or authority in Northern Ireland) would not be allowed to provide support under section 17 of the Children Act 1989, section 22 of the Children (Scotland) Act 1995, or Article 18 of the Children (Northern Ireland) Order 1995, unless the provision were to be disapplied by the Secretary of State in specified circumstances. This should ensure family life will be respected, and that dependent children would not be separated from their families and taken into care. It ought to be capable of protecting rights under ECHR Article 8 and the CRC. We welcome the provision.

68. We asked the Secretary of State whether he would normally regard it as appropriate to exercise his discretion in favour of providing assistance with housing to a destitute asylum-seeker and his or her dependants where there would otherwise be a risk of a violation of rights under any of those provisions. The Department informed us[86] that the National Asylum Support Service (NASS) would offer support to an asylum-seeker who makes a first application for support and who is destitute or is likely to become destitute within a prescribed period (currently 14 days), as it currently does under section 95(1) and (2) of the Immigration and Asylum Act 1999. We welcome this assurance, which should enable people to alleviate the most serious risk of violations of ECHR Article 3, although we are concerned to have received evidence about serious shortcomings in the ability of NASS to cope with the demands of assisting asylum-seekers who have been dispersed round the country, compounded by what the National Association of Citizens Advice Bureaux has described as 'the inaccessibility of NASS to both supported asylum seekers and their advisers.'[87]

69. After a person's application for asylum has been finally rejected, the period of grace currently enjoyed before the asylum-seeker and any dependant ceases to be eligible for support in respect of accommodation