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

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

Here you can browse the report together with the Proceedings of the Committee. The published report was ordered by the House of Lords and the House of Commons to be printed 22 October 2002.

CONTENTS

Terms of Reference

REPORT

NATIONALITY, IMMIGRATION AND ASYLUM BILL: FURTHER REPORT

SUMMARY
A. THE BACKGROUND TO THE PRESENT POSITION

B. HUMAN RIGHTS IMPLICATIONS OF AMENDMENTS RELATING TO PARTS 3, 5 AND 8 OF THE BILL

Late claim for asylum: refusal of support (clauses 54 and 55)
The ICESC

Weakness in safeguards for human rights generally under clause 54

Application for support: false or incomplete information (clause 56)

Clause 92 as amended on re-commitment: presumption of safety in states applying for admission to the EU, and restriction of appeals

C. HUMAN RIGHTS IMPLICATIONS OF THE AMENDMENT TO BE RE-INTRODUCED ON THIRD READING

D. CONCLUSION

PROCEEDINGS OF THE COMMITTEE RELATING TO THE REPORT

Terms of reference

JOINT COMMITTEE ON HUMAN RIGHTS

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.

Summary. When the Nationality, Immigration and Asylum Bill reached its Report Stage in the House of Lords, the Government sought to introduce a number of substantial amendments, with significant human rights implications. In the face of opposition pressure, it was agreed to re-commit those parts of the Bill subject to the proposed amendments, and to withdraw another amendment and re-introduce on Third Reading. The House hoped to have the views of the JCHR on the amendments. The Committee has considered the amendments, and concludes that they give rise to potential incompatibilities with rights under the European Convention on Human Rights (ECHR), the International Covenant on Economic, Social and Cultural Rights (ICESC), and the Convention on the Rights of the Child. The Committee draws the attention of each House to the desirability of altering the proposed amendments to improve the safeguards for these rights, including the rights to freedom from inhuman or degrading treatment, to liberty, to respect for private and family life, to adequate housing, food and clothing, and to appropriate protection and humanitarian assistance for children seeking asylum.

A. The Background to the Present Position

1. The Nationality, Immigration and Asylum Bill[1] completed its Commons stages and received its First and Second Readings and Committee Stage in the House of Lords by the beginning of the summer recess. It was the subject of the Seventeenth Report of this Committee.[2] Its Report Stage in the House of Lords was due to begin on Wednesday 9 October 2002. On Monday 7 October, the Home Secretary, in an article in The Times, announced that the Government would seek to amend the Bill in three ways—

— by introducing a presumption, which applicants for asylum would have to rebut, that the ten states about to join the EU are safe countries where people do not have a well-founded fear of persecution on the grounds set out in the Geneva Convention on the Status of Refugees;

— by denying support to those applicants who fail to claim asylum at the earliest possible opportunity and to give a truthful and credible account of their circumstances and route of entry to the UK; and

— restricting the availability of Exceptional Leave to Remain to those who 'really need special humanitarian protection'.[3]

2. On the afternoon of 7 October, the Parliamentary Under-Secretary of State, Home Office (Lord Filkin) moved a motion for the marshalling and consideration of amendments.[4] At this stage, the amendments to give effect to the Home Secretary's proposals had not been published. The United Nations High Commission for Refugees had urgently briefed peers on its concerns about the effect of the proposals on asylum applicants. Lord Dholakia and Lord Cope of Berkeley asked whether this Committee and/or the House of Lords Select Committee on Delegated Powers and Regulatory Reform would have an opportunity to consider the amendments.[5] Several peers asked whether the Bill could be re-committed so that the new amendments could receive proper consideration.[6] Lord Filkin and Lord Grocott agreed to consider carefully the involvement of the Committee, and promised discussions through the usual channels.[7] On that basis, the motion was agreed to.[8]

3. At the beginning of the Report Stage on Wednesday 9 October, Lord Filkin announced that the usual channels had agreed that the Bill would be recommitted in respect of Parts 3, 5 and 8 of the Bill (the Parts to which the major amendments relate).[9] On Thursday 10 October, the House agreed to a motion to recommit the Bill in respect of Parts 3, 5 and 8, going into Committee on Thursday 17 October, with a Report Stage for those Parts of the Bill on Thursday 24 October.[10] The Government produced explanatory notes on the proposed amendments. On 17 October, the amendments were accepted on re-commitment.[11]

4. During the Report Stage on other Parts of the Bill on 10 October, Lord Filkin moved Amendment No. 45, to introduce a new clause after clause 59 of the Bill.[12] This was the subject of much criticism on constitutional, civil liberties and human rights grounds.[13] Lord Filkin accepted that the amendment should be withdrawn and re-introduced on Third Reading, and undertook to ensure that explanatory notes would be produced.[14]

5. We have examined those amendments which seem to us to give rise to possible concern on human rights grounds. In this Report, we comment on the following—

— the new clauses (now clauses 54 and 56 of the Bill) which aim to deny, or authorise the Secretary of State to make regulations denying, support to asylum-seekers who cannot satisfy the Secretary of State that the claimed asylum as soon as was reasonably practicable after entering the country, or that they have given a full and accurate account of the means by which they entered the country and that they are co-operating with the Secretary of State's further enquiries (paragraphs 7-29);

— the amendments which now form part of clause 92 of the Bill, which introduce a presumption that states which were about to join the EU were safe countries for the return of people whose applications for asylum had failed, and reduce or remove rights of appeal on the basis of a Secretary of State's certificate (paragraphs 30-40); and

— the amendment which was withdrawn on Report, but is expected to be re-introduced in the same form on Third Reading, which would appear retrospectively to make people liable to detention, to the imposition of conditions if not detained, and to criminal sanctions for non-compliance with those conditions, regardless of the outcome of a judicial decision (which is currently under appeal) (paragraphs 41-48).

--------------------------------------------------------------------------------
1 All references are to the latest printed version of the Bill, as amended on re-commitment in the House of Lords, HL Bill 115 published on 18 October 2002 Back

2 Joint Committee on Human Rights, Seventeenth Report of 2001-02, Nationality, Asylum and Immigration Bill, HL Paper 132, HC 961 Back

3 David Blunkett, 'We are a haven for the persecuted, but not a home to liars and cheats', The Times, 7 October 2002, p. 18 Back

4 HL Debs, 7 October 2002, c. 12 Back

5 ibid., cc. 14, 19 Back

6 ibid., cc. 17 (Baroness Park of Monmouth and Earl Russell), 20 (Lord Roper and Lord Jopling) Back

7 ibid., c. 20 Back

8 ibid., c. 21 Back

9 HL Debs, 9 October 2002, c. 263 Back

10 HL Debs, 10 October 2002, cc. 411-412 Back

11 HL Debs, 17 October 2002, cc. 974-1035, 1047-1057. Lord Dholakia, at c. 985, considered it unfortunate that this the views of this Committee were not available in time for the re-commitment stage Back

12 HL Debs, 17 October 2002, cc. 448-449 Back

13 cc. 449-451 (Lord Renton of Mount Harry), 451-454 (Lord Lester of Herne Hill), 458-459 (Lord Mayhew of Twysden), 459-460 (Baroness Carnegy of Lour), 460 (Lord Kingsland) Back

14 ibid., c. 461 (Lord Filkin) Back

B. Human Rights Implications of Amendments relating to Parts 3, 5 and 8 of the Bill

6. Part 3 of the Bill[15] is concerned with support and assistance for asylum-seekers outside the accommodation centres which would be established under Part 2. Two of the new clauses added on re-commitment, which aim to give effect to the second of the aims announced by the Home Secretary (see paragraph 1, above), would give rise to human rights issues.

Late claim for asylum: refusal of support (clauses 54 and 55)

7. Clause 54 of the Bill, inserted by a Government amendment on re-commitment, would forbid the Secretary of State to provide, or arrange for the provision of, certain kinds of support in specified circumstances to a person claiming asylum. The new clause would apply where 'the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.'[16] The kinds of support which could not be provided would be—

— accommodation for people granted temporary admission to the UK or released from detention under paragraph 21 of Schedule 2 to the Immigration Act 1971, or released on bail under any provision of the 1971 Act,[17]

— support for asylum-seekers or failed asylum-seekers who are destitute, or appear to be likely to become destitute within a prescribed period, and are unable to provide for their own adequate accommodation or food or other essential items,[18]

— temporary support for destitute asylum-seekers pending a decision about the provision of more long-term support,[19] and

— accommodation and other support in an accommodation centre established under Part 2 of the Bill.[20]

In addition, it would no longer be possible for a local authority or a Northern Ireland authority to provide support for such people by way of accommodation or promotion of their well-being.[21] It would still be possible in a few cases for support to be provided under the National Assistance Act 1948, but, for reasons explained in paragraph 14 below, authorities do not generally have duties towards asylum-seekers unless they suffer from infirmities: section 21(1A) of the 1948 Act excludes able-bodied but destitute asylum-seekers from the scope of the duties under the Act.

8. By virtue of clause 54(5), the new clause would not prevent the provision of support to children, so it should be possible to meet the requirements of the Convention on the Rights of the Child. Nor would it prevent the Secretary of State from providing support to the extent necessary to avoid a breach of a person's Convention rights within the meaning of the Human Rights Act 1998. Those rights require the provision of support to people who would otherwise be at risk of suffering such destitution as to subject them to inhuman or degrading treatment (ECHR Article 3), and in certain circumstances would require support to preserve private and family life (ECHR Article 8). The Secretary of State has a duty, not merely a power, under section 6 of the Human Rights Act 1998 to avoid any violation of a Convention right. We find it difficult to envisage a case where a person could be destitute (as that word is defined in clause 43(6) of the Bill) without giving rise to a threat of a violation of Articles 3 and/or 8 of the ECHR. In addition, we are concerned that the power to support children independently of adults might lead to the separation of children from members of their family, leading to a risk of a further violation of Article 8.

9. The new clause as currently drafted would leave two further human rights problems to be addressed.

— Adult asylum-seekers have other human rights which are in play, particularly Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESC), which the United Kingdom is under an obligation to respect under international law (but not under national law). This matter is examined in paragraphs 10-15, below.

— Aspects of drafting of the new clause would seem to prevent it from providing adequate safeguards against violations of human rights, whether those of children under the CRC, those of anyone under the ECHR, or those of adults under the ICESC. This is considered in paragraphs 16-20, below.

The ICESC

10. Article 11(1) of the ICESC provides, so far as relevant:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing ...

11. Clause 54 would not allow the Secretary of State to provide support in order to avoid the threat of a violation of Article 11(1). On re-commitment, this was clearly stated by Lord Filkin in response to a question by Lord Campbell of Alloway, a member of this Committee.[22] In our Seventeenth Report at paragraph 65, we noted that, if an asylum-seeker were reduced to circumstances in which he or she would lack adequate housing through no fault of his or her own, it could lead to a violation of Article 11(1). The same applies to a situation in which an asylum-seeker was unable to provide for other needs through no fault of his or her own.

12. In the past, the Government has argued that there would be no violation of Article 11(1) unless the circumstances were such as to inflict inhuman or degrading treatment on the asylum-seeker, thus violating ECHR Article 3. In our Seventeenth Report, at paragraph 66, we rejected the argument for the following reasons:

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.

The same is true in relation to adequate food and clothing. In saying this, we recognise that there are many citizens of the UK who do not enjoy housing adequate to their needs. We do not seek to suggest that asylum seekers should be privileged in their treatment by public authorities in comparison to such people, only that it would be potentially incompatible with the UK's obligations under the ECHR or the ICESC to discriminate either in law or practice between the treatment of asylum seekers and the treatment of others by public authorities in relation to such rights.

13. It is possible that some support might be available from local authorities for certain people in urgent need, in the form of help with accommodation and other needs, under the National Assistance Act 1948. We examined this in our First Report on the Homelessness Bill.[23] We accepted that such support might be available on the basis of the Court of Appeal's interpretation of section 21(1A) of the 1948 Act in O. v. Wandsworth London Borough Council; Bhikha v. Leicester City Council.[24] However, we noted that the Government had been unable to give a categorical assurance that assistance would be available to all those who would otherwise be left wholly destitute. We were accordingly not satisfied that the 1948 Act provided a reliable assurance against homelessness and destitution amounting to inhuman or degrading treatment for immigrants who were unable to leave the country but were not entitled to enter.

14. Our concern has been reinforced by a very recent decision of the Appellate Committee of the House of Lords which appears to establish that section 21(1A) of the 1948 Act imposes a duty on local authorities to give assistance with accommodation (and other assistance) for asylum-seekers only if they suffer from an infirmity which requires the local social services department to provide them with care and attention. No such obligation arises in respect of able-bodied but destitute asylum-seekers.[25] It therefore seems clear that the 1948 Act cannot be regarded as offering reliable protection against inadequate housing, food or clothing which would be incompatible with the United Kingdom's obligations under Article 11(1) of the ICESC but does not amount to inhuman or degrading treatment.

15. We conclude that there is a significant risk that the new clause could lead to a violation of Article 11(1) of the International Covenant on Economic, Social and Cultural Rights in cases where the circumstances did not amount to a violation of one of the Convention rights as defined in the Human Rights Act 1998. However, as noted in paragraph 8, above, it is difficult to envisage a case where a person could be destitute without there being a threat of a violation of Articles 3 and/or 8 of the ECHR. We reiterate that the Secretary of State has a duty under section 6 of the Human Rights Act 1998 to avoid that risk. We draw this to the attention of each House.

Weakness in safeguards for human rights generally under clause 54

16. Three aspects of the clause 54 make it hard to be confident that it would provide adequate protection for any of the human rights of those affected by it.

17. First, the test of making a claim 'as soon as reasonably practicable' seems unacceptably imprecise and lacking in objectivity to determine whether or not someone should be eligible for support necessary to respect his or her human rights.[26] In the debate on re-commitment in the Lords, Lord Filkin said that guidance would be published, and suggested that people would have an opportunity to obtain advice (for example, at an induction centre).[27] However, many people would not be in an induction centre at an early stage. Peers also drew attention to the fact that many people who arrive in the United Kingdom do not realise that they are required to apply for asylum,[28] and Lord Filkin for the Government accepted that trauma resulting from torture, inhuman or degrading treatment, or perhaps the threat of such treatment in a person's country of origin should justify a delay in applying for asylum.[29] Lord Filkin also said that, if people are delayed in claiming asylum and support, 'it will be open to them to provide full and complete information explaining why. If that explanation is credible, we shall accept it.'[30] However, clause 54 would actually impose an obligation to satisfy the Secretary of State, not merely to provide a credible explanation. In our view, there is a need for the express terms of the legislation to reflect the understanding approach which Lord Filkin said would be taken to those who claim to have been the victims of persecution. Rather than place the burden on them to satisfy the Secretary of State that they claimed asylum as soon as reasonably practicable, it would be preferable to require the Secretary of State to establish that there had been undue delay in making a claim, having regard to the circumstances facing the applicants. We consider that clause 54 should be amended by providing that support would be withheld only if the Secretary of State could establish that there had been unreasonable and undue delay in the making of the claim for asylum in the circumstances of the claimant's case.

18. Secondly, the claimant would not be allowed to appeal to an adjudicator against the decision that he or she was ineligible for support under the new clause.[31] It would be possible to apply for judicial review, but that might not provide an effective remedy, because—

(a) it would probably not be possible to argue that the withdrawal of support was irrational, and it could certainly not be argued that it was illegal or unfair, merely because it gave rise to a violation of an international human right other than a Convention right within the meaning of the Human Rights Act 1998, and

(b) there would be no power to provide support pending the outcome of the application for judicial review.

19. Thirdly, clause 54(1)(b) would place on every claimant the burden of satisfying the Secretary of State that the claim for asylum was made as soon as possible after the claimant had arrived in the United Kingdom. In effect, this creates a rebuttable presumption that people claiming asylum have not made their claim as soon as reasonably practicable, and that accordingly claimants are not entitled to be supported. There is no empirical basis for presuming this, particularly when it may result in a destitute asylum-seeker losing any entitlement to support. As this could lead to a violation of human rights in the circumstances outlined above, it would be more appropriate to place the burden on the Secretary of State to establish that conditions for withholding support, compatible with human rights standards, had been met.

20. We draw these concerns to the attention of each House.

Application for support: false or incomplete information (clause 56)

21. Clause 56, inserted as a result of a Government amendment on re-commitment, would amend paragraph 12(c) of Schedule 8 to the Immigration and Asylum Act 1999. That Schedule deals with the power of the Secretary of State to make regulations supplementing section 95 of that Act (provision of support to asylum-seekers and their dependants).[32]

22. Paragraph 12 currently provides:

The regulations may make provision with respect to procedural requirements including, in particular, provision as to—

(a) the procedure to be followed in making an application for support;

(b) the information which must be provided by the applicant;

(d) the making of further enquiries by the Secretary of State;

(e) the circumstances in which, and person by whom, a change of circumstances of a prescribed description must be notified to the Secretary of State.

Clause 56 would result in sub-paragraph (c) reading: 'the circumstances in which an application may not be entertained (which may, in particular, provide for an application not to be entertained where the Secretary of State is not satisfied that the information provided is complete or accurate or that the applicant is co-operating with enquiries under paragraph (d))'. This seems to be intended to give further effect to the second objective set out in paragraph 1 above, by allowing the Secretary of State to deny support to those who do not provide a 'truthful and credible account as to their circumstances and route of entry and method of arrival in the UK.'[33]

23. In fact, we doubt whether clause 56 could have that effect as a matter of law. The power to make regulations under Schedule 8 to the 1999 Act is directed to regulating the provision of support to asylum-seekers: the Schedule is concerned with determining whether a person is destitute (paragraph 2), prescribing levels of support (paragraph 3), providing for the items or services which are to be made available to people who receive support (paragraph 4), taking account of income or assets, and valuing assets, which are available to the claimant, and requiring the claimant to make a contribution to the cost of providing support (paragraphs 5, 6, 10 and 11), taking account of a previous breach of any condition attached to the earlier provision of support (paragraph 7), and suspending or discontinuing support (paragraph 8 and 9). In the context of the Schedule, it seems likely to us that regulations concerning further enquiries to be made by the Secretary of State (paragraph 12(d)) would have to be directed to enquiries connected with the matters set out in paragraphs 2 to 11. They must be related to the provision of support.

24. Discovering how the person entered the United Kingdom may be relevant when deciding whether he or she has such a well-founded fear of persecution as to be entitled to asylum, but Schedule 8 is not concerned with that matter. As noted earlier, the powers under Schedule 8 are given to help to decide whether a person is in need of support, and, if so, what contribution (if any) the person should make to his or her own support. The way in which a claimant entered the country does not appear to be a matter relating to the claimant's need for support, or the claimant's means; it seems to be concerned instead with a criminal investigation into the conduct of the claimant (in which case the claimant ought to be able to avail himself or herself of the privilege against self-incrimination which forms an integral part of the right to a fair hearing in the determination of a criminal charge, under ECHR Article 6(1)) or of the people who brought him or her into the country. We accept that there may be good reasons for requiring a person to provide information which would allow traffickers to be identified and prosecuted for bringing people into the United Kingdom. However, if that is desired, there should be a specific provision imposing the obligation, with appropriate statutory protection against the use of any information in criminal proceedings against the person disclosing it. It would not be appropriate, and probably would not be effective as a matter of law, to try to impose such an obligation by threatening to make a destitute asylum-seeker ineligible for asylum.

25. That being so, we consider it to be at least possible that any attempt to use paragraph 12 to withhold support from a person because they have not provided information unrelated to their personal circumstances would be unlawful: it would amount to the use of a power for an extraneous or improper purpose. In any case, where human rights are at stake the principle of legal certainty requires that such doubts should be avoided.

26. If, contrary to our view, clause 56 is capable of having the effect envisaged by the Home Secretary, regulations which purported to authorise withholding of support in circumstances where it would lead to a violation of the right to be free of inhuman or degrading treatment (ECHR Article 3) or the right to respect for private and family life (ECHR Article 8) would be ultra vires and unlawful by virtue of sections 3 and 6 of the Human Rights Act 1998, if the regulations could not be read and given effect in a manner compatible with those rights. However, as we noted in paragraph 8, above, we find it hard to envisage circumstances in which a person could be destitute within the meaning of the Bill yet not suffer a violation of rights under ECHR Articles 3 and/or 8.

27. On the other hand, clause 56 would give rise to a number of other human rights issues. By contrast with clause 54 (considered in paragraphs 7-20, above), clause 56 would not allow the Secretary of State to authorise, by regulations, refusal of support to children. The regulations to be made by the Secretary of State might offer adequate protection to children's rights, but would not be required to do so. They might, therefore, violate rights of children under the Convention on the Rights of the Child (CRC), particularly the state's obligation to make the best interests of the child a primary consideration in all actions concerning children (CRC Article 3(1)), the right not to be separated from parents except where that would be in the best interests of the child (CRC Article 9(1). CRC Article 22 provides—

1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, 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 ...
The United Kingdom has entered very wide reservations to the CRC, including Article 22, purporting to exclude its benefits from people who are subject to immigration control. These reservations (particularly that in respect of CRC Article 22) have recently been criticised in discussion in the Committee on the Rights of the Child, the monitoring body for the CRC.[34] In paragraph 17 of our Seventeenth Report, we gave reasons for considering that the reservations were invalid as being incompatible with the object and purposes of the CRC. But even if (as we believe) the reservations are invalid it would not be possible to argue in a court or tribunal in the United Kingdom that the regulations (or any action taken pursuant to them) were unlawful merely by reason of a violation of rights under the CRC, since these rights do not form part of national law, and it would probably not be regarded as irrational (in the sense in which the word is used in judicial review proceedings) for the Government to refuse to give effect to an international treaty obligation. We draw the attention of each House to the resulting threat to rights under the CRC and the weakness of safeguards for the rights under this amendment.

28. Furthermore, clause 56 would not protect the right of adults or children to adequate standards of housing, food and clothing under ICESC Article 11(1). This issue has already been considered, as it affects adults, in relation to clause 54 (paragraphs 10-15, above). The same considerations apply here. Again, there would be no statutory requirement for any regulations to be compatible with the rights under ICESC; they do not form part of national law. For this reason, it could probably not be successfully argued that regulations or actions incompatible with those rights were irrational for the purposes of judicial review proceedings.

29. Finally, the drafting of clause 56 places on the applicant the burden of satisfying the Secretary of State that he or she was providing complete and accurate information and was co-operating with enquiries. This weakens the protection for human rights in the ways outlined in paragraph 19, above. In the present context, it has the additional vice of threatening to undermine the privilege against self-incrimination and violating ECHR Article 6(1) if the enquiries result in criminal proceedings against the applicant and the information provided by the applicant under threat of withholding support is used against him or her. We draw these matters, too, to the attention of each House as constituting significant weaknesses in the safeguards for human rights under the amendment. We conclude that clause 56 should be replaced with a free-standing provision which would provide adequate safeguards for human rights and would not depend on an amendment, of doubtful effect, to Schedule 8 to the Immigration and Asylum Act 1999.

Clause 92 as amended: presumption of safety in states applying for admission to the EU, and restriction of appeals

30. Part 5 of the Bill deals with appeals against immigration decisions.[35] Clauses 90, 91 and 92 would prevent a person who is in the United Kingdom from appealing to an adjudicator against immigration decisions, or against a decision to remove him or her to a 'safe third country', on the ground that it would violate one of the person's Convention rights, if the Secretary of State has certified that the claim of a violation of the Convention right is 'clearly unfounded'. The person would have to leave the country before being entitled to appeal on that ground. The Secretary of State's certificate would be amenable to judicial review, but there would be nothing to prevent the person from being removed before the application for judicial review was heard. In our Seventeenth Report, at paragraph 98, we drew the attention of each House to its view that—

... it should not be possible to remove a person before he or she has had the opportunity to challenge, before an independent and impartial tribunal, the Secretary of State's certificate asserting that the person's claim to have had a Convention right violated is clearly unfounded. Removing a person in such circumstances might sometimes give rise to a violation of ECHR Article 13 (the right to an effective remedy before a national authority for an alleged violation of a Convention right).
31. Our concerns have not been addressed. What is more, on re-commitment Government amendments to what is now clause 92 were accepted which, together with amendments to what is now clause 111 (transitional provision) and consequential amendments to what is now clause 109 (interpretation of Part 5 of the Bill), would further restrict the right to appeal to an adjudicator, and extend the power of the Secretary of State to exclude appeals by issuing certificates. The effects would appear to be as follows.

32. First, while the clause as originally drafted allowed the Secretary of State, by issuing a certificate, to cut off the right of appeal of a person 'who is in the United Kingdom', the words 'who is in the United Kingdom' were removed by amendment on re-commitment. As a result, there would now be no right of appeal at all (whether from inside or outside the United Kingdom) to an adjudicator on the ground that removing a person from, or requiring the person to leave, the United Kingdom would breach the person's Convention rights and be unlawful under section 6 of the Human Rights Act 1998 ('a human rights claim'), if the Secretary of State certifies that the claim of a violation of a Convention right is clearly unfounded. Although it appears to be the Government's view that there would still be a right to appeal from outside the United Kingdom, the removal (on re-commitment) of the words 'who is in the United Kingdom' from the clause as originally drafted seems to us to give a far wider scope to the denial of a right of appeal. Nothing in the Explanatory Notes provided by the Government explains how its view of the effect of the provisions can be supported by reference to the detail of the wording of the amended clause.[36] In our view, the removal of any right of appeal results in there being inadequate protection for the human rights of claimants. We consider that the words 'who is in the United Kingdom' should be re-inserted in clause 92(2) and (7).

33. Secondly, there would similarly be no right of appeal at all (whether from inside or outside the United Kingdom) to an adjudicator on the ground that removing the person from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention ('an asylum claim').[37] We reiterate that the removal of any right of appeal results in there being inadequate protection for the human rights of claimants; the words 'who is in the United Kingdom' should be re-inserted in clause 92(2) and (7).

34. Thirdly, the effect of clause 93, which previously (in combination with what is now clause 92 as originally drafted) would have allowed a person outside the United Kingdom to appeal to an adjudicator against an immigration decision on the ground that it violated his or her Convention rights or the United Kingdom's obligations under Refugee Convention if (and only if) the person had been removed without appeal by virtue of a certificate made by the Secretary of State under what is now clause 92, has been greatly restricted following the removal of the words 'who is in the United Kingdom' from clause 92. The making of a certificate would now entirely remove the right of appeal to an adjudicator on the basis of a human rights claim or an asylum claim, and what is now clause 93 would allow the appeal only if the claimant had been removed from the country, and had then applied successfully for judicial review of the Secretary of State's certificate. For the reasons explained above, we regard this as an unacceptable limitation on rights of appeal. Even if (contrary to our view) it is possible to interpret the clauses in the way for which the Government contends, it would involve following complex cross-references between clauses, and would not be as clear as is desirable when dealing with provisions which impact on human rights. The problem could be ameliorated by re-inserting the words 'who is in the United Kingdom' in clause 92(2) and (7), and we consider that the clause should be amended accordingly.

35. Fourthly, there would be new restrictions on appeals against decisions to remove people to the Republic of Cyprus, the Czech Republic, the Republics of Estonia, Hungary, Latvia, Lithuania, Malta, or Poland, the Slovak Republic, or the Republic of Slovenia (ten of the 'accession states', or aspirant new member states of the EU[38]). These places would be presumed to be safe unless the claimant could satisfy the Secretary of State that the claim to have no safe place to go to was not clearly unfounded in the claimant's particular case. If the claimant failed to persuade the Secretary of State that the claim was not clearly unfounded, the Secretary of State would be obliged to issue a certificate under clause 92(2), and this would cut off the right of appeal to an adjudicator against the decision, whether from inside or outside the United Kingdom.

36. In his article in The Times on 7 October, referring to claims from people with a right to reside in one of the listed democratic states which are (or may be) about to join the EU, the Home Secretary wrote:

I'm not going to rule out all examination of these claims. To do so would breach the Refugee Convention and European Convention on Human Rights. But applicants will have to rebut the presumption that their country of origin is safe, and any appeal will have to be from abroad, rather than in the UK. I will also seek a power to add countries to this list, with the safeguard that I will consult an independent advisory group which I am now establishing about the assessment of risk in the country.
37. The presumption that a country is safe is of questionable validity. As observed on re-commitment, the United Nations High Commission for Refugees (UNHCR) does not accept that any country can be declared 100 per cent safe,[39] a view shared by the House of Lords Select Committee on the European Union.[40] There is also widespread discrimination against certain groups, such as Roma in the Czech Republic and the Slovak Republic.[41] We note that European Community law requires Community institutions and Member States to respect the Geneva Convention on the Status of Refugees (although the responsibilities of the United Kingdom were to some extent restricted by Protocols annexed to the Treaty of Amsterdam). We also observe that the Charter of Fundamental Rights of the European Union, addressed to institutions and bodies of the European Union and to Member States when implementing EU law, reflects the need for respect for the right not to be removed to a state where there is a serious risk that the person would suffer death, torture, or inhuman or degrading treatment or punishment.[42] We realise that it would be open to asylum-seekers to present evidence that the state in question was not safe for them in their own particular circumstances, but in view of the well-authenticated threats to human rights which remain in the states seeking accession to the European Union, we consider that a presumption of safety, even if rebuttable, would present a serious risk that human rights would be inadequately protected. We consider that the presumption of safety is unacceptable on human rights grounds, and we draw this to the attention of both houses. For the same reasons, we have the same reservation about the power to add states to the list of 'safe states' by subordinate legislation.

38. Furthermore, if our understanding of clause 92 as amended on re-commitment is correct, it does not contain the safeguards described by the Home Secretary in his article. If the Secretary of State certifies that the applicant's human rights or asylum claim is clearly unfounded, there would be no appeal, either from within the United Kingdom or abroad, unless the certificate had first been quashed on an application for judicial review.[43] If the claim is an asylum claim rather than a human rights claim, it is highly unlikely that the applicant would be allowed to remain in the United Kingdom pending the outcome of the application for judicial review: under clause 92(8), when deciding whether to remove someone to a country specified in the certificate, that country is to be regarded as a safe country for the purposes of the Refugee Convention. Even if the claim was a human rights claim, there would be no guarantee that the Secretary of State would allow the claimant to remain in the United Kingdom until the application for judicial review of the certificate had been finally determined. For reasons developed in paragraph 98 of our Seventeenth Report,[44] this might provide inadequate safeguards for human rights, and could lead to a violation of the right to an effective remedy before a national authority for arguable violations of Convention rights under ECHR Article 13.

39. We consider that clause 92 should be amended to provide the protection which the Secretary of State wrongly considers the clause, as amended on re-commitment, provides, and should prevent a person from being removed from the United Kingdom without being allowed an appeal unless an application for judicial review of the Secretary of State's certificate would have the effect of suspending the removal pending the determination of the application for review. We draw this to the attention of each House.

40. We note, in addition, that clause 92 as amended does not impose any duty on the Secretary of State to consult the proposed independent advisory group, to which he referred in his article, before adding new countries to the list of presumptively safe states. Creating a presumption that a place is safe for asylum-seekers to return to has major human rights implications. The step should not be taken unless the evidence of safety is very clear. Advice from an independent advisory group would be a valuable safeguard for human rights in the face of a power such as that proposed in the amendment. We consider that clause 92(5) should be amended so as to require the Secretary of State to obtain, and have regard to, advice from the independent advisory group before adding states to the list of those which are presumed to be generally safe. We draw this to the attention of each House.

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15 See our Seventeenth Report, n. 2 above, at paras. 63-81 Back

16 Clause 54 (1) Back

17 Immigration and Asylum Act 1999, s. 4 Back

18 Immigration and Asylum Act 1999, s. 95, as it would be amended by the Bill Back

19 Immigration and Asylum Act 1999, s. 98 Back

20 Clause 54(1) and (2) Back

21 Clause 54(3) and (4); Immigration and Asylum Act 1999, s. 99 as it would be amended by clause 55, also inserted on re-commitment Back

22 HL Debs, 17 October 2002, cc. 984 (Lord Campbell of Alloway), 998-999 (Lord Filkin) Back

23 Joint Committee on Human Rights, First Report of 2001-02, Homelessness Bill, HL Paper 30, HC 314, para. 10 Back

24 (2000) 33 H.L.R. 419 Back

25 Westminster City Council v. National Asylum Support Service, The Times, 18 October 2002, HL Back

26 This point was made by Baroness Aneley of St. Johns when moving an amendment to the clause: HL Debs, 17 October 2002, cc. 982-983 Back

27 ibid., c. 997 Back

28 HL Debs, 17 October 2002, cc. 992, 996 and 997 (Lord Hylton, Lord Joffe and Lord Clinton-Davis) Back

29 ibid., c. 999, in response to questions from Earl Russell and Lord Clinton-Davis Back

30 ibid., c. 1002 Back

31 Clause 54(10) Back

32 Immigration and Asylum Act 1999, s. 95(12) and Sch. 8, para. 1 Back

33 op. cit., n. 3, above Back

34 Summary Record of the 811th Meeting of the Committee on the Rights of the Child held on 19 September 2002, CRC/C/SR.811, para. 21 (Ms. Khattab) Back

35 For our earlier comments on this Part of the Bill, see our Seventeenth Report at paras. 93-108 Back

36 Clause 92(1), (2) and (7) as amended Back

37 Clause 92(1), (2) and (7) Back

38 The Secretary of State would be empowered to add states to the list by statutory instrument Back

39 HL Debs, 17 October 2002, cc. 1019-1020 (Lord Goodhart) Back

40 Select Committee on the European Union, Eleventh Report of 2000-2001, Minimum Standards in Asylum Procedures, paras. 122 and 133 Back

41 These and similar concerns in relation to a number of accession states are expressed by the European Commission in their recent 2002 Regular Reports on Progress towards Accession, a point also noted in the House of Lords on re-commitment by Lord Avebury, HL Debs, 17 October 2002, cc. 1027-1029. See in particular the points made in reports on Estonia, SEC(2002) 1402, pp. 27-30 (position of stateless persons, who constitute about 12.5% of the population; use of force by police; treatment, including arbitrary detention, of disabled and mentally ill persons); Czech Republic, SEC(2002) 1402, pp. 28-33 (treatment of people in police custody; legislative discrimination against religious groups, especially minority religious groups; and widespread discrimination against Roma in education, housing and employment, despite attempts to improve the position); Hungary, SEC(2002) 1404, pp. 27, 31-33 (degrading treatment by police, especially of Roma, who are also worst affected by inequalities despite efforts to assist them); Latvia, SEC(2002) 1405, pp. 28-34 (living conditions at asylum detention centre; treatment of disabled and mentally ill persons; Parliament's rejection of ratification of Council of Europe Convention on the Protection of National Minorities; language laws affecting people's freedom to use own language); Lithuania, SEC(2002) 1406, pp. 27-30 (degrading treatment by law enforcement officials; lack of respect for principle of non-refoulement in asylum cases); Slovakia, SEC(2002) 1410, pp. 27-32 (degrading police treatment of people, especially Roma; discrimination against vulnerable and disabled persons, particularly in higher education, employment and access to social services; living conditions in institutions for mental patients; lack of integration of Roma, who endure poor housing and services and are vulnerable to racially motivated violence); Slovenia, SEC(2002) 1411, pp. 25, 27-28 (sometimes excessive use of force by police against people in custody, particularly Roma, although in other respects it should be noted that Roma enjoy special protection in Slovenia) Back

42 TEC Article 63 and Protocols to the Treaty of Amsterdam; EU Charter of Fundamental Rights, Arts. 18, 19(2), 51(1) Back

43 See paragraph ***, above Back

44 See paragraph ***, above Back

C. Human Rights Implications of the Amendment to be re-introduced on Third Reading

41. The amendment originally moved on Report by Lord Filkin, then withdrawn and intended for re-introduction on Third Reading, would have inserted the following new clause in Part 4 of the Bill.

Liability to detention: interpretation

(1) This section applies to the construction of a reference (in any terms) to a person who is liable to detention under a provision of the Immigration Acts.

(2) The reference shall be taken to include a person if the only reason why he cannot be detained is that-

i. he cannot presently be removed from the United Kingdom, because of a legal impediment connected with the United Kingdom's obligations under an international agreement,

ii. practical difficulties are impeding or delaying the making of arrangements for his removal from the United Kingdom, or

iii. practical difficulties, or demands on administrative resources, are impeding or delaying the taking of a decision in respect of him.

(3) This section shall be treated as always having had effect.

42. This is calculated to allow a person to be detained indefinitely if for one of the listed reasons it would not be lawful or practicable to remove him from the United Kingdom. It also makes the provision retrospective, apparently pre-empting the pending decision of the Appellate Committee of the House of Lords in the case concerning the lawfulness of detaining asylum-seekers at the Oakington reception centre,[45] and also one of the issues in the litigation (currently on appeal from a preliminary ruling by the Special Immigration Appeals Commission) relating to the lawfulness of the detention of suspected international terrorists under the Anti-terrorism, Crime and Security Act 2001. As peers pointed out in the debate on Report in the House of Lords on 10 October, it might authorise detention in breach of the right to liberty of the person under ECHR Article 5, a power which has been taken in the case of suspected international terrorists in the Anti-terrorism, Crime and Security Act 2001 (in respect of which the United Kingdom claimed to derogate from ECHR Article 5), but which would now be retrospectively extended to many other would-be immigrants.[46] As it might retrospectively make people liable to criminal penalties for failing to comply with originally invalid requirements which would have been retrospectively validated by the provision, it could also lead to a violation of the right under ECHR Article 7 to be free of sanctions for conduct which was lawful at the time of its commission.[47]

43. However, in the course of debate on 10 October Lord Filkin made it clear that the Government had not intended the proposed new clause to have those wide-ranging effects. The Government's aim was only to put beyond doubt a point which had been at issue in Hwez and Khadir v. Secretary of State for the Home Department,[48] decided adversely to the Government by Mr. Justice Crane and now under appeal. The claimants in that case were Kurds who had had their applications for asylum rejected, and who were to be removed to the Kurdish Autonomous Area (KAA) of northern Iraq, which the Secretary of State regarded as a safe place in which they would be entitled to reside. But no carrier provides direct transport between the United Kingdom and the KAA, so there is nobody whom the Secretary of State can direct to remove a person from the United Kingdom to the KAA. It was accepted that it would not be safe to return the claimants to Baghdad, and they had no right to reside in any other country. It was also accepted that there was no realistic prospect of a way being found to return the claimants to the KAA in the near future; indeed, it was going to be considerably longer than twelve months before there would be any real prospect of finding a way of getting them safely to the KAA.

44. The Immigration Act 1971 provides that a person who has been refused leave to enter the United Kingdom may be detained pending a decision as to whether to give directions for his or her removal, and (if such directions are given) pending removal pursuant to those directions. While liable to detention, such people may be given temporary admission, subject to such conditions as to residence, employment or occupation, and reporting to police or immigration authorities as may be notified in writing by an immigration officer.[49]

45. In the circumstances of the claimants' cases, Mr. Justice Crane held that—

— when there was no reasonable prospect of being able to give valid directions to the owners of any ship or aircraft for a person's removal from the United Kingdom to the KAA, it could not be said that they were liable to detention 'pending...the giving of such directions';[50]

— as the giving of directions for removal, and their implementation, could not be said to be 'pending', there was no power to detain, and consequently no power to grant temporary admission subject to conditions;

— where this would leave the claimants in limbo (unable to be removed, not liable to be detained or given temporary leave to enter, but not entitled to enter) with no reasonable prospect of the impasse being resolved by arranging for the claimants' removal, it was unreasonable to refuse to give very careful consideration to the possibility of granting exceptional leave to enter, perhaps for a limited period. Exceptional leave to remain in the United Kingdom would have allowed the claimants to obtain income support and other support in cash or in kind, rather than the more limited forms of support available to those granted temporary admission or the absence of support available to those not granted admission at all.

46. One effect of the judgment is to make it likely that the number of people granted exceptional leave to enter will increase considerably, because there will be more cases in which it would be irrational (in the sense in which that term is used in judicial review proceedings) to refuse exceptional leave to people in the position of the claimants in that case. In his article in The Times,[51] the Home Secretary stated his determination to ensure that exceptional leave to remain 'is targeted on those applicants who really need special humanitarian protection. It should not be an alternative form of economic migration which acts as a pull factor to the UK.' It seems that the proposed new clause was intended to advance that aim.

47. As Lord Filkin said during debate on the amendment on Report, 'Although the point made in Hwez and Khadir related specifically to powers under Schedule 2 which relate to arriving passengers, illegal entrants and overstayers, it would apply equally to someone who is the subject of deportation action under Schedule 3.'[52] He went on to note that the ability to impose residence and reporting conditions on people is 'key to the concept of contact management ... [W]e cannot have a position where those people subject to immigration control who do not have leave to be here and whom we may not lawfully detain are able to remain in the UK pending the next stage of the immigration process—for example, removal—without us being able to impose any sort of restrictions on them...'[53] He claimed that the amendment would not authorise detention,[54] and argued that the retrospectivity provision in sub-clause (3) would have the effect of 'validating the authorisation of temporary admission and restrictions imposed.' Retrospective effect was needed because—

it is simply not possible for the Immigration Service to identify all of those persons who, in the light of Mr. Justice Crane's judgment, may not be subject to any valid restrictions, and to re-authorise temporary admission to such persons, and re-impose fresh restrictions on them on the commencement of this clause on Royal Assent....[I]t is the Government's intention that the retrospective effect of the provision will not operate so as to create any criminal liability...for breach of restrictions validated by it in respect of the period prior to its enactment....Criminal liability would, however, arise if a person whose restrictions had been validated by this clause failed to comply with such restrictions without a reasonable excuse after the clause comes into force.[55]
48. If the new clause were actually to be limited in these ways, it would, in our view, be likely to avoid incompatibility with human rights. However, there is nothing in the clause which would have those effects. In fact, the plain meaning of the words of the clause is to authorise detention of people who were held by Mr. Justice Crane not to be liable to detention, and to impose criminal liability on people for failing to comply with conditions which were held by Mr. Justice Crane not to have been imposed lawfully. In short, the proposed new clause is massively over-broad for the Government's professed purposes. As a result, there is a serious threat of incompatibility with Convention rights to liberty (ECHR Article 5) and to freedom from sanctions for conduct which was not criminal at the time of its commission (ECHR Article 7). In view of the terms in which the new clause is expressed, it would probably be impossible to use the interpretative rule in section 3(1) of the Human Rights Act 1998 to read it down so as to avoid an incompatibility. We draw the attention of each House to this threat, and to the need to avoid the risk of incompatibility by redrafting the clause so that it is narrowly tailored to achieve the effects which the Government desires.

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45 This was the view of Lord Renton of Mount Harry and Lord Lester of Herne Hill: HL Debs, 10 October 2002, cc. 450, 451 Back

46 See Lord Renton, ibid. at c. 450, Lord Lester at cc. 452-453, Lord Mayhew of Twysden at cc. 455-456, and Lord Kingsland at c. 460 Back

47 The House of Lords Constitution Committee has reported critically on the compatibility of the amendment with the rule of law and the separation of powers: Select Committee on the Constitution, Seventh Report of 2001-02, HL 173 Back

48 [2002] EWHC 1597 (Admin), 29 July 2002 Back

49 Immigration Act 1971, s. 4(2) and Sch. 2, paras. 8, 16 and 21 Back

50 Crane J. followed the decision of the Judicial Committee of the Privy Council in Tan Te Lam v. Superintendent of Tai A Chau Detention Centre [1997] AC 97, an appeal from Hong Kong Back

51 op. cit., n. 3 above Back

52 HL Debs, 10 October 2002, c. 454 Back

53 ibid., c. 455 Back

54 ibid., cc. 455, 456 Back

55 ibid., cc. 457-458 Back

D. Conclusion

49. We draw the following matters to the attention of each House on human rights grounds.

— There is a risk that leaving a person destitute would inevitably threaten a violation of rights under Articles 3 and/or 8 of the ECHR (paragraph 8 above).

— There is a risk that the power to support children without related adults might lead to the separation of members of a family, giving rise to a risk of a violation of Article 8 (paragraph 8).

— There is a danger that clause 54, inserted in the Bill on re-commitment, would authorise a violation of the right to adequate housing, food and clothing under Article 11(1) of the ICESC (paragraphs 10-15).

— There are weaknesses of safeguards for human rights in clause 54, in view of:

(i) the burden being placed on the claimant to satisfy the Secretary of State that a claimant has claimed asylum as soon as reasonably practicable;

(ii) the lack of objectivity in the requirement that a person must claim asylum as soon as reasonably practicable in order to be entitled to support;

(iii) the lack of any appeal to an adjudicator against a decision denying support; and

(iv) the absence of any power to provide support pending an application for judicial review of the decision to deny support (paragraphs 16-19).

— There are doubts as to the effect of clause 56, authorising the making of regulations to allow support to be withheld if the Secretary of State is not satisfied that the claimant has given a full and accurate account of various matters and is co-operating with the Secretary of State's further enquiries (paragraphs 23-25).

— There are weaknesses in safeguards for human rights in clause 56 and a risk of a violation of Article 6(1) of the ECHR through a potential threat to the privilege against self-incrimination (paragraphs 27-29).

— We are concerned that the presumption that certain states are generally safe could lead to people being subjected to threats to their human rights if removed to those countries, and that the power to specify new 'safe' states carries the same risks and is subject to insufficient safeguards (paragraph 35-39).

— We are concerned at the over-breadth of the proposed new clause, to be re-introduced on Third Reading, to allow conditions to be attached to people who are admitted to the United Kingdom pending a decision as to whether to give directions for their removal, or the implementation of such directions (paragraphs 41-48).

We recommend that these provisions should be amended in the ways suggested in this report, in order to provide protection against the risks identified above.

PROCEEDINGS OF THE COMMITTEE RELATING TO THE REPORT

TUESDAY 22 OCTOBER 2002

Members present:

Jean Corston MP, in the Chair

Lord Campbell of Alloway Baroness Whitaker
Lord Lester of Herne Hill Vera Baird MP
Lord Parekh Mr Norman Baker MP
Baroness Perry of Southwark Mr Kevin McNamara MP
Baroness Prashar

The Committee deliberated.

* * * * *

Draft Report [Nationality, Immigration and Asylum Bill: Further Report], proposed by the Chairman, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 49 read and agreed to.

Resolved, That the Report be the Twenty-third Report of the Committee to each House.

Ordered, That the Chairman do make the Report to the House of Commons and that Baroness Prashar do make the Report to the House of Lords.

* * * * *

[Adjourned till Monday 28 October at half-past Four o'clock.

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