Legislative Scrutiny: Immigration Bill

Transcription

1 House of Lords House of Commons Joint Committee on Human Rights Legislative Scrutiny: Immigration Bill Eighth Report of Session Report, together with formal minutes Ordered by the House of Lords to be printed 11 December 2013 Ordered by the House of Commons to be printed 11 December 2013 HL Paper 102 HC 935 Published on 18 December 2013 by authority of the House of Commons London: The Stationery Office Limited 12.00

2 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); proposals for remedial orders, draft remedial orders and remedial orders. The Joint Committee has a maximum of six Members appointed by each House, of whom the quorum for any formal proceedings is two from each House. Current membership HOUSE OF LORDS Baroness Berridge (Conservative) Lord Faulks (Conservative) Baroness Kennedy of the Shaws (Labour) Lord Lester of Herne Hill (Liberal Democrat) Baroness Lister of Burtersett (Labour) Baroness O Loan (Crossbench) HOUSE OF COMMONS Dr Hywel Francis MP (Labour, Aberavon) (Chair) Mr Robert Buckland MP (Conservative, South Swindon) Rehman Chishti MP (Conservative, Gillingham and Rainham) Rt Hon Simon Hughes MP (Liberal Democrat, Bermondsey and Old Southwark) Mr Virendra Sharma MP (Labour, Ealing Southall) Sir Richard Shepherd MP (Conservative, Aldridge-Brownhills) Powers The Committee has the power to require the submission of written evidence and documents, to examine witnesses, to meet at any time (except when Parliament is prorogued or dissolved), to adjourn from place to place, to appoint specialist advisers, and to make Reports to both Houses. The Lords Committee has power to agree with the Commons in the appointment of a Chairman. 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 Current Staff The current staff of the Committee is: Mike Hennessy (Commons Clerk), Megan Conway (Lords Clerk), Murray Hunt (Legal Adviser), Natalie Wease (Assistant Legal Adviser), Lisa Wrobel (Senior Committee Assistant), Michelle Owens (Committee Assistant), Holly Knowles (Committee Support Assistant), and Keith Pryke (Office Support Assistant). 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: ; the Committee's e- mail address is jchr@parliament.uk

3 Legislative Scrutiny: Immigration Bill 1 Contents Report Page Summary 3 1 Introduction 7 Background 7 Information provided by the Government 8 Convention rights (ECHR) 8 Children s rights (UNCRC) 8 The relevant human rights law framework 9 2 Removal and enforcement powers 12 Power to remove family members (clause 1) 12 3 Appeal rights 14 Background 14 Removal of appeal rights 14 Limits on Tribunal s power to consider new matters 17 Out-of-country human rights appeals 19 Public interest considerations in Article 8 claims 20 4 Access to services 24 Background 24 Access to residential tenancies (clauses 15-32) 24 Risk of inhuman or degrading treatment 24 Right to respect for private life, family life and home 26 Non-discrimination 27 Access to health services 30 Non-discrimination 30 5 Sham marriages/civil partnerships 35 Background 35 The need for legislation 36 The right to marry 37 Non-discrimination 38 Conclusions and recommendations 40 Formal Minutes 45 Declaration of Lords Interests 46 List of Reports from the Committee during the current Parliament 47

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5 Legislative Scrutiny: Immigration Bill 3 Summary The Immigration Bill was introduced in the House of Commons on 10 October The Bill received its Second Reading in the House of Commons on 22 October 2013, began its Committee Stage on 24 October and completed it on 19 November. Report Stage is expected to take place in January The objective of the Bill, according to the Minister for Immigration, is to make the UK the least attractive destination for illegal migrants, reinforcing the message that we welcome legal migrants who contribute to our economy and society but we will take firm action against those who break the rules. To this end, the Bill has three main themes: reforming the removals and appeals system; allowing Parliament to spell out its view of what the public interest requires when considering the right to respect for private and family life in Article 8 ECHR in immigration cases; and ensuring that illegal migrants cannot access various services, public and private, such as renting accommodation, holding a driving licence and opening a bank account. We commend the Department on its conscientious and constructive engagement with our scrutiny of the Bill s human rights compatibility. We welcome the fact that the Government s ECHR Memorandum shows that it considered the best interests of children when assessing the compatibility of a particular provision of the Bill with Article 8 ECHR and we also welcome the more detailed UNCRC analysis contained in the Minister s letter in relation to some other provisions in the Bill, but we remind the Government that we would prefer to receive this analysis at the time the Bill is published. We have borne in mind in our human rights scrutiny of the Bill that a measure which serves a legitimate aim, such as immigration control, and which is not incompatible with the Convention on its face, may nevertheless carry a risk that it will be applied in practice in a way which gives rise to breaches of Convention rights in particular cases, and we aim to assist Parliament to identify and minimise that risk. Removal and enforcement powers We welcome the Government s clarification of the intended definition of family member for the purpose of the single power of removal and the clarification that family members will always be notified if they are facing removal. However, this raises a question as to why the Secretary of State requires a power to make regulations about whether a family member to be removed is given notice and so we recommend that the regulation-making power in clause 1(6)(c) be amended to reflect this intention. Appeal rights We are concerned that the Bill s significant limitation of appeal rights against immigration and asylum decisions is not compatible with the common law right of access to a court or tribunal in relation to unlawful immigration decisions, and the right to an effective remedy. Indeed, limiting rights of appeal to the extent that they are restricted in the Bill constitutes a serious threat to the practical ability to access the legal system to challenge unlawful immigration and asylum decisions, and to enforce the statutory duty to have regard to the

6 4 Legislative Scrutiny: Immigration Bill need to safeguard and promote the welfare of children when exercising immigration and asylum functions. In our view, the First Tier Tribunal itself, not the Secretary of State, should decide whether it is within its jurisdiction to consider a new matter raised on an appeal. We recommend that the Government amends the Bill to achieve its purpose in a way which does not appear to make the scope of the tribunal s jurisdiction depend on the consent of one of the parties to the appeal before it, but leaves to the Tribunal the question of whether or not it may consider a new matter, provided there is good reason for the matter not having been raised before the Secretary of State. Nor are we satisfied with the Government s reliance on the continued availability of judicial review to challenge the Secretary of State s certification that a human rights appeal can be heard out of country, having regard to the unavailability of civil legal aid to bring such a claim and the proposed reforms of judicial review. The provisions in the Bill which seek to guide courts and tribunals in their determination of Article 8 claims in immigration cases do not purport to go so far as to determine individual applications in advance or to oust the courts jurisdiction. They merely require courts and tribunals to have regard to a list of public interest considerations when deciding whether an interference with a person s right to respect for private and family life is justified under Article 8(2) ECHR. The provisions do not seek to make the prescribed public interest considerations exhaustive, or to exclude other considerations from being taken into account when determining the Article 8 compatibility question. The Government s acceptance in litigation that the Immigration Rules should be interpreted consistently with the Strasbourg jurisprudence on Article 8 ECHR therefore applies equally to the provisions in the Bill and on that basis we are satisfied that the provisions introduced by clause 14 of the Bill are not on their face incompatible with Article 8 ECHR. We are uneasy about any statutory provision which purports to tell courts and tribunals that little weight should be given to a particular consideration in any judicial balancing exercise, as is proposed by the Bill in relation to Article 8 claims in immigration cases. That appears to us to be a significant legislative trespass into the judicial function. We recommend that the Bill be amended in a way which retains as relevant public interest considerations whether a private life or relationship were established at a time when the person was in the UK unlawfully or when their immigration status was precarious, but omits the direction about the weight to be given to the person s private life or relationship. We welcome the Government s clarification of its intention that nothing in the Bill is intended to change or derogate in any way from the children duty in s. 55 of the Borders, Citizenship and Immigration Act However, there is a danger that front-line immigration officials administering the legal regime will be unclear about the relationship between the children duty in s. 55 and the new tests introduced by the Bill which use different and unfamiliar language. We therefore recommend that new guidance be issued to ensure that the Government s stated intention about the unaffected status of the children duty is in fact achieved in practice. Access to services We are concerned about the risk of the new provisions relating to residential tenancies giving rise in practice to breaches of the right not to be subjected to inhuman or degrading

7 Legislative Scrutiny: Immigration Bill 5 treatment in Article 3 ECHR in the case of people who have no right to remain in the UK but face genuine barriers to leaving. We do not feel that we have been provided with sufficient detail of how the discretion of the Secretary of State in this area will operate in practice. We are also concerned to ensure that the Bill does not give rise to an undue risk that migrant children will be exposed to homelessness or separation from family members as a result of these provisions on residential tenancies, and we urge the Government to explain fully to Parliament the safeguards that exist to mitigate in practice the possible negative impact of these provisions on children. We welcome the draft Codes of Practice and the Government s commitment to monitoring for evidence of discriminatory behaviour in the private rented sector, but in our view, the provisions in the Bill on access to residential tenancies heighten the risk of discrimination on racial grounds against ethnic minority prospective tenants, notwithstanding the fact that such discrimination is unlawful under the Equality Act. We therefore ask the Government not to commence these provisions until the Equality and Human Rights Commission and the Government Equalities Office are satisfied that there are sufficient safeguards in place to prevent such discrimination from arising in practice. We also recommend that the Equality and Human Rights Commission work closely with the Government Equalities Office, landlords representatives and local authorities to monitor the consequences of the provision, and that the Government keep the provision under careful review in the light of the evidence produced by such monitoring. We consider that there are questions to be answered about whether there is a rational connection between the Government s aim of ensuring that a person s access to health care is commensurate with their immigration status and the means by which it seeks to do so, namely applying a threshold of indefinite leave to remain. We call on the Government to explain further why there is a sound fit between the stated rationale that entitlement to free health care should be commensurate with immigration status and the selected criterion of indefinite leave to remain. Sham marriages/civil partnerships The evidence relied upon by the Government to demonstrate the necessity for legislating to supplement the powers that already exist to combat sham marriages demonstrates a recent sustained increase of about 800 to 900 in the number of annual reports of suspicious marriages or civil partnerships. Beyond this, however, there is little firm evidence of the scale of the problem. Parliament may wish to bear this in mind when it considers the proportionality of the proposed scheme s interference with the right to marry in Article 12 ECHR and the right to respect for private life in Article 8 ECHR, and the right not to be discriminated against in relation to the enjoyment of those rights. As far as compatibility with the right to marry is concerned, there is nothing inherently objectionable about the Bill s proposed referral and investigation scheme. However, we encourage the Government to work closely with the EHRC with a view to developing an approach to identifying suspect proposed marriages or civil partnerships without resorting to unjustified discrimination on grounds of nationality.

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9 Legislative Scrutiny: Immigration Bill 7 1 Introduction Background 1. The Immigration Bill 1 was introduced in the House of Commons on 10 October The Rt Hon Theresa May MP, Secretary of State for the Home Department, has certified that, in her view, the Bill is compatible with Convention rights. 2. The Bill received its Second Reading in the House of Commons on 22 October 2013, began its Committee Stage on 24 October and completed it on 19 November. Report Stage is expected to take place in January The objective of the Bill, according to the Minister for Immigration, is to make the UK the least attractive destination for illegal migrants, reinforcing the message that we welcome legal migrants who contribute to our economy and society but we will take firm action against those who break the rules. To this end, the Bill has three main themes: reforming the removals and appeals system to make it easier and quicker to remove those with no right to be in the UK, by making enforcement quicker and simpler and limiting appeals; allowing Parliament to spell out its view of what the public interest requires when considering the right to respect for private and family life in Article 8 ECHR in immigration cases; and ensuring that illegal migrants cannot access various services, public and private, such as renting accommodation, holding a driving licence and opening a bank account, to enable them to continue living in the UK. 4. We wrote to the Government about Parts 1 to 3 of the Bill on 30 October 2 and the Minister for Immigration replied by letter dated 12 November. 3 We wrote asking some further questions about Part 4 of the Bill, which contains new powers to investigate suspected sham marriages and civil partnerships, on 12 November, and the Minister for Immigration replied by letter dated 27 November The Bill s reform of the immigration and asylum appeals system has significant implications for access to justice and should be considered in the context of other relevant Government proposals concerning legal aid, such as the proposed introduction of a residence test, and the reform of judicial review. We are currently inquiring into the implications of these reforms for access to justice generally, and in our call for evidence on the Government s proposed judicial review reforms we specifically sought evidence on the combined effect of those other reforms, particularly the proposed residence test for legal aid, and the provisions limiting immigration appeals in Part 2 of this Bill. 1 HC Bill 128, as amended in Public Bill Committee. 2 Letter dated 30 October 2013 from the Chair to the Home Secretary (available on the Committee s website). 3 Letter dated 12 November 2013 from Mark Harper MP, Minister for Immigration. 4 Letter dated 27 November from Mark Harper MP, Minister for Immigration.

10 8 Legislative Scrutiny: Immigration Bill Information provided by the Government Convention rights (ECHR) 6. The Government published a free-standing ECHR Memorandum, containing its assessment of the compatibility of the Bill s provisions with the Convention rights, at the same time as the Bill itself was published, in accordance with the best practice that we recommend. In what we are pleased to see now appears to be standard practice for Home Office Bills, the Memorandum replaces the section on ECHR compatibility in the Explanatory Notes and is available on the Bill webpage on the Home Office website The ECHR Memorandum is detailed and thorough and includes extensive reference to relevant case-law. The Memorandum is also, unusually, prefaced by some broad introductory comments about UK immigration law and the Government s understanding of the approach taken by the European Court of Human Rights to ECHR issues which arise in the context of immigration controls. 8. Our letters were responded to on time and our questions were addressed in detail. The Bill team readily made itself available to meet our staff to discuss aspects of the Bill and were also very helpful in responding to subsequent queries and requests for information. 9. We commend the Department on its conscientious and constructive engagement with our scrutiny of the Bill s human rights compatibility. The quality of its detailed ECHR Memorandum, and the approach taken in that Memorandum, combining detailed analysis of particular provisions with a more general account of the Government s understanding of the relevant Convention case-law and principles, demonstrate a careful and thorough engagement by the Department with the requirements of the Convention, and has greatly assisted our scrutiny of the Bill. We intend to draw this to the attention of the Cabinet Office as an example of best practice to be aspired to by all Departments when preparing for our scrutiny of the human rights compatibility of their Bills. Children s rights (UNCRC) 10. The Government s ECHR Memorandum did not, however, include any specific analysis of the compatibility of the Bill s provisions with the UN Convention on the Rights of the Child ( UNCRC ). As we have frequently reminded the Government in recent legislative scrutiny Reports, in December 2010 the Government promised Parliament that it would always carry out such scrutiny for compatibility with the UNCRC before introducing legislation. The Bill contains measures which clearly have significant implications for children, such as the provisions which require courts and tribunals to have regard to particular public interest considerations when determining whether an immigration decision is in breach of the right to respect for private and family life in Article 8 ECHR. 6 We therefore asked the Home Office for a Memorandum containing the Government s analysis of the implications of any provisions in the Bill for the rights of Clause 14.

11 Legislative Scrutiny: Immigration Bill 9 children under the UNCRC, and explaining the Government s view as to why those provisions are compatible with that Convention. 11. The Government s response to our letter includes its consideration of the UNCRC in its reply to our specific questions. Like the ECHR Memorandum, it usefully explains the Government s general approach to the UNCRC in the immigration context. The Government says it has particular regard to Article 3, the need to treat the best interests of the child as a primary consideration, in all actions affecting children. It points out that the UK has given effect to Article 3 through s. 55 of the Borders, Citizenship and Immigration Act 2009 which requires the Secretary of State to make arrangements for ensuring that her functions, including immigration, nationality and asylum functions, are discharged having regard to the need to safeguard and promote the welfare of children who are in the UK ( the children duty ). It also requires any person exercising those functions to have regard to any guidance given by the Secretary of State. Such guidance on the children duty was issued in November and the Government says that there is also internal guidance to staff on how to take account of the children duty in discharging their specific functions. 12. The Government says that it has also taken into account the best interests of children in its consideration of the Bill s compatibility with the Human Rights Act, in particular the right to respect for private life, family life and home in Article 8 ECHR, as the courts have made clear that the child s best interests are an integral part of the Article 8 assessment and not something apart from it. 8 It says that this is reflected in the ECHR Memorandum. The Memorandum does indeed show that the best interests of the child principle and the relevant case-law on its application in the immigration context were taken into account by the Government when considering the Article 8 ECHR compatibility of a particular provision of the Bill concerning the deportation of foreign criminals We welcome the fact that the Government s ECHR Memorandum shows that it considered the best interests principle when assessing the compatibility of a particular provision of the Bill with Article 8 ECHR. We also welcome the more detailed UNCRC analysis contained in the Minister s letter in relation to some other provisions in the Bill. However, we repeat the general point made in a number of our recent legislative scrutiny Reports that, as a matter of best practice, we would prefer this analysis to be provided much earlier, either as part of or alongside the ECHR Memorandum which was published when the Bill was first introduced. The relevant human rights law framework 14. The Government s ECHR Memorandum helpfully and accurately summarises the general principles which apply under the ECHR when the human rights compatibility of immigration measures is in question. To assist parliamentarians in their scrutiny of the Bill, we summarise here the human rights law framework which has structured our analysis of the Bill s human rights compatibility. 7 Every Child Matters Change for Children. 8 See in particular the Supreme Court judgment in ZH (Tanzania). 9 New s. 117C(5) as inserted by clause 14; see ECHR Memorandum para. 85.

12 10 Legislative Scrutiny: Immigration Bill 15. As the Government points out in its Memorandum, the State is entitled, as a matter of international law and subject to its treaty obligations, to control both the entry of foreign nationals into its territory and their residence there. The Convention does not guarantee the right of a foreign national to enter or reside in a particular country. The State enjoys a certain margin of appreciation when balancing the competing interests of foreign nationals and the community as a whole: that is, subject to the supervision of the Strasbourg Court, the State enjoys a degree of latitude in deciding how precisely to strike the balance between those competing interests. Immigration control is recognised as a legitimate aim under Article 8(2) ECHR, primarily in order to protect the economic wellbeing of the country; and the deportation of foreign criminals is recognised as serving the legitimate aim of the prevention of disorder or crime. 16. The Government s ECHR Memorandum also rightly points out that the broad principles which apply in immigration cases have been developed by the European Court of Human Rights almost exclusively in the context of expulsion cases. 10 However, the Government argues that the broad principles to be derived from the Convention case-law provide the starting point for arguing that, just as the UK can lawfully remove illegal migrants for both crime prevention and wider immigration control reasons, so it can also, compatibly with the Convention, take other measures that seek to encourage such people to leave by limiting their access to services and benefits in the UK. The Government rightly acknowledges that this is subject to the important proviso that such actions must in themselves be proportionate and do not violate other ECHR rights such as the right not to be subjected to inhuman or degrading treatment in Article 3 ECHR. 17. We draw to Parliament s attention a further important proviso which is that such actions must not result in unjustifiable discrimination in the enjoyment of Convention rights. The case-law of the Court clearly establishes that differential treatment on grounds of both nationality 11 and immigration status 12 come within the scope of other status in Article 14 ECHR. A person who is subject to immigration control is capable of being in an analogous (ie. relevantly similar) position to a citizen of the UK or to another migrant with a different immigration status when it comes to access to services, for example. Any differential treatment must therefore be objectively and reasonably justifiable: that is, the differential treatment must serve a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim which it is sought to achieve. 18. The provisions in the Bill that restrict access to services on the basis of immigration status therefore require such objective and reasonable justification where the services in question fall within the scope of Convention rights. The Government s ECHR Memorandum treats this as merely arguable, rather than a well-established requirement of the Convention case-law. 13 Nevertheless, the Memorandum goes on to offer justification for such differential treatment, whilst pointing out, correctly, that the margin 10 ECHR Memorandum, para Gaygusuz v Austria (1997) 23 EHRR Bah v UK, App. No /07, (27 September 2011), at para ECHR Memorandum, para. 10, where the Government rightly explains that measures concerning actual immigration control do not require justification under Article 14, however, with the provisions in the Bill that restrict access to services the contrary can be argued.

13 Legislative Scrutiny: Immigration Bill 11 of appreciation afforded to states is relatively wide where differential treatment is based on immigration status, which involves an element of choice, and the issue is a socio-economic one Even allowing a relatively wide margin of appreciation for states when justifying differential treatment in relation to access to services on the basis of immigration status, the justification offered must still meet the standards of objectivity and reasonableness. In Niedzwiecki v Germany, for example, the Court found a violation of Article 14 in conjunction with Article 8 of the Convention where under the German law on child benefits a foreign national was only entitled to child benefit if he had a residence permit or a provisional residence permit. 15 The Court did not find sufficient reasons justifying the different treatment with regard to child benefits of aliens who were in possession of a stable residence permit on the one hand and those who were not, on the other. 16 The Court agreed with the reasoning of the German Federal Constitutional Court which had held (in a different case) that the different treatment of parents who were and were not in possession of a stable residence permit lacked sufficient justification. In so far as the provision was aimed at limiting the granting of child benefits to those aliens who were likely to stay permanently in Germany, the Constitutional Court had found that the criteria applied were inappropriate to reach that aim. 17 The fact that a person was in possession of a limited residence title did not form a sufficient basis to predict the duration of his or her stay in Germany. In the absence of any other reasons, the unequal treatment was therefore found to be unjustified. 20. We have borne in mind in our human rights scrutiny of the Bill that, while it is correct that the European Court of Human Rights usually affords a relatively wide margin of appreciation (or discretion) to States, in particular in the sphere of economic and social measures, reasonable and objective justification is still required, and that there are many examples of the Court finding a violation of Article 14 in conjunction with another Convention right where access to a State benefit has been denied on grounds of immigration status. A measure which serves a legitimate aim, such as immigration control, and which is not incompatible with the Convention on its face, may nevertheless carry a risk that it will be applied in practice in a way which gives rise to breaches of Convention rights in particular cases, and we aim to assist Parliament to identify and minimise that risk. 14 Bah, above n. 12, para Niedzwiecki v Germany, Application no /00 (25 October 2005) 16 Ibid., para Ibid., para. 24.

14 12 Legislative Scrutiny: Immigration Bill 2 Removal and enforcement powers Power to remove family members (clause 1) 21. Part 1 of the Bill contains provisions designed to simplify the process of removal of persons unlawfully in the UK by providing for a single power of removal. The provision provides that, where a person is liable to removal or has been removed, a member of the person s family may also be removed. The Bill itself does not define family member, leaving that to be defined by the Secretary of State in regulations. 22. The regulation-making power also appears to suggest that a family member will not automatically be given notice of removal: it says that the Secretary of State may by regulations make provision about the removal of family members, and in particular about whether a family member to be removed is to be given notice and, if so, the effect that being given notice has on the person s leave, and how notice is to be served We asked whom the Secretary of State intends to include in the definition of family member for the purposes of the proposed new single power of removal, and what the process for such removal of family members will be in practice, including whether they will always be given notice. 24. The Government replied that the definition of family member for the purposes of the single power of removal will include the same categories of relationship that allow people to enter or remain as a dependent under the Immigration Rules: fiancé(e)s, proposed civil partners, spouses, civil partners, unmarried partners, same-sex partners, children and other dependent relatives. It says that if a person comes to the UK as a family member of another migrant then it is only right that such a person could also be removed along with that other migrant where that migrant has no leave to be in the UK. 25. However, the Government s response also makes clear that not everyone who falls within the definition of a family member will be removed. For example, where a family member is no longer in a family relationship or qualifies for, or has, leave to remain in the UK in their own right they will not be removed, nor would a family member who meets the criteria in the Immigration Rules as a victim of domestic violence; and the Secretary of State will have regard to the best interests of the child and any other relevant international obligations in making any decision to remove. 26. The Government has also made clear that it is not its intention that a family member may be removed without being given notice: family members will always be notified if they are facing removal. 27. We welcome the Government s clarification of the intended definition of family member for the purpose of the single power of removal, and the express acceptance that the exercise of the power of removal of such family members remains subject both to existing immigration law and any relevant international obligations. We also welcome the clarification that family members will always be notified if they are facing removal, but this raises a question as to why the Secretary of State requires a power to 18 Clause 1(6)(c).

15 Legislative Scrutiny: Immigration Bill 13 make regulations about whether a family member to be removed is given notice. In view of the Government s welcome clarification that a family member who is to be removed will always be given notice, we recommend that the regulation-making power in clause 1(6)(c) be amended to reflect this intention. The following amendments would give effect to this recommendation: Page 2, line 30, leave out whether and insert where Page 2, line 30, leave out to be Page 2, line 31, leave out and, if so

16 14 Legislative Scrutiny: Immigration Bill 3 Appeal rights Background 28. Part 2 of the Bill makes provision which significantly limits rights of appeal against immigration decisions. 19 It also requires courts and tribunals to have regard to certain public interest considerations when determining whether an immigration decision is compatible with a person s right to respect for private and family life in Article 8 ECHR. 20 These provisions engage the common law right of access to a court or tribunal, and the right to an effective remedy in relation to arguable Convention violations in Article 13 ECHR (in conjunction with Articles 2, 3, 6(1) and 8 ECHR). We wrote to the Government about four aspects of these proposals in particular which in our view raise significant human rights issues. Removal of appeal rights 29. Clause 11 of the Bill drastically reduces rights of appeal against immigration decisions. Under the current law, a statutory right to appeal to the Immigration and Asylum Chamber of the First Tier Tribunal exists against any of the 14 different immigration decisions listed in s. 82 of the Nationality, Immigration and Asylum Act 2002, including refusals to vary leave to enter and remain and decisions to remove and deport. There are also currently rights of appeal against decisions to reject an asylum claim or revoke refugee status in certain circumstances The Bill radically restructures rights of appeal to the Tribunal, by limiting both the range of decisions in respect of which an appeal lies to the Tribunal and the grounds that can be raised on such an appeal. Clause 11 repeals existing rights of appeal 22 and replaces them with a right of appeal to the Tribunal against three types of decision only: (1) a refusal of an asylum or humanitarian protection claim; (2) a refusal of a human rights claim; and (3) a revocation of refugee status or humanitarian protection The Bill also specifies the grounds on which such statutory appeals can be brought. 24 In short, an appeal may only be brought on the ground that the decision in question is unlawful under s. 6 of the Human Rights Act, is in breach of the UK s obligations under the Refugee Convention, or is in breach of the UK s obligations to those eligible for a grant of humanitarian protection. 19 Clauses 11 and 12 and Schedule Clause Under ss. 83 and 83A Nationality, Immigration and Asylum Act The Bill does not repeal the current right of appeal against a decision to refuse an application based on a right under the Community Treaties (provided for by regulations under s. 109 of the 2002 Act: see SI 2006/2003).Rights of appeal in EU cases are therefore unaffected by the Bill. 23 Clause 11(2), substituting a new s. 82 in the Nationality, Immigration and Asylum Act Clause 11(4), substituting a new s. 84 in the Nationality, Immigration and Asylum Act 2002.

17 Legislative Scrutiny: Immigration Bill The effect of these provisions is that there is no longer any statutory right of appeal to the Tribunal on other public law grounds, such as that the immigration authorities have acted unlawfully because they have misinterpreted or misapplied the legislation or the Immigration Rules, or have failed to have regard to the need to safeguard and promote the welfare of children in accordance with the duty in s. 55 of the 2009 Act or the Secretary of State s guidance on that duty, or otherwise acted ultra vires. The Explanatory Notes to the Bill state that, where an application is refused and there is no right of appeal, or where a person s leave is curtailed or revoked, the applicant may be able to apply for an administrative review. 25 The Immigration Rules will set out when an applicant may seek an administrative review. We are not aware that any further information has been provided, however, about the proposed system of administrative review. 33. The Government s ECHR Memorandum argues that removing existing rights of appeal against immigration decisions does not breach the Human Rights Act or the UK s obligations under the ECHR, because the right of access to a court under Article 6(1) ECHR does not apply to immigration decisions, and clause 11 of the Bill reflects the legal obligations to provide effective remedies under the ECHR, EU law, the Refugee Convention and the law of humanitarian protection, by ensuring that a right of appeal on these grounds remains The Government is correct that the right of access to court under Article 6(1) ECHR is not relevant to our scrutiny of the human rights compatibility of these provisions, because the European Court of Human Rights has held that Article 6(1) does not apply to immigration decisions. 27 However, the common law right of access to court is more extensive than the right under Article 6 ECHR, and has been interpreted by the courts as including the right of access to an administrative tribunal. In Saleem v Secretary of State for the Home Department, Hale LJ (as she then was) said: 28 For an asylum seeker who is the subject of an adverse decision by the Secretary of State and who has failed to have that decision reversed by the Special Adjudicator, the right to have access to the Tribunal is a very important right. The nature of the proceedings before the Tribunal if leave to appeal is granted, is akin to proceedings before a court. The importance and the nature of the proceedings before the Tribunal are reflected by the provision in the Act that legal representation for the asylum seeker before the Tribunal is to be assured. In my judgment, the right created by section 20 of the Act is a basic or fundamental right, akin to the right of access to courts of law. [...] Mr Burnett QC for the Secretary of State argues that it was wrong to apply the principles in Leech and Witham to this case. They dealt with the fundamental common law right of access to a court. Before 1993 asylum seekers had no right of appeal to the immigration appellate authorities at all. It was the responsibility of the Secretary of State to ensure that this country complied with our obligations under the Geneva 25 Explanatory Notes, para ECHR Memorandum, paras See e.g. Maouia v France (2001) 33 EHRR [2001] WLR 443

18 16 Legislative Scrutiny: Immigration Bill Convention of Nor is there a `right' to asylum in the same way that there are rights and obligations determined in the ordinary courts. It has not, at least as yet, been identified as a `civil right' for the purpose of the right to a fair trial enshrined in article 6(1) of the European Convention on Human Rights. I am quite unable to accept that argument. There are now a large number of tribunals operating in a large number of specialist fields. Their subject matter is often just as important to the citizen as that determined in the ordinary courts. Their determinations are no less binding than those of the ordinary courts: the only difference is that tribunals have no direct powers of enforcement and, in the rare cases where this is needed, their decisions are enforced in the ordinary courts. In certain types of dispute between private persons, tribunals are established because of their perceived advantages in procedure and personnel. In disputes between citizen and state they are established because of the perceived need for independent adjudication of the merits and to reduce resort to judicial review. This was undoubtedly the motivation for grafting asylum cases onto the immigration appeals system in In this day and age a right of access to a tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the ordinary courts. 35. The Bill s removal of rights of appeal against immigration decisions on other public law grounds potentially represents a departure from this common law right of access to a court or tribunal to challenge unlawful administrative decisions. It also requires careful scrutiny to ascertain whether it is compatible with the right to an effective remedy under the ECHR, the Refugee Convention and the law of humanitarian protection, an obligation which the Government accepts. 36. A high proportion of appeals to the First Tier Tribunal currently succeed. On the Government s own statistics, 50% of entry clearance appeals, 49% of Managed Migration appeals and 32% of deportation appeals succeeded in In light of the obvious and well-documented concerns about the shortcomings in the quality of initial decisionmaking by the UK Border Agency, we asked the Government why the proposed removal of appeal rights is compatible with the common law right of access to a court or tribunal. 37. The Government replied that the changes made to appeal rights in Part 2 of the Bill are compatible with the common law right because access to a court or tribunal remains available to all migrants, whether by way of the appeal rights which remain even after the amendments made by the Bill, or judicial review. It says that the new administrative review process will correct case-working errors where a refusal decision does not trigger an appeal right, and there is nothing to prevent an individual from seeking judicial review following such an administrative review, or where administrative review is not available. The Government does not accept that the common law right of access to a court or tribunal is infringed by the appeal provisions in the Bill, because that common law right does not require access to a full merits-based review on appeal in all cases. The Government accepts that the access to a court or tribunal must offer an effective remedy 29 Home Office, Impact Assessment of Reforming Immigration Appeal Rights (15 July 2013).

19 Legislative Scrutiny: Immigration Bill 17 against the lawfulness of the decision complained of, but it considers that judicial review provides such an effective remedy. 38. The Government s response to our question does not consider how its reliance on the availability of judicial review as an effective remedy for those wishing to challenge the lawfulness of immigration decisions is affected by the Government s other proposals to reform both legal aid and judicial review itself. In particular, we have heard evidence in the course of our inquiry into the legal aid proposals that the proposed residence test for eligibility for legal aid will have a very significant impact on the practical availability of judicial review to challenge immigration and asylum decisions. 30 We are also currently considering the impact on effective access to judicial review of various of the Government s proposed reforms to that jurisdiction, such as the practical effect of the proposal that public funding should only be available in cases where permission is granted, subject to an exceptional discretion exercisable by the Legal Aid Agency, on which we will be reporting in due course. 39. We are concerned that the Bill s significant limitation of appeal rights against immigration and asylum decisions is not compatible with the common law right of access to a court or tribunal in relation to unlawful immigration decisions, and the right to an effective remedy, particularly in light of the following: the relatively high proportion of such appeals which currently succeed due to the well-documented shortcomings in the quality of decision-making by the UK Border Agency; the importance of appeals as a means of enforcing the children duty in s. 55 of the Borders, Citzenship and Immigration Act 2009; the lack of information about the proposed new system of administrative review; and the likely cumulative impact of proposed changes to legal aid and judicial review on the practical effectiveness of that remedy for those seeking to challenge the lawfulness of immigration decisions on grounds other than those covered by the surviving rights of appeal. In our view, when viewed in this broader context, limiting rights of appeal to the extent that they are restricted in the Bill constitutes a serious threat to the practical ability to access the legal system to challenge unlawful immigration and asylum decisions. Limits on Tribunal s power to consider new matters 40. This Part of the Bill would also prevent the First Tier Tribunal from considering new matters that have not previously been considered by the Secretary of State in the context of a human rights or protection claim, unless the Secretary of State has given the Tribunal consent to do so. 31 A new matter is defined as being a ground of appeal within the Clause 11(5), inserting new s. 85(5) and (6) into the Nationality, Immigration and Asylum Act 2002.

20 18 Legislative Scrutiny: Immigration Bill amended appeal rights provided by the 2002 Act, or any reason the appellant has for wishing to enter or remain in the UK, and a matter that the Secretary of State has not previously considered. The purpose of the provision is to prevent appellants from raising new grounds before the Tribunal before the Secretary of State has had a chance to consider them The Government s ECHR Memorandum asserts that this provision does not breach the Human Rights Act or the UK s obligations under the Refugee Convention because an effective remedy is provided where grounds are raised at the appropriate time. However, human rights law requires immigration decisions to be taken having regard to all relevant facts at the time of the decision (including any appeal), and we are concerned that making the Secretary of State, rather than an independent court or tribunal, the gatekeeper of whether a fresh matter has been raised at the appropriate time is arguably not compatible with the appellant s common law right of access to an independent court or tribunal and their right to an effective remedy. 42. In view of the frequency with which fresh matters are raised in immigration cases before an appeal is finally determined, and the importance of ensuring that immigration decisions are taken having regard to all relevant facts at the time of final decision (including on appeal), we asked the Government to explain why in the Government s view it is compatible with the right of access to court, the principle of equality of arms and the rule of law for the Secretary of State to have the final say on whether a fresh matter is considered by the Tribunal. We also asked whether there are any examples from other statutory contexts of provisions which prevent a court or tribunal from considering fresh matters unless the Secretary of State has given the court or tribunal permission to do so. 43. The Government s response agrees that there are circumstances where new evidence that supports grounds of appeal or reasons for wanting to enter or remain in the UK which have not previously been considered by the Secretary of State should be capable of being raised for the first time at the appeal, to ensure that the tribunal is able to make a decision having regard to all relevant facts and evidence before it at the time the appeal is determined. However, the Government seeks to distinguish between new evidence and new grounds or reasons for wanting to enter or remain in the UK. It says that the limitation on the matters which may be considered by the Tribunal is intended to apply only to such new grounds or reasons. The purpose of the consent provision is said to be to balance the continuation of a one-stop appeals process, whereby all appealable decisions are resolved in a single appeal, with the position of the Secretary of State as primary decision-maker. The Secretary of State should be able to consider a claim before it is determined by the Tribunal, and the Tribunal should only be able to decide matters and grounds that the Secretary of State has not previously considered where the Secretary of State consents to it doing so. 44. In the Government s view, the Secretary of State s power to provide or withhold consent therefore does not prevent access to the courts, offend against the principle of equality of arms or the rule of law it is more a matter of timing: it merely determines when the ground or reason for wishing to enter or remain in the UK is considered by the tribunal. The Government accepts that the form of the provision is unusual, but argues 32 Explanatory Notes, para. 76.