Nationality and Borders Bill

This Bill makes the law even more complex and, in several areas, less clear. This is problematic in terms of the rule of law and disadvantages those affected by it in whatever capacity, including immigration practitioners.

The House should express concern that the Government has not followed the recommendations of this Committee and of the Secondary Legislation Scrutiny Committee on the time available for consultation on the proposals which became the Bill .

While on occasion the use of placeholder clauses is understandable, the delayed introduction of so many significant clauses, the legal implications of which are in some cases far from clear, is unacceptable. This must not become a normal way of legislating.

The Government should clarify its intentions on the amount of fees to be charged under clauses 1, 2, 3 and 7.

If a person is to be deprived of citizenship without notice there ought to be additional safeguards. For example the Secretary of State should have to apply to a court to dispense with service of a notice or obtain an order of substituted service so as to give the person affected the best opportunity of responding to the notice.

The power to remove a person’s citizenship without notice is significant. It is unclear what the reach of the provision will be, how its retroactive scope might operate or how feasible it will be for affected persons to appeal a deprivation order when they have no notice of it. We have previously commented on the unacceptability of retrospective legislation and no justification has been offered in this case. The House may conclude that this clause is unacceptable and should be removed from the Bill .

Compliance with the United Kingdom’s international obligations is a constitutional issue. We endorse the Joint Committee on Human Rights’ recommendations on clause 10.

The grounds for, and the nature of, differential treatment of refugees under clause 11 should be set out clearly on the face of the Bill.

We recommend that the Government removes or at least redrafts clause 11 to ensure that the Bill does not run counter to the UK ’ s obligations under the 1951 Refugee Convention. We also recommend that immigration rules in this area should be subject to a higher level of scrutiny than what is in effect negative resolution procedure.

The House may wish to consider the effect of clause 23 on the functioning of the appeals process and consequently on access to justice.

In our view the Government’s justifications for the use of the negative procedure under clause 26 are not sufficient. It is unclear how the powers under the clause will be exercised: in particular, the respective roles played by the Tribunal Procedure Rules Committee and the Secretary of State. Given the significance of the consequences of losing an appeal the House may wish to seek clarity on this, and to and to amend the Bill to ensure that any changes are made via the affirmative resolution procedure.

From the perspective of the rule of law and the rights of individuals involved, the House may be concerned that the Bill lacks detail on how the new system in Schedule 3 will work, who might be affected and which other countries may be involved. The House may take the view that the affirmative procedure should also be used for removal of countries from the list of safe third countries, a decision which could have implications for the safety of asylum seekers.

The House may consider that the new test in clause 31(2) is unclear and unduly complex. If the House takes the view that it is also a potential risk to justice it may be minded to replace it with a single test of, for example, reasonable likelihood .

Compliance with the UK’s international obligations is a constitutional issue. We endorse the findings of the Joint Committee on Human Rights.

The explicit removal of the UN Convention on the Law of the Sea limitation creates a perception that the Secretary of State might allow enforcement powers even when the Government considers this to be a violation of international law . The House may wish to seek confirmation of the Government’s intention to respect the UK’s international obligations.

The House may be concerned that such significant measures were brought forward at such a late stage, leaving little time for scrutiny. The bill also lacks detail about how the National Age Assessment Board will be established. Had this Bill been through pre-legislative scrutiny some of these issues might have been resolved and the House may wish to consider these provisions very carefully.

We endorse the Joint Committee on Human Rights’ concerns regarding clauses 57 and 58 of the Bill. In particular we endorse their recommendation that clause 58(2) should be amended to replace the requirement that the competent authority “must” take account of the late provision of information with provision that it “may” take account of this factor.

We have repeatedly been critical of ‘guidance’ provisions and the drift towards making regulation without parliamentary scrutiny. The House may be concerned that such an important area of policy is to be left to development by way of guidance. This is a poor substitute for detailed rules or guidelines made by regulations and bearing legal authority.

We endorse the Joint Committee on Human Rights’ concerns on clause 62 and draw to the attention of the House the risk that these provisions are incompatible with international law.

The grounds for exclusion of protection under clause 62 are broad. In particular, “bad faith” is not explained and the notion of “public order” is wide. Given the potential implications of clause 62 for victims of trafficking, and hence for the rule of law, the House may seek to have these terms more clearly defined in the Bill, in order to demonstrate explicitly the Government’s intention to comply with the UK’s international obligations under the Council of Europe Convention on Action against Trafficking in Human Beings.

Clause 63(4) contains a subjective test; it is unclear how it will operate. The Secretary of State should be asked to explain how clause 63(4) will work in practice and to confirm that the Government will provide necessary assistance to potential victims as required under Article 12 of the Council of Europe Convention on Action against Trafficking in Human Beings.

The House may question why the detail of the Electronic Travel Authorisation scheme introduced under clause 71 is not set out in the Bill. If it is appropriate to make such provision in immigration rules, the House may expect it to be subject to a form of affirmative procedure, at least for the establishment of the scheme .

The process of making regulations for the Channel Islands and Isle of Man should respect the constitutional status of the Crown Dependencies and established conventions on consultation and consent. On that basis regulations under section 11D of the Immigration Act 1971 (inserted by clause 71 of the Bill) should be subject to the affirmative procedure.

The same principles on consultation and consent should apply to clause 82(5) and (6).

The House may consider that clauses 76 and 77 require further clarification as to why they are necessary.

The House may welcome the general purpose of clause 78 and urge the Government to proceed with consolidating immigration law. But this does not get to the root of the problem, which is that the law in this area needs to be simplified and made more intelligible. We urge the Government to prioritise simplification, in addition to consolidation. As part of this process the Government should consider imposing a greater degree of parliamentary scrutiny over delegated powers relating to immigration law, including the immigration rules under section 3(2) of the Immigration Act 1971.

The power to make consequential provision created by clause 80(2) is broad and the scope of its potential application is far-reaching and largely unforeseeable because many of the provisions whichhttps://members.parliament.uk/member/2758/contact it supplements are themselves opaque. The power in clause 80(2) should not be exercisable by way of a subjective “appropriateness” test, but rather by an objective test such as necessity . In an area of law, notable for its obscurity, an “appropriateness” test sets the bar far too low. The test should apply regardless of whether the instrument in question is subject to negative or affirmative procedure.

It is not clear that consequential amendments to devolved legislation made under clause 80 would not be in areas of devolved competence. The Sewel convention does not apply to delegated legislation but it would be constitutionally questionable for Parliament to circumvent that convention by legislating in a way that foresees or intends delegated legislation to change devolved legislation in areas of devolved competence. The perception may arise, whether justified or not, that regulation-making powers under clause 80 may be used to avoid the Sewel convention.

Respect for the principle which underlies the legislative consent process for primary legislation should be applied to the exercise of the power in clause 80(2) in relation to enactments contained in, or instruments made under, legislation passed by the devolved legislatures. This clause should be amended to the effect that the power to amend those provisions may not be exercised without the consent of those legislatures.