Recommendations & Conclusions
118 items
68
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
recommendation The Government should ensure that clause 18 is sufficiently clear and circumscribed, reflects the legitimate aim it is intended to achieve, and is proportionate to that aim. In particular, a mental element should be introduced to ensure that only conduct which is intentional or reckless is criminalised. (See Amendment …
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recommendation The Government should ensure that clause 18 is sufficiently clear and circumscribed, reflects the legitimate aim it is intended to achieve, and is proportionate to that aim. In particular, a mental element should be introduced to ensure that only conduct which is intentional or reckless is criminalised. (See Amendment 12, Annex) 29 3 Powers of search, seizure and retention in relation to electronic devices Clauses 19–26: Powers of search etc in relation to electronic devices
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Government response AI summary
The government rejected the recommendation to introduce a mental element of intention or recklessness into Clause 18, stating that the offence focuses on objective conduct and that sufficient safeguards such as prosecutorial public interest consideration and the defence of duress exist.
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Ministry of Justice
69
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
Clauses 19–26 introduce new search, seizure and retention powers in relation to electronic devices. The Government’s objective is to allow for the recovery of information from migrants arriving irregularly that may relate to the offence of assisting unlawful migration or helping asylum seekers to enter the UK. Scope of the …
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Clauses 19–26 introduce new search, seizure and retention powers in relation to electronic devices. The Government’s objective is to allow for the recovery of information from migrants arriving irregularly that may relate to the offence of assisting unlawful migration or helping asylum seekers to enter the UK. Scope of the new powers
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Government response AI summary
The government clarifies that the new search and seizure powers (clauses 19-26) will not be applied indiscriminately but with reasonable suspicion and safeguards, arguing that no amendment to the Bill is needed given these existing measures.
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Ministry of Justice
70
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
The new powers are exercisable when an immigration officer or a police constable who has received authorisation from a superintendent (“authorised officer”) has reasonable grounds to suspect that a relevant person is in possession of a relevant article that relates (or may relate) to the commission of an offence under …
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The new powers are exercisable when an immigration officer or a police constable who has received authorisation from a superintendent (“authorised officer”) has reasonable grounds to suspect that a relevant person is in possession of a relevant article that relates (or may relate) to the commission of an offence under section 25 or 25A Immigration Act 1971 (i.e. the offences of assisting unlawful immigration or helping asylum seekers to enter the UK.). A “relevant person” is defined as a person who has entered or arrived in the UK and has not been given leave to enter or remain, i.e. those arriving irregularly.105 A “relevant article” is defined as “any thing” on which electronic information relating to the commission of an immigration offence may be stored (i.e. mobile phones, computers).106 105 Clause 19(2) 106 Clause 19(4) 30
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Government response AI summary
The government clarifies that the new search and seizure powers will not be applied indiscriminately but only with reasonable grounds for suspicion, ensuring proportionate use. They highlight existing safeguards like requiring seniority approval, adherence to the Criminal Justice and Police Act 2001, and data protection …
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Ministry of Justice
71
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
Searches of a person may involve the search of the person’s mouth and may require the removal of outer clothing.107 Reasonable force may be used.108 The Bill also allows officers to retain data for as long as they deem “necessary”,109 with a duty of onward disclosure to other agencies in …
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Searches of a person may involve the search of the person’s mouth and may require the removal of outer clothing.107 Reasonable force may be used.108 The Bill also allows officers to retain data for as long as they deem “necessary”,109 with a duty of onward disclosure to other agencies in certain circumstances.110
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Government response AI summary
The government clarifies that the powers of search and seizure will not be applied indiscriminately, but on a case-by-case basis with "reasonable suspicion" and existing safeguards. It states that non-statutory guidance will be issued to officers and that amending the Bill is not considered necessary.
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Ministry of Justice
72
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
The new powers appear to be a response to a decision of the High Court in 2022, which held that the Home Secretary had acted unlawfully by having an unpublished blanket policy to search for, and seize, mobile phones from migrants arriving in small boats from France. The court held, …
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The new powers appear to be a response to a decision of the High Court in 2022, which held that the Home Secretary had acted unlawfully by having an unpublished blanket policy to search for, and seize, mobile phones from migrants arriving in small boats from France. The court held, in particular, that existing powers only allowed searches for, and seizure of, mobile phones in specific circumstances. It followed that the general seizure of phones breached Article 8, because it was not ‘in accordance with the law’.111 Compatibility with Convention rights
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Government response AI summary
The government clarifies that the new search and seizure powers will not be applied indiscriminately or as blanket policies, contrasting with the High Court's ruling, and asserts that existing safeguards mean no amendments to the Bill are necessary.
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Ministry of Justice
73
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
The new powers would interfere with rights under Article 8 and Article 1 of Protocol 1, which are incorporated into domestic law by the Human Rights Act, because they would allow access to private information (stored electronically) and would interfere with the enjoyment of property (seizure and retention of electronic …
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The new powers would interfere with rights under Article 8 and Article 1 of Protocol 1, which are incorporated into domestic law by the Human Rights Act, because they would allow access to private information (stored electronically) and would interfere with the enjoyment of property (seizure and retention of electronic devices). The nature of the data liable to search, seizure and retention is likely to be personal and could contain sensitive information revealing political opinions or religious beliefs, or privileged information.
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Government response AI summary
The government asserts the new powers of search and seizure will not be applied indiscriminately, but only with reasonable suspicion and subject to existing safeguards. They argue these measures strike the right balance between operational necessity and individual rights, therefore deeming it unnecessary to amend …
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Ministry of Justice
74
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
The European Court has held that legislation applying to search and seizure must afford adequate and effective safeguards against abuse and arbitrariness.112 Further, section 37 of the Data Protection Act 2018 requires that personal data processed for law enforcement purposes is adequate, relevant and not excessive.
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The European Court has held that legislation applying to search and seizure must afford adequate and effective safeguards against abuse and arbitrariness.112 Further, section 37 of the Data Protection Act 2018 requires that personal data processed for law enforcement purposes is adequate, relevant and not excessive.
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Government response AI summary
The government explains that the powers of search and seizure are subject to specific safeguards including reasonable suspicion, case-by-case application, and compliance with data protection legislation and the Criminal Justice and Police Act 2001. They state these existing safeguards are sufficient and no amendment to …
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Ministry of Justice
75
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
There are various safeguards within the clause that help to protect against arbitrary and excessive interferences. There is a requirement of reasonable suspicion that, although low, does place a limit on when the powers can be exercised. The powers are only to be used once per entry, when an irregular …
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There are various safeguards within the clause that help to protect against arbitrary and excessive interferences. There is a requirement of reasonable suspicion that, although low, does place a limit on when the powers can be exercised. The powers are only to be used once per entry, when an irregular migrant is encountered,113 such that the checks cannot be excessive in number. Searches of a person cannot require the removal of anything other 107 Clause 20(3) 108 Clause 20(9) 109 Clause 21(6) 110 Clause 22 111 R (HM) v Secretary of State for the Home Department [2022] EWHC 695 (Admin) 112 Naumenko v Latvia, Application No. 50805/14, 23 June 2022, para 50; Gillan and Quinton v UK, Application No. 4158/05, 12 January 2010; Beghal v UK, Application No. 4755/16, 28 February 2019; R (Roberts) v Metropolitan Police Commissioner [2015] UKSC 79 113 Clause 20(2) 31 than outer clothing. Any item seized will have to be returned when it is no longer necessary for an authorised officer or the Secretary of State to retain it, subject to the duty to pass on items seized. These are likely to amount to adequate safeguards against arbitrary interference.
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Government response AI summary
The government confirms that search and seizure powers are subject to existing safeguards, including reasonable suspicion and case-by-case application, and that forthcoming non-statutory guidance will further ensure their proportionate use.
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Ministry of Justice
76
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
Whilst the powers of search and seizure in these clauses are likely to be ‘in accordance with the law’ and in pursuit of the legitimate aim of crime prevention, there are questions as to necessity and proportionality. Liberty argues that “given the vast amount of data on mobile phones, it …
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Whilst the powers of search and seizure in these clauses are likely to be ‘in accordance with the law’ and in pursuit of the legitimate aim of crime prevention, there are questions as to necessity and proportionality. Liberty argues that “given the vast amount of data on mobile phones, it is highly unlikely that all data extracted would be necessary and as such it would be unlawful to extract data unless these clauses are more narrowly constituted … such that it is not operated as a blanket policy”.114 If it is reasonable to suspect that the vast majority of those arriving in the UK by small boat have been smuggled or trafficked (and are therefore in possession of information relevant to ‘facilitation offences’115), these powers risk being applied as a blanket policy to all persons arriving by small boat irrespective of whether they have engaged in organised immigration crime. This could lead, in practice, to indiscriminate searches and seizures.
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Government response AI summary
The government asserts that search and seizure powers will not be applied indiscriminately or as a blanket policy, but only with reasonable suspicion based on specific indicators. They state that existing safeguards and forthcoming non-statutory guidance make amending the Bill unnecessary.
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Ministry of Justice
77
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
Open Rights Group notes: “[o]ur concern is that these clauses risk invasive digital searches. The broad definition of “relevant articles” and the broad authority to search persons for electronic devices, especially the power to access, copy, and use data stored on those devices, raise serious privacy concerns. For migrants, refugees, …
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Open Rights Group notes: “[o]ur concern is that these clauses risk invasive digital searches. The broad definition of “relevant articles” and the broad authority to search persons for electronic devices, especially the power to access, copy, and use data stored on those devices, raise serious privacy concerns. For migrants, refugees, and asylum seekers (who may already be in vulnerable positions), these provisions could lead to disproportionate invasions of digital autonomy. While the Bill states that searches must be “reasonable”, the broad scope of digital data that can be accessed (often without judicial oversight at the point of search) means that sensitive personal information may be collected and retained without adequate safeguards.”116
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Government response AI summary
The government asserts that clauses 19-26 on search and seizure will not be applied indiscriminately, citing existing safeguards and the requirement for "reasonable suspicion" to ensure proportionality. It states that, given these measures and forthcoming non-statutory guidance, amending the Bill is not considered necessary.
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Ministry of Justice
78
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
Migrant Rights Network also notes the risk of disproportionality: “[m] obile phone seizures have also had limited success in other countries where the practice is commonplace, like Germany: 73% of data extracted from asylum seekers’ phones is unusable. As a result, mass device seizure as an immigration policy to target …
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Migrant Rights Network also notes the risk of disproportionality: “[m] obile phone seizures have also had limited success in other countries where the practice is commonplace, like Germany: 73% of data extracted from asylum seekers’ phones is unusable. As a result, mass device seizure as an immigration policy to target people seeking asylum is entirely disproportionate in relation to the capabilities of the technology, too, beyond the intense invasion of privacy and data rights.”117 114 Liberty, BSAI0003, para 21 115 Section 25 Immigration Act 1971 which makes it a criminal offence to facilitate the entry into, or the continued stay in, the UK of an individual who is not lawfully entitled to enter or remain. Section 25A Immigration Act 1971 which makes it a criminal offence to help asylum seekers enter the UK. 116 Open Rights Group, BSAI0011, p7 117 Migrant Rights Network, BSAI0014, p7 32
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Government response AI summary
The government clarified that powers of search and seizure for electronic devices will not be indiscriminate, requiring reasonable suspicion and applied on a case-by-case basis with safeguards including senior approval and data protection. It stated that given these existing and forthcoming measures, it is not …
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Ministry of Justice
79
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
Jesuit Refugee Services have supported numerous individuals whose phones were seized. They told us that: “[r]emoval of the phones meant people were unable to contact friends and family. Many young people arrive in the UK alone after a traumatising journey, and losing their connection to family and friends was a …
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Jesuit Refugee Services have supported numerous individuals whose phones were seized. They told us that: “[r]emoval of the phones meant people were unable to contact friends and family. Many young people arrive in the UK alone after a traumatising journey, and losing their connection to family and friends was a cause of significant distress. At the time, Social Services expressed concern about children in their care who could not contact family and friends after their phones had been seized on arrival in the UK. People lost the contact details of friends and family, in many cases permanently. The seizure of mobile phones made it much more difficult for people to contact and engage with essential services and to navigate their asylum claim. It thereby contributed to the poor working of the asylum process.”118
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Government response AI summary
The government explains that search and seizure powers are not indiscriminately applied but are subject to reasonable grounds and a series of safeguards, ensuring a balance between operational necessity and individual rights, and thus no Bill amendment is necessary.
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Ministry of Justice
80
Conclusion
4th Report - Legislative Scrutiny: Bord…
Not Addressed
Whilst the Home Office may issue guidance about the use of the powers and training that will be required for authorised officers exercising those powers, any such guidance is not available for Parliamentary scrutiny during the passage of this Bill.
Government response AI summary
The government reiterates the safeguards in place for search and seizure powers and mentions forthcoming non-statutory guidance, but it does not address the committee's specific concern about this guidance not being available for Parliamentary scrutiny during the Bill's passage.
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Ministry of Justice
81
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
conclusion We are concerned that there is a risk that the new powers of search, seizure and retention, in practice, may lead to a blanket policy to search, and possibly seize and retain, items such as mobile phones from asylum seekers, victims of trafficking and children. recommendation We recommend that …
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conclusion We are concerned that there is a risk that the new powers of search, seizure and retention, in practice, may lead to a blanket policy to search, and possibly seize and retain, items such as mobile phones from asylum seekers, victims of trafficking and children. recommendation We recommend that the Government clarifies on the face of the Bill how these invasive powers will be used, in order to guard against the risk of indiscriminate searches. In circumstances where electronic devices are confiscated, the authorities must facilitate the contact of individuals with their close family members. We recommend this is clearly set out in guidance. Clauses 34–35: Provision of biometric information by evacuees etc
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Government response AI summary
The government rejects the need to amend the Bill to clarify how search and seizure powers will be used, stating they will not be applied indiscriminately and existing safeguards ensure proportionality. However, the response does not address the recommendation to facilitate contact with family members …
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Ministry of Justice
82
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
Under clause 34, an authorised person119 may take biometric information from a person (including children) if the Government is in the process of facilitating their exit from a third country and they would need leave to enter the UK. This would cover, for example, crisis situations requiring evacuation. Biometric data …
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Under clause 34, an authorised person119 may take biometric information from a person (including children) if the Government is in the process of facilitating their exit from a third country and they would need leave to enter the UK. This would cover, for example, crisis situations requiring evacuation. Biometric data would include data such as fingerprints and facial scans.120 For children under 16, the presence of a responsible adult is 118 Jesuit Refugee Services, BSAI0025, para 22 119 Meaning a person authorised by the Secretary of State, clause 34(6) 120 Defined in section 15(1a) UK Borders Act 2007 33 required. In contrast to the current law, it will enable biometric information to be captured without individuals needing to make a UK immigration application.121
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Government response AI summary
The government clarifies that the Bill does not disapply data protection safeguards, as processing must still comply with UK GDPR principles and existing legislation for biometric data collection, including for children. It asserts that due diligence will be paid when sharing personal data.
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Ministry of Justice
83
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Clause 35 provides that the information must then be passed to the Secretary of State, who can keep and use it for purposes relating to immigration, nationality, law enforcement or national security. The information cannot be kept for longer than necessary, and in any event no longer than 5 years, …
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Clause 35 provides that the information must then be passed to the Secretary of State, who can keep and use it for purposes relating to immigration, nationality, law enforcement or national security. The information cannot be kept for longer than necessary, and in any event no longer than 5 years, unless it can be held under another power. Compatibility with Convention rights
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Government response AI summary
The government acknowledges the committee's description of Clause 35, asserting that it does not disapply data protection safeguards and that processing will comply with UK GDPR principles, with due diligence paid to safeguarding personal data.
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Ministry of Justice
84
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
For collection and retention of biometric information to comply with Article 8 ECHR, the way the information will be used must be reasonably foreseeable, and the collection and retention must pursue a legitimate aim in a proportionate manner. There must be appropriate safeguards to prevent misuse of the information, especially …
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For collection and retention of biometric information to comply with Article 8 ECHR, the way the information will be used must be reasonably foreseeable, and the collection and retention must pursue a legitimate aim in a proportionate manner. There must be appropriate safeguards to prevent misuse of the information, especially if it will undergo automatic processing.122 Blanket and indiscriminate retention will not generally be compatible with Article 8.123
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Government response AI summary
The government explains that Clause 35 operates within the UK GDPR framework, ensuring data processing is necessary for public interest and complies with principles for safeguarding personal and special category data. They confirm due diligence in data sharing and alignment with wider biometrics policy, including …
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Ministry of Justice
85
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
The ECHR memorandum124 explains that the purpose of the power is to allow individuals’ identity to be checked without needing them to make an immigration application, so the UK authorities can identify people of concern and make sure resources are concentrated on those who are genuine. This aim is legitimate. …
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The ECHR memorandum124 explains that the purpose of the power is to allow individuals’ identity to be checked without needing them to make an immigration application, so the UK authorities can identify people of concern and make sure resources are concentrated on those who are genuine. This aim is legitimate. Clause 35 includes a range of safeguards to ensure that information is only used for specific purposes and is retained no longer than necessary.
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Government response AI summary
The government states that Clause 35 does not disapply data protection safeguards and that processing is necessary for public interest reasons, complying with UK GDPR principles. They affirm that due diligence will be paid when sharing personal data and that the Bill aligns with existing …
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Ministry of Justice
86
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
However, clause 35(7) provides that if the information is used to identify a person for the purposes of facilitating their departure from another state or territory, and the information is transferred to a third country or international organisation for that purpose, the transfer will automatically meet the requirement in the …
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However, clause 35(7) provides that if the information is used to identify a person for the purposes of facilitating their departure from another state or territory, and the information is transferred to a third country or international organisation for that purpose, the transfer will automatically meet the requirement in the UK GDPR that it is “necessary for important reasons of public interest”.125 This means that the Secretary of State would 121 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025), para 108 122 S and Marper v UK [GC], Application Nos. 30562/04 and 30566/04, 4 December 2008, paras 95–104 123 S and Marper, para 125; Gaughran v UK, Application No. 45245/15, 13 February 2020, paras 87–98 124 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025), para.113 125 Article 49 of the UK GDPR provides that where there are no adequacy regulations or other appropriate safeguards in relation to a third country, personal data may be transferred there only if one of 7 specified conditions is met. One of those conditions, in paragraph (d), is that the transfer is necessary for important reasons of public interest. Article 49(4) provides that the public interest must be recognised in domestic law. 34 not need to consider, and a court would not be able to consider, whether a particular transfer of personal data to a third country or international organisation complied with that requirement - it would simply be deemed to have been met. The data protection regime is one of the mechanisms by which compliance with Article 8 ECHR is assured. The European Court has said that Article 8 requires there to be some consideration of the necessity and proportionality of sharing particular information with a third country.126
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Government response AI summary
The government noted the concern that clause 35(7) may disapply data protection safeguards, clarifying that the Bill engages a derogation for public interest transfers and that processing will still comply with UK GDPR principles (Articles 5, 6, 9) with due diligence paid to safeguarding data.
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Ministry of Justice
87
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
With regard to children, Open Rights Group notes that collecting biometric data from children over 16 without consent could violate child protection standards: “According to the guidance of the Information Commissioner’s Office (ICO) on processing sensitive personal data under the UK GDPR, biometric data is categorised as special category data …
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With regard to children, Open Rights Group notes that collecting biometric data from children over 16 without consent could violate child protection standards: “According to the guidance of the Information Commissioner’s Office (ICO) on processing sensitive personal data under the UK GDPR, biometric data is categorised as special category data and requires explicit consent. The guidance stresses that when dealing with minors’ data, additional safeguards must be implemented to protect their rights. Therefore, collecting biometric data from children over 16 without proper consent could breach child protection standards, as it fails to meet the stringent consent requirements and the enhanced safeguards necessary for processing such sensitive information.”
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Government response AI summary
The government noted the concern regarding biometric data collection from children over 16 without consent, stating that the Bill aligns with wider biometrics policy which requires a responsible adult for those under 16, implying no new action is needed for those over 16.
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Ministry of Justice
88
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
ILPA notes that EU law specifically prohibits the transfer of personal data to a third country or international organisation for law enforcement purposes, “if there is a real risk that, as a result of such a transfer, the data subject might be subjected to torture, inhuman and degrading treatment or …
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ILPA notes that EU law specifically prohibits the transfer of personal data to a third country or international organisation for law enforcement purposes, “if there is a real risk that, as a result of such a transfer, the data subject might be subjected to torture, inhuman and degrading treatment or punishment or any other violation of his or her fundamental rights.’”127
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Government response AI summary
The government acknowledged the concern about data transfer, explaining that Clause 35 engages derogations for public interest but still complies with UK GDPR principles and requires due diligence in safeguarding personal data, especially sensitive information.
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Ministry of Justice
89
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
conclusion We are concerned that clause 35(7) and (8), deeming transfer of personal data to third countries and international organisations to be necessary for important reasons of public interest, inappropriately disapplies the normal safeguards in data protection legislation when data is transferred to third countries. recommendation Whilst recognising the need …
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conclusion We are concerned that clause 35(7) and (8), deeming transfer of personal data to third countries and international organisations to be necessary for important reasons of public interest, inappropriately disapplies the normal safeguards in data protection legislation when data is transferred to third countries. recommendation Whilst recognising the need for the Home Office to act with expedition in these circumstances, and the potential national security concerns, we recommend the removal of clause 35(7) and (8) to ensure that the normal safeguards apply. (See Amendment 13, Annex) 126 Centrum för Rättvisa v Sweden [GC], Application No. 35252/08, paras 326–330. 127 Article 49 of Regulation (EU) 2024/1358 , ILPA, House of Lords Second Reading Briefing, para 86 35 4 Asylum and Immigration Repeal of immigration legislation Clause 37: Repeal of the Safety of Rwanda (Asylum and Immigration) Act 2024
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Government response AI summary
The government rejected the recommendation to remove clause 35(7) and (8), stating that the Bill does not disapply data protection safeguards but rather engages a derogation for international transfers, which will still comply with general and special category data principles under UK GDPR.
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Ministry of Justice
90
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
The Safety of Rwanda (Asylum and Immigration) Act 2024 (“SORA”) was passed after the Supreme Court held that the Government’s policy of removing asylum seekers to Rwanda, under the Migration and Economic Development Partnership (MEDP), was unlawful.128 SORA was enacted to ensure that removals to Rwanda could go ahead without …
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The Safety of Rwanda (Asylum and Immigration) Act 2024 (“SORA”) was passed after the Supreme Court held that the Government’s policy of removing asylum seekers to Rwanda, under the Migration and Economic Development Partnership (MEDP), was unlawful.128 SORA was enacted to ensure that removals to Rwanda could go ahead without legal obstacles.
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Government response AI summary
The government welcomes the committee's implied support and states it will repeal the Safety of Rwanda (Asylum and Immigration) Act 2024 in its entirety, as it has served no practical purpose.
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Ministry of Justice
91
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
The central provisions of SORA: confirm that the Republic of Rwanda is a safe third country for the purposes of removal; require any court or tribunal to conclusively treat Rwanda as a safe for the purposes of asylum and removal; and state explicitly that it is only for a Minister …
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The central provisions of SORA: confirm that the Republic of Rwanda is a safe third country for the purposes of removal; require any court or tribunal to conclusively treat Rwanda as a safe for the purposes of asylum and removal; and state explicitly that it is only for a Minister of the Crown to decide whether the UK will comply with an interim measure promulgated by the European Court of Human Rights.
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Government response AI summary
The government confirmed it will repeal the Safety of Rwanda (Asylum and Immigration) Act 2024 (SoRA 2024) in its entirety, having always been clear it would not proceed with the Migration and Economic Development Partnership with Rwanda.
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Ministry of Justice
92
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
The Safety of Rwanda Bill sought to establish through legislative means that Rwanda was a safe country despite the Supreme Court’s conclusion that it was not.129 A statement under section 19(1)(b) of the HRA was made when the Bill was introduced.130 The predecessor JCHR published a critical report on the …
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The Safety of Rwanda Bill sought to establish through legislative means that Rwanda was a safe country despite the Supreme Court’s conclusion that it was not.129 A statement under section 19(1)(b) of the HRA was made when the Bill was introduced.130 The predecessor JCHR published a critical report on the Safety of Rwanda Bill, concluding, inter alia, that it was incompatible with Article 13 ECHR (the right to an effective remedy), was inconsistent with respect for universal human rights and for the UK’s obligations under the ECHR (including compliance with interim measures), and risked damaging the UK’s reputation for respect for human rights and the rule of law.131 128 R (AAA and others) v Secretary of State for the Home Department [2023] UKSC 42 129 It should be noted that the Bill operated on the basis that the new, legally binding treaty with Rwanda met the concerns of the Supreme Court and thus legislating that the country was safe did not contradict the Supreme Court’s findings. 130 A statement under section 19(1)(b) HRA confirms that the Minister responsible for a Bill is unable to say that, in their opinion, the Bill is compatible with the rights guaranteed by the ECHR 131 JCHR, Legislative Scrutiny: Safety of Rwanda (Asylum and Immigration) Bill, Second Report of Session 2023–24 36
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Government response AI summary
The government welcomes the committee's implied support and states it will repeal the Safety of Rwanda (Asylum and Immigration) Act 2024 in its entirety, as it has served no practical purpose.
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Ministry of Justice
93
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
conclusion Clause 37 of the Bill would repeal SORA in its entirety. This is consistent with the current Government’s manifesto commitment to abandon the Rwanda policy. Repeal of SORA will remove the significant incompatibilities identified in the predecessor JCHR’s report. Clause 38: Repeal of certain provisions of the Illegal Migration …
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conclusion Clause 37 of the Bill would repeal SORA in its entirety. This is consistent with the current Government’s manifesto commitment to abandon the Rwanda policy. Repeal of SORA will remove the significant incompatibilities identified in the predecessor JCHR’s report. Clause 38: Repeal of certain provisions of the Illegal Migration Act 2023
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Government response AI summary
The government welcomes the Committee's support for the repeal of the Safety of Rwanda (Asylum and Immigration) Act 2024, confirming its commitment to repeal the Act as it served no practical purpose and was inconsistent with previous government policy.
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Ministry of Justice
94
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The Illegal Migration Act 2023 (IMA) introduced significant changes to the UK’s asylum system. In summary, it imposed a duty on the Secretary of State to make arrangements to remove any person who enters the UK irregularly and has not come directly from a territory where their life and liberty …
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The Illegal Migration Act 2023 (IMA) introduced significant changes to the UK’s asylum system. In summary, it imposed a duty on the Secretary of State to make arrangements to remove any person who enters the UK irregularly and has not come directly from a territory where their life and liberty was threatened (which includes anyone who has stopped in or passed through a safe country). The asylum claim of any such individual would be declared inadmissible. In the absence of lawful routes to enter the UK in order to make an asylum claim, and given the requirement that an individual be within the UK in order to make such a claim, the IMA effectively prohibited the substantial majority of asylum seekers from having their claim for asylum considered in the UK. The intention behind the Bill was for those claims to be considered instead in a third country, with only Rwanda being identified as a country that would fulfil this function. The fall of the Rwanda policy thus removed any realistic possibility of the IMA’s approach to asylum being practicable. The JCHR published a critical report on the Illegal Migration Bill, concluding that it “breaches a number of the UK’s international human rights obligations and risks breaching others.”132 The significant majority of the IMA has not yet been brought into force.
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Government response AI summary
The government states its commitment to ensuring an effective immigration and asylum system and has retained certain measures of the Illegal Migration Act 2023 that were assessed as beneficial.
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Ministry of Justice
95
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Clause 38 of the Bill repeals most of the provisions of the IMA. However, a number of provisions will not be repealed: a. Section 12, expanding powers of immigration detention (in force) b. Section 29, strengthening the disqualification from modern slavery protections for migrants who have committed criminal offences or …
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Clause 38 of the Bill repeals most of the provisions of the IMA. However, a number of provisions will not be repealed: a. Section 12, expanding powers of immigration detention (in force) b. Section 29, strengthening the disqualification from modern slavery protections for migrants who have committed criminal offences or are otherwise considered a threat to public order (not in force) c. Section 52, making First-tier Tribunal judges technically also Upper Tribunal judges (in force) d. Section 59, expanding the rules on when an asylum or human rights claim to remain in the UK will not be processed because the person is from a safe country (partially in force) 132 JCHR, Legislative Scrutiny: Illegal Migration Bill 12th Report of 2022–2023, para 160 37 e. Section 60, requiring the Home Secretary to make regulations capping the number of people who can enter the UK using “safe and legal routes”, such as refugee resettlement programmes f. Section 62, expanding the circumstances in which the credibility of an asylum seeker’s story should be treated as damaged (in force).
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Government response AI summary
The government states its commitment to ensuring an effective immigration and asylum system and has retained certain measures of the Illegal Migration Act 2023 that were assessed as beneficial.
Read full response →
Ministry of Justice
96
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The Explanatory Notes to the Bill notes that these provisions are not subject to repeal due to their “operational benefit”.133
Government response AI summary
The government states its commitment to ensuring an effective immigration and asylum system and has retained certain measures of the Illegal Migration Act 2023 that were assessed as beneficial.
Read full response →
Ministry of Justice
97
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
The JCHR’s predecessor committee raised concerns in relation to some of the above-mentioned provisions. We remain concerned by section 12, section 29, section 59 and section 62 IMA. Section 12 IMA: immigration detention
Government response AI summary
The government rejected the committee's concerns about sections 12, 29, 59, and 62 of the Illegal Migration Act, asserting their operational benefit and ECHR compliance. It outlined how each section includes safeguards or is consistent with international obligations.
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Ministry of Justice
98
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
The Government currently has the power to detain individuals for an indefinite period of time pending their deportation and removal from the UK. With the exceptions of children and pregnant women,134 there are no statutory time limits on immigration detention.
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The Government currently has the power to detain individuals for an indefinite period of time pending their deportation and removal from the UK. With the exceptions of children and pregnant women,134 there are no statutory time limits on immigration detention.
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Government response AI summary
The government explains that Section 12 of the Illegal Migration Act 2023 provides a clear legislative framework for detention decisions, asserting that judicial oversight remains and the Home Secretary's discretion is ECHR compliant. It defends the existing policy of not having statutory time limits for …
Read full response →
Ministry of Justice
99
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
Section 12 IMA modified the common law position to provide that it is for the Secretary of State, and not the courts, to determine what constitutes a reasonable period of detention. The previous Committee concluded that this change would result in an immigration detention system that was not consistent with …
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Section 12 IMA modified the common law position to provide that it is for the Secretary of State, and not the courts, to determine what constitutes a reasonable period of detention. The previous Committee concluded that this change would result in an immigration detention system that was not consistent with Article 5 ECHR.135
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Government response AI summary
The government asserts that Section 12 of the Illegal Migration Act 2023, which places responsibility on the Home Secretary to determine reasonable detention periods, is compliant with Article 5 ECHR. It states that judicial oversight and recourse to courts for unlawful detention claims are still …
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Ministry of Justice
100
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
Professor Sarah Singer told us: “[t]his is an example of the expansive power that is being given to the Home Secretary and the reduction of judicial scrutiny. If the judiciary is not able to scrutinise a detention decision for reasonableness under the common law, or proportionality as required by Article …
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Professor Sarah Singer told us: “[t]his is an example of the expansive power that is being given to the Home Secretary and the reduction of judicial scrutiny. If the judiciary is not able to scrutinise a detention decision for reasonableness under the common law, or proportionality as required by Article 5 of the European Convention on Human Rights, it brings into question compatibility with our obligations there.”136
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Government response AI summary
The government asserts that Section 12 of the Illegal Migration Act 2023 provides a clear legislative framework and that, while the Home Secretary determines the reasonableness of detention, judicial oversight and legal challenge remain possible, making it compliant with Article 5 ECHR.
Read full response →
Ministry of Justice
101
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
Academics Dr Sabina Garahan and Dr Matthew Gillet argue, “by allowing detention for such period as ‘in the opinion of the Secretary of State’ is reasonably necessary, section 12(1)(b) conflicts with fundamental standards 133 Explanatory notes, para.44 134 There is a time limit of 24 hours for detaining unaccompanied children …
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Academics Dr Sabina Garahan and Dr Matthew Gillet argue, “by allowing detention for such period as ‘in the opinion of the Secretary of State’ is reasonably necessary, section 12(1)(b) conflicts with fundamental standards 133 Explanatory notes, para.44 134 There is a time limit of 24 hours for detaining unaccompanied children in a short- term holding facility (Immigration Act 1971, Schedule 2, paragraph 18B inserted by the Immigration Act 2014). There is a 72-hour time-limit or not more than seven days where a longer period of detention of a is authorised personally by a Minister of the Crown, of pregnant women (Immigration Act 2016, s 60) and of accompanied children and their families in pre-departure accommodation (Immigration Act 2014, s 6). 135 JCHR, Legislative Scrutiny: Illegal Migration Bill 12th Report of 2022–2023, paras 194–202 136 Professor Sarah Singer, Q6 38 of legal certainty, since the “opinion of the Secretary of State” is neither foreseeable nor open to legal challenge.” It would, of course, be open to challenge on public law grounds, such as irrationality.
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Government response AI summary
The government clarifies that Section 12 of the IMA is in force and provides a clear legislative framework for detention decisions, asserting that while the Home Secretary determines reasonable detention periods, judicial oversight is maintained and the discretion is compliant with Article 5 ECHR.
Read full response →
Ministry of Justice
102
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
Others argue that it may be having little to no effect in practice. Medical Justice and Bail for Immigration Detainees submit that, in the context of applications before the High Court for release of detainees, “the Home Secretary often does not rely on section 12 and that when she does …
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Others argue that it may be having little to no effect in practice. Medical Justice and Bail for Immigration Detainees submit that, in the context of applications before the High Court for release of detainees, “the Home Secretary often does not rely on section 12 and that when she does raise it her representatives often appear reluctant to place much weight on it.”137 Nevertheless, in their joint written submission, Medical Justice and Bail for Immigration Detainees argued that section 12 should be repealed because “even if the Home Office does not currently rely on it, it is causing significant uncertainty about the law.”138
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Government response AI summary
The government defends Section 12 of the Illegal Migration Act 2023, stating it provides a clear and compliant legislative framework for detention decisions and is appropriately a matter for the Home Secretary, implicitly rejecting the argument that it should be repealed due to causing legal …
Read full response →
Ministry of Justice
103
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
recommendation Section 12 of the Illegal Migration Act modifies the common law position, making it for the Secretary of State, and not the courts, to determine what is a reasonable period of detention. We agree with our predecessor Committee and recommend the repeal of section 12 to restore certainty and …
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recommendation Section 12 of the Illegal Migration Act modifies the common law position, making it for the Secretary of State, and not the courts, to determine what is a reasonable period of detention. We agree with our predecessor Committee and recommend the repeal of section 12 to restore certainty and ensure compliance with Article 5. (See Amendment 14, Annex). Section 29 IMA: disapplication of modern slavery provisions
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Government response AI summary
The government rejects the recommendation to repeal Section 12 of the IMA 2023, stating it is already in force, provides a clear legislative framework, is compliant with Article 5 ECHR, and allows the Home Secretary to best determine reasonable detention periods.
Read full response →
Ministry of Justice
104
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Section 29 of the IMA is not yet in force. Upon commencement, it would amend section 63 of the Nationality and Borders Act 2022, which sets out disqualifications to providing a recovery period139 to a potential victim of modern slavery based on grounds that the person is a threat to …
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Section 29 of the IMA is not yet in force. Upon commencement, it would amend section 63 of the Nationality and Borders Act 2022, which sets out disqualifications to providing a recovery period139 to a potential victim of modern slavery based on grounds that the person is a threat to public order or has claimed to be a victim in bad faith. Section 63(3) NBA sets out categories of person who are considered to be a threat to public order. Section 29 of the IMA adds two further categories to that list, namely: a. persons liable to deportation from the UK under section 3(5) or (6) of the 1971 Act on grounds of it being conducive to the public good or as a result of deportation of a family member or a recommendation following conviction; 137 Medical Justice and Bail for Immigration Detainees, BSAI0033, para10 138 Medical Justice and Bail for Immigration Detainees, BSAI0033, para 3 139 Following a positive Reasonable Grounds decision, adult victims will be provided with a Recovery Period of at least 30 calendar days. This period begins on the day the Reasonable Grounds decision is made. During this period, support and assistance will also be provided on a consensual basis and potential victims will not be removed from the UK. 39 b. persons liable to deportation under any other enactment that provides for such deportation.
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Government response AI summary
The government justifies its decision to retain Section 29 of the IMA, which, if commenced, would expand public order disqualifications for modern slavery protections to all foreign national offenders, asserting its compliance with ECAT and ECHR.
Read full response →
Ministry of Justice
105
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
It also mandates that, unless there are ‘compelling circumstances’, non- British victims would be disqualified from protection if they have been sentenced to a period of imprisonment of any length. They will be denied a recovery and reflection period and denied limited leave to remain in the UK, and may …
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It also mandates that, unless there are ‘compelling circumstances’, non- British victims would be disqualified from protection if they have been sentenced to a period of imprisonment of any length. They will be denied a recovery and reflection period and denied limited leave to remain in the UK, and may therefore be removed from the UK. This significantly broadens the list of circumstances in which a victim of modern slavery would be treated as a threat to public order to include cases where the person has been sentenced to imprisonment regardless of the seriousness of their offence or the length of imprisonment. It would therefore exclude from protection victims compelled to commit criminal offences by their traffickers who are prosecuted and convicted due to their lack of knowledge of the availability of the defence from section 45 of the Modern Slavery Act 2015, as well as those victims convicted for immigration related offences. The previous Committee concluded that these provisions run counter to the UK’s obligations under ECAT and Article 4 ECHR.140
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Government response AI summary
The government defends the retention of Section 29 of the IMA 2023, which broadens disqualification from modern slavery protections for foreign national offenders, stating it is compliant with international obligations and necessary, thereby rejecting the committee's concerns.
Read full response →
Ministry of Justice
106
Conclusion
4th Report - Legislative Scrutiny: Bord…
Not Addressed
Sarah Dineley, Deputy Chief Crown Prosecutor at the CPS, stated: “[i]t is vital that, wherever possible, victims of trafficking are identified before any decisions are made on charge and prosecution; this is particularly important where the suspect is a child and reflects the findings of the ECtHR case of VCL …
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Sarah Dineley, Deputy Chief Crown Prosecutor at the CPS, stated: “[i]t is vital that, wherever possible, victims of trafficking are identified before any decisions are made on charge and prosecution; this is particularly important where the suspect is a child and reflects the findings of the ECtHR case of VCL and AN v The UK.” She also noted that the CPS has guidance on the application of the section 45 defence, “setting out steps that prosecutors must take when dealing with a case where the suspect or defendant might be a potential victim.”141
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Government response AI summary
The government's response outlines its commitment to retaining Section 29 of the IMA 2023 for disqualifying foreign national offenders from modern slavery protections, but does not directly address the Committee's conclusion about the importance of identifying trafficking victims before prosecution or the CPS guidance.
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Ministry of Justice
107
Conclusion
4th Report - Legislative Scrutiny: Bord…
Not Addressed
Whilst survivors of modern slavery should be able to access the ‘Section 45’ defence,142 created to prevent the criminalisation of survivors for offences they were compelled to commit as a result of their exploitation, After Exploitation points out that “its application is narrow and there is a lack of awareness …
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Whilst survivors of modern slavery should be able to access the ‘Section 45’ defence,142 created to prevent the criminalisation of survivors for offences they were compelled to commit as a result of their exploitation, After Exploitation points out that “its application is narrow and there is a lack of awareness of the defence amongst professionals in the criminal justice system.”143
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Government response AI summary
The government's response focuses on the retention of section 29 of the IMA 2023, concerning disqualification from modern slavery protections for foreign national offenders, and wider modern slavery reform plans. It does not address the committee's specific concerns about the narrow application or lack of …
Read full response →
Ministry of Justice
108
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
The Helen Bamber Foundation and Asylum Aid state the public order disqualification under the Nationality and Borders Act 2022 is already broad and is catching levels of behaviour that fall below the appropriate threshold for depriving a victim of protections. For example, “Asylum Aid recently represented a claimant, ‘EO’, whose …
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The Helen Bamber Foundation and Asylum Aid state the public order disqualification under the Nationality and Borders Act 2022 is already broad and is catching levels of behaviour that fall below the appropriate threshold for depriving a victim of protections. For example, “Asylum Aid recently represented a claimant, ‘EO’, whose case demonstrates just how wide reaching the impact of this provision can be. An extremely vulnerable 140 JCHR, Legislative Scrutiny: Illegal Migration Bill 12th Report of 2022–2023, para 53 141 Letter from Sarah Dineley, Deputy Chief Prosecutor at the CPS to Lord Alton, Chair of the JCHR, dated 5 June 2025, Q6 142 Section 45 Modern Slavery Act 2015 143 After Exploitation, BSAI0009, p4 40 survivor of sexual exploitation, EO was sentenced to 12 months in prison for a single offence–fraud–over 10 years ago. Despite being assessed as posing a very low risk to the public by a probation officer, she was still subject to a public order disqualification until Asylum Aid brought a legal challenge to that decision.”144
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Government response AI summary
The government defends the public order disqualification under NABA 2022 and the retention of Section 29 of the IMA 2023, stating it is compliant with international obligations and necessary for public order, effectively rejecting the committee's implied concern about its broadness.
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Ministry of Justice
109
Conclusion
4th Report - Legislative Scrutiny: Bord…
Not Addressed
The Law Society notes that there is limited ability to challenge decisions to disqualify someone from modern slavery protections: “there is no formal route to appeal or request reconsideration and so a challenge can only be brought by judicial review, which is a limited form of review and not a …
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The Law Society notes that there is limited ability to challenge decisions to disqualify someone from modern slavery protections: “there is no formal route to appeal or request reconsideration and so a challenge can only be brought by judicial review, which is a limited form of review and not a full reconsideration of the merits of the case.”145
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Government response AI summary
The government's response defends the retention of Section 29 of the IMA 2023 and the public order disqualification, but it does not address the committee's specific concern regarding the limited avenues for challenging disqualification decisions.
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Ministry of Justice
110
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
ILPA notes that “[t]his provision disproportionately impacts survivors who were forced to commit crimes as part of their exploitation and who have received convictions. Analysis conducted in 2024 clearly demonstrates that, of the 338 people disqualified (including 40 children): 70% of all disqualified individuals were acknowledged as having an element …
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ILPA notes that “[t]his provision disproportionately impacts survivors who were forced to commit crimes as part of their exploitation and who have received convictions. Analysis conducted in 2024 clearly demonstrates that, of the 338 people disqualified (including 40 children): 70% of all disqualified individuals were acknowledged as having an element of criminal exploitation in their case (73% of adult cases and 65% of child cases), compared to an average of 44% of NRM referrals with an element of criminal exploitation from 2020 and 2023.”146
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Government response AI summary
The government defends the retention of Section 29 of the IMA 2023, which governs disqualification from modern slavery protections, arguing it is compliant with international obligations and necessary for public order, implicitly rejecting concerns about its disproportionate impact on survivors.
Read full response →
Ministry of Justice
111
Conclusion
4th Report - Legislative Scrutiny: Bord…
Not Addressed
In oral evidence to the Committee, Dr Marija Jovanovic told us: “[v]ictims are losing trust in the system. There is some evidence that since 2016 the proportion of those who refuse to engage with support services has soared by 630%. Without victims engaging there is no chance of prosecution. Those …
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In oral evidence to the Committee, Dr Marija Jovanovic told us: “[v]ictims are losing trust in the system. There is some evidence that since 2016 the proportion of those who refuse to engage with support services has soared by 630%. Without victims engaging there is no chance of prosecution. Those are at a record low, only 58 in a whole year compared with 17,000 potential victims in the same period.”147 Compatibility with ECAT and Article 4 ECHR
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Government response AI summary
The government response discusses the retention and compliance of section 29 of the IMA 2023 regarding modern slavery disqualification for foreign national offenders, but does not address the committee's observation about victims losing trust or low prosecution rates.
Read full response →
Ministry of Justice
112
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
Article 13 of ECAT requires state parties to provide a “recovery and reflection period” of at least 30 days to potential VOTs, i.e. when there are reasonable grounds to believe that the person concerned is a victim of trafficking. During this period, the UK must not enforce any expulsion order …
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Article 13 of ECAT requires state parties to provide a “recovery and reflection period” of at least 30 days to potential VOTs, i.e. when there are reasonable grounds to believe that the person concerned is a victim of trafficking. During this period, the UK must not enforce any expulsion order against them and must authorise the persons concerned to stay in their territory, unless “grounds of public order prevent it or if it is found that victim status is being claimed improperly”. Article 4 ECHR is read by the courts as reflecting the principles set out in ECAT. 144 Helen Bamber and Asylum Aid, para 12 145 Law Society of England and Wales, para 18 146 ILPA, para 51, citing: Dr Noemi Magugliani, John Trajer and Dr Jean-Pierre Gauci, ‘Assessing the Modern Slavery Impacts of the Nationality and Borders Act: One Year On’ (June 2024) 37; and IOM, ‘Updated analysis of the National Referral Mechanism data’ (24 January 2024). 147 Dr Marija Jovanovic, Q13 41
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Government response AI summary
The government states that Section 29 of the IMA 2023, which broadens public order disqualification from modern slavery protections, is compliant with Article 13 of ECAT's provisions for withholding support on public order grounds and ensures case-by-case determination.
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Ministry of Justice
113
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
There is no definition in ECAT of what could be considered as “grounds of public order”. GRETA notes that “the grounds of public order should always be interpreted on a case-by-case basis, and it is not possible to automatically disqualify a victim from access to the recovery and reflection period …
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There is no definition in ECAT of what could be considered as “grounds of public order”. GRETA notes that “the grounds of public order should always be interpreted on a case-by-case basis, and it is not possible to automatically disqualify a victim from access to the recovery and reflection period on the basis that the person has violated migration laws. The grounds of public order are intended to apply in very exceptional circumstances and cannot be used by States Parties to circumvent their obligation to provide access to the recovery and reflection period.”148
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Government response AI summary
The government asserts that its retained Section 29 of the IMA 2023, which broadens public order disqualification, is compliant with Article 13 of ECAT and that cases are determined on a case-by-case basis, despite the Committee's conclusion on GRETA's cautious interpretation of 'public order' grounds.
Read full response →
Ministry of Justice
114
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
recommendation We agree with our predecessor Committee that section 29 IMA, which broadens the public order disqualification in section 63 of the Nationality and Borders Act, is not compatible with the UK’s obligations under ECAT and Article 4 of the ECHR. We recommend that the Government repeal this provision. (See …
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recommendation We agree with our predecessor Committee that section 29 IMA, which broadens the public order disqualification in section 63 of the Nationality and Borders Act, is not compatible with the UK’s obligations under ECAT and Article 4 of the ECHR. We recommend that the Government repeal this provision. (See Amendment 14, Annex). Section 59 IMA: inadmissibility of certain asylum and human rights claims
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Government response AI summary
The government rejects the recommendation to repeal Section 29 of the IMA, explaining its retention to enable disqualification of foreign national offenders from modern slavery protections on public order grounds, and stating its belief that the provision is compliant with international obligations.
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Ministry of Justice
115
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Section 59 IMA (partially in force)149 amends section 80A of the Nationality, Immigration and Asylum Act 2002, which provides that asylum claims and human rights claims from nationals of listed states must be declared inadmissible. Section 59 IMA principally does two things. First, it extends the list from EU nationals …
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Section 59 IMA (partially in force)149 amends section 80A of the Nationality, Immigration and Asylum Act 2002, which provides that asylum claims and human rights claims from nationals of listed states must be declared inadmissible. Section 59 IMA principally does two things. First, it extends the list from EU nationals to nationals of Albania, Iceland, Liechtenstein, Norway and Switzerland.150 Second, it amends section 80A such that the inadmissibility provisions apply to human rights claims (that is, a claim by a person that to remove them from the UK would be unlawful under section 6 of the Human Rights Act 1998 which provides that a public authority must not act contrary to the ECHR) as well as asylum claims. Therefore, if enacted, all asylum and human rights claims made by nationals of the listed countries will be automatically inadmissible such that the merits of the claims will not be considered. Notably, the Secretary of State must (rather than may) declare these asylum and human rights claims inadmissible, unless there are exceptional circumstances. 148 Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) (IMB0024), para.16 149 The Illegal Migration Act 2023 (Commencement No. 1) Regulations 2023 bring section 59 into force only “for the purpose of making regulations”. 150 The Nationality, Immigration and Asylum Act 2002 (Amendment of List of Safe States) Regulations 2004 add Georgia and India to the list, but this will not take effect until section 59 IMA is fully commenced. 42
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Government response AI summary
The government clarifies that Section 59 of the IMA 2023 is not yet fully commenced but reiterates that existing provisions (Section 80A NIAA) allow for consideration of exceptional circumstances and that country safety is kept under continuous review.
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Ministry of Justice
116
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Inadmissibility procedures allow a State to declare claims “inadmissible” when the claim is made by nationals of countries that are deemed safe. Section 80A(5) provides two non-exhaustive examples of exceptional circumstances. These are narrowly construed: first, where the listed state is derogating from the ECHR, and second, where the state …
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Inadmissibility procedures allow a State to declare claims “inadmissible” when the claim is made by nationals of countries that are deemed safe. Section 80A(5) provides two non-exhaustive examples of exceptional circumstances. These are narrowly construed: first, where the listed state is derogating from the ECHR, and second, where the state is subject to proceedings151 before the EU due to the risk of a serious breach of Article 2 of the Treaty on European Union.152 ‘Exceptional circumstances’ have been defined narrowly by the courts.153 There is no right of appeal (as the asylum/ human rights claims are not refused–they are simply not considered).
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Government response AI summary
The government clarifies that Section 59 of the IMA 2023 is not yet fully commenced, and emphasizes that the "exceptional circumstances" provisions in Section 80A NIAA are not exhaustive, allowing for fact-sensitive assessments.
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Ministry of Justice
117
Recommendation
4th Report - Legislative Scrutiny: Bord…
Accepted
Our predecessor Committee concluded that that whilst the listed States may be considered to be safe ‘in general’, this does not guarantee their safety for all individuals, particularly those who are members of a particular social group. It must be possible for such individuals who face a real risk of …
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Our predecessor Committee concluded that that whilst the listed States may be considered to be safe ‘in general’, this does not guarantee their safety for all individuals, particularly those who are members of a particular social group. It must be possible for such individuals who face a real risk of persecution upon return to make a protection or human rights claim that must be considered on its merits in order to guard against the risk of refoulement.154
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Government response AI summary
The government states that existing legislation and the proposed framework already allow for exceptional instances and fact-sensitive assessments for individual claims, despite general safety designations. They also argue against a time-bound review process for country safety, preferring a continuous monitoring approach.
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Ministry of Justice
118
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The implications for Albanian women and children are particularly concerning. For example, an Albanian woman who has been trafficked to the UK and faces a real risk of reprisals and re-trafficking upon return to Albania, could be returned to Albania unless she can demonstrate “exceptional circumstances” according to the determination …
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The implications for Albanian women and children are particularly concerning. For example, an Albanian woman who has been trafficked to the UK and faces a real risk of reprisals and re-trafficking upon return to Albania, could be returned to Albania unless she can demonstrate “exceptional circumstances” according to the determination of the Secretary of State. The UK country guidance and decisions of UK courts have recognised that certain groups of Albanian citizens may be at risk of persecution.155
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Government response AI summary
The government notes that Section 59 of the IMA 2023 is not yet fully commenced and reiterates that existing provisions allow for fact-sensitive assessments for "exceptional circumstances" in asylum and human rights claims, with country safety under continuous review.
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Ministry of Justice
119
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
Section 59 includes a Henry VIII clause that permits the Secretary of State to add to the list of safe countries by regulations. This power is in force and has already been used to add Georgia and India to the list.156 There are serious 151 Under Article 7(1) TEU 152 …
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Section 59 includes a Henry VIII clause that permits the Secretary of State to add to the list of safe countries by regulations. This power is in force and has already been used to add Georgia and India to the list.156 There are serious 151 Under Article 7(1) TEU 152 Article 2 TEU: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” 153 ZV (Lithuania) v Secretary of State for the Home Department [2021] EWCA Civ 1196, [34]-[35], requiring (in relation to UK’s former obligations under the Spanish Protocol) “compelling reasons to believe that there is a clear risk that they will be liable to persecution in the country of origin” and “plainly cogent evidence (typically of some systemic default)”. 154 JCHR, Legislative Scrutiny: Illegal Migration Bill 12th Report of 2022–2023, para 160 155 UNHCR legal observations on the Illegal Migration Bill, 02 May 2023, para 17 156 The Nationality, Immigration and Asylum Act 2002 (Amendment of List of Safe States) Regulations 2024 43 concerns amongst stakeholders in relation to the addition of these states. Over 180 Indian nationals were granted asylum in the 2 years to September 2024, and 53 Georgian nationals.157
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Government response AI summary
The government describes how existing inadmissibility provisions allow for exceptional instances where asylum claims can be substantively considered, despite general country safety designations. They maintain that the situation and safety of countries are kept under continuous review and reject the idea of a time-bound review …
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Ministry of Justice
120
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
In relation to Georgia, the Refugee Council notes that “in December 2024 the current Government sanctioned five Georgian officials for serious human rights violations. This included the Minister for Interior and the Director of the Tbilisi Police Department. The press release issued by the Foreign, Commonwealth and Development office at …
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In relation to Georgia, the Refugee Council notes that “in December 2024 the current Government sanctioned five Georgian officials for serious human rights violations. This included the Minister for Interior and the Director of the Tbilisi Police Department. The press release issued by the Foreign, Commonwealth and Development office at the time noted that ‘UN experts have condemned the pattern of repression and human rights violations in Georgia.’”158 Rainbow Migration notes that, “[w]ithin the last year, the Georgian government has introduced repressive new laws to restrict the rights of LGBTQI+ people, including a ban on same-sex marriage, gender- affirming care, and on sharing information that could be perceived as ‘LGBTQI+ propaganda’ in schools and in the media … . Stephen Doughty MP, recognised this threat and has stated that Georgia’s new laws ‘undermine fundamental rights of freedom of expression and assembly, and risk discriminating against and stigmatising Georgia’s LGBT+ groups.’”159 The Government’s recent condemnation of Georgia’s new laws highlights a further problem with section 59 - there is no statutory review mechanism for the designation of safe states. Whilst countries can be added and removed by way of regulations, there is no legal obligation to review the safety of listed states.
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Government response AI summary
The government maintains that country safety is kept under continuous review, arguing that a time-bound or time-specified review would be counter-productive by limiting flexibility. They explain that existing provisions allow for exceptional instances where claims can be substantively considered.
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Ministry of Justice
121
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
In relation to India, Rainbow Migration shared two examples of clients who have been granted asylum in the UK: a. “A trans woman from India came out to her parents at age fourteen. They reacted very negatively, locking her in the house and refusing to let her out. They forced …
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In relation to India, Rainbow Migration shared two examples of clients who have been granted asylum in the UK: a. “A trans woman from India came out to her parents at age fourteen. They reacted very negatively, locking her in the house and refusing to let her out. They forced her to undergo harmful conversion practices, which the UN rightly identity as “degrading” and “inhumane”. b. “A lesbian woman from India had an engagement arranged for her against her will. She told her fiancé about her sexuality and managed to get the engagement called off. However, her family later found out that the reason he had called off the wedding was because she was a lesbian, and she knew that her only option was to flee the country so that her family would not kill or seriously hurt her. After arriving in the UK and being granted asylum, she was informed by a family member in India that another family member said that if she were to return to 157 Helen Bamber and Asylum Aid,, para 27 158 Refugee Council,, para 25 159 Rainbow Migration, para 10, citing https://civil.ge/archives/624795 and Written questions and answers - Written questions, answers and statements - UK Parliament 44 India, they would ‘try to kill me, but even if they could not capture me or kill me, they would still throw acid on [my] face as a punishment for dishonouring the family.’”160
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Government response AI summary
The government acknowledges the examples by explaining existing and prospective inadmissibility provisions, and how exceptional circumstances and fact-sensitive assessments allow for consideration of complex asylum claims, noting the continuous review of country safety.
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Ministry of Justice
122
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
In its observations on the Bill, the UNHCR states: “while designation of safe countries may be used as a procedural tool to prioritise or accelerate the examination of applications in carefully circumscribed situations, it does not displace the requirement for an individualised assessment of an asylum claim. Section 59 therefore …
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In its observations on the Bill, the UNHCR states: “while designation of safe countries may be used as a procedural tool to prioritise or accelerate the examination of applications in carefully circumscribed situations, it does not displace the requirement for an individualised assessment of an asylum claim. Section 59 therefore gives rise to a risk of refoulement, and UNHCR encourages that it be repealed.”161
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Government response AI summary
The government defended Section 59 of the IMA 2023, explaining it broadens existing inadmissibility provisions and includes safeguards for exceptional circumstances and continuous country safety reviews. It implicitly rejected UNHCR's encouragement for repeal, arguing that current continuous monitoring is more flexible than time-bound reviews.
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Ministry of Justice
123
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
recommendation We share the concerns of our predecessor Committee that, whilst the states listed may be considered safe in general, this does not guarantee the safety of all individuals from these states, especially those who are members of particular social groups facing persecution. It must be possible for such individuals …
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recommendation We share the concerns of our predecessor Committee that, whilst the states listed may be considered safe in general, this does not guarantee the safety of all individuals from these states, especially those who are members of particular social groups facing persecution. It must be possible for such individuals who face a real risk of persecution upon return to make a protection or human rights claim which must be considered on its merits in order to guard against the risk of refoulement. If the Government chooses to bring section 59 of the Illegal Migration Act into force, it should, at the very least, periodically review the list of safe, with a particular consideration of the rights of minority groups. Section 62 IMA: damaged credibility
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Government response AI summary
The government notes that Section 59 of the IMA 2023 is not fully commenced. It states that the safety of countries is already under continuous review and argues that a time-bound periodic review, as recommended, would be counter-productive.
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Ministry of Justice
124
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
The Bill does not repeal section 62 IMA. This means that if a person making a human rights or asylum claim does not allow the Home Office to look at everything (including private information) on their phone, then the Home Office shall take that into account as damaging the person’s …
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The Bill does not repeal section 62 IMA. This means that if a person making a human rights or asylum claim does not allow the Home Office to look at everything (including private information) on their phone, then the Home Office shall take that into account as damaging the person’s credibility when deciding whether to believe the person.
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Government response AI summary
The government explains that Section 62 of the IMA 2023 expands existing provisions and that credibility assessments are not solely determinative. Decision makers must consider all circumstances, including mitigation for not providing phone access, under current guidance.
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Ministry of Justice
125
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
In respect of this provision, the previous JCHR concluded in its report on the Illegal Migration Bill: “we remain concerned that an asylum or human rights claimant’s credibility should not be damaged by conduct that may be explained by something other than dishonesty or an attempt to conceal relevant information. …
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In respect of this provision, the previous JCHR concluded in its report on the Illegal Migration Bill: “we remain concerned that an asylum or human rights claimant’s credibility should not be damaged by conduct that may be explained by something other than dishonesty or an attempt to conceal relevant information. Vulnerable asylum seekers may have other justifications for not wanting to hand over access to all their private information to a government official, not least an understandable lack of trust in authority.” The Committee recommended amending the Bill to 160 Rainbow Migration, para 13 161 UNHCR legal observations on the Illegal Migration Bill, 02 May 2023, para 6 45 make clear that the credibility of a claimant who has provided a reasonable excuse for their failure to provide a password etc requested by the Home Office will not be affected.162
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Government response AI summary
The government noted the concern about claimants' credibility not being damaged by failure to provide access with reasonable excuse, stating that existing provisions and guidance already ensure decision-makers consider all circumstances and mitigation.
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Ministry of Justice
126
Recommendation
4th Report - Legislative Scrutiny: Bord…
Accepted
recommendation Section 62 IMA should be amended, as recommended by our predecessor Committee, to make clear that the credibility of a claimant who has provided a reasonable excuse for their failure to provide a password or other methods of access requested by the Home Office will not be affected. (See …
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recommendation Section 62 IMA should be amended, as recommended by our predecessor Committee, to make clear that the credibility of a claimant who has provided a reasonable excuse for their failure to provide a password or other methods of access requested by the Home Office will not be affected. (See Amendment 15, Annex). 162 Twelfth Report of Session 2022–23, para.372 46 5 Retrospective powers: detention and fees Clause 41: Detention and exercise of functions pending deportation
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Government response AI summary
The government did not commit to amending Section 62 IMA, stating that existing provisions and published guidance already require decision-makers to consider a claimant's credibility 'in the round' and include mitigation for failure to provide access methods.
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Ministry of Justice
127
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Clause 41 amends the current powers contained in paragraph 2(2) to Schedule 3 of the IA 1971, which permits the Secretary of State to detain individuals liable to deportation on the grounds that their presence in the UK is not considered conducive to the public good.163 According to the Government, …
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Clause 41 amends the current powers contained in paragraph 2(2) to Schedule 3 of the IA 1971, which permits the Secretary of State to detain individuals liable to deportation on the grounds that their presence in the UK is not considered conducive to the public good.163 According to the Government, this clause is intended to “clarify” that the Home Office may detain someone subject to deportation from the point at which the Home Office serves notification that deportation is being considered.164 This means that persons liable to deportation can be detained (when notified in writing by the Secretary of State): a. while the Secretary of State considers whether to make a deportation order, and b. where the Secretary of State decides to make a deportation order, pending the making of the deportation order.
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Government response AI summary
The government acknowledged the committee's description of Clause 41, explaining it clarifies existing statutory detention powers and amendments. It stated the clause provides greater legal clarity, justifies its retrospective effect for continuity and public protection, and asserts compatibility with Article 5 ECHR.
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Ministry of Justice
128
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The clause also amends section 141 of the Immigration Act 1999 (fingerprinting) and regulation 2 of the Immigration (Collection, Use and Retention of Biometric Information and Related Amendments) Regulations 2021 (photographs) to clarify that fingerprints and photographs can be taken when the Secretary of State is considering making a deportation …
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The clause also amends section 141 of the Immigration Act 1999 (fingerprinting) and regulation 2 of the Immigration (Collection, Use and Retention of Biometric Information and Related Amendments) Regulations 2021 (photographs) to clarify that fingerprints and photographs can be taken when the Secretary of State is considering making a deportation order.
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Government response AI summary
The government acknowledged that Clause 41 includes consequential amendments for taking biometrics and searches, justifying these as part of clarifying existing lawful detention powers. It maintained the clause provides greater legal clarity and is necessary for immigration control and public protection.
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Ministry of Justice
129
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
The clause also amends section 51(2) of the Immigration Act 2016 (power to direct prison officer or prison custody officer to search for nationality documents) to “clarify” that the Secretary of State may direct a prison officer or prisoner custody officer to search for nationality documents 163 Foreign nationals and …
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The clause also amends section 51(2) of the Immigration Act 2016 (power to direct prison officer or prison custody officer to search for nationality documents) to “clarify” that the Secretary of State may direct a prison officer or prisoner custody officer to search for nationality documents 163 Foreign nationals and their dependants will be considered for deportation if they meet the criteria set out in HO guidance Conducive Deportation or Public Policy, Public Security or Public Health Decisions 164 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025),, para.127 47 when the Secretary of State is considering making a deportation order. The Government states that this is necessary as a person may be searched for their nationality documents at any stage pending deportation.165 Retrospective not clarificatory
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Government response AI summary
The government explains that Clause 41 clarifies existing statutory powers of detention for nationality documents, asserting this amendment provides greater legal clarity and that the Home Office already operates this way for continuity in immigration control.
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Ministry of Justice
130
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
Despite the Government’s characterisation of this clause as clarificatory, the Impact Assessment makes clear that this involves retrospectively making it lawful to have detained persons (liable to deportation on the ground it was considered conducive to the public good) at a time when they did not have notice of an …
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Despite the Government’s characterisation of this clause as clarificatory, the Impact Assessment makes clear that this involves retrospectively making it lawful to have detained persons (liable to deportation on the ground it was considered conducive to the public good) at a time when they did not have notice of an appealable immigration decision, because they had not yet made a human rights or protection claim.166 To detain a person under paragraph 2(2) of Schedule 3 to the Immigration Act 1971, pending the making of the deportation order, a person must have been given notice.167 As explained by ILPA, “a “Stage 1” deportation decision was not an appealable decision; therefore, individuals could not have received the requisite notice under the relevant Immigration (Notices) Regulations 2003, which only governs appealable decisions.”168 Alison Harvey, barrister at One Pump Court, told us: “[t]here is no question that it is changing the law. It is not a clarification in any way. It is not in any way compatible with Article 5 ( … ) There was no law and people were deprived of their liberty. The Government now want to rewrite that piece of history.”169
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Government response AI summary
The government rejected the committee's strong concerns about Clause 41 not being clarificatory, but retrospectively changing the law and denying remedies. It reiterated its stance that the clause clarifies existing lawful powers, is necessary for public protection, and is compatible with Article 5 ECHR, thus …
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Ministry of Justice
131
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
We note that the House of Lords Constitution Committee has frequently raised concerns about retrospective provisions, arguing that retrospective legislation “is unacceptable other than in very exceptional circumstances” and that, when used, “measures with retrospective effect must have the strongest possible justification”.170 Compatibility with Convention rights
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We note that the House of Lords Constitution Committee has frequently raised concerns about retrospective provisions, arguing that retrospective legislation “is unacceptable other than in very exceptional circumstances” and that, when used, “measures with retrospective effect must have the strongest possible justification”.170 Compatibility with Convention rights
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Government response AI summary
The government acknowledges concerns about retrospective legislation and justifies Clause 41's retrospective effect by arguing it clarifies existing detention powers. It states this is necessary to ensure continuity in immigration control, public protection, and to prevent challenges to past and future deportation proceedings.
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Ministry of Justice
132
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
These provisions raise issues under Articles 5, 8, and 13 of the ECHR. Article 5 is engaged by this clause as those liable to deportation will be deprived of their liberty. Any interference with Article 5 is justified where it is in accordance with the law and proportionate to achieve …
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These provisions raise issues under Articles 5, 8, and 13 of the ECHR. Article 5 is engaged by this clause as those liable to deportation will be deprived of their liberty. Any interference with Article 5 is justified where it is in accordance with the law and proportionate to achieve a legitimate aim. 165 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025), para.129 166 Border Security, Asylum and Immigration Bill, Impact Assessment, paras 125–126 167 In accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) 168 ILPA, para 72 169 Alison Harvey, Q10 170 Constitution Committee, Legislative standards of the Constitution Committee: 2017–2024 (6 May 2025), paras 77 and 78 48 Article 5(1)(f) specifically provides for “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”. It is the Government’s position that “there are some cases where the power to detain pending deportation is necessary because of a real and significant national security risk where no alternative detention power exists.”171 The power of detention contained in this clause is therefore in accordance with a legitimate aim.
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Government response AI summary
The government clarifies that Clause 41 of the Bill provides greater legal clarity to existing detention powers, which it deems lawful and necessary for immigration control and public protection. It asserts that any interference with Article 5 ECHR is justified and proportionate, and that the …
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Ministry of Justice
133
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
However, Clause 41’s purpose is to provide a legal basis for the Home Office’s current practice of detaining people early in the deportation process, i.e. after a “Stage 1” deportation decision has been made, while the Secretary of State considers whether to make a “Stage 2” deportation order.172 Medical Justice …
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However, Clause 41’s purpose is to provide a legal basis for the Home Office’s current practice of detaining people early in the deportation process, i.e. after a “Stage 1” deportation decision has been made, while the Secretary of State considers whether to make a “Stage 2” deportation order.172 Medical Justice and Bail for Immigration Detainees state that this is a “new power to detain those who are being considered for deportation, but in respect of whom no decision to deport has been made, and who have not committed a sufficiently serious offence to trigger the automatic deportation powers.”173 The Law Society notes that the retrospective application of clause 41 raises “significant doubts as to its compatibility with Article 5 ECHR”, and that those who would otherwise be owed a remedy for unlawful detention will be denied that remedy.174
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Government response AI summary
The government rejected concerns about Clause 41, asserting it clarifies existing lawful detention powers and its retrospective effect is necessary for immigration control and public protection. It maintained the clause is compatible with Article 5 ECHR, denying any contravention or right to compensation.
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Ministry of Justice
134
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
This clause also engages Article 8 because it gives powers to obtain biometrics and search documents. An interference with this right must be in accordance with the law and proportionate to the pursuit of a legitimate aim. It is the Government’s position that “the power to collect and hold biometric …
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This clause also engages Article 8 because it gives powers to obtain biometrics and search documents. An interference with this right must be in accordance with the law and proportionate to the pursuit of a legitimate aim. It is the Government’s position that “the power to collect and hold biometric information, and to search for nationality documents, pursues the legitimate aim of identifying individuals when detaining them during the deportation process which is operationally vital in the interests of effective immigration control, public safety and the prevention of disorder or crime.”175 Given the legitimate aim, it is unlikely that the collection of biometrics and searching of nationality documents to assist with deportation will be considered a disproportionate interference with Article
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Government response AI summary
The government defends Clause 41, clarifying existing detention powers and their necessity for immigration control and public protection. It asserts the retrospective clarification is vital and justifies its approach to ECHR compatibility, implicitly encompassing the collection of biometrics and document searches.
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Ministry of Justice
8
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
135. The denial of a remedy for unlawful detention also risks violating Article 5(5) and Article 13 ECHR (the right to an effective remedy). If individuals have been detained pending deportation between Stage 1 and Stage 2 171 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, …
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135. The denial of a remedy for unlawful detention also risks violating Article 5(5) and Article 13 ECHR (the right to an effective remedy). If individuals have been detained pending deportation between Stage 1 and Stage 2 171 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025), para.131 172 Border Security, Asylum and Immigration Bill, Impact Assessment, paras 125–126 173 Medical Justice and Bail for Immigration Detainees, para 24 174 Law Society of England and Wales, para 24 175 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025), para.138 49 deportation decisions without any lawful basis, as appears to be the case, then such individuals have a right to claim compensation. Clause 41 would remove the ability to make such claims.
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Government response AI summary
The government rejects the committee's concern, asserting that Clause 41 clarifies existing detention powers, complies with Article 5(5) ECHR, and does not contravene Article 5 more broadly, thus negating a freestanding right to compensation for past detentions.
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Ministry of Justice
136
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
recommendation The Government’s position is that clause 41 “clarifies” the law. However, the operational effect would appear to amount to retrospectively making it lawful to have detained persons liable to deportation. This does not comply with Article 5 ECHR, which requires a lawful basis for detention, and Article 13 ECHR, …
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recommendation The Government’s position is that clause 41 “clarifies” the law. However, the operational effect would appear to amount to retrospectively making it lawful to have detained persons liable to deportation. This does not comply with Article 5 ECHR, which requires a lawful basis for detention, and Article 13 ECHR, which guarantees an effective remedy. We recommend the repeal of this clause. (See Amendment 16, Annex) Retrospective validation of fees
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Government response AI summary
The government rejects the recommendation to repeal Clause 41, asserting that it clarifies existing statutory detention powers and its retrospective effect is necessary to ensure continuity in immigration control, public protection, and prevent challenges to past proceedings. It maintains the clause is compliant with Article …
Read full response →
Ministry of Justice
137
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
Clause 57 of the Bill also has retrospective effect. It “establishes retrospective power for the charging of fees for services related to the comparability, recognition or assessment of qualifications obtained outside and within the United Kingdom”.176 Such fees have been charged by the Government without any statutory basis.177 This clause …
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Clause 57 of the Bill also has retrospective effect. It “establishes retrospective power for the charging of fees for services related to the comparability, recognition or assessment of qualifications obtained outside and within the United Kingdom”.176 Such fees have been charged by the Government without any statutory basis.177 This clause seeks to retrospectively provide a legal basis for those charges. But for clause 51, people who had paid the fees would have a claim in restitution to recover the amount unlawfully charged.
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Government response AI summary
The government rejected the implicit concern regarding Clause 57's retrospective effect, maintaining that the legislation is justified, proportionate, and compatible with Article 1 of Protocol 1 ECHR due to compelling public interest reasons.
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Ministry of Justice
138
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
There may be a breach of Article 1 of Protocol 1 if legislation deprives potential claimants of the value of their claim. To constitute a property right protected by the ECHR, the claim must have a sufficient basis in national law, for example where there is settled case-law of the …
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There may be a breach of Article 1 of Protocol 1 if legislation deprives potential claimants of the value of their claim. To constitute a property right protected by the ECHR, the claim must have a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming that a claim of that kind can be brought.178
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Government response AI summary
The government maintains its position that the legislation is justified, proportionate, and compatible with Article 1 of Protocol 1 ECHR. It argues that there are compelling public interest reasons for the legislation and no fixed list of factors determines compatibility.
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Ministry of Justice
139
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
The ECHR memorandum suggests that a claim to recover fees would not meet this test, because its legal basis would be too uncertain.179 The Government argues that the relevant case law180 only covers claims wrongly levied by the State, and that it is open to question whether it would apply …
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The ECHR memorandum suggests that a claim to recover fees would not meet this test, because its legal basis would be too uncertain.179 The Government argues that the relevant case law180 only covers claims wrongly levied by the State, and that it is open to question whether it would apply to claims against third party contractors. This seems doubtful, given that subsequent case law has established that the same principle applies to 176 European Convention on Human Rights Memorandum to the Border Security, Asylum and Immigration Bill [HL Bill 101 (2024–25)], para 188 177 House of Lords Debate 11 November 2024, vol 842, col 1455 178 Kopecky v Slovakia [GC], Application No. 44912/98, 28 September 2004, para 52 179 European Convention on Human Rights Memorandum to the Border Security, Asylum and Immigration Bill [HL Bill 101 (2024–25), para.189 180 R v Commissioners of Inland Revenue ex p Woolwich Equitable Building Society [1990] 1 WLR 1400 50 transactions which are not purely private (where the fee is agreed as part of a normal contractual bargain) but have a public character (where the fee is the compulsory cost of a public service).181
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Government response AI summary
The government maintains its position that the legislation is justified, proportionate, and compatible with Article 1 of Protocol 1 ECHR. It disagrees with the committee's interpretation of case law regarding the legal basis for claims to recover fees and the conditions under which retrospective legislation …
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Ministry of Justice
140
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
The Government maintains that in any event it is justified for legislation to take away these claims, because it is fair and in the public interest that service users should pay a reasonable fee for the service, and it is legitimate to rectify a technical mistake in the legal framework.182 …
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The Government maintains that in any event it is justified for legislation to take away these claims, because it is fair and in the public interest that service users should pay a reasonable fee for the service, and it is legitimate to rectify a technical mistake in the legal framework.182 The case law suggests that something more is needed, such as that the retroactive legislation is restoring a widely held understanding of the legal position that has been unexpectedly disrupted.183 The Government has provided insufficient information to allow an assessment of whether this is the case.
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Government response AI summary
The government maintained its position that legislation taking away claims for restitution of fees is justified and proportionate. It provided further legal arguments regarding Article 1 of Protocol 1 ECHR and the balance between individual and public interests, arguing that fees were reasonable and the …
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Ministry of Justice
141
Recommendation
4th Report - Legislative Scrutiny: Bord…
Accepted
conclusion The Government has provided for the retrospective validation of fees charged without any statutory basis. We ask the Government to clarify its justification for the retrospective validation of these fees. 181 Ipswich Town v Suffolk Chief Constable [2017] EWHC 375 (QB), at [77]; see also [80]-[81] (claim for restitution …
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conclusion The Government has provided for the retrospective validation of fees charged without any statutory basis. We ask the Government to clarify its justification for the retrospective validation of these fees. 181 Ipswich Town v Suffolk Chief Constable [2017] EWHC 375 (QB), at [77]; see also [80]-[81] (claim for restitution based on mistake of law). 182 European Convention on Human Rights Memorandum to the Border Security, Asylum and Immigration Bill [HL Bill 101 (2024–25), para.192 183 E.g. National and Provincial v UK, Application No. 21319/93 et al, paras 80–83. Contrast e.g. Reilly and Hewstone v Secretary of State for Work and Pensions [2016] EWCA Civ 413; Zielinski v France, Application No. 24846/94 et al, paras 59–60 (both cases about Article 6). 51 6 Conditions on leave and bail
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Government response AI summary
The government clarified its justification for the retrospective validation of fees, arguing that the legislation is justified and proportionate under ECHR Article 1 of Protocol 1, as claims for restitution do not have a sufficient basis in law to constitute a possession.
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Ministry of Justice
142
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
At Committee stage in the Commons, the Government added clause 43. This introduces an extension of the existing conditions that may be applied to any grant of limited leave to enter or remain in the UK under section 3(1) (c) of the Immigration Act 1971. This covers persons not liable …
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At Committee stage in the Commons, the Government added clause 43. This introduces an extension of the existing conditions that may be applied to any grant of limited leave to enter or remain in the UK under section 3(1) (c) of the Immigration Act 1971. This covers persons not liable to detention. The new conditions include electronic monitoring, requirements to be at certain places at certain times, requirements to remain in certain places, prohibitions on being in certain areas, and any “such other conditions as the Secretary of State thinks fit.”184 The Government’s rationale was explained by the Minister in Public Bill Committee proceedings: Where a person does not qualify for asylum or protection under the refugee convention but cannot be removed from the UK because of our obligations under domestic and international law, they are granted permission to stay. Irrespective of the threat posed by the person, our legislation prevents us from imposing the same conditions that they may have been subjected to while on immigration bail. The new clause will end that disparity in the powers available to protect the public from the particular migrant who poses a threat. It also makes crystal clear the conditions that may be imposed when a person is subject to immigration bail.185
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Government response AI summary
The government reiterates its intention to use clause 43 conditions, such as electronic monitoring and curfews, to manage foreign nationals who pose a threat and cannot be immediately removed, ensuring decisions are made on a case-by-case basis with proportionality analysis.
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Ministry of Justice
143
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The current restrictions, set out in section 3(1)(c) of the Immigration Act 1971, permit restrictions to be placed on individuals such as restrictions on the right to work and study, requirements to report to immigration officers, and residency requirements. The introduction of the power to impose curfews, exclusions, confinement, and …
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The current restrictions, set out in section 3(1)(c) of the Immigration Act 1971, permit restrictions to be placed on individuals such as restrictions on the right to work and study, requirements to report to immigration officers, and residency requirements. The introduction of the power to impose curfews, exclusions, confinement, and electronic monitoring go far beyond the existing permissible conditions. The nature of these restrictions may engage Article 5. Although persons will not be imprisoned, measures that are considered so severe as to be destructive of a person’s liberty are likely to engage Article 5.186 These provisions also engage the right to private life (Article 8) as individuals may be subjected to restrictions on where they can 184 Clause 43 185 Hansard HC, Public Bill Committee, 9 th Sitting, 13 March 2025 : Col 265 per Minister for Border Security and Asylum 186 Secretary of State for the Home Department v JJ [2007] UKHL 45; Secretary of State for the Home Department v AP [2010] UKSC 24 52 live, who they can associate with, and where they can go. It should be noted that Article 8 cannot be relied on in order to complain of personal, social, psychological and economic suffering which is a foreseeable consequence of one’s own actions, such as the commission of a criminal offence or similar misconduct.187 Depending on the nature of the conditions, other Convention rights might also be engaged such as the right to freedom of assembly and association (Article 11).
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Government response AI summary
The government acknowledges that the conditions may be invasive and engage ECHR rights, stating that decisions will be made on a case-by-case basis with proportionality analysis to ensure compatibility. It maintains that these measures are necessary for safely managing individuals.
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Ministry of Justice
144
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
The safeguards are limited to a prohibition that these powers cannot be used in relation to a British citizen or settled person. Other than this, they can be used by immigration officers with no threshold and no time limit. The ECHR memo states: “The fact guidance will need to specifically …
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The safeguards are limited to a prohibition that these powers cannot be used in relation to a British citizen or settled person. Other than this, they can be used by immigration officers with no threshold and no time limit. The ECHR memo states: “The fact guidance will need to specifically set out what circumstances need to exist to permit conditions that may be imposed does not imply the clause is not capable of being compatible with Article 5. Rather, it reflects the fact that any application of the new measures will be fact sensitive and case specific with bespoke assessments necessary for the powers to be exercised compatibly with Article 5.”188
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Government response AI summary
The government explained that the powers to impose conditions on foreign nationals are used when ECHR obligations prevent immediate removal, with decisions made case-by-case and subject to proportionality analysis. It stated that electronic monitoring would be considered first, with curfews and zones used only if …
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Ministry of Justice
145
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The Minister for Border Security and Asylum, Dame Angela Eagle MP, said during the Bill’s passage through the House of Commons that: “The powers will be used only in cases involving conduct such as war crimes, crimes against humanity, extremism or serious crime, or where the person poses a threat …
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The Minister for Border Security and Asylum, Dame Angela Eagle MP, said during the Bill’s passage through the House of Commons that: “The powers will be used only in cases involving conduct such as war crimes, crimes against humanity, extremism or serious crime, or where the person poses a threat to national security or public safety”.189 Clause 43 is much broader than this intention.
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Government response AI summary
The government acknowledges the committee's observation that Clause 43 is broader than the Minister's stated intention, responding by reiterating that the powers will be used judiciously, on a case-by-case basis with proportionality analysis, for individuals posing a threat.
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Ministry of Justice
146
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Amnesty describes this as an “extraordinary overreach of power”.190 Public Law Project notes that these restrictions are akin to those imposed on national security grounds (Terrorism Prevention and Investigation Measures), and that the same types of restrictions would be used against those who have lawful immigration status.191
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Amnesty describes this as an “extraordinary overreach of power”.190 Public Law Project notes that these restrictions are akin to those imposed on national security grounds (Terrorism Prevention and Investigation Measures), and that the same types of restrictions would be used against those who have lawful immigration status.191
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Government response AI summary
The government acknowledges the concerns regarding the invasive nature of the conditions, stating that these measures are necessary to safely manage individuals and will be applied on a case-by-case basis with a proportionality analysis to ensure ECHR compatibility.
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Ministry of Justice
147
Recommendation
4th Report - Legislative Scrutiny: Bord…
Accepted
Following an analysis of clause 43, the House of Lords Constitution Committee, in its report on the Bill, concluded: “[w]e draw the attention of the House to the broad and subjective power in clause 43. We recommend narrowing the power to impose ‘such other conditions as the Secretary of State …
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Following an analysis of clause 43, the House of Lords Constitution Committee, in its report on the Bill, concluded: “[w]e draw the attention of the House to the broad and subjective power in clause 43. We recommend narrowing the power to impose ‘such other conditions as the Secretary of State thinks fit’ and that safeguards on the use of the power should be included on the face of the Bill.”192 187 Denisov v Ukraine, Application No. 76639/11, 25 September 2018, para 98. 188 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025) 189 Public Bill Committee on the Border Security, Asylum and Immigration Bill, 13 March 2025, col 268 190 Amnesty International UK 191 Public Law Project 192 House of Lords - Border Security, Asylum and Immigration Bill - Select Committee on the Constitution, para 26 53
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Government response AI summary
The government's response outlined how conditions are imposed on foreign nationals when ECHR obligations prevent removal, emphasizing case-by-case proportionality analysis and the use of electronic monitoring as a primary measure. It did not commit to narrowing the broad power in clause 43 or including safeguards …
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Ministry of Justice
148
Recommendation
4th Report - Legislative Scrutiny: Bord…
Not Addressed
We note the Minister’s comments that these powers are intended to be used in cases involving, amongst other things, serious international crimes. Where there is sufficient evidence that persons have been involved in serious international crimes such as genocide, such persons must be investigated and prosecuted. We reiterate the previous …
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We note the Minister’s comments that these powers are intended to be used in cases involving, amongst other things, serious international crimes. Where there is sufficient evidence that persons have been involved in serious international crimes such as genocide, such persons must be investigated and prosecuted. We reiterate the previous recommendation of this Committee in its report on Accountability for Daesh Crimes, that the International Criminal Court Act 2001 should be amended to provide for universal jurisdiction over genocide, crimes against humanity, and war crimes.193 We note and welcome that this recommendation was echoed by the International Development Committee in its recent report on the UK’s role in upholding international humanitarian law, which also called for legislative amendments to provide for universal jurisdiction.194
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Government response AI summary
The government's response focused on its existing policies for deporting or managing foreign nationals who pose a threat or do not qualify for protection, through measures like electronic monitoring and curfews. It did not address the committee's recommendation to amend the International Criminal Court Act …
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Ministry of Justice
149
Recommendation
4th Report - Legislative Scrutiny: Bord…
Acknowledged
recommendation The requirements in clause 43 for imposing conditions such as electronic monitoring, geographical exclusions, and curfews, should be set out clearly on the face of the Bill and adequately circumscribed. In order to reflect the Government’s intentions as stated by the Minister, the exercise of these powers should be …
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recommendation The requirements in clause 43 for imposing conditions such as electronic monitoring, geographical exclusions, and curfews, should be set out clearly on the face of the Bill and adequately circumscribed. In order to reflect the Government’s intentions as stated by the Minister, the exercise of these powers should be expressly limited to cases involving conduct such as war crimes, crimes against humanity, genocide, extremism or serious crime, or where the person poses a threat to national security or public safety. Given the potential severity of interferences with the rights of individuals with any form of limited leave to remain, the exercise of these powers should be subject to judicial scrutiny. (See Amendment 17, Annex). 193 JCHR, Accountability for Daesh crimes, para 51 194 International Development Committee, Protection not permission: The UK’s role in upholding international humanitarian law and supporting the safe delivery of humanitarian aid, para 51 54 7 Treating certain crimes as “particularly serious”
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Government response AI summary
The government acknowledges the need for conditions under Clause 43 to be imposed only in serious cases where individuals pose a threat, confirming this is the current intention and that decisions will be subject to proportionality analysis and judicial review.
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Ministry of Justice
150
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Clause 48 was added by way of Government amendment at Report stage in the Commons. It provides for the classification of certain sexual offences as “particularly serious” when determining exclusions from the protection against refoulement, regardless of period of imprisonment. The relevant offences are sexual offences under Schedule 3 of …
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Clause 48 was added by way of Government amendment at Report stage in the Commons. It provides for the classification of certain sexual offences as “particularly serious” when determining exclusions from the protection against refoulement, regardless of period of imprisonment. The relevant offences are sexual offences under Schedule 3 of the Sexual Offences Act (SOA) 2003, which are the specified sex offences for which an individual will be subject to notification requirements. The Government’s intention is to “ensure that those who commit sexual offences and are considered to be a danger to the community of the UK are not able to benefit from refugee status.”195 The operational effect of the clause would be to make a relevant individual ineligible for refugee status under the Immigration Rules.196 Those who face exclusion from protection can rebut the presumption that they are a danger to the community. Compatibility with Refugee Convention
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Government response AI summary
The government welcomes the committee's description of clause 48, reaffirming its commitment to classifying certain sexual offences as "particularly serious" to ensure that those convicted of such crimes do not benefit from refugee status.
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Ministry of Justice
151
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The Refugee Convention, in its Article 33(2), allows for refugees to be excluded from non-refoulement protections where there are reasonable grounds for regarding them as a danger to the security of the UK or where if, having been convicted of a particularly serious crime, they constitute a danger to the …
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The Refugee Convention, in its Article 33(2), allows for refugees to be excluded from non-refoulement protections where there are reasonable grounds for regarding them as a danger to the security of the UK or where if, having been convicted of a particularly serious crime, they constitute a danger to the community in the UK.
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Government response AI summary
The government welcomes the committee's reference to Article 33(2) of the Refugee Convention and reiterates its commitment to classifying sexual offences as "particularly serious" to exclude offenders from protection status.
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Ministry of Justice
152
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
For these purposes, a particularly serious crime, in domestic law, is a crime for which a person is sentenced to a period of imprisonment of at least 12 months.197 The threshold is therefore amended by this provision in the Bill - a person could be excluded from protection under the …
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For these purposes, a particularly serious crime, in domestic law, is a crime for which a person is sentenced to a period of imprisonment of at least 12 months.197 The threshold is therefore amended by this provision in the Bill - a person could be excluded from protection under the Refugee Convention for a conviction of any of these offences, irrespective of the length of the sentence. In theory, this could mean that more people could be excluded from the protection of non-refoulement under Article 33 of the Refugee Convention. 195 Supplementary ECHR memorandum, para 13 196 By way of refusal of asylum under paragraph 336; revocation under paragraph 338A; or exclusion from humanitarian protection under paragraph 339D 197 Section 72 of the Nationality, Immigration and Asylum Act, as amended by section 38 NABA 55
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Government response AI summary
The government welcomes the Committee's observation that the clause will classify certain sexual offences as 'particularly serious' for refugee convention purposes, affirming its commitment to prevent those convicted of such crimes from receiving protection.
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Ministry of Justice
153
Conclusion
4th Report - Legislative Scrutiny: Bord…
Not Addressed
However, in practice, the lowering of this threshold may have very little effect. Professor Sarah Singer told us: “the Nationality and Borders Act introduced a new interpretation of Article 33(2) [Refugee Convention]… It would be highly unlikely to have a case under the Sexual Offences Act that did not meet …
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However, in practice, the lowering of this threshold may have very little effect. Professor Sarah Singer told us: “the Nationality and Borders Act introduced a new interpretation of Article 33(2) [Refugee Convention]… It would be highly unlikely to have a case under the Sexual Offences Act that did not meet that already very low bar [of a twelve months’ sentence of imprisonment].”198 Compatibility with Convention rights
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Government response AI summary
The government welcomed the Committee's perceived support for the clause, reiterating its commitment to classifying sexual offences as 'particularly serious' for Refugee Convention purposes, but did not address the observation that the lowered threshold may have little practical effect.
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Ministry of Justice
154
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
In the supplementary ECHR memorandum published by the Government, it is noted that an individual affected by this amendment “would still be able to rely on Article 2 or 3 rights, if they faced a real risk of persecution, but their claim for refugee status would not be accepted.”199 The …
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In the supplementary ECHR memorandum published by the Government, it is noted that an individual affected by this amendment “would still be able to rely on Article 2 or 3 rights, if they faced a real risk of persecution, but their claim for refugee status would not be accepted.”199 The Government also notes in its supplementary ECHR memorandum that this provision is likely to engage the right to respect for private and family life (Article 8 ECHR), but that this measure is “necessary in interests of the public”, and will be “exercised proportionately”, given that, according to the Government, individuals will be able to “argue against the presumptions made by the state regarding the seriousness of their offence, and the danger that they pose to the community.”41
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Government response AI summary
The government welcomes the committee's reported understanding of clause 48, reaffirming its commitment to classifying certain sexual offences as "particularly serious" to exclude offenders from refugee protection under Article 33(2) of the Refugee Convention.
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Ministry of Justice
155
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The rebuttable presumption is an important safeguard to give refugees the opportunity to argue against the seriousness of their offence and the danger they pose to the community. The Convention also provides a safeguard as the principle of non-refoulement under certain rights, such as Articles 2 and 3, provides an …
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The rebuttable presumption is an important safeguard to give refugees the opportunity to argue against the seriousness of their offence and the danger they pose to the community. The Convention also provides a safeguard as the principle of non-refoulement under certain rights, such as Articles 2 and 3, provides an absolute bar to removing or returning an individual to face real risks to life or real risks of torture, inhuman or degrading treatment or punishment.
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Government response AI summary
The government welcomes the committee's support for the clause that classifies certain sexual offences as 'particularly serious' under the Refugee Convention. They reiterate their commitment to tackling sexual offences and ensuring that those convicted of such crimes do not benefit from protection status.
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Ministry of Justice
156
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
conclusion Exclusions from the protections of the Refugee Convention are permitted in circumstances where individuals have committed “particularly serious crimes”. We acknowledge that the exclusion of individuals who pose a danger to the community is an important measure, and we support the Government’s intention to ensure that dangerous sex offenders …
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conclusion Exclusions from the protections of the Refugee Convention are permitted in circumstances where individuals have committed “particularly serious crimes”. We acknowledge that the exclusion of individuals who pose a danger to the community is an important measure, and we support the Government’s intention to ensure that dangerous sex offenders cannot benefit from the protections of the Refugee Convention. 198 UNHCR Observations on the New Plan for Immigration policy statement of the Government of the United Kingdom (May 2021) para 22 199 Supplementary ECHR memorandum 56 8 Serious Crime Prevention Orders
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Government response AI summary
The government welcomes the committee's support for the clause classifying sexual offences as 'particularly serious' for Refugee Convention exclusions, reiterating its commitment to preventing dangerous sex offenders from benefiting from protection status.
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Ministry of Justice
157
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The Bill provides power to impose electronic monitoring as a requirement of a Serious Crime Prevention Order (SCPO). It also provides for the power to impose interim SCPOs whilst an application for a final order is pending. SCPOs, introduced by the Serious Crime Act 2007, are civil preventative orders that …
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The Bill provides power to impose electronic monitoring as a requirement of a Serious Crime Prevention Order (SCPO). It also provides for the power to impose interim SCPOs whilst an application for a final order is pending. SCPOs, introduced by the Serious Crime Act 2007, are civil preventative orders that can impose tailored prohibitions, restrictions and requirements on a person for a period of up to five years to prevent or disrupt their involvement in serious crime. SCPOs may be imposed where a court is satisfied that a person has been involved in serious crime, and it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime. There is an indicative list of ‘serious offences’ in Schedule 1 to the 2007 Act for which an SCPO can be applied. Serious offences include fraud, money laundering, terrorism, drug and people trafficking. Examples of measures that can be included in an SCPO are also set out in the 2007 Act, they include restrictions on movement, association with others, phone and social media usage and finances.
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Government response AI summary
The government clarified that electronic monitoring in Serious Crime Prevention Orders is for monitoring compliance, not punishment. It reiterated that courts apply the 'appropriate' test compatibly with the ECHR, considering all facts and safeguards like judicial scrutiny and data protection.
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Ministry of Justice
158
Conclusion
4th Report - Legislative Scrutiny: Bord…
Accepted
SCPOs can be obtained from the High Court in a stand-alone application or from the Crown Court by application following a person’s conviction for a serious crime. Only the DPP, the Director of the Serious Fraud Office and (in respect of terrorism related serious crime) Chief Officers of Police can …
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SCPOs can be obtained from the High Court in a stand-alone application or from the Crown Court by application following a person’s conviction for a serious crime. Only the DPP, the Director of the Serious Fraud Office and (in respect of terrorism related serious crime) Chief Officers of Police can bring applications for SCPOs. Electronic monitoring
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Government response AI summary
The government clarifies that electronic monitoring in Serious Crime Prevention Orders (SCPOs) is for compliance, not punishment, and courts interpret the 'appropriate' test to be ECHR compatible. It defends the existing framework for imposing conditions, stating that judicial scrutiny and other safeguards ensure compliance with …
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Ministry of Justice
159
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
Clause 52 provides the courts with the power to impose electronic monitoring200 as part of SCPO requirements. Electronic monitoring can be imposed where there are “reasonable grounds to believe that the [overall] order would protect the public” and that this particular requirement is “appropriate for the purpose of protecting the …
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Clause 52 provides the courts with the power to impose electronic monitoring200 as part of SCPO requirements. Electronic monitoring can be imposed where there are “reasonable grounds to believe that the [overall] order would protect the public” and that this particular requirement is “appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person concerned in serious 200 There is no definition in the Bill. The Ministry of Justice in its Electronic Monitoring Strategy has defined electronic monitoring in England and Wales to include the wearing of ankle tags (curfew tags, GPS tags, alcohol tags) overseen by a “supporting service”. Electronic Monitoring in Criminal Justice System, Ministry of Justice, June 2022, PDF p 6 57 crime.” Electronic monitoring can be imposed for up to twelve months at a time, subject to extension upon application. The Bill does not specify the grounds on which such extensions may be made.
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Government response AI summary
The government clarified that electronic monitoring in SCPOs is for compliance, not punishment, and judicial interpretation ensures ECHR compatibility. It emphasized that courts determine appropriateness case-by-case, without committing to specify grounds for extensions, implying existing safeguards are sufficient.
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Ministry of Justice
160
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
Open Rights Group note that “the Bill’s provisions offer limited procedural safeguards (for instance, reliance on “reasonable grounds” rather than rigorous independent judicial oversight). Such a low threshold can lead to overly broad applications of state power.”201 Migrant Help states that “the use of electronic monitoring is also actively discouraged …
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Open Rights Group note that “the Bill’s provisions offer limited procedural safeguards (for instance, reliance on “reasonable grounds” rather than rigorous independent judicial oversight). Such a low threshold can lead to overly broad applications of state power.”201 Migrant Help states that “the use of electronic monitoring is also actively discouraged by human rights experts for the “stigmatizing and negative psychological effects”, which are likely to be “disproportionate to the benefits of such monitoring”.202 They also note that “[p]eople in our Network who have experienced electronic monitoring said that it made them feel ‘inhuman’ and severely negatively impacted their mental health.”203
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Government response AI summary
The government rejects the suggestion of limited procedural safeguards, arguing that existing judicial scrutiny ensures compatibility with the ECHR and that a stricter threshold would impede vital interventions. It clarifies the purpose of electronic monitoring and asserts that individuals have rights of appeal for unjustified …
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Ministry of Justice
161
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
The power to impose electronic monitoring engages Article 8, which requires that any interferences with the right to private and family life are in accordance with the law, in pursuit of a legitimate aim and necessary and proportionate to that aim. Generally, measures imposed by way of an SCPO will …
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The power to impose electronic monitoring engages Article 8, which requires that any interferences with the right to private and family life are in accordance with the law, in pursuit of a legitimate aim and necessary and proportionate to that aim. Generally, measures imposed by way of an SCPO will be justified on the basis that they can only be imposed where the court is satisfied (on the civil standard of proof–i.e. more likely than not) that the individual “has been involved in serious crime” and the court has reasonable grounds to believe that the order would protect the public. Furthermore, the courts, as public authorities, are obliged under the HRA to act compatibly with human rights, so any conditions that are imposed must not violate human rights, including by interfering with Article 8 disproportionately. The power is clear and adequately prescribed, and in pursuit of the legitimate aim of preventing serious crime. However, the threshold test is whether the electronic monitoring is “appropriate”. In order to comply with Article 8, the test ought to be one of necessity and proportionality.
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Government response AI summary
The government rejects the need for a 'necessity and proportionality' test for electronic monitoring, asserting that courts already interpret 'appropriate' conditions in Serious Crime Prevention Orders (SCPOs) compatibly with the ECHR. It states existing safeguards like judicial scrutiny and the ability to seek variation ensure …
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Ministry of Justice
162
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
recommendation Given the severe infringement on the right to privacy posed by the imposition of electronic monitoring, the threshold test for electronic monitoring should be one of “necessity and proportionality”, not whether it is “appropriate”. Clause 52 should be amended accordingly. (See Amendment 18, Annex). 201 Open Rights Group,, p4 …
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recommendation Given the severe infringement on the right to privacy posed by the imposition of electronic monitoring, the threshold test for electronic monitoring should be one of “necessity and proportionality”, not whether it is “appropriate”. Clause 52 should be amended accordingly. (See Amendment 18, Annex). 201 Open Rights Group,, p4 202 Migrant Help Q6 203 Migrant Help Q6 58 Interim SCPOs
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Government response AI summary
The government rejects the recommendation to change the threshold test for electronic monitoring to 'necessity and proportionality', stating that the existing 'appropriate' test is sufficient as courts must interpret it in line with ECHR and other safeguards.
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Ministry of Justice
163
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Clause 53 introduces a new interim SCPO (ISCPO) which would allow the High Court to impose requirements on the subject while the full application is pending. The test for imposing an ISCPO is whether the court “considers it just to do so”. The aim of this provision is to provide …
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Clause 53 introduces a new interim SCPO (ISCPO) which would allow the High Court to impose requirements on the subject while the full application is pending. The test for imposing an ISCPO is whether the court “considers it just to do so”. The aim of this provision is to provide for the immediate mitigation of potential risks and prevent harm to the public before criminal activities take place.
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Government response AI summary
The government acknowledges the committee's description of the Interim SCPO (ISCPO) and defends the 'just to do so' test, arguing it allows swift action against public risk. It states a stricter threshold would delay vital interventions and highlights rights of appeal for individuals.
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Ministry of Justice
164
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
ISCPOs could be obtained without notice being given to the subject if the High Court accepts that “the outcome sought by the applicant” (presumably protecting against serious crime) is likely to be prejudiced by notice being given. Where an order is made without notice, the subject of the ISCPO must …
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ISCPOs could be obtained without notice being given to the subject if the High Court accepts that “the outcome sought by the applicant” (presumably protecting against serious crime) is likely to be prejudiced by notice being given. Where an order is made without notice, the subject of the ISCPO must be given an opportunity to make representations as soon as reasonably practicable. The ISCPO, once made, would not be binding on the subject until they have been given notice of it (which must be done within 7 days). It would also expire at a determined date or at the point when the full SCPO application is determined.
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Government response AI summary
The government defends the 'just to do so' threshold for Interim Serious Crime Prevention Orders (ISCPOs), arguing a stricter test could delay vital interventions. It states this standard enables swift action and aligns with comparable regimes, while judicial review and appeal rights ensure a balance …
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Ministry of Justice
165
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
The provision is sufficiently clear and accessible. The aim of preventing serious crime is legitimate. As to whether it is necessary and proportionate, it is notable that the threshold for imposing an ISCPO is merely that the court considers it “just”. It is arguable that a more rigorous threshold test …
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The provision is sufficiently clear and accessible. The aim of preventing serious crime is legitimate. As to whether it is necessary and proportionate, it is notable that the threshold for imposing an ISCPO is merely that the court considers it “just”. It is arguable that a more rigorous threshold test would ensure that the use of ISCPOs (potentially without notice), and the interference with Article 8 rights involved, is proportionate. Migrant Help raised a concern that “the lack of clarity around the criteria for “just to do so” could lead to overly broad applications of interim orders in situations where they may not be strictly necessary.”204
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Government response AI summary
The government defends the 'just to do so' threshold for Interim Serious Crime Prevention Orders (ISCPOs), arguing a stricter test could delay vital interventions. It states this standard enables swift action and aligns with comparable regimes, while judicial review and appeal rights ensure a balance …
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Ministry of Justice
166
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
conclusion Given that the threshold for imposing interim SCPOs is substantially lower than for full SCPOs, there is a risk that they could be imposed in circumstances that do not justify a full SCPO. recommendation To ensure respect for Convention rights, the prosecuting authorities and the courts must be careful …
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conclusion Given that the threshold for imposing interim SCPOs is substantially lower than for full SCPOs, there is a risk that they could be imposed in circumstances that do not justify a full SCPO. recommendation To ensure respect for Convention rights, the prosecuting authorities and the courts must be careful to only seek and impose these interim orders where risks are imminent, such that an interim order is required. 204 Migrant Help Q7 59 Conclusions and recommendations New immigration offences
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Government response AI summary
The government rejects the recommendation for a stricter threshold for Interim SCPOs, stating the existing 'just to do so' standard is appropriate for urgent, preventive interim orders and aligns with comparable regimes.
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Ministry of Justice
1
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
We are concerned that the breadth of these precursor offences poses a risk of unintended harms to those who are most vulnerable. To mitigate this risk, we consider that the precursor offences would benefit from greater circumscription and more robust safeguards and propose various amendments (below). (Conclusion, Paragraph 38)
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We are concerned that the breadth of these precursor offences poses a risk of unintended harms to those who are most vulnerable. To mitigate this risk, we consider that the precursor offences would benefit from greater circumscription and more robust safeguards and propose various amendments (below). (Conclusion, Paragraph 38)
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Government response AI summary
The government acknowledges the committee's concern about precursor offences and the aim to protect vulnerable groups, but it defends the current offences as proportionate and effective, indicating that the proposed amendments would undermine their effectiveness.
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Ministry of Justice
2
Recommendation
4th Report - Legislative Scrutiny: Bord…
Acknowledged
We support the Government’s intention to disrupt and deter organised immigration crime and to safeguard life. However, we are concerned that the precursor offences, as currently drafted, create uncertainty, extend beyond the Government’s stated legitimate aim, and risk inadvertently criminalising persons who ought to be protected from criminal penalty. The …
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We support the Government’s intention to disrupt and deter organised immigration crime and to safeguard life. However, we are concerned that the precursor offences, as currently drafted, create uncertainty, extend beyond the Government’s stated legitimate aim, and risk inadvertently criminalising persons who ought to be protected from criminal penalty. The scope is broad, the thresholds are low, and the penalties are high. To ensure compliance with the Refugee Convention, the Smuggling Protocol, and the Council of Europe Convention Against Trafficking, we propose a series of amendments. (Conclusion, Paragraph 50)
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Government response AI summary
The government acknowledges the committee's sentiment to protect vulnerable groups but defends the current drafting of the new offences, stating they are tailored to be proportionate and effective in disrupting organised immigration crime and protecting those exploited. They indicate that amendments could pose risks to …
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Ministry of Justice
3
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
In relation to clauses 13 and 14: a. The Government should give consideration to amending the scope of the offences to ensure that they only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain. (See Amendments 1 and 2, Annex). b. The …
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In relation to clauses 13 and 14: a. The Government should give consideration to amending the scope of the offences to ensure that they only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain. (See Amendments 1 and 2, Annex). b. The mental threshold should be changed from “knows or suspects” to “intends” that, or is “reckless” as to whether, the relevant article is to be used in connection with the commission of the specified immigration offences. (See Amendments 3 and 4, Annex). c. The defence of “reasonable excuse” ought to explicitly provide that it must be interpreted compatibly with Article 31 of the Refugee Convention, Article 5 of the Smuggling Protocol, and section 26 of the Council of Europe Convention Against Trafficking. (See Amendments 5 and 6, Annex) 60 d. The offences in clauses 13 and 14 should be added to the existing defence in section 31 of the Immigration and Asylum Act 1999. This would, in certain circumstances, provide a defence to refugees who come to the UK directly from a country where their life or freedom was threatened. (See Amendment 7, Annex). (Recommendation, Paragraph a)) (Recommendation, Paragraph 51)
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Government response AI summary
The government rejects the recommendations to amend the scope of offences to require financial gain and to change the mental threshold, arguing these changes would undermine operational effectiveness and create loopholes for criminal networks.
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Ministry of Justice
4
Recommendation
4th Report - Legislative Scrutiny: Bord…
Accepted in Part
Clause 15 should be amended to ensure that the list of exempted “relevant articles” includes items commonly used by asylum seekers. At a minimum, this must include items such as hygiene kits. (See Amendment 8, Annex). (Recommendation, Paragraph 52)
Government response AI summary
The government acknowledges the importance of hygiene products and will consider specifying safe, low-risk hygiene items for exemption, though with careful drafting to avoid security risks, thus partially accepting the recommendation.
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Ministry of Justice
5
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
In relation to clause 16: a. The Government should give consideration to amending the scope of the offences to ensure that they only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain. (See Amendment 9, Annex) b. Clause 16(2) should be removed …
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In relation to clause 16: a. The Government should give consideration to amending the scope of the offences to ensure that they only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain. (See Amendment 9, Annex) b. Clause 16(2) should be removed and replaced with a requirement that the person intended the information to be useful in organising or preparing for a relevant journey, or was reckless as to whether the information would be useful to a person organising or preparing for a relevant journey. (See Amendment 10, Annex). c. The defence of “reasonable excuse” ought to explicitly provide that it must be interpreted compatibly with the Article 31 of the Refugee Convention, Article 5 of the Smuggling Protocol, and section 26 of the Council of Europe Convention Against Trafficking. (See Amendment 11, Annex). d. The offence in clause 16 should be added to the existing defence in section 31 of the Immigration and Asylum Act 1999. This would, in certain circumstances, provide a defence to refugees who come to the UK directly from a country where their life or freedom was threatened. (See Amendment 7, Annex) (Recommendation, Paragraph 53)
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Government response AI summary
The government rejected recommendations (a) and (b) to amend Clause 16, stating that requiring financial gain or specific intent/recklessness would undermine the new offences' purpose of early disruption and create loopholes for criminal networks, citing precedent for the 'reasonable suspicion' standard. The response did not …
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Ministry of Justice
6
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
More broadly, we agree with our predecessor Committee that the Government should fully incorporate Article 31 of the Refugee Convention into section 31 of the Immigration and Asylum Act 1999. Section 31 should include the new offences in this Bill and the offence of illegal entry/arrival under section 24 of …
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More broadly, we agree with our predecessor Committee that the Government should fully incorporate Article 31 of the Refugee Convention into section 31 of the Immigration and Asylum Act 1999. Section 31 should include the new offences in this Bill and the offence of illegal entry/arrival under section 24 of the Immigration Act 1971. (See Amendment 3, Annex). (Recommendation, Paragraph 54) 61
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Government response AI summary
The government rejects the recommendation, stating that implementing it would weaken the close link to entry and presence in the UK and that very few migrants meet the existing criteria. It highlights that the Bill already provides a separate defence of reasonable excuse.
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Ministry of Justice
7
Recommendation
4th Report - Legislative Scrutiny: Bord…
Accepted
The Government should ensure that clause 18 is sufficiently clear and circumscribed, reflects the legitimate aim it is intended to achieve, and is proportionate to that aim. In particular, a mental element should be introduced to ensure that only conduct which is intentional or reckless is criminalised. (See Amendment 12, …
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The Government should ensure that clause 18 is sufficiently clear and circumscribed, reflects the legitimate aim it is intended to achieve, and is proportionate to that aim. In particular, a mental element should be introduced to ensure that only conduct which is intentional or reckless is criminalised. (See Amendment 12, Annex) (Recommendation, Paragraph 68) Powers of search, seizure and retention in relation to electronic devices
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Government response AI summary
The government defended clause 18 as clear and circumscribed, intended to target dangerous acts during sea crossings. While not committing to a specific legislative amendment for a mental element, it stated that prosecutorial public interest considerations, the defence of duress, and mental health factors would …
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Ministry of Justice
9
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
We are concerned that clause 35(7) and (8), deeming transfer of personal data to third countries and international organisations to be necessary for important reasons of public interest, inappropriately disapplies the normal safeguards in data protection legislation when data is transferred to third countries. (Conclusion, Paragraph 89) Whilst recognising the …
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We are concerned that clause 35(7) and (8), deeming transfer of personal data to third countries and international organisations to be necessary for important reasons of public interest, inappropriately disapplies the normal safeguards in data protection legislation when data is transferred to third countries. (Conclusion, Paragraph 89) Whilst recognising the need for the Home Office to act with expedition in these circumstances, and the potential national security concerns, we recommend the removal of clause 35(7) and (8) to ensure that the normal safeguards apply. (See Amendment 13, Annex) (Recommendation, Paragraph 89) Asylum and Immigration
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Government response AI summary
The government rejects the recommendation to remove clause 35(7) and (8), stating that the clause does not disapply data protection safeguards but rather engages a derogation, with processing still complying with UK GDPR principles and due diligence.
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Ministry of Justice
10
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Clause 37 of the Bill would repeal SORA in its entirety. This is consistent with the current Government’s manifesto commitment to abandon the Rwanda policy. Repeal of SORA will remove the significant incompatibilities identified in the predecessor JCHR’s report. (Conclusion, Paragraph 93)
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Clause 37 of the Bill would repeal SORA in its entirety. This is consistent with the current Government’s manifesto commitment to abandon the Rwanda policy. Repeal of SORA will remove the significant incompatibilities identified in the predecessor JCHR’s report. (Conclusion, Paragraph 93)
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Government response AI summary
The government welcomes the committee's support for the repeal of the Safety of Rwanda Act 2024, noting that the Act served no practical purpose and its repeal aligns with the government's commitment to abandon the Rwanda policy.
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Ministry of Justice
11
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
Section 12 of the Illegal Migration Act modifies the common law position, making it for the Secretary of State, and not the courts, to determine what is a reasonable period of detention. We agree with our predecessor 62 Committee and recommend the repeal of section 12 to restore certainty and …
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Section 12 of the Illegal Migration Act modifies the common law position, making it for the Secretary of State, and not the courts, to determine what is a reasonable period of detention. We agree with our predecessor 62 Committee and recommend the repeal of section 12 to restore certainty and ensure compliance with Article 5. (See Amendment 14, Annex). (Recommendation, Paragraph 103)
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Government response AI summary
The government rejected the recommendation to repeal section 12 of the Illegal Migration Act 2023. It stated the section is already in force, provides a clear legislative framework, and argued it is appropriate and compliant with Article 5 ECHR for the Home Secretary to determine …
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Ministry of Justice
12
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
We agree with our predecessor Committee that section 29 IMA, which broadens the public order disqualification in section 63 of the Nationality and Borders Act, is not compatible with the UK’s obligations under ECAT and Article 4 of the ECHR. We recommend that the Government repeal this provision. (See Amendment …
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We agree with our predecessor Committee that section 29 IMA, which broadens the public order disqualification in section 63 of the Nationality and Borders Act, is not compatible with the UK’s obligations under ECAT and Article 4 of the ECHR. We recommend that the Government repeal this provision. (See Amendment 14, Annex). (Recommendation, Paragraph 114)
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Government response AI summary
The government rejects the recommendation to repeal Section 29 of the IMA 2023, asserting that it is committed to retaining this measure and that its public order disqualification process is fully compliant with ECAT and Article 4 of the ECHR.
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Ministry of Justice
13
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
We share the concerns of our predecessor Committee that, whilst the states listed may be considered safe in general, this does not guarantee the safety of all individuals from these states, especially those who are members of particular social groups facing persecution. It must be possible for such individuals who …
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We share the concerns of our predecessor Committee that, whilst the states listed may be considered safe in general, this does not guarantee the safety of all individuals from these states, especially those who are members of particular social groups facing persecution. It must be possible for such individuals who face a real risk of persecution upon return to make a protection or human rights claim which must be considered on its merits in order to guard against the risk of refoulement. If the Government chooses to bring section 59 of the Illegal Migration Act into force, it should, at the very least, periodically review the list of safe, with a particular consideration of the rights of minority groups. (Recommendation, Paragraph 123)
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Government response AI summary
The government rejects the recommendation for a periodic review of safe country lists, arguing that a continuous monitoring approach is more flexible and effective than time-bound reviews.
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Ministry of Justice
14
Recommendation
4th Report - Legislative Scrutiny: Bord…
Accepted
Section 62 IMA should be amended, as recommended by our predecessor Committee, to make clear that the credibility of a claimant who has provided a reasonable excuse for their failure to provide a password or other methods of access requested by the Home Office will not be affected. (See Amendment …
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Section 62 IMA should be amended, as recommended by our predecessor Committee, to make clear that the credibility of a claimant who has provided a reasonable excuse for their failure to provide a password or other methods of access requested by the Home Office will not be affected. (See Amendment 15, Annex). (Recommendation, Paragraph 126) Retrospective powers: detention and fees
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Government response AI summary
The government states that an amendment to Section 62 is not necessary, as existing guidance already requires decision-makers to consider a claimant's credibility in the round, including any mitigation for failing to provide access information.
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Ministry of Justice
15
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
The Government’s position is that clause 41 “clarifies” the law. However, the operational effect would appear to amount to retrospectively making it lawful to have detained persons liable to deportation. This does not comply with Article 5 ECHR, which requires a lawful basis for detention, and Article 13 ECHR, which …
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The Government’s position is that clause 41 “clarifies” the law. However, the operational effect would appear to amount to retrospectively making it lawful to have detained persons liable to deportation. This does not comply with Article 5 ECHR, which requires a lawful basis for detention, and Article 13 ECHR, which guarantees an effective remedy. We recommend the repeal of this clause. (See Amendment 16, Annex) (Recommendation, Paragraph 136)
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Government response AI summary
The government rejects the recommendation to repeal Clause 41, stating it clarifies existing lawful detention powers and is necessary for continuity in immigration control and public protection.
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Ministry of Justice
16
Recommendation
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The Government has provided for the retrospective validation of fees charged without any statutory basis. We ask the Government to clarify its justification for the retrospective validation of these fees. (Conclusion, Paragraph 141) 63 Conditions on leave and bail
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The Government has provided for the retrospective validation of fees charged without any statutory basis. We ask the Government to clarify its justification for the retrospective validation of these fees. (Conclusion, Paragraph 141) 63 Conditions on leave and bail
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Government response AI summary
The government maintains its position that the retrospective validation of fees is justified and proportionate, citing compelling public interest reasons and asserting compatibility with Article 1 of Protocol 1 of the ECHR. They provided a detailed legal justification for their stance as requested.
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Ministry of Justice
17
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
The requirements in clause 43 for imposing conditions such as electronic monitoring, geographical exclusions, and curfews, should be set out clearly on the face of the Bill and adequately circumscribed. In order to reflect the Government’s intentions as stated by the Minister, the exercise of these powers should be expressly …
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The requirements in clause 43 for imposing conditions such as electronic monitoring, geographical exclusions, and curfews, should be set out clearly on the face of the Bill and adequately circumscribed. In order to reflect the Government’s intentions as stated by the Minister, the exercise of these powers should be expressly limited to cases involving conduct such as war crimes, crimes against humanity, genocide, extremism or serious crime, or where the person poses a threat to national security or public safety. Given the potential severity of interferences with the rights of individuals with any form of limited leave to remain, the exercise of these powers should be subject to judicial scrutiny. (See Amendment 17, Annex). (Recommendation, Paragraph 149) Treating certain crimes as “particularly serious”
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Government response AI summary
The government rejects the need to set out requirements and limitations for imposing conditions on the face of the Bill, stating these measures are necessary for managing individuals posing a threat and are applied on a case-by-case basis with proportionality analysis. They also affirm that …
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Ministry of Justice
18
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Exclusions from the protections of the Refugee Convention are permitted in circumstances where individuals have committed “particularly serious crimes”. We acknowledge that the exclusion of individuals who pose a danger to the community is an important measure, and we support the Government’s intention to ensure that dangerous sex offenders cannot …
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Exclusions from the protections of the Refugee Convention are permitted in circumstances where individuals have committed “particularly serious crimes”. We acknowledge that the exclusion of individuals who pose a danger to the community is an important measure, and we support the Government’s intention to ensure that dangerous sex offenders cannot benefit from the protections of the Refugee Convention. (Conclusion, Paragraph 156) Serious Crime Prevention Orders
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Government response AI summary
The government welcomed the Committee's support for the clause which classifies certain sexual offences as 'particularly serious' for Refugee Convention purposes. The government reaffirmed its commitment to tackling sexual offences and ensuring dangerous offenders do not benefit from protection status.
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Ministry of Justice
19
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
Given the severe infringement on the right to privacy posed by the imposition of electronic monitoring, the threshold test for electronic monitoring should be one of “necessity and proportionality”, not whether it is “appropriate”. Clause 52 should be amended accordingly. (See Amendment 18, Annex). (Recommendation, Paragraph 162)
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Given the severe infringement on the right to privacy posed by the imposition of electronic monitoring, the threshold test for electronic monitoring should be one of “necessity and proportionality”, not whether it is “appropriate”. Clause 52 should be amended accordingly. (See Amendment 18, Annex). (Recommendation, Paragraph 162)
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Government response AI summary
The government rejected the recommendation to change the threshold test for electronic monitoring from "appropriate" to "necessity and proportionality" in Clause 52. It stated that courts must interpret the "appropriate" test compatibly with the ECHR, and existing safeguards ensure compliance with Convention rights.
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Ministry of Justice
20
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
Given that the threshold for imposing interim SCPOs is substantially lower than for full SCPOs, there is a risk that they could be imposed in circumstances that do not justify a full SCPO. (Conclusion, Paragraph 166) To ensure respect for Convention rights, the prosecuting authorities and the courts must be …
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Given that the threshold for imposing interim SCPOs is substantially lower than for full SCPOs, there is a risk that they could be imposed in circumstances that do not justify a full SCPO. (Conclusion, Paragraph 166) To ensure respect for Convention rights, the prosecuting authorities and the courts must be careful to only seek and impose these interim orders where risks are imminent, such that an interim order is required. (Recommendation, Paragraph 166) 64
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Government response AI summary
The government rejected the recommendation for prosecuting authorities and courts to apply interim SCPOs only where risks are imminent, arguing that the 'just to do so' standard is necessary for swift action and aligns with other regimes, with safeguards like temporary review and appeal rights.
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Ministry of Justice