Border Security, Asylum and Immigration Bill

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

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

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

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

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response to a decision of the High Court in 2022, which held that the Home Secretary had acted unlawfully by having an unpublished blanket policy to search for, and seize, mobile phones from migrants arriving in small boats from France.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

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.

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.

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.

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.

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

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

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

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.

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

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

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

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

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.

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

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.”

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

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

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.

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.

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

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

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.

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).

The Explanatory Notes to the Bill notes that these provisions are not subject to repeal due to their “operational benefit”.133

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

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.

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

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

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.

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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).

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

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

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

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.

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

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

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

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.

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

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

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.

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.

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

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

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

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.

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

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

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.

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

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.

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

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

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.

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

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

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).

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

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.

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

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

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

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”

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

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.

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

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

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

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.

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

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.

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

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.

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

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.

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

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.

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.

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

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

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)

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)

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)

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)

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)

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

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

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

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)

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)

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)

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)

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

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)

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

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”

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

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)

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