Recommendations & Conclusions
36 items
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
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
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
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
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
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
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 …
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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.
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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.
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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
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
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
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
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
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
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
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
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
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
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