Recommendations & Conclusions
30 items
75
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
There are various safeguards within the clause that help to protect against arbitrary and excessive interferences. There is a requirement of reasonable suspicion that, although low, does place a limit on when the powers can be exercised. The powers are only to be used once per entry, when an irregular …
Government response. The government confirms that search and seizure powers are subject to existing safeguards, including reasonable suspicion and case-by-case application, and that forthcoming non-statutory guidance will further ensure their proportionate use.
Ministry of Justice
83
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Clause 35 provides that the information must then be passed to the Secretary of State, who can keep and use it for purposes relating to immigration, nationality, law enforcement or national security. The information cannot be kept for longer than necessary, and in any event no longer than 5 years, …
Government response. The government acknowledges the committee's description of Clause 35, asserting that it does not disapply data protection safeguards and that processing will comply with UK GDPR principles, with due diligence paid to safeguarding personal data.
Ministry of Justice
93
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
conclusion Clause 37 of the Bill would repeal SORA in its entirety. This is consistent with the current Government’s manifesto commitment to abandon the Rwanda policy. Repeal of SORA will remove the significant incompatibilities identified in the predecessor JCHR’s report. Clause 38: Repeal of certain provisions of the Illegal Migration …
Government response. The government welcomes the Committee's support for the repeal of the Safety of Rwanda (Asylum and Immigration) Act 2024, confirming its commitment to repeal the Act as it served no practical purpose and was inconsistent with previous government policy.
Ministry of Justice
94
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The Illegal Migration Act 2023 (IMA) introduced significant changes to the UK’s asylum system. In summary, it imposed a duty on the Secretary of State to make arrangements to remove any person who enters the UK irregularly and has not come directly from a territory where their life and liberty …
Government response. The government states its commitment to ensuring an effective immigration and asylum system and has retained certain measures of the Illegal Migration Act 2023 that were assessed as beneficial.
Ministry of Justice
95
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Clause 38 of the Bill repeals most of the provisions of the IMA. However, a number of provisions will not be repealed: a. Section 12, expanding powers of immigration detention (in force) b. Section 29, strengthening the disqualification from modern slavery protections for migrants who have committed criminal offences or …
Government response. The government states its commitment to ensuring an effective immigration and asylum system and has retained certain measures of the Illegal Migration Act 2023 that were assessed as beneficial.
Ministry of Justice
96
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The Explanatory Notes to the Bill notes that these provisions are not subject to repeal due to their “operational benefit”.133
Government response. The government states its commitment to ensuring an effective immigration and asylum system and has retained certain measures of the Illegal Migration Act 2023 that were assessed as beneficial.
Ministry of Justice
104
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Section 29 of the IMA is not yet in force. Upon commencement, it would amend section 63 of the Nationality and Borders Act 2022, which sets out disqualifications to providing a recovery period139 to a potential victim of modern slavery based on grounds that the person is a threat to …
Government response. The government justifies its decision to retain Section 29 of the IMA, which, if commenced, would expand public order disqualifications for modern slavery protections to all foreign national offenders, asserting its compliance with ECAT and ECHR.
Ministry of Justice
115
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Section 59 IMA (partially in force)149 amends section 80A of the Nationality, Immigration and Asylum Act 2002, which provides that asylum claims and human rights claims from nationals of listed states must be declared inadmissible. Section 59 IMA principally does two things. First, it extends the list from EU nationals …
Government response. The government clarifies that Section 59 of the IMA 2023 is not yet fully commenced but reiterates that existing provisions (Section 80A NIAA) allow for consideration of exceptional circumstances and that country safety is kept under continuous review.
Ministry of Justice
116
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Inadmissibility procedures allow a State to declare claims “inadmissible” when the claim is made by nationals of countries that are deemed safe. Section 80A(5) provides two non-exhaustive examples of exceptional circumstances. These are narrowly construed: first, where the listed state is derogating from the ECHR, and second, where the state …
Government response. The government clarifies that Section 59 of the IMA 2023 is not yet fully commenced, and emphasizes that the "exceptional circumstances" provisions in Section 80A NIAA are not exhaustive, allowing for fact-sensitive assessments.
Ministry of Justice
118
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The implications for Albanian women and children are particularly concerning. For example, an Albanian woman who has been trafficked to the UK and faces a real risk of reprisals and re-trafficking upon return to Albania, could be returned to Albania unless she can demonstrate “exceptional circumstances” according to the determination …
Government response. The government notes that Section 59 of the IMA 2023 is not yet fully commenced and reiterates that existing provisions allow for fact-sensitive assessments for "exceptional circumstances" in asylum and human rights claims, with country safety under continuous review.
Ministry of Justice
121
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
In relation to India, Rainbow Migration shared two examples of clients who have been granted asylum in the UK: a. “A trans woman from India came out to her parents at age fourteen. They reacted very negatively, locking her in the house and refusing to let her out. They forced …
Government response. The government acknowledges the examples by explaining existing and prospective inadmissibility provisions, and how exceptional circumstances and fact-sensitive assessments allow for consideration of complex asylum claims, noting the continuous review of country safety.
Ministry of Justice
127
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Clause 41 amends the current powers contained in paragraph 2(2) to Schedule 3 of the IA 1971, which permits the Secretary of State to detain individuals liable to deportation on the grounds that their presence in the UK is not considered conducive to the public good.163 According to the Government, …
Government response. The government acknowledged the committee's description of Clause 41, explaining it clarifies existing statutory detention powers and amendments. It stated the clause provides greater legal clarity, justifies its retrospective effect for continuity and public protection, and asserts compatibility with Article …
Ministry of Justice
128
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The clause also amends section 141 of the Immigration Act 1999 (fingerprinting) and regulation 2 of the Immigration (Collection, Use and Retention of Biometric Information and Related Amendments) Regulations 2021 (photographs) to clarify that fingerprints and photographs can be taken when the Secretary of State is considering making a deportation …
Government response. The government acknowledged that Clause 41 includes consequential amendments for taking biometrics and searches, justifying these as part of clarifying existing lawful detention powers. It maintained the clause provides greater legal clarity and is necessary for immigration control and public …
Ministry of Justice
142
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
At Committee stage in the Commons, the Government added clause 43. This introduces an extension of the existing conditions that may be applied to any grant of limited leave to enter or remain in the UK under section 3(1) (c) of the Immigration Act 1971. This covers persons not liable …
Government response. The government reiterates its intention to use clause 43 conditions, such as electronic monitoring and curfews, to manage foreign nationals who pose a threat and cannot be immediately removed, ensuring decisions are made on a case-by-case basis with proportionality analysis.
Ministry of Justice
143
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The current restrictions, set out in section 3(1)(c) of the Immigration Act 1971, permit restrictions to be placed on individuals such as restrictions on the right to work and study, requirements to report to immigration officers, and residency requirements. The introduction of the power to impose curfews, exclusions, confinement, and …
Government response. The government acknowledges that the conditions may be invasive and engage ECHR rights, stating that decisions will be made on a case-by-case basis with proportionality analysis to ensure compatibility. It maintains that these measures are necessary for safely managing individuals.
Ministry of Justice
145
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The Minister for Border Security and Asylum, Dame Angela Eagle MP, said during the Bill’s passage through the House of Commons that: “The powers will be used only in cases involving conduct such as war crimes, crimes against humanity, extremism or serious crime, or where the person poses a threat …
Government response. The government acknowledges the committee's observation that Clause 43 is broader than the Minister's stated intention, responding by reiterating that the powers will be used judiciously, on a case-by-case basis with proportionality analysis, for individuals posing a threat.
Ministry of Justice
146
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Amnesty describes this as an “extraordinary overreach of power”.190 Public Law Project notes that these restrictions are akin to those imposed on national security grounds (Terrorism Prevention and Investigation Measures), and that the same types of restrictions would be used against those who have lawful immigration status.191
Government response. The government acknowledges the concerns regarding the invasive nature of the conditions, stating that these measures are necessary to safely manage individuals and will be applied on a case-by-case basis with a proportionality analysis to ensure ECHR compatibility.
Ministry of Justice
149
Recommendation
4th Report - Legislative Scrutiny: Bord…
Acknowledged
recommendation The requirements in clause 43 for imposing conditions such as electronic monitoring, geographical exclusions, and curfews, should be set out clearly on the face of the Bill and adequately circumscribed. In order to reflect the Government’s intentions as stated by the Minister, the exercise of these powers should be …
Government response. The government acknowledges the need for conditions under Clause 43 to be imposed only in serious cases where individuals pose a threat, confirming this is the current intention and that decisions will be subject to proportionality analysis and judicial review.
Ministry of Justice
150
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Clause 48 was added by way of Government amendment at Report stage in the Commons. It provides for the classification of certain sexual offences as “particularly serious” when determining exclusions from the protection against refoulement, regardless of period of imprisonment. The relevant offences are sexual offences under Schedule 3 of …
Government response. The government welcomes the committee's description of clause 48, reaffirming its commitment to classifying certain sexual offences as "particularly serious" to ensure that those convicted of such crimes do not benefit from refugee status.
Ministry of Justice
151
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The Refugee Convention, in its Article 33(2), allows for refugees to be excluded from non-refoulement protections where there are reasonable grounds for regarding them as a danger to the security of the UK or where if, having been convicted of a particularly serious crime, they constitute a danger to the …
Government response. The government welcomes the committee's reference to Article 33(2) of the Refugee Convention and reiterates its commitment to classifying sexual offences as "particularly serious" to exclude offenders from protection status.
Ministry of Justice
152
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
For these purposes, a particularly serious crime, in domestic law, is a crime for which a person is sentenced to a period of imprisonment of at least 12 months.197 The threshold is therefore amended by this provision in the Bill - a person could be excluded from protection under the …
Government response. The government welcomes the Committee's observation that the clause will classify certain sexual offences as 'particularly serious' for refugee convention purposes, affirming its commitment to prevent those convicted of such crimes from receiving protection.
Ministry of Justice
154
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
In the supplementary ECHR memorandum published by the Government, it is noted that an individual affected by this amendment “would still be able to rely on Article 2 or 3 rights, if they faced a real risk of persecution, but their claim for refugee status would not be accepted.”199 The …
Government response. The government welcomes the committee's reported understanding of clause 48, reaffirming its commitment to classifying certain sexual offences as "particularly serious" to exclude offenders from refugee protection under Article 33(2) of the Refugee Convention.
Ministry of Justice
155
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The rebuttable presumption is an important safeguard to give refugees the opportunity to argue against the seriousness of their offence and the danger they pose to the community. The Convention also provides a safeguard as the principle of non-refoulement under certain rights, such as Articles 2 and 3, provides an …
Government response. The government welcomes the committee's support for the clause that classifies certain sexual offences as 'particularly serious' under the Refugee Convention. They reiterate their commitment to tackling sexual offences and ensuring that those convicted of such crimes do not benefit …
Ministry of Justice
156
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
conclusion Exclusions from the protections of the Refugee Convention are permitted in circumstances where individuals have committed “particularly serious crimes”. We acknowledge that the exclusion of individuals who pose a danger to the community is an important measure, and we support the Government’s intention to ensure that dangerous sex offenders …
Government response. The government welcomes the committee's support for the clause classifying sexual offences as 'particularly serious' for Refugee Convention exclusions, reiterating its commitment to preventing dangerous sex offenders from benefiting from protection status.
Ministry of Justice
157
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The Bill provides power to impose electronic monitoring as a requirement of a Serious Crime Prevention Order (SCPO). It also provides for the power to impose interim SCPOs whilst an application for a final order is pending. SCPOs, introduced by the Serious Crime Act 2007, are civil preventative orders that …
Government response. The government clarified that electronic monitoring in Serious Crime Prevention Orders is for monitoring compliance, not punishment. It reiterated that courts apply the 'appropriate' test compatibly with the ECHR, considering all facts and safeguards like judicial scrutiny and data protection.
Ministry of Justice
163
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Clause 53 introduces a new interim SCPO (ISCPO) which would allow the High Court to impose requirements on the subject while the full application is pending. The test for imposing an ISCPO is whether the court “considers it just to do so”. The aim of this provision is to provide …
Government response. The government acknowledges the committee's description of the Interim SCPO (ISCPO) and defends the 'just to do so' test, arguing it allows swift action against public risk. It states a stricter threshold would delay vital interventions and highlights rights of …
Ministry of Justice
2
Recommendation
4th Report - Legislative Scrutiny: Bord…
Acknowledged
We support the Government’s intention to disrupt and deter organised immigration crime and to safeguard life. However, we are concerned that the precursor offences, as currently drafted, create uncertainty, extend beyond the Government’s stated legitimate aim, and risk inadvertently criminalising persons who ought to be protected from criminal penalty. The …
Government response. The government acknowledges the committee's sentiment to protect vulnerable groups but defends the current drafting of the new offences, stating they are tailored to be proportionate and effective in disrupting organised immigration crime and protecting those exploited. They indicate that …
Ministry of Justice
10
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Clause 37 of the Bill would repeal SORA in its entirety. This is consistent with the current Government’s manifesto commitment to abandon the Rwanda policy. Repeal of SORA will remove the significant incompatibilities identified in the predecessor JCHR’s report. (Conclusion, Paragraph 93)
Government response. The government welcomes the committee's support for the repeal of the Safety of Rwanda Act 2024, noting that the Act served no practical purpose and its repeal aligns with the government's commitment to abandon the Rwanda policy.
Ministry of Justice
16
Recommendation
4th Report - Legislative Scrutiny: Bord…
Acknowledged
The Government has provided for the retrospective validation of fees charged without any statutory basis. We ask the Government to clarify its justification for the retrospective validation of these fees. (Conclusion, Paragraph 141) 63 Conditions on leave and bail
Government response. The government maintains its position that the retrospective validation of fees is justified and proportionate, citing compelling public interest reasons and asserting compatibility with Article 1 of Protocol 1 of the ECHR. They provided a detailed legal justification for their …
Ministry of Justice
18
Conclusion
4th Report - Legislative Scrutiny: Bord…
Acknowledged
Exclusions from the protections of the Refugee Convention are permitted in circumstances where individuals have committed “particularly serious crimes”. We acknowledge that the exclusion of individuals who pose a danger to the community is an important measure, and we support the Government’s intention to ensure that dangerous sex offenders cannot …
Government response. The government welcomed the Committee's support for the clause which classifies certain sexual offences as 'particularly serious' for Refugee Convention purposes. The government reaffirmed its commitment to tackling sexual offences and ensuring dangerous offenders do not benefit from protection status.
Ministry of Justice