Recommendations & Conclusions
44 items
68
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
recommendation The Government should ensure that clause 18 is sufficiently clear and circumscribed, reflects the legitimate aim it is intended to achieve, and is proportionate to that aim. In particular, a mental element should be introduced to ensure that only conduct which is intentional or reckless is criminalised. (See Amendment …
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recommendation The Government should ensure that clause 18 is sufficiently clear and circumscribed, reflects the legitimate aim it is intended to achieve, and is proportionate to that aim. In particular, a mental element should be introduced to ensure that only conduct which is intentional or reckless is criminalised. (See Amendment 12, Annex) 29 3 Powers of search, seizure and retention in relation to electronic devices Clauses 19–26: Powers of search etc in relation to electronic devices
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Government response AI summary
The government rejected the recommendation to introduce a mental element of intention or recklessness into Clause 18, stating that the offence focuses on objective conduct and that sufficient safeguards such as prosecutorial public interest consideration and the defence of duress exist.
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Ministry of Justice
73
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
The new powers would interfere with rights under Article 8 and Article 1 of Protocol 1, which are incorporated into domestic law by the Human Rights Act, because they would allow access to private information (stored electronically) and would interfere with the enjoyment of property (seizure and retention of electronic …
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The new powers would interfere with rights under Article 8 and Article 1 of Protocol 1, which are incorporated into domestic law by the Human Rights Act, because they would allow access to private information (stored electronically) and would interfere with the enjoyment of property (seizure and retention of electronic devices). The nature of the data liable to search, seizure and retention is likely to be personal and could contain sensitive information revealing political opinions or religious beliefs, or privileged information.
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Government response AI summary
The government asserts the new powers of search and seizure will not be applied indiscriminately, but only with reasonable suspicion and subject to existing safeguards. They argue these measures strike the right balance between operational necessity and individual rights, therefore deeming it unnecessary to amend …
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Ministry of Justice
81
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
conclusion We are concerned that there is a risk that the new powers of search, seizure and retention, in practice, may lead to a blanket policy to search, and possibly seize and retain, items such as mobile phones from asylum seekers, victims of trafficking and children. recommendation We recommend that …
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conclusion We are concerned that there is a risk that the new powers of search, seizure and retention, in practice, may lead to a blanket policy to search, and possibly seize and retain, items such as mobile phones from asylum seekers, victims of trafficking and children. recommendation We recommend that the Government clarifies on the face of the Bill how these invasive powers will be used, in order to guard against the risk of indiscriminate searches. In circumstances where electronic devices are confiscated, the authorities must facilitate the contact of individuals with their close family members. We recommend this is clearly set out in guidance. Clauses 34–35: Provision of biometric information by evacuees etc
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Government response AI summary
The government rejects the need to amend the Bill to clarify how search and seizure powers will be used, stating they will not be applied indiscriminately and existing safeguards ensure proportionality. However, the response does not address the recommendation to facilitate contact with family members …
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Ministry of Justice
89
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
conclusion We are concerned that clause 35(7) and (8), deeming transfer of personal data to third countries and international organisations to be necessary for important reasons of public interest, inappropriately disapplies the normal safeguards in data protection legislation when data is transferred to third countries. recommendation Whilst recognising the need …
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conclusion We are concerned that clause 35(7) and (8), deeming transfer of personal data to third countries and international organisations to be necessary for important reasons of public interest, inappropriately disapplies the normal safeguards in data protection legislation when data is transferred to third countries. recommendation Whilst recognising the need for the Home Office to act with expedition in these circumstances, and the potential national security concerns, we recommend the removal of clause 35(7) and (8) to ensure that the normal safeguards apply. (See Amendment 13, Annex) 126 Centrum för Rättvisa v Sweden [GC], Application No. 35252/08, paras 326–330. 127 Article 49 of Regulation (EU) 2024/1358 , ILPA, House of Lords Second Reading Briefing, para 86 35 4 Asylum and Immigration Repeal of immigration legislation Clause 37: Repeal of the Safety of Rwanda (Asylum and Immigration) Act 2024
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Government response AI summary
The government rejected the recommendation to remove clause 35(7) and (8), stating that the Bill does not disapply data protection safeguards but rather engages a derogation for international transfers, which will still comply with general and special category data principles under UK GDPR.
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Ministry of Justice
97
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
The JCHR’s predecessor committee raised concerns in relation to some of the above-mentioned provisions. We remain concerned by section 12, section 29, section 59 and section 62 IMA. Section 12 IMA: immigration detention
Government response AI summary
The government rejected the committee's concerns about sections 12, 29, 59, and 62 of the Illegal Migration Act, asserting their operational benefit and ECHR compliance. It outlined how each section includes safeguards or is consistent with international obligations.
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Ministry of Justice
101
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
Academics Dr Sabina Garahan and Dr Matthew Gillet argue, “by allowing detention for such period as ‘in the opinion of the Secretary of State’ is reasonably necessary, section 12(1)(b) conflicts with fundamental standards 133 Explanatory notes, para.44 134 There is a time limit of 24 hours for detaining unaccompanied children …
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Academics Dr Sabina Garahan and Dr Matthew Gillet argue, “by allowing detention for such period as ‘in the opinion of the Secretary of State’ is reasonably necessary, section 12(1)(b) conflicts with fundamental standards 133 Explanatory notes, para.44 134 There is a time limit of 24 hours for detaining unaccompanied children in a short- term holding facility (Immigration Act 1971, Schedule 2, paragraph 18B inserted by the Immigration Act 2014). There is a 72-hour time-limit or not more than seven days where a longer period of detention of a is authorised personally by a Minister of the Crown, of pregnant women (Immigration Act 2016, s 60) and of accompanied children and their families in pre-departure accommodation (Immigration Act 2014, s 6). 135 JCHR, Legislative Scrutiny: Illegal Migration Bill 12th Report of 2022–2023, paras 194–202 136 Professor Sarah Singer, Q6 38 of legal certainty, since the “opinion of the Secretary of State” is neither foreseeable nor open to legal challenge.” It would, of course, be open to challenge on public law grounds, such as irrationality.
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Government response AI summary
The government clarifies that Section 12 of the IMA is in force and provides a clear legislative framework for detention decisions, asserting that while the Home Secretary determines reasonable detention periods, judicial oversight is maintained and the discretion is compliant with Article 5 ECHR.
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Ministry of Justice
102
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
Others argue that it may be having little to no effect in practice. Medical Justice and Bail for Immigration Detainees submit that, in the context of applications before the High Court for release of detainees, “the Home Secretary often does not rely on section 12 and that when she does …
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Others argue that it may be having little to no effect in practice. Medical Justice and Bail for Immigration Detainees submit that, in the context of applications before the High Court for release of detainees, “the Home Secretary often does not rely on section 12 and that when she does raise it her representatives often appear reluctant to place much weight on it.”137 Nevertheless, in their joint written submission, Medical Justice and Bail for Immigration Detainees argued that section 12 should be repealed because “even if the Home Office does not currently rely on it, it is causing significant uncertainty about the law.”138
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Government response AI summary
The government defends Section 12 of the Illegal Migration Act 2023, stating it provides a clear and compliant legislative framework for detention decisions and is appropriately a matter for the Home Secretary, implicitly rejecting the argument that it should be repealed due to causing legal …
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Ministry of Justice
103
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
recommendation Section 12 of the Illegal Migration Act modifies the common law position, making it for the Secretary of State, and not the courts, to determine what is a reasonable period of detention. We agree with our predecessor Committee and recommend the repeal of section 12 to restore certainty and …
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recommendation Section 12 of the Illegal Migration Act modifies the common law position, making it for the Secretary of State, and not the courts, to determine what is a reasonable period of detention. We agree with our predecessor Committee and recommend the repeal of section 12 to restore certainty and ensure compliance with Article 5. (See Amendment 14, Annex). Section 29 IMA: disapplication of modern slavery provisions
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Government response AI summary
The government rejects the recommendation to repeal Section 12 of the IMA 2023, stating it is already in force, provides a clear legislative framework, is compliant with Article 5 ECHR, and allows the Home Secretary to best determine reasonable detention periods.
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Ministry of Justice
105
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
It also mandates that, unless there are ‘compelling circumstances’, non- British victims would be disqualified from protection if they have been sentenced to a period of imprisonment of any length. They will be denied a recovery and reflection period and denied limited leave to remain in the UK, and may …
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It also mandates that, unless there are ‘compelling circumstances’, non- British victims would be disqualified from protection if they have been sentenced to a period of imprisonment of any length. They will be denied a recovery and reflection period and denied limited leave to remain in the UK, and may therefore be removed from the UK. This significantly broadens the list of circumstances in which a victim of modern slavery would be treated as a threat to public order to include cases where the person has been sentenced to imprisonment regardless of the seriousness of their offence or the length of imprisonment. It would therefore exclude from protection victims compelled to commit criminal offences by their traffickers who are prosecuted and convicted due to their lack of knowledge of the availability of the defence from section 45 of the Modern Slavery Act 2015, as well as those victims convicted for immigration related offences. The previous Committee concluded that these provisions run counter to the UK’s obligations under ECAT and Article 4 ECHR.140
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Government response AI summary
The government defends the retention of Section 29 of the IMA 2023, which broadens disqualification from modern slavery protections for foreign national offenders, stating it is compliant with international obligations and necessary, thereby rejecting the committee's concerns.
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Ministry of Justice
108
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
The Helen Bamber Foundation and Asylum Aid state the public order disqualification under the Nationality and Borders Act 2022 is already broad and is catching levels of behaviour that fall below the appropriate threshold for depriving a victim of protections. For example, “Asylum Aid recently represented a claimant, ‘EO’, whose …
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The Helen Bamber Foundation and Asylum Aid state the public order disqualification under the Nationality and Borders Act 2022 is already broad and is catching levels of behaviour that fall below the appropriate threshold for depriving a victim of protections. For example, “Asylum Aid recently represented a claimant, ‘EO’, whose case demonstrates just how wide reaching the impact of this provision can be. An extremely vulnerable 140 JCHR, Legislative Scrutiny: Illegal Migration Bill 12th Report of 2022–2023, para 53 141 Letter from Sarah Dineley, Deputy Chief Prosecutor at the CPS to Lord Alton, Chair of the JCHR, dated 5 June 2025, Q6 142 Section 45 Modern Slavery Act 2015 143 After Exploitation, BSAI0009, p4 40 survivor of sexual exploitation, EO was sentenced to 12 months in prison for a single offence–fraud–over 10 years ago. Despite being assessed as posing a very low risk to the public by a probation officer, she was still subject to a public order disqualification until Asylum Aid brought a legal challenge to that decision.”144
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Government response AI summary
The government defends the public order disqualification under NABA 2022 and the retention of Section 29 of the IMA 2023, stating it is compliant with international obligations and necessary for public order, effectively rejecting the committee's implied concern about its broadness.
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Ministry of Justice
110
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
ILPA notes that “[t]his provision disproportionately impacts survivors who were forced to commit crimes as part of their exploitation and who have received convictions. Analysis conducted in 2024 clearly demonstrates that, of the 338 people disqualified (including 40 children): 70% of all disqualified individuals were acknowledged as having an element …
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ILPA notes that “[t]his provision disproportionately impacts survivors who were forced to commit crimes as part of their exploitation and who have received convictions. Analysis conducted in 2024 clearly demonstrates that, of the 338 people disqualified (including 40 children): 70% of all disqualified individuals were acknowledged as having an element of criminal exploitation in their case (73% of adult cases and 65% of child cases), compared to an average of 44% of NRM referrals with an element of criminal exploitation from 2020 and 2023.”146
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Government response AI summary
The government defends the retention of Section 29 of the IMA 2023, which governs disqualification from modern slavery protections, arguing it is compliant with international obligations and necessary for public order, implicitly rejecting concerns about its disproportionate impact on survivors.
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Ministry of Justice
114
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
recommendation We agree with our predecessor Committee that section 29 IMA, which broadens the public order disqualification in section 63 of the Nationality and Borders Act, is not compatible with the UK’s obligations under ECAT and Article 4 of the ECHR. We recommend that the Government repeal this provision. (See …
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recommendation We agree with our predecessor Committee that section 29 IMA, which broadens the public order disqualification in section 63 of the Nationality and Borders Act, is not compatible with the UK’s obligations under ECAT and Article 4 of the ECHR. We recommend that the Government repeal this provision. (See Amendment 14, Annex). Section 59 IMA: inadmissibility of certain asylum and human rights claims
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Government response AI summary
The government rejects the recommendation to repeal Section 29 of the IMA, explaining its retention to enable disqualification of foreign national offenders from modern slavery protections on public order grounds, and stating its belief that the provision is compliant with international obligations.
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Ministry of Justice
120
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
In relation to Georgia, the Refugee Council notes that “in December 2024 the current Government sanctioned five Georgian officials for serious human rights violations. This included the Minister for Interior and the Director of the Tbilisi Police Department. The press release issued by the Foreign, Commonwealth and Development office at …
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In relation to Georgia, the Refugee Council notes that “in December 2024 the current Government sanctioned five Georgian officials for serious human rights violations. This included the Minister for Interior and the Director of the Tbilisi Police Department. The press release issued by the Foreign, Commonwealth and Development office at the time noted that ‘UN experts have condemned the pattern of repression and human rights violations in Georgia.’”158 Rainbow Migration notes that, “[w]ithin the last year, the Georgian government has introduced repressive new laws to restrict the rights of LGBTQI+ people, including a ban on same-sex marriage, gender- affirming care, and on sharing information that could be perceived as ‘LGBTQI+ propaganda’ in schools and in the media … . Stephen Doughty MP, recognised this threat and has stated that Georgia’s new laws ‘undermine fundamental rights of freedom of expression and assembly, and risk discriminating against and stigmatising Georgia’s LGBT+ groups.’”159 The Government’s recent condemnation of Georgia’s new laws highlights a further problem with section 59 - there is no statutory review mechanism for the designation of safe states. Whilst countries can be added and removed by way of regulations, there is no legal obligation to review the safety of listed states.
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Government response AI summary
The government maintains that country safety is kept under continuous review, arguing that a time-bound or time-specified review would be counter-productive by limiting flexibility. They explain that existing provisions allow for exceptional instances where claims can be substantively considered.
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Ministry of Justice
122
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
In its observations on the Bill, the UNHCR states: “while designation of safe countries may be used as a procedural tool to prioritise or accelerate the examination of applications in carefully circumscribed situations, it does not displace the requirement for an individualised assessment of an asylum claim. Section 59 therefore …
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In its observations on the Bill, the UNHCR states: “while designation of safe countries may be used as a procedural tool to prioritise or accelerate the examination of applications in carefully circumscribed situations, it does not displace the requirement for an individualised assessment of an asylum claim. Section 59 therefore gives rise to a risk of refoulement, and UNHCR encourages that it be repealed.”161
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Government response AI summary
The government defended Section 59 of the IMA 2023, explaining it broadens existing inadmissibility provisions and includes safeguards for exceptional circumstances and continuous country safety reviews. It implicitly rejected UNHCR's encouragement for repeal, arguing that current continuous monitoring is more flexible than time-bound reviews.
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Ministry of Justice
123
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
recommendation We share the concerns of our predecessor Committee that, whilst the states listed may be considered safe in general, this does not guarantee the safety of all individuals from these states, especially those who are members of particular social groups facing persecution. It must be possible for such individuals …
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recommendation We share the concerns of our predecessor Committee that, whilst the states listed may be considered safe in general, this does not guarantee the safety of all individuals from these states, especially those who are members of particular social groups facing persecution. It must be possible for such individuals who face a real risk of persecution upon return to make a protection or human rights claim which must be considered on its merits in order to guard against the risk of refoulement. If the Government chooses to bring section 59 of the Illegal Migration Act into force, it should, at the very least, periodically review the list of safe, with a particular consideration of the rights of minority groups. Section 62 IMA: damaged credibility
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Government response AI summary
The government notes that Section 59 of the IMA 2023 is not fully commenced. It states that the safety of countries is already under continuous review and argues that a time-bound periodic review, as recommended, would be counter-productive.
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Ministry of Justice
130
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
Despite the Government’s characterisation of this clause as clarificatory, the Impact Assessment makes clear that this involves retrospectively making it lawful to have detained persons (liable to deportation on the ground it was considered conducive to the public good) at a time when they did not have notice of an …
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Despite the Government’s characterisation of this clause as clarificatory, the Impact Assessment makes clear that this involves retrospectively making it lawful to have detained persons (liable to deportation on the ground it was considered conducive to the public good) at a time when they did not have notice of an appealable immigration decision, because they had not yet made a human rights or protection claim.166 To detain a person under paragraph 2(2) of Schedule 3 to the Immigration Act 1971, pending the making of the deportation order, a person must have been given notice.167 As explained by ILPA, “a “Stage 1” deportation decision was not an appealable decision; therefore, individuals could not have received the requisite notice under the relevant Immigration (Notices) Regulations 2003, which only governs appealable decisions.”168 Alison Harvey, barrister at One Pump Court, told us: “[t]here is no question that it is changing the law. It is not a clarification in any way. It is not in any way compatible with Article 5 ( … ) There was no law and people were deprived of their liberty. The Government now want to rewrite that piece of history.”169
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Government response AI summary
The government rejected the committee's strong concerns about Clause 41 not being clarificatory, but retrospectively changing the law and denying remedies. It reiterated its stance that the clause clarifies existing lawful powers, is necessary for public protection, and is compatible with Article 5 ECHR, thus …
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Ministry of Justice
131
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
We note that the House of Lords Constitution Committee has frequently raised concerns about retrospective provisions, arguing that retrospective legislation “is unacceptable other than in very exceptional circumstances” and that, when used, “measures with retrospective effect must have the strongest possible justification”.170 Compatibility with Convention rights
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We note that the House of Lords Constitution Committee has frequently raised concerns about retrospective provisions, arguing that retrospective legislation “is unacceptable other than in very exceptional circumstances” and that, when used, “measures with retrospective effect must have the strongest possible justification”.170 Compatibility with Convention rights
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Government response AI summary
The government acknowledges concerns about retrospective legislation and justifies Clause 41's retrospective effect by arguing it clarifies existing detention powers. It states this is necessary to ensure continuity in immigration control, public protection, and to prevent challenges to past and future deportation proceedings.
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Ministry of Justice
132
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
These provisions raise issues under Articles 5, 8, and 13 of the ECHR. Article 5 is engaged by this clause as those liable to deportation will be deprived of their liberty. Any interference with Article 5 is justified where it is in accordance with the law and proportionate to achieve …
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These provisions raise issues under Articles 5, 8, and 13 of the ECHR. Article 5 is engaged by this clause as those liable to deportation will be deprived of their liberty. Any interference with Article 5 is justified where it is in accordance with the law and proportionate to achieve a legitimate aim. 165 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025), para.129 166 Border Security, Asylum and Immigration Bill, Impact Assessment, paras 125–126 167 In accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) 168 ILPA, para 72 169 Alison Harvey, Q10 170 Constitution Committee, Legislative standards of the Constitution Committee: 2017–2024 (6 May 2025), paras 77 and 78 48 Article 5(1)(f) specifically provides for “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”. It is the Government’s position that “there are some cases where the power to detain pending deportation is necessary because of a real and significant national security risk where no alternative detention power exists.”171 The power of detention contained in this clause is therefore in accordance with a legitimate aim.
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Government response AI summary
The government clarifies that Clause 41 of the Bill provides greater legal clarity to existing detention powers, which it deems lawful and necessary for immigration control and public protection. It asserts that any interference with Article 5 ECHR is justified and proportionate, and that the …
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Ministry of Justice
133
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
However, Clause 41’s purpose is to provide a legal basis for the Home Office’s current practice of detaining people early in the deportation process, i.e. after a “Stage 1” deportation decision has been made, while the Secretary of State considers whether to make a “Stage 2” deportation order.172 Medical Justice …
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However, Clause 41’s purpose is to provide a legal basis for the Home Office’s current practice of detaining people early in the deportation process, i.e. after a “Stage 1” deportation decision has been made, while the Secretary of State considers whether to make a “Stage 2” deportation order.172 Medical Justice and Bail for Immigration Detainees state that this is a “new power to detain those who are being considered for deportation, but in respect of whom no decision to deport has been made, and who have not committed a sufficiently serious offence to trigger the automatic deportation powers.”173 The Law Society notes that the retrospective application of clause 41 raises “significant doubts as to its compatibility with Article 5 ECHR”, and that those who would otherwise be owed a remedy for unlawful detention will be denied that remedy.174
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Government response AI summary
The government rejected concerns about Clause 41, asserting it clarifies existing lawful detention powers and its retrospective effect is necessary for immigration control and public protection. It maintained the clause is compatible with Article 5 ECHR, denying any contravention or right to compensation.
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Ministry of Justice
8
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
135. The denial of a remedy for unlawful detention also risks violating Article 5(5) and Article 13 ECHR (the right to an effective remedy). If individuals have been detained pending deportation between Stage 1 and Stage 2 171 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, …
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135. The denial of a remedy for unlawful detention also risks violating Article 5(5) and Article 13 ECHR (the right to an effective remedy). If individuals have been detained pending deportation between Stage 1 and Stage 2 171 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025), para.131 172 Border Security, Asylum and Immigration Bill, Impact Assessment, paras 125–126 173 Medical Justice and Bail for Immigration Detainees, para 24 174 Law Society of England and Wales, para 24 175 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025), para.138 49 deportation decisions without any lawful basis, as appears to be the case, then such individuals have a right to claim compensation. Clause 41 would remove the ability to make such claims.
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Government response AI summary
The government rejects the committee's concern, asserting that Clause 41 clarifies existing detention powers, complies with Article 5(5) ECHR, and does not contravene Article 5 more broadly, thus negating a freestanding right to compensation for past detentions.
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Ministry of Justice
136
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
recommendation The Government’s position is that clause 41 “clarifies” the law. However, the operational effect would appear to amount to retrospectively making it lawful to have detained persons liable to deportation. This does not comply with Article 5 ECHR, which requires a lawful basis for detention, and Article 13 ECHR, …
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recommendation The Government’s position is that clause 41 “clarifies” the law. However, the operational effect would appear to amount to retrospectively making it lawful to have detained persons liable to deportation. This does not comply with Article 5 ECHR, which requires a lawful basis for detention, and Article 13 ECHR, which guarantees an effective remedy. We recommend the repeal of this clause. (See Amendment 16, Annex) Retrospective validation of fees
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Government response AI summary
The government rejects the recommendation to repeal Clause 41, asserting that it clarifies existing statutory detention powers and its retrospective effect is necessary to ensure continuity in immigration control, public protection, and prevent challenges to past proceedings. It maintains the clause is compliant with Article …
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Ministry of Justice
137
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
Clause 57 of the Bill also has retrospective effect. It “establishes retrospective power for the charging of fees for services related to the comparability, recognition or assessment of qualifications obtained outside and within the United Kingdom”.176 Such fees have been charged by the Government without any statutory basis.177 This clause …
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Clause 57 of the Bill also has retrospective effect. It “establishes retrospective power for the charging of fees for services related to the comparability, recognition or assessment of qualifications obtained outside and within the United Kingdom”.176 Such fees have been charged by the Government without any statutory basis.177 This clause seeks to retrospectively provide a legal basis for those charges. But for clause 51, people who had paid the fees would have a claim in restitution to recover the amount unlawfully charged.
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Government response AI summary
The government rejected the implicit concern regarding Clause 57's retrospective effect, maintaining that the legislation is justified, proportionate, and compatible with Article 1 of Protocol 1 ECHR due to compelling public interest reasons.
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Ministry of Justice
138
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
There may be a breach of Article 1 of Protocol 1 if legislation deprives potential claimants of the value of their claim. To constitute a property right protected by the ECHR, the claim must have a sufficient basis in national law, for example where there is settled case-law of the …
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There may be a breach of Article 1 of Protocol 1 if legislation deprives potential claimants of the value of their claim. To constitute a property right protected by the ECHR, the claim must have a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming that a claim of that kind can be brought.178
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Government response AI summary
The government maintains its position that the legislation is justified, proportionate, and compatible with Article 1 of Protocol 1 ECHR. It argues that there are compelling public interest reasons for the legislation and no fixed list of factors determines compatibility.
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Ministry of Justice
139
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
The ECHR memorandum suggests that a claim to recover fees would not meet this test, because its legal basis would be too uncertain.179 The Government argues that the relevant case law180 only covers claims wrongly levied by the State, and that it is open to question whether it would apply …
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The ECHR memorandum suggests that a claim to recover fees would not meet this test, because its legal basis would be too uncertain.179 The Government argues that the relevant case law180 only covers claims wrongly levied by the State, and that it is open to question whether it would apply to claims against third party contractors. This seems doubtful, given that subsequent case law has established that the same principle applies to 176 European Convention on Human Rights Memorandum to the Border Security, Asylum and Immigration Bill [HL Bill 101 (2024–25)], para 188 177 House of Lords Debate 11 November 2024, vol 842, col 1455 178 Kopecky v Slovakia [GC], Application No. 44912/98, 28 September 2004, para 52 179 European Convention on Human Rights Memorandum to the Border Security, Asylum and Immigration Bill [HL Bill 101 (2024–25), para.189 180 R v Commissioners of Inland Revenue ex p Woolwich Equitable Building Society [1990] 1 WLR 1400 50 transactions which are not purely private (where the fee is agreed as part of a normal contractual bargain) but have a public character (where the fee is the compulsory cost of a public service).181
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Government response AI summary
The government maintains its position that the legislation is justified, proportionate, and compatible with Article 1 of Protocol 1 ECHR. It disagrees with the committee's interpretation of case law regarding the legal basis for claims to recover fees and the conditions under which retrospective legislation …
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Ministry of Justice
140
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
The Government maintains that in any event it is justified for legislation to take away these claims, because it is fair and in the public interest that service users should pay a reasonable fee for the service, and it is legitimate to rectify a technical mistake in the legal framework.182 …
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The Government maintains that in any event it is justified for legislation to take away these claims, because it is fair and in the public interest that service users should pay a reasonable fee for the service, and it is legitimate to rectify a technical mistake in the legal framework.182 The case law suggests that something more is needed, such as that the retroactive legislation is restoring a widely held understanding of the legal position that has been unexpectedly disrupted.183 The Government has provided insufficient information to allow an assessment of whether this is the case.
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Government response AI summary
The government maintained its position that legislation taking away claims for restitution of fees is justified and proportionate. It provided further legal arguments regarding Article 1 of Protocol 1 ECHR and the balance between individual and public interests, arguing that fees were reasonable and the …
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Ministry of Justice
159
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
Clause 52 provides the courts with the power to impose electronic monitoring200 as part of SCPO requirements. Electronic monitoring can be imposed where there are “reasonable grounds to believe that the [overall] order would protect the public” and that this particular requirement is “appropriate for the purpose of protecting the …
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Clause 52 provides the courts with the power to impose electronic monitoring200 as part of SCPO requirements. Electronic monitoring can be imposed where there are “reasonable grounds to believe that the [overall] order would protect the public” and that this particular requirement is “appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person concerned in serious 200 There is no definition in the Bill. The Ministry of Justice in its Electronic Monitoring Strategy has defined electronic monitoring in England and Wales to include the wearing of ankle tags (curfew tags, GPS tags, alcohol tags) overseen by a “supporting service”. Electronic Monitoring in Criminal Justice System, Ministry of Justice, June 2022, PDF p 6 57 crime.” Electronic monitoring can be imposed for up to twelve months at a time, subject to extension upon application. The Bill does not specify the grounds on which such extensions may be made.
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Government response AI summary
The government clarified that electronic monitoring in SCPOs is for compliance, not punishment, and judicial interpretation ensures ECHR compatibility. It emphasized that courts determine appropriateness case-by-case, without committing to specify grounds for extensions, implying existing safeguards are sufficient.
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Ministry of Justice
160
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
Open Rights Group note that “the Bill’s provisions offer limited procedural safeguards (for instance, reliance on “reasonable grounds” rather than rigorous independent judicial oversight). Such a low threshold can lead to overly broad applications of state power.”201 Migrant Help states that “the use of electronic monitoring is also actively discouraged …
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Open Rights Group note that “the Bill’s provisions offer limited procedural safeguards (for instance, reliance on “reasonable grounds” rather than rigorous independent judicial oversight). Such a low threshold can lead to overly broad applications of state power.”201 Migrant Help states that “the use of electronic monitoring is also actively discouraged by human rights experts for the “stigmatizing and negative psychological effects”, which are likely to be “disproportionate to the benefits of such monitoring”.202 They also note that “[p]eople in our Network who have experienced electronic monitoring said that it made them feel ‘inhuman’ and severely negatively impacted their mental health.”203
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Government response AI summary
The government rejects the suggestion of limited procedural safeguards, arguing that existing judicial scrutiny ensures compatibility with the ECHR and that a stricter threshold would impede vital interventions. It clarifies the purpose of electronic monitoring and asserts that individuals have rights of appeal for unjustified …
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Ministry of Justice
161
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
The power to impose electronic monitoring engages Article 8, which requires that any interferences with the right to private and family life are in accordance with the law, in pursuit of a legitimate aim and necessary and proportionate to that aim. Generally, measures imposed by way of an SCPO will …
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The power to impose electronic monitoring engages Article 8, which requires that any interferences with the right to private and family life are in accordance with the law, in pursuit of a legitimate aim and necessary and proportionate to that aim. Generally, measures imposed by way of an SCPO will be justified on the basis that they can only be imposed where the court is satisfied (on the civil standard of proof–i.e. more likely than not) that the individual “has been involved in serious crime” and the court has reasonable grounds to believe that the order would protect the public. Furthermore, the courts, as public authorities, are obliged under the HRA to act compatibly with human rights, so any conditions that are imposed must not violate human rights, including by interfering with Article 8 disproportionately. The power is clear and adequately prescribed, and in pursuit of the legitimate aim of preventing serious crime. However, the threshold test is whether the electronic monitoring is “appropriate”. In order to comply with Article 8, the test ought to be one of necessity and proportionality.
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Government response AI summary
The government rejects the need for a 'necessity and proportionality' test for electronic monitoring, asserting that courts already interpret 'appropriate' conditions in Serious Crime Prevention Orders (SCPOs) compatibly with the ECHR. It states existing safeguards like judicial scrutiny and the ability to seek variation ensure …
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Ministry of Justice
162
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
recommendation Given the severe infringement on the right to privacy posed by the imposition of electronic monitoring, the threshold test for electronic monitoring should be one of “necessity and proportionality”, not whether it is “appropriate”. Clause 52 should be amended accordingly. (See Amendment 18, Annex). 201 Open Rights Group,, p4 …
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recommendation Given the severe infringement on the right to privacy posed by the imposition of electronic monitoring, the threshold test for electronic monitoring should be one of “necessity and proportionality”, not whether it is “appropriate”. Clause 52 should be amended accordingly. (See Amendment 18, Annex). 201 Open Rights Group,, p4 202 Migrant Help Q6 203 Migrant Help Q6 58 Interim SCPOs
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Government response AI summary
The government rejects the recommendation to change the threshold test for electronic monitoring to 'necessity and proportionality', stating that the existing 'appropriate' test is sufficient as courts must interpret it in line with ECHR and other safeguards.
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Ministry of Justice
164
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
ISCPOs could be obtained without notice being given to the subject if the High Court accepts that “the outcome sought by the applicant” (presumably protecting against serious crime) is likely to be prejudiced by notice being given. Where an order is made without notice, the subject of the ISCPO must …
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ISCPOs could be obtained without notice being given to the subject if the High Court accepts that “the outcome sought by the applicant” (presumably protecting against serious crime) is likely to be prejudiced by notice being given. Where an order is made without notice, the subject of the ISCPO must be given an opportunity to make representations as soon as reasonably practicable. The ISCPO, once made, would not be binding on the subject until they have been given notice of it (which must be done within 7 days). It would also expire at a determined date or at the point when the full SCPO application is determined.
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Government response AI summary
The government defends the 'just to do so' threshold for Interim Serious Crime Prevention Orders (ISCPOs), arguing a stricter test could delay vital interventions. It states this standard enables swift action and aligns with comparable regimes, while judicial review and appeal rights ensure a balance …
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Ministry of Justice
165
Conclusion
4th Report - Legislative Scrutiny: Bord…
Rejected
The provision is sufficiently clear and accessible. The aim of preventing serious crime is legitimate. As to whether it is necessary and proportionate, it is notable that the threshold for imposing an ISCPO is merely that the court considers it “just”. It is arguable that a more rigorous threshold test …
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The provision is sufficiently clear and accessible. The aim of preventing serious crime is legitimate. As to whether it is necessary and proportionate, it is notable that the threshold for imposing an ISCPO is merely that the court considers it “just”. It is arguable that a more rigorous threshold test would ensure that the use of ISCPOs (potentially without notice), and the interference with Article 8 rights involved, is proportionate. Migrant Help raised a concern that “the lack of clarity around the criteria for “just to do so” could lead to overly broad applications of interim orders in situations where they may not be strictly necessary.”204
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Government response AI summary
The government defends the 'just to do so' threshold for Interim Serious Crime Prevention Orders (ISCPOs), arguing a stricter test could delay vital interventions. It states this standard enables swift action and aligns with comparable regimes, while judicial review and appeal rights ensure a balance …
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Ministry of Justice
166
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
conclusion Given that the threshold for imposing interim SCPOs is substantially lower than for full SCPOs, there is a risk that they could be imposed in circumstances that do not justify a full SCPO. recommendation To ensure respect for Convention rights, the prosecuting authorities and the courts must be careful …
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conclusion Given that the threshold for imposing interim SCPOs is substantially lower than for full SCPOs, there is a risk that they could be imposed in circumstances that do not justify a full SCPO. recommendation To ensure respect for Convention rights, the prosecuting authorities and the courts must be careful to only seek and impose these interim orders where risks are imminent, such that an interim order is required. 204 Migrant Help Q7 59 Conclusions and recommendations New immigration offences
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Government response AI summary
The government rejects the recommendation for a stricter threshold for Interim SCPOs, stating the existing 'just to do so' standard is appropriate for urgent, preventive interim orders and aligns with comparable regimes.
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Ministry of Justice
1
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
We are concerned that the breadth of these precursor offences poses a risk of unintended harms to those who are most vulnerable. To mitigate this risk, we consider that the precursor offences would benefit from greater circumscription and more robust safeguards and propose various amendments (below). (Conclusion, Paragraph 38)
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We are concerned that the breadth of these precursor offences poses a risk of unintended harms to those who are most vulnerable. To mitigate this risk, we consider that the precursor offences would benefit from greater circumscription and more robust safeguards and propose various amendments (below). (Conclusion, Paragraph 38)
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Government response AI summary
The government acknowledges the committee's concern about precursor offences and the aim to protect vulnerable groups, but it defends the current offences as proportionate and effective, indicating that the proposed amendments would undermine their effectiveness.
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Ministry of Justice
3
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
In relation to clauses 13 and 14: a. The Government should give consideration to amending the scope of the offences to ensure that they only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain. (See Amendments 1 and 2, Annex). b. The …
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In relation to clauses 13 and 14: a. The Government should give consideration to amending the scope of the offences to ensure that they only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain. (See Amendments 1 and 2, Annex). b. The mental threshold should be changed from “knows or suspects” to “intends” that, or is “reckless” as to whether, the relevant article is to be used in connection with the commission of the specified immigration offences. (See Amendments 3 and 4, Annex). c. The defence of “reasonable excuse” ought to explicitly provide that it must be interpreted compatibly with Article 31 of the Refugee Convention, Article 5 of the Smuggling Protocol, and section 26 of the Council of Europe Convention Against Trafficking. (See Amendments 5 and 6, Annex) 60 d. The offences in clauses 13 and 14 should be added to the existing defence in section 31 of the Immigration and Asylum Act 1999. This would, in certain circumstances, provide a defence to refugees who come to the UK directly from a country where their life or freedom was threatened. (See Amendment 7, Annex). (Recommendation, Paragraph a)) (Recommendation, Paragraph 51)
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Government response AI summary
The government rejects the recommendations to amend the scope of offences to require financial gain and to change the mental threshold, arguing these changes would undermine operational effectiveness and create loopholes for criminal networks.
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Ministry of Justice
5
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
In relation to clause 16: a. The Government should give consideration to amending the scope of the offences to ensure that they only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain. (See Amendment 9, Annex) b. Clause 16(2) should be removed …
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In relation to clause 16: a. The Government should give consideration to amending the scope of the offences to ensure that they only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain. (See Amendment 9, Annex) b. Clause 16(2) should be removed and replaced with a requirement that the person intended the information to be useful in organising or preparing for a relevant journey, or was reckless as to whether the information would be useful to a person organising or preparing for a relevant journey. (See Amendment 10, Annex). c. The defence of “reasonable excuse” ought to explicitly provide that it must be interpreted compatibly with the Article 31 of the Refugee Convention, Article 5 of the Smuggling Protocol, and section 26 of the Council of Europe Convention Against Trafficking. (See Amendment 11, Annex). d. The offence in clause 16 should be added to the existing defence in section 31 of the Immigration and Asylum Act 1999. This would, in certain circumstances, provide a defence to refugees who come to the UK directly from a country where their life or freedom was threatened. (See Amendment 7, Annex) (Recommendation, Paragraph 53)
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Government response AI summary
The government rejected recommendations (a) and (b) to amend Clause 16, stating that requiring financial gain or specific intent/recklessness would undermine the new offences' purpose of early disruption and create loopholes for criminal networks, citing precedent for the 'reasonable suspicion' standard. The response did not …
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Ministry of Justice
6
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
More broadly, we agree with our predecessor Committee that the Government should fully incorporate Article 31 of the Refugee Convention into section 31 of the Immigration and Asylum Act 1999. Section 31 should include the new offences in this Bill and the offence of illegal entry/arrival under section 24 of …
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More broadly, we agree with our predecessor Committee that the Government should fully incorporate Article 31 of the Refugee Convention into section 31 of the Immigration and Asylum Act 1999. Section 31 should include the new offences in this Bill and the offence of illegal entry/arrival under section 24 of the Immigration Act 1971. (See Amendment 3, Annex). (Recommendation, Paragraph 54) 61
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Government response AI summary
The government rejects the recommendation, stating that implementing it would weaken the close link to entry and presence in the UK and that very few migrants meet the existing criteria. It highlights that the Bill already provides a separate defence of reasonable excuse.
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Ministry of Justice
9
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
We are concerned that clause 35(7) and (8), deeming transfer of personal data to third countries and international organisations to be necessary for important reasons of public interest, inappropriately disapplies the normal safeguards in data protection legislation when data is transferred to third countries. (Conclusion, Paragraph 89) Whilst recognising the …
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We are concerned that clause 35(7) and (8), deeming transfer of personal data to third countries and international organisations to be necessary for important reasons of public interest, inappropriately disapplies the normal safeguards in data protection legislation when data is transferred to third countries. (Conclusion, Paragraph 89) Whilst recognising the need for the Home Office to act with expedition in these circumstances, and the potential national security concerns, we recommend the removal of clause 35(7) and (8) to ensure that the normal safeguards apply. (See Amendment 13, Annex) (Recommendation, Paragraph 89) Asylum and Immigration
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Government response AI summary
The government rejects the recommendation to remove clause 35(7) and (8), stating that the clause does not disapply data protection safeguards but rather engages a derogation, with processing still complying with UK GDPR principles and due diligence.
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Ministry of Justice
11
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
Section 12 of the Illegal Migration Act modifies the common law position, making it for the Secretary of State, and not the courts, to determine what is a reasonable period of detention. We agree with our predecessor 62 Committee and recommend the repeal of section 12 to restore certainty and …
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Section 12 of the Illegal Migration Act modifies the common law position, making it for the Secretary of State, and not the courts, to determine what is a reasonable period of detention. We agree with our predecessor 62 Committee and recommend the repeal of section 12 to restore certainty and ensure compliance with Article 5. (See Amendment 14, Annex). (Recommendation, Paragraph 103)
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Government response AI summary
The government rejected the recommendation to repeal section 12 of the Illegal Migration Act 2023. It stated the section is already in force, provides a clear legislative framework, and argued it is appropriate and compliant with Article 5 ECHR for the Home Secretary to determine …
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Ministry of Justice
12
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
We agree with our predecessor Committee that section 29 IMA, which broadens the public order disqualification in section 63 of the Nationality and Borders Act, is not compatible with the UK’s obligations under ECAT and Article 4 of the ECHR. We recommend that the Government repeal this provision. (See Amendment …
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We agree with our predecessor Committee that section 29 IMA, which broadens the public order disqualification in section 63 of the Nationality and Borders Act, is not compatible with the UK’s obligations under ECAT and Article 4 of the ECHR. We recommend that the Government repeal this provision. (See Amendment 14, Annex). (Recommendation, Paragraph 114)
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Government response AI summary
The government rejects the recommendation to repeal Section 29 of the IMA 2023, asserting that it is committed to retaining this measure and that its public order disqualification process is fully compliant with ECAT and Article 4 of the ECHR.
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Ministry of Justice
13
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
We share the concerns of our predecessor Committee that, whilst the states listed may be considered safe in general, this does not guarantee the safety of all individuals from these states, especially those who are members of particular social groups facing persecution. It must be possible for such individuals who …
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We share the concerns of our predecessor Committee that, whilst the states listed may be considered safe in general, this does not guarantee the safety of all individuals from these states, especially those who are members of particular social groups facing persecution. It must be possible for such individuals who face a real risk of persecution upon return to make a protection or human rights claim which must be considered on its merits in order to guard against the risk of refoulement. If the Government chooses to bring section 59 of the Illegal Migration Act into force, it should, at the very least, periodically review the list of safe, with a particular consideration of the rights of minority groups. (Recommendation, Paragraph 123)
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Government response AI summary
The government rejects the recommendation for a periodic review of safe country lists, arguing that a continuous monitoring approach is more flexible and effective than time-bound reviews.
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Ministry of Justice
15
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
The Government’s position is that clause 41 “clarifies” the law. However, the operational effect would appear to amount to retrospectively making it lawful to have detained persons liable to deportation. This does not comply with Article 5 ECHR, which requires a lawful basis for detention, and Article 13 ECHR, which …
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The Government’s position is that clause 41 “clarifies” the law. However, the operational effect would appear to amount to retrospectively making it lawful to have detained persons liable to deportation. This does not comply with Article 5 ECHR, which requires a lawful basis for detention, and Article 13 ECHR, which guarantees an effective remedy. We recommend the repeal of this clause. (See Amendment 16, Annex) (Recommendation, Paragraph 136)
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Government response AI summary
The government rejects the recommendation to repeal Clause 41, stating it clarifies existing lawful detention powers and is necessary for continuity in immigration control and public protection.
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Ministry of Justice
17
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
The requirements in clause 43 for imposing conditions such as electronic monitoring, geographical exclusions, and curfews, should be set out clearly on the face of the Bill and adequately circumscribed. In order to reflect the Government’s intentions as stated by the Minister, the exercise of these powers should be expressly …
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The requirements in clause 43 for imposing conditions such as electronic monitoring, geographical exclusions, and curfews, should be set out clearly on the face of the Bill and adequately circumscribed. In order to reflect the Government’s intentions as stated by the Minister, the exercise of these powers should be expressly limited to cases involving conduct such as war crimes, crimes against humanity, genocide, extremism or serious crime, or where the person poses a threat to national security or public safety. Given the potential severity of interferences with the rights of individuals with any form of limited leave to remain, the exercise of these powers should be subject to judicial scrutiny. (See Amendment 17, Annex). (Recommendation, Paragraph 149) Treating certain crimes as “particularly serious”
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Government response AI summary
The government rejects the need to set out requirements and limitations for imposing conditions on the face of the Bill, stating these measures are necessary for managing individuals posing a threat and are applied on a case-by-case basis with proportionality analysis. They also affirm that …
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Ministry of Justice
19
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
Given the severe infringement on the right to privacy posed by the imposition of electronic monitoring, the threshold test for electronic monitoring should be one of “necessity and proportionality”, not whether it is “appropriate”. Clause 52 should be amended accordingly. (See Amendment 18, Annex). (Recommendation, Paragraph 162)
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Given the severe infringement on the right to privacy posed by the imposition of electronic monitoring, the threshold test for electronic monitoring should be one of “necessity and proportionality”, not whether it is “appropriate”. Clause 52 should be amended accordingly. (See Amendment 18, Annex). (Recommendation, Paragraph 162)
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Government response AI summary
The government rejected the recommendation to change the threshold test for electronic monitoring from "appropriate" to "necessity and proportionality" in Clause 52. It stated that courts must interpret the "appropriate" test compatibly with the ECHR, and existing safeguards ensure compliance with Convention rights.
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Ministry of Justice
20
Recommendation
4th Report - Legislative Scrutiny: Bord…
Rejected
Given that the threshold for imposing interim SCPOs is substantially lower than for full SCPOs, there is a risk that they could be imposed in circumstances that do not justify a full SCPO. (Conclusion, Paragraph 166) To ensure respect for Convention rights, the prosecuting authorities and the courts must be …
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Given that the threshold for imposing interim SCPOs is substantially lower than for full SCPOs, there is a risk that they could be imposed in circumstances that do not justify a full SCPO. (Conclusion, Paragraph 166) To ensure respect for Convention rights, the prosecuting authorities and the courts must be careful to only seek and impose these interim orders where risks are imminent, such that an interim order is required. (Recommendation, Paragraph 166) 64
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Government response AI summary
The government rejected the recommendation for prosecuting authorities and courts to apply interim SCPOs only where risks are imminent, arguing that the 'just to do so' standard is necessary for swift action and aligns with other regimes, with safeguards like temporary review and appeal rights.
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Ministry of Justice