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 …
Government response. 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 …
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 …
Government response. 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 …
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 …
Government response. 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 …
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 …
Government response. 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 …
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. 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.
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 …
Government response. 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 …
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 …
Government response. 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 …
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 …
Government response. 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 …
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 …
Government response. 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.
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 …
Government response. 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 …
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 …
Government response. 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.
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 …
Government response. 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 …
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 …
Government response. 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.
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 …
Government response. 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 …
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 …
Government response. 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.
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 …
Government response. 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 …
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
Government response. 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 …
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 …
Government response. 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 …
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 …
Government response. 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 …
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, …
Government response. 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.
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, …
Government response. 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 …
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 …
Government response. 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.
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 …
Government response. 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.
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 …
Government response. 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 …
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 …
Government response. 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 …
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 …
Government response. 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.
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 …
Government response. 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 …
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 …
Government response. 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 …
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 …
Government response. 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.
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 …
Government response. 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 …
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 …
Government response. 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 …
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 …
Government response. 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.
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)
Government response. 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.
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 …
Government response. 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.
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 …
Government response. 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' …
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 …
Government response. 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 …
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 …
Government response. 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.
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 …
Government response. 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 …
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 …
Government response. 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.
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 …
Government response. 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.
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 …
Government response. 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.
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 …
Government response. 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 …
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)
Government response. 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 …
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 …
Government response. 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 …
Ministry of Justice