Source · Select Committees · Human Rights (Joint Committee)
Recommendation 127
127
Acknowledged
Clause 41 amends the current powers contained in paragraph 2(2) to Schedule 3 of the...
Conclusion
Clause 41 amends the current powers contained in paragraph 2(2) to Schedule 3 of the IA 1971, which permits the Secretary of State to detain individuals liable to deportation on the grounds that their presence in the UK is not considered conducive to the public good.163 According to the Government, this clause is intended to “clarify” that the Home Office may detain someone subject to deportation from the point at which the Home Office serves notification that deportation is being considered.164 This means that persons liable to deportation can be detained (when notified in writing by the Secretary of State): a. while the Secretary of State considers whether to make a deportation order, and b. where the Secretary of State decides to make a deportation order, pending the making of the deportation order.
Government Response Summary
The government acknowledged the committee's description of Clause 41, explaining it clarifies existing statutory detention powers and amendments. It stated the clause provides greater legal clarity, justifies its retrospective effect for continuity and public protection, and asserts compatibility with Article 5 ECHR.
Government Response
Acknowledged
HM Government
Acknowledged
Clause 41 of the Bill clarifies the existing statutory powers of detention where the Home Office is considering whether deportation is conducive to the public good and consequential amendments to existing powers to take biometrics and searches upon being detained for this purpose. While it remains the Home Office’s position that the current detention power is lawful, this amendment provides greater legal clarity regarding its application. Clause 41 expresses these powers as the Home Office has always understood them to operate. Without retrospective effect, individuals previously detained could challenge the lawfulness of their detention. Such claims risk undermining the integrity of past deportation proceedings and frustrating future deportation proceedings. The retrospective clarification is necessary to ensure continuity in immigration control and public protection. The Home Office already detains individuals at the first stage of deportation consideration. Clause 41 is not expected to increase the use of detention powers but is intended to remove ambiguity and ensure that existing practices are legally robust. Therefore, it is entirely right that these provisions apply retrospectively. The Government considers that the measure complies with Article 5 ECHR. 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”. Any interference with Article 5 is justified as it is in accordance with the law and proportionate to achieve a legitimate aim. The clause clarifies the statutory basis for the current use of the power and there is a strong public interest in not disrupting the detention power for the purposes of effective immigration control and public safety. 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. Article 5(5) ECHR states “everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”. It is the Government’s position that the clause complies with Article 5(5) because there is no contravention with Article 5 more broadly and therefore no freestanding right to compensation (see above). The same rationale applies as regards remedies under Article 14 ECHR.