Source · Select Committees · Human Rights (Joint Committee)
Recommendation 129
129
Accepted
The clause also amends section 51(2) of the Immigration Act 2016 (power to direct prison...
Conclusion
The clause also amends section 51(2) of the Immigration Act 2016 (power to direct prison officer or prison custody officer to search for nationality documents) to “clarify” that the Secretary of State may direct a prison officer or prisoner custody officer to search for nationality documents 163 Foreign nationals and their dependants will be considered for deportation if they meet the criteria set out in HO guidance Conducive Deportation or Public Policy, Public Security or Public Health Decisions 164 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025),, para.127 47 when the Secretary of State is considering making a deportation order. The Government states that this is necessary as a person may be searched for their nationality documents at any stage pending deportation.165 Retrospective not clarificatory
Government Response Summary
The government explains that Clause 41 clarifies existing statutory powers of detention for nationality documents, asserting this amendment provides greater legal clarity and that the Home Office already operates this way for continuity in immigration control.
Government Response
Accepted
HM Government
Accepted
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.