Source · Select Committees · Human Rights (Joint Committee)
Recommendation 133
133
Rejected
However, Clause 41’s purpose is to provide a legal basis for the Home Office’s current...
Conclusion
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
Government Response 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.
Government Response
Rejected
HM Government
Rejected
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.