Source · Select Committees · Human Rights (Joint Committee)
Recommendation 143
143
Acknowledged
The current restrictions, set out in section 3(1)(c) of the Immigration Act 1971, permit restrictions...
Conclusion
The current restrictions, set out in section 3(1)(c) of the Immigration Act 1971, permit restrictions to be placed on individuals such as restrictions on the right to work and study, requirements to report to immigration officers, and residency requirements. The introduction of the power to impose curfews, exclusions, confinement, and electronic monitoring go far beyond the existing permissible conditions. The nature of these restrictions may engage Article 5. Although persons will not be imprisoned, measures that are considered so severe as to be destructive of a person’s liberty are likely to engage Article 5.186 These provisions also engage the right to private life (Article 8) as individuals may be subjected to restrictions on where they can 184 Clause 43 185 Hansard HC, Public Bill Committee, 9 th Sitting, 13 March 2025 : Col 265 per Minister for Border Security and Asylum 186 Secretary of State for the Home Department v JJ [2007] UKHL 45; Secretary of State for the Home Department v AP [2010] UKSC 24 52 live, who they can associate with, and where they can go. It should be noted that Article 8 cannot be relied on in order to complain of personal, social, psychological and economic suffering which is a foreseeable consequence of one’s own actions, such as the commission of a criminal offence or similar misconduct.187 Depending on the nature of the conditions, other Convention rights might also be engaged such as the right to freedom of assembly and association (Article 11).
Government Response Summary
The government acknowledges that the conditions may be invasive and engage ECHR rights, stating that decisions will be made on a case-by-case basis with proportionality analysis to ensure compatibility. It maintains that these measures are necessary for safely managing individuals.
Government Response
Acknowledged
HM Government
Acknowledged
The Home Office will always seek to deport or remove those foreign nationals who pose a threat to the UK or whose behaviour is such that they do not qualify for international protection. Where the UK’s obligations under the ECHR prevent that, consideration will be made on whether to impose these conditions. The intention would remain to remove the person from the UK as soon as possible given the threat they have been assessed to pose to the UK. These measures are considered necessary to safely manage some individuals in the community in between reviews determining whether they can be removed or not. The European Court of Human Rights has said that member states have an undeniable right to control a migrant’s residence in their country.2 The Government recognises that these conditions may be seen as invasive, which is somewhat inherent in the nature of their purpose: to control and mitigate risks posed by an individual, including in relation to their location and activities. The conditions are to be used only in the circumstances described above; namely, where the individual is liable to removal from the UK, but where that is not possible (at the time), possibly due to a real risk of removal infringing their rights under the ECHR. Decisions to impose these conditions will be taken on a case-by-case basis and subject to a proportionality analysis to ensure any measures imposed are compatible with a migrant’s rights under the ECHR. In the first instance, electronic monitoring would be considered as a means to mitigating the threat posed by the individual. Curfews, inclusion zones and exclusion zones will only be imposed in cases where electronic monitoring is not sufficient to mitigate the threat posed by the person. Where a person considers that the imposition of such conditions on them is disproportionate, they are permitted to make those representations to the Home Office and, thereafter, judicial review provides appropriate scrutiny of the Secretary of State’s use of these powers.