Source · Select Committees · Human Rights (Joint Committee)
Recommendation 147
147
Accepted
Following an analysis of clause 43, the House of Lords Constitution Committee, in its report...
Recommendation
Following an analysis of clause 43, the House of Lords Constitution Committee, in its report on the Bill, concluded: “[w]e draw the attention of the House to the broad and subjective power in clause 43. We recommend narrowing the power to impose ‘such other conditions as the Secretary of State thinks fit’ and that safeguards on the use of the power should be included on the face of the Bill.”192 187 Denisov v Ukraine, Application No. 76639/11, 25 September 2018, para 98. 188 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025) 189 Public Bill Committee on the Border Security, Asylum and Immigration Bill, 13 March 2025, col 268 190 Amnesty International UK 191 Public Law Project 192 House of Lords - Border Security, Asylum and Immigration Bill - Select Committee on the Constitution, para 26 53
Government Response Summary
The government's response outlined how conditions are imposed on foreign nationals when ECHR obligations prevent removal, emphasizing case-by-case proportionality analysis and the use of electronic monitoring as a primary measure. It did not commit to narrowing the broad power in clause 43 or including safeguards directly on the face of the Bill, instead implicitly relying on existing processes and judicial review.
Government Response
Accepted
HM Government
Accepted
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.