Source · Select Committees · Human Rights (Joint Committee)
Recommendation 15
15
Rejected
The Government’s position is that clause 41 “clarifies” the law.
Recommendation
The Government’s position is that clause 41 “clarifies” the law. However, the operational effect would appear to amount to retrospectively making it lawful to have detained persons liable to deportation. This does not comply with Article 5 ECHR, which requires a lawful basis for detention, and Article 13 ECHR, which guarantees an effective remedy. We recommend the repeal of this clause. (See Amendment 16, Annex) (Recommendation, Paragraph 136)
Government Response Summary
The government rejects the recommendation to repeal Clause 41, stating it clarifies existing lawful detention powers and is necessary for continuity in immigration control and public protection.
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.