4th Report - Legislative Scrutiny: Border Security, Asylum and Immigration Bill

The government states that existing legislation and the proposed framework already allow for exceptional instances and fact-sensitive assessments for individual claims, despite general safety designations. They also argue against a time-bound review process for country safety, preferring a continuous monitoring approach.

The government did not commit to amending Section 62 IMA, stating that existing provisions and published guidance already require decision-makers to consider a claimant's credibility 'in the round' and include mitigation for failure to provide access methods.

The government clarified its justification for the retrospective validation of fees, arguing that the legislation is justified and proportionate under ECHR Article 1 of Protocol 1, as claims for restitution do not have a sufficient basis in law to constitute a possession.

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.

The government defended clause 18 as clear and circumscribed, intended to target dangerous acts during sea crossings. While not committing to a specific legislative amendment for a mental element, it stated that prosecutorial public interest considerations, the defence of duress, and mental health factors would be taken into account.

The government states that an amendment to Section 62 is not necessary, as existing guidance already requires decision-makers to consider a claimant's credibility in the round, including any mitigation for failing to provide access information.

The government clarifies that the new search and seizure powers (clauses 19-26) will not be applied indiscriminately but with reasonable suspicion and safeguards, arguing that no amendment to the Bill is needed given these existing measures.

The government clarifies that the new search and seizure powers will not be applied indiscriminately but only with reasonable grounds for suspicion, ensuring proportionate use. They highlight existing safeguards like requiring seniority approval, adherence to the Criminal Justice and Police Act 2001, and data protection legislation, concluding that no Bill amendment is necessary.

The government clarifies that the powers of search and seizure will not be applied indiscriminately, but on a case-by-case basis with "reasonable suspicion" and existing safeguards. It states that non-statutory guidance will be issued to officers and that amending the Bill is not considered necessary.

The government clarifies that the new search and seizure powers will not be applied indiscriminately or as blanket policies, contrasting with the High Court's ruling, and asserts that existing safeguards mean no amendments to the Bill are necessary.

The government explains that the powers of search and seizure are subject to specific safeguards including reasonable suspicion, case-by-case application, and compliance with data protection legislation and the Criminal Justice and Police Act 2001. They state these existing safeguards are sufficient and no amendment to the Bill is considered necessary.

The government asserts that search and seizure powers will not be applied indiscriminately or as a blanket policy, but only with reasonable suspicion based on specific indicators. They state that existing safeguards and forthcoming non-statutory guidance make amending the Bill unnecessary.

The government asserts that clauses 19-26 on search and seizure will not be applied indiscriminately, citing existing safeguards and the requirement for "reasonable suspicion" to ensure proportionality. It states that, given these measures and forthcoming non-statutory guidance, amending the Bill is not considered necessary.

The government clarified that powers of search and seizure for electronic devices will not be indiscriminate, requiring reasonable suspicion and applied on a case-by-case basis with safeguards including senior approval and data protection. It stated that given these existing and forthcoming measures, it is not considered necessary to amend the Bill, implying the disproportionality concerns are addressed.

The government explains that search and seizure powers are not indiscriminately applied but are subject to reasonable grounds and a series of safeguards, ensuring a balance between operational necessity and individual rights, and thus no Bill amendment is necessary.

The government clarifies that the Bill does not disapply data protection safeguards, as processing must still comply with UK GDPR principles and existing legislation for biometric data collection, including for children. It asserts that due diligence will be paid when sharing personal data.

The government explains that Clause 35 operates within the UK GDPR framework, ensuring data processing is necessary for public interest and complies with principles for safeguarding personal and special category data. They confirm due diligence in data sharing and alignment with wider biometrics policy, including for children.

The government states that Clause 35 does not disapply data protection safeguards and that processing is necessary for public interest reasons, complying with UK GDPR principles. They affirm that due diligence will be paid when sharing personal data and that the Bill aligns with existing biometrics policy for children.

The government noted the concern that clause 35(7) may disapply data protection safeguards, clarifying that the Bill engages a derogation for public interest transfers and that processing will still comply with UK GDPR principles (Articles 5, 6, 9) with due diligence paid to safeguarding data.

The government noted the concern regarding biometric data collection from children over 16 without consent, stating that the Bill aligns with wider biometrics policy which requires a responsible adult for those under 16, implying no new action is needed for those over 16.

The government acknowledged the concern about data transfer, explaining that Clause 35 engages derogations for public interest but still complies with UK GDPR principles and requires due diligence in safeguarding personal data, especially sensitive information.

The government welcomes the committee's implied support and states it will repeal the Safety of Rwanda (Asylum and Immigration) Act 2024 in its entirety, as it has served no practical purpose.

The government confirmed it will repeal the Safety of Rwanda (Asylum and Immigration) Act 2024 (SoRA 2024) in its entirety, having always been clear it would not proceed with the Migration and Economic Development Partnership with Rwanda.

The government welcomes the committee's implied support and states it will repeal the Safety of Rwanda (Asylum and Immigration) Act 2024 in its entirety, as it has served no practical purpose.

The government explains that Section 12 of the Illegal Migration Act 2023 provides a clear legislative framework for detention decisions, asserting that judicial oversight remains and the Home Secretary's discretion is ECHR compliant. It defends the existing policy of not having statutory time limits for immigration detention, viewing it as beneficial.

The government asserts that Section 12 of the Illegal Migration Act 2023, which places responsibility on the Home Secretary to determine reasonable detention periods, is compliant with Article 5 ECHR. It states that judicial oversight and recourse to courts for unlawful detention claims are still maintained.

The government asserts that Section 12 of the Illegal Migration Act 2023 provides a clear legislative framework and that, while the Home Secretary determines the reasonableness of detention, judicial oversight and legal challenge remain possible, making it compliant with Article 5 ECHR.

The government states that Section 29 of the IMA 2023, which broadens public order disqualification from modern slavery protections, is compliant with Article 13 of ECAT's provisions for withholding support on public order grounds and ensures case-by-case determination.

The government asserts that its retained Section 29 of the IMA 2023, which broadens public order disqualification, is compliant with Article 13 of ECAT and that cases are determined on a case-by-case basis, despite the Committee's conclusion on GRETA's cautious interpretation of 'public order' grounds.

The government describes how existing inadmissibility provisions allow for exceptional instances where asylum claims can be substantively considered, despite general country safety designations. They maintain that the situation and safety of countries are kept under continuous review and reject the idea of a time-bound review as potentially counter-productive.

The government explains that Section 62 of the IMA 2023 expands existing provisions and that credibility assessments are not solely determinative. Decision makers must consider all circumstances, including mitigation for not providing phone access, under current guidance.

The government noted the concern about claimants' credibility not being damaged by failure to provide access with reasonable excuse, stating that existing provisions and guidance already ensure decision-makers consider all circumstances and mitigation.

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.

The government defends Clause 41, clarifying existing detention powers and their necessity for immigration control and public protection. It asserts the retrospective clarification is vital and justifies its approach to ECHR compatibility, implicitly encompassing the collection of biometrics and document searches.

The government explained that the powers to impose conditions on foreign nationals are used when ECHR obligations prevent immediate removal, with decisions made case-by-case and subject to proportionality analysis. It stated that electronic monitoring would be considered first, with curfews and zones used only if insufficient, implying existing frameworks ensure compatibility with migrant rights.

The government clarifies that electronic monitoring in Serious Crime Prevention Orders (SCPOs) is for compliance, not punishment, and courts interpret the 'appropriate' test to be ECHR compatible. It defends the existing framework for imposing conditions, stating that judicial scrutiny and other safeguards ensure compliance with Convention rights.