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

The government rejected the recommendation to introduce a mental element of intention or recklessness into Clause 18, stating that the offence focuses on objective conduct and that sufficient safeguards such as prosecutorial public interest consideration and the defence of duress exist.

The government rejects the need to amend the Bill to clarify how search and seizure powers will be used, stating they will not be applied indiscriminately and existing safeguards ensure proportionality. However, the response does not address the recommendation to facilitate contact with family members when electronic devices are confiscated.

The government rejected the recommendation to remove clause 35(7) and (8), stating that the Bill does not disapply data protection safeguards but rather engages a derogation for international transfers, which will still comply with general and special category data principles under UK GDPR.

The government rejects the recommendation to repeal Section 12 of the IMA 2023, stating it is already in force, provides a clear legislative framework, is compliant with Article 5 ECHR, and allows the Home Secretary to best determine reasonable detention periods.

The government rejects the recommendation to repeal Section 29 of the IMA, explaining its retention to enable disqualification of foreign national offenders from modern slavery protections on public order grounds, and stating its belief that the provision is compliant with international obligations.

The government notes that Section 59 of the IMA 2023 is not fully commenced. It states that the safety of countries is already under continuous review and argues that a time-bound periodic review, as recommended, would be counter-productive.

The government rejects the recommendation to repeal Clause 41, asserting that it clarifies existing statutory detention powers and its retrospective effect is necessary to ensure continuity in immigration control, public protection, and prevent challenges to past proceedings. It maintains the clause is compliant with Article 5 ECHR.

The government rejects the need for a 'necessity and proportionality' test for electronic monitoring, asserting that courts already interpret 'appropriate' conditions in Serious Crime Prevention Orders (SCPOs) compatibly with the ECHR. It states existing safeguards like judicial scrutiny and the ability to seek variation ensure compliance with Convention rights.

The government rejects the recommendation to change the threshold test for electronic monitoring to 'necessity and proportionality', stating that the existing 'appropriate' test is sufficient as courts must interpret it in line with ECHR and other safeguards.

The government rejects the recommendation for a stricter threshold for Interim SCPOs, stating the existing 'just to do so' standard is appropriate for urgent, preventive interim orders and aligns with comparable regimes.

The government acknowledges the committee's concern about precursor offences and the aim to protect vulnerable groups, but it defends the current offences as proportionate and effective, indicating that the proposed amendments would undermine their effectiveness.

The government rejects the recommendations to amend the scope of offences to require financial gain and to change the mental threshold, arguing these changes would undermine operational effectiveness and create loopholes for criminal networks.

The government rejected recommendations (a) and (b) to amend Clause 16, stating that requiring financial gain or specific intent/recklessness would undermine the new offences' purpose of early disruption and create loopholes for criminal networks, citing precedent for the 'reasonable suspicion' standard. The response did not explicitly address parts (c) or (d).

The government rejects the recommendation, stating that implementing it would weaken the close link to entry and presence in the UK and that very few migrants meet the existing criteria. It highlights that the Bill already provides a separate defence of reasonable excuse.

The government rejects the recommendation to remove clause 35(7) and (8), stating that the clause does not disapply data protection safeguards but rather engages a derogation, with processing still complying with UK GDPR principles and due diligence.

The government rejected the recommendation to repeal section 12 of the Illegal Migration Act 2023. It stated the section is already in force, provides a clear legislative framework, and argued it is appropriate and compliant with Article 5 ECHR for the Home Secretary to determine the reasonable period of detention, subject to judicial oversight.

The government rejects the recommendation to repeal Section 29 of the IMA 2023, asserting that it is committed to retaining this measure and that its public order disqualification process is fully compliant with ECAT and Article 4 of the ECHR.

The government rejects the recommendation for a periodic review of safe country lists, arguing that a continuous monitoring approach is more flexible and effective than time-bound reviews.

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.

The government rejects the need to set out requirements and limitations for imposing conditions on the face of the Bill, stating these measures are necessary for managing individuals posing a threat and are applied on a case-by-case basis with proportionality analysis. They also affirm that judicial review already provides appropriate scrutiny of the Secretary of State’s use of these powers.

The government rejected the recommendation to change the threshold test for electronic monitoring from "appropriate" to "necessity and proportionality" in Clause 52. It stated that courts must interpret the "appropriate" test compatibly with the ECHR, and existing safeguards ensure compliance with Convention rights.

The government rejected the recommendation for prosecuting authorities and courts to apply interim SCPOs only where risks are imminent, arguing that the 'just to do so' standard is necessary for swift action and aligns with other regimes, with safeguards like temporary review and appeal rights.

The government asserts the new powers of search and seizure will not be applied indiscriminately, but only with reasonable suspicion and subject to existing safeguards. They argue these measures strike the right balance between operational necessity and individual rights, therefore deeming it unnecessary to amend the Bill as implicitly suggested by the committee's concern.

The government rejected the committee's concerns about sections 12, 29, 59, and 62 of the Illegal Migration Act, asserting their operational benefit and ECHR compliance. It outlined how each section includes safeguards or is consistent with international obligations.

The government clarifies that Section 12 of the IMA is in force and provides a clear legislative framework for detention decisions, asserting that while the Home Secretary determines reasonable detention periods, judicial oversight is maintained and the discretion is compliant with Article 5 ECHR.

The government defends Section 12 of the Illegal Migration Act 2023, stating it provides a clear and compliant legislative framework for detention decisions and is appropriately a matter for the Home Secretary, implicitly rejecting the argument that it should be repealed due to causing legal uncertainty.

The government defends the retention of Section 29 of the IMA 2023, which broadens disqualification from modern slavery protections for foreign national offenders, stating it is compliant with international obligations and necessary, thereby rejecting the committee's concerns.

The government defends the public order disqualification under NABA 2022 and the retention of Section 29 of the IMA 2023, stating it is compliant with international obligations and necessary for public order, effectively rejecting the committee's implied concern about its broadness.

The government defends the retention of Section 29 of the IMA 2023, which governs disqualification from modern slavery protections, arguing it is compliant with international obligations and necessary for public order, implicitly rejecting concerns about its disproportionate impact on survivors.

The government maintains that country safety is kept under continuous review, arguing that a time-bound or time-specified review would be counter-productive by limiting flexibility. They explain that existing provisions allow for exceptional instances where claims can be substantively considered.

The government defended Section 59 of the IMA 2023, explaining it broadens existing inadmissibility provisions and includes safeguards for exceptional circumstances and continuous country safety reviews. It implicitly rejected UNHCR's encouragement for repeal, arguing that current continuous monitoring is more flexible than time-bound reviews.

The government rejected the committee's strong concerns about Clause 41 not being clarificatory, but retrospectively changing the law and denying remedies. It reiterated its stance that the clause clarifies existing lawful powers, is necessary for public protection, and is compatible with Article 5 ECHR, thus denying any right to compensation.

The government acknowledges concerns about retrospective legislation and justifies Clause 41's retrospective effect by arguing it clarifies existing detention powers. It states this is necessary to ensure continuity in immigration control, public protection, and to prevent challenges to past and future deportation proceedings.

The government clarifies that Clause 41 of the Bill provides greater legal clarity to existing detention powers, which it deems lawful and necessary for immigration control and public protection. It asserts that any interference with Article 5 ECHR is justified and proportionate, and that the clause complies with Article 5(5) as there is no contravention with Article 5.

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.

The government rejects the committee's concern, asserting that Clause 41 clarifies existing detention powers, complies with Article 5(5) ECHR, and does not contravene Article 5 more broadly, thus negating a freestanding right to compensation for past detentions.

The government rejected the implicit concern regarding Clause 57's retrospective effect, maintaining that the legislation is justified, proportionate, and compatible with Article 1 of Protocol 1 ECHR due to compelling public interest reasons.

The government maintains its position that the legislation is justified, proportionate, and compatible with Article 1 of Protocol 1 ECHR. It argues that there are compelling public interest reasons for the legislation and no fixed list of factors determines compatibility.

The government maintains its position that the legislation is justified, proportionate, and compatible with Article 1 of Protocol 1 ECHR. It disagrees with the committee's interpretation of case law regarding the legal basis for claims to recover fees and the conditions under which retrospective legislation is acceptable.

The government maintained its position that legislation taking away claims for restitution of fees is justified and proportionate. It provided further legal arguments regarding Article 1 of Protocol 1 ECHR and the balance between individual and public interests, arguing that fees were reasonable and the impact on individuals slight.

The government clarified that electronic monitoring in SCPOs is for compliance, not punishment, and judicial interpretation ensures ECHR compatibility. It emphasized that courts determine appropriateness case-by-case, without committing to specify grounds for extensions, implying existing safeguards are sufficient.

The government rejects the suggestion of limited procedural safeguards, arguing that existing judicial scrutiny ensures compatibility with the ECHR and that a stricter threshold would impede vital interventions. It clarifies the purpose of electronic monitoring and asserts that individuals have rights of appeal for unjustified orders.

The government defends the 'just to do so' threshold for Interim Serious Crime Prevention Orders (ISCPOs), arguing a stricter test could delay vital interventions. It states this standard enables swift action and aligns with comparable regimes, while judicial review and appeal rights ensure a balance between public protection and individual rights.

The government defends the 'just to do so' threshold for Interim Serious Crime Prevention Orders (ISCPOs), arguing a stricter test could delay vital interventions. It states this standard enables swift action and aligns with comparable regimes, while judicial review and appeal rights ensure a balance between public protection and individual rights.