Border Security, Asylum and Immigration Bill

Human Rights (Joint Committee) Closed Inquiry
Opened: 14 Mar 2025 Closed: 31 Oct 2025 Parliament page
The Joint Committee on Human Rights is conducting legislative scrutiny of the Border Security, Asylum and Immigration Bill to assess its compatibility with international and domestic human rights standards. The Government’s stated purpose for the Bill is to improve UK border security and strengthen the asylum and immigration system by … Read more
16 Recommendations
102 Conclusions
1 Report
Activity timeline 2 events
12 Sep
2025
Report published
20 Jun
2025
Report published
Title HC No. Published Items Response
4th Report - Legislative Scrutiny: Border Security, Asylum and I… HC 789 20 Jun 2025 118 Responded
Recommendations & Conclusions
118 results
68 Recommendation
4th Report - Legislative Scrutiny:…
recommendation The Government should ensure that clause 18 is sufficiently clear and circumscribed, reflects the...
recommendation The Government should ensure that clause 18 is sufficiently clear and circumscribed, reflects the legitimate aim it is intended to achieve, and is proportionate to that aim. In particular, a mental element should be introduced to ensure that only … Read more
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69 Conclusion
4th Report - Legislative Scrutiny:…
Clauses 19–26 introduce new search, seizure and retention powers in relation to electronic devices.
Clauses 19–26 introduce new search, seizure and retention powers in relation to electronic devices. The Government’s objective is to allow for the recovery of information from migrants arriving irregularly that may relate to the offence of assisting unlawful migration or … Read more
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70 Conclusion
4th Report - Legislative Scrutiny:…
The new powers are exercisable when an immigration officer or a police constable who has...
The new powers are exercisable when an immigration officer or a police constable who has received authorisation from a superintendent (“authorised officer”) has reasonable grounds to suspect that a relevant person is in possession of a relevant article that relates … Read more
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71 Conclusion
4th Report - Legislative Scrutiny:…
Searches of a person may involve the search of the person’s mouth and may require...
Searches of a person may involve the search of the person’s mouth and may require the removal of outer clothing.107 Reasonable force may be used.108 The Bill also allows officers to retain data for as long as they deem “necessary”,109 … Read more
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72 Conclusion
4th Report - Legislative Scrutiny:…
The new powers appear to be a response to a decision of the High Court...
The new powers appear to be a response to a decision of the High Court in 2022, which held that the Home Secretary had acted unlawfully by having an unpublished blanket policy to search for, and seize, mobile phones from … Read more
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73 Conclusion
4th Report - Legislative Scrutiny:…
The new powers would interfere with rights under Article 8 and Article 1 of Protocol...
The new powers would interfere with rights under Article 8 and Article 1 of Protocol 1, which are incorporated into domestic law by the Human Rights Act, because they would allow access to private information (stored electronically) and would interfere … Read more
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74 Conclusion
4th Report - Legislative Scrutiny:…
The European Court has held that legislation applying to search and seizure must afford adequate...
The European Court has held that legislation applying to search and seizure must afford adequate and effective safeguards against abuse and arbitrariness.112 Further, section 37 of the Data Protection Act 2018 requires that personal data processed for law enforcement purposes … Read more
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75 Conclusion
4th Report - Legislative Scrutiny:…
There are various safeguards within the clause that help to protect against arbitrary and excessive...
There are various safeguards within the clause that help to protect against arbitrary and excessive interferences. There is a requirement of reasonable suspicion that, although low, does place a limit on when the powers can be exercised. The powers are … Read more
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76 Conclusion
4th Report - Legislative Scrutiny:…
Whilst the powers of search and seizure in these clauses are likely to be ‘in...
Whilst the powers of search and seizure in these clauses are likely to be ‘in accordance with the law’ and in pursuit of the legitimate aim of crime prevention, there are questions as to necessity and proportionality. Liberty argues that … Read more
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77 Conclusion
4th Report - Legislative Scrutiny:…
Open Rights Group notes: “[o]ur concern is that these clauses risk invasive digital searches.
Open Rights Group notes: “[o]ur concern is that these clauses risk invasive digital searches. The broad definition of “relevant articles” and the broad authority to search persons for electronic devices, especially the power to access, copy, and use data stored … Read more
Ministry of Justice
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78 Conclusion
4th Report - Legislative Scrutiny:…
Migrant Rights Network also notes the risk of disproportionality: “[m] obile phone seizures have also...
Migrant Rights Network also notes the risk of disproportionality: “[m] obile phone seizures have also had limited success in other countries where the practice is commonplace, like Germany: 73% of data extracted from asylum seekers’ phones is unusable. As a … Read more
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79 Conclusion
4th Report - Legislative Scrutiny:…
Jesuit Refugee Services have supported numerous individuals whose phones were seized.
Jesuit Refugee Services have supported numerous individuals whose phones were seized. They told us that: “[r]emoval of the phones meant people were unable to contact friends and family. Many young people arrive in the UK alone after a traumatising journey, … Read more
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80 Conclusion
4th Report - Legislative Scrutiny:…
Whilst the Home Office may issue guidance about the use of the powers and training...
Whilst the Home Office may issue guidance about the use of the powers and training that will be required for authorised officers exercising those powers, any such guidance is not available for Parliamentary scrutiny during the passage of this Bill.
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81 Recommendation
4th Report - Legislative Scrutiny:…
conclusion We are concerned that there is a risk that the new powers of search,...
conclusion We are concerned that there is a risk that the new powers of search, seizure and retention, in practice, may lead to a blanket policy to search, and possibly seize and retain, items such as mobile phones from asylum … Read more
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82 Conclusion
4th Report - Legislative Scrutiny:…
Under clause 34, an authorised person119 may take biometric information from a person (including children)...
Under clause 34, an authorised person119 may take biometric information from a person (including children) if the Government is in the process of facilitating their exit from a third country and they would need leave to enter the UK. This … Read more
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83 Conclusion
4th Report - Legislative Scrutiny:…
Clause 35 provides that the information must then be passed to the Secretary of State,...
Clause 35 provides that the information must then be passed to the Secretary of State, who can keep and use it for purposes relating to immigration, nationality, law enforcement or national security. The information cannot be kept for longer than … Read more
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84 Conclusion
4th Report - Legislative Scrutiny:…
For collection and retention of biometric information to comply with Article 8 ECHR, the way...
For collection and retention of biometric information to comply with Article 8 ECHR, the way the information will be used must be reasonably foreseeable, and the collection and retention must pursue a legitimate aim in a proportionate manner. There must … Read more
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85 Conclusion
4th Report - Legislative Scrutiny:…
The ECHR memorandum124 explains that the purpose of the power is to allow individuals’ identity...
The ECHR memorandum124 explains that the purpose of the power is to allow individuals’ identity to be checked without needing them to make an immigration application, so the UK authorities can identify people of concern and make sure resources are … Read more
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86 Conclusion
4th Report - Legislative Scrutiny:…
However, clause 35(7) provides that if the information is used to identify a person for...
However, clause 35(7) provides that if the information is used to identify a person for the purposes of facilitating their departure from another state or territory, and the information is transferred to a third country or international organisation for that … Read more
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87 Conclusion
4th Report - Legislative Scrutiny:…
With regard to children, Open Rights Group notes that collecting biometric data from children over...
With regard to children, Open Rights Group notes that collecting biometric data from children over 16 without consent could violate child protection standards: “According to the guidance of the Information Commissioner’s Office (ICO) on processing sensitive personal data under the … Read more
Ministry of Justice
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88 Conclusion
4th Report - Legislative Scrutiny:…
ILPA notes that EU law specifically prohibits the transfer of personal data to a third...
ILPA notes that EU law specifically prohibits the transfer of personal data to a third country or international organisation for law enforcement purposes, “if there is a real risk that, as a result of such a transfer, the data subject … Read more
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89 Recommendation
4th Report - Legislative Scrutiny:…
conclusion We are concerned that clause 35(7) and (8), deeming transfer of personal data to...
conclusion We are concerned that clause 35(7) and (8), deeming transfer of personal data to third countries and international organisations to be necessary for important reasons of public interest, inappropriately disapplies the normal safeguards in data protection legislation when data … Read more
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90 Conclusion
4th Report - Legislative Scrutiny:…
The Safety of Rwanda (Asylum and Immigration) Act 2024 (“SORA”) was passed after the Supreme...
The Safety of Rwanda (Asylum and Immigration) Act 2024 (“SORA”) was passed after the Supreme Court held that the Government’s policy of removing asylum seekers to Rwanda, under the Migration and Economic Development Partnership (MEDP), was unlawful.128 SORA was enacted … Read more
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91 Conclusion
4th Report - Legislative Scrutiny:…
The central provisions of SORA: confirm that the Republic of Rwanda is a safe third...
The central provisions of SORA: confirm that the Republic of Rwanda is a safe third country for the purposes of removal; require any court or tribunal to conclusively treat Rwanda as a safe for the purposes of asylum and removal; … Read more
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92 Conclusion
4th Report - Legislative Scrutiny:…
The Safety of Rwanda Bill sought to establish through legislative means that Rwanda was a...
The Safety of Rwanda Bill sought to establish through legislative means that Rwanda was a safe country despite the Supreme Court’s conclusion that it was not.129 A statement under section 19(1)(b) of the HRA was made when the Bill was … Read more
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93 Conclusion
4th Report - Legislative Scrutiny:…
conclusion Clause 37 of the Bill would repeal SORA in its entirety.
conclusion Clause 37 of the Bill would repeal SORA in its entirety. This is consistent with the current Government’s manifesto commitment to abandon the Rwanda policy. Repeal of SORA will remove the significant incompatibilities identified in the predecessor JCHR’s report. … Read more
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94 Conclusion
4th Report - Legislative Scrutiny:…
The Illegal Migration Act 2023 (IMA) introduced significant changes to the UK’s asylum system.
The Illegal Migration Act 2023 (IMA) introduced significant changes to the UK’s asylum system. In summary, it imposed a duty on the Secretary of State to make arrangements to remove any person who enters the UK irregularly and has not … Read more
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95 Conclusion
4th Report - Legislative Scrutiny:…
Clause 38 of the Bill repeals most of the provisions of the IMA.
Clause 38 of the Bill repeals most of the provisions of the IMA. However, a number of provisions will not be repealed: a. Section 12, expanding powers of immigration detention (in force) b. Section 29, strengthening the disqualification from modern … Read more
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96 Conclusion
4th Report - Legislative Scrutiny:…
The Explanatory Notes to the Bill notes that these provisions are not subject to repeal...
The Explanatory Notes to the Bill notes that these provisions are not subject to repeal due to their “operational benefit”.133
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97 Conclusion
4th Report - Legislative Scrutiny:…
The JCHR’s predecessor committee raised concerns in relation to some of the above-mentioned provisions.
The JCHR’s predecessor committee raised concerns in relation to some of the above-mentioned provisions. We remain concerned by section 12, section 29, section 59 and section 62 IMA. Section 12 IMA: immigration detention
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98 Conclusion
4th Report - Legislative Scrutiny:…
The Government currently has the power to detain individuals for an indefinite period of time...
The Government currently has the power to detain individuals for an indefinite period of time pending their deportation and removal from the UK. With the exceptions of children and pregnant women,134 there are no statutory time limits on immigration detention. Read more
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99 Conclusion
4th Report - Legislative Scrutiny:…
Section 12 IMA modified the common law position to provide that it is for the...
Section 12 IMA modified the common law position to provide that it is for the Secretary of State, and not the courts, to determine what constitutes a reasonable period of detention. The previous Committee concluded that this change would result … Read more
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100 Conclusion
4th Report - Legislative Scrutiny:…
Professor Sarah Singer told us: “[t]his is an example of the expansive power that is...
Professor Sarah Singer told us: “[t]his is an example of the expansive power that is being given to the Home Secretary and the reduction of judicial scrutiny. If the judiciary is not able to scrutinise a detention decision for reasonableness … Read more
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101 Conclusion
4th Report - Legislative Scrutiny:…
Academics Dr Sabina Garahan and Dr Matthew Gillet argue, “by allowing detention for such period...
Academics Dr Sabina Garahan and Dr Matthew Gillet argue, “by allowing detention for such period as ‘in the opinion of the Secretary of State’ is reasonably necessary, section 12(1)(b) conflicts with fundamental standards 133 Explanatory notes, para.44 134 There is … Read more
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102 Conclusion
4th Report - Legislative Scrutiny:…
Others argue that it may be having little to no effect in practice.
Others argue that it may be having little to no effect in practice. Medical Justice and Bail for Immigration Detainees submit that, in the context of applications before the High Court for release of detainees, “the Home Secretary often does … Read more
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103 Conclusion
4th Report - Legislative Scrutiny:…
recommendation Section 12 of the Illegal Migration Act modifies the common law position, making it...
recommendation Section 12 of the Illegal Migration Act modifies the common law position, making it for the Secretary of State, and not the courts, to determine what is a reasonable period of detention. We agree with our predecessor Committee and … Read more
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104 Conclusion
4th Report - Legislative Scrutiny:…
Section 29 of the IMA is not yet in force.
Section 29 of the IMA is not yet in force. Upon commencement, it would amend section 63 of the Nationality and Borders Act 2022, which sets out disqualifications to providing a recovery period139 to a potential victim of modern slavery … Read more
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105 Conclusion
4th Report - Legislative Scrutiny:…
It also mandates that, unless there are ‘compelling circumstances’, non- British victims would be disqualified...
It also mandates that, unless there are ‘compelling circumstances’, non- British victims would be disqualified from protection if they have been sentenced to a period of imprisonment of any length. They will be denied a recovery and reflection period and … Read more
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106 Conclusion
4th Report - Legislative Scrutiny:…
Sarah Dineley, Deputy Chief Crown Prosecutor at the CPS, stated: “[i]t is vital that, wherever...
Sarah Dineley, Deputy Chief Crown Prosecutor at the CPS, stated: “[i]t is vital that, wherever possible, victims of trafficking are identified before any decisions are made on charge and prosecution; this is particularly important where the suspect is a child … Read more
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107 Conclusion
4th Report - Legislative Scrutiny:…
Whilst survivors of modern slavery should be able to access the ‘Section 45’ defence,142 created...
Whilst survivors of modern slavery should be able to access the ‘Section 45’ defence,142 created to prevent the criminalisation of survivors for offences they were compelled to commit as a result of their exploitation, After Exploitation points out that “its … Read more
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108 Conclusion
4th Report - Legislative Scrutiny:…
The Helen Bamber Foundation and Asylum Aid state the public order disqualification under the Nationality...
The Helen Bamber Foundation and Asylum Aid state the public order disqualification under the Nationality and Borders Act 2022 is already broad and is catching levels of behaviour that fall below the appropriate threshold for depriving a victim of protections. … Read more
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109 Conclusion
4th Report - Legislative Scrutiny:…
The Law Society notes that there is limited ability to challenge decisions to disqualify someone...
The Law Society notes that there is limited ability to challenge decisions to disqualify someone from modern slavery protections: “there is no formal route to appeal or request reconsideration and so a challenge can only be brought by judicial review, … Read more
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110 Conclusion
4th Report - Legislative Scrutiny:…
ILPA notes that “[t]his provision disproportionately impacts survivors who were forced to commit crimes as...
ILPA notes that “[t]his provision disproportionately impacts survivors who were forced to commit crimes as part of their exploitation and who have received convictions. Analysis conducted in 2024 clearly demonstrates that, of the 338 people disqualified (including 40 children): 70% … Read more
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111 Conclusion
4th Report - Legislative Scrutiny:…
In oral evidence to the Committee, Dr Marija Jovanovic told us: “[v]ictims are losing trust...
In oral evidence to the Committee, Dr Marija Jovanovic told us: “[v]ictims are losing trust in the system. There is some evidence that since 2016 the proportion of those who refuse to engage with support services has soared by 630%. … Read more
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112 Conclusion
4th Report - Legislative Scrutiny:…
Article 13 of ECAT requires state parties to provide a “recovery and reflection period” of...
Article 13 of ECAT requires state parties to provide a “recovery and reflection period” of at least 30 days to potential VOTs, i.e. when there are reasonable grounds to believe that the person concerned is a victim of trafficking. During … Read more
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113 Conclusion
4th Report - Legislative Scrutiny:…
There is no definition in ECAT of what could be considered as “grounds of public...
There is no definition in ECAT of what could be considered as “grounds of public order”. GRETA notes that “the grounds of public order should always be interpreted on a case-by-case basis, and it is not possible to automatically disqualify … Read more
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114 Recommendation
4th Report - Legislative Scrutiny:…
recommendation We agree with our predecessor Committee that section 29 IMA, which broadens the public...
recommendation We agree with our predecessor Committee that section 29 IMA, which broadens the public order disqualification in section 63 of the Nationality and Borders Act, is not compatible with the UK’s obligations under ECAT and Article 4 of the … Read more
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115 Conclusion
4th Report - Legislative Scrutiny:…
Section 59 IMA (partially in force)149 amends section 80A of the Nationality, Immigration and Asylum...
Section 59 IMA (partially in force)149 amends section 80A of the Nationality, Immigration and Asylum Act 2002, which provides that asylum claims and human rights claims from nationals of listed states must be declared inadmissible. Section 59 IMA principally does … Read more
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116 Conclusion
4th Report - Legislative Scrutiny:…
Inadmissibility procedures allow a State to declare claims “inadmissible” when the claim is made by...
Inadmissibility procedures allow a State to declare claims “inadmissible” when the claim is made by nationals of countries that are deemed safe. Section 80A(5) provides two non-exhaustive examples of exceptional circumstances. These are narrowly construed: first, where the listed state … Read more
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117 Conclusion
4th Report - Legislative Scrutiny:…
Our predecessor Committee concluded that that whilst the listed States may be considered to be...
Our predecessor Committee concluded that that whilst the listed States may be considered to be safe ‘in general’, this does not guarantee their safety for all individuals, particularly those who are members of a particular social group. It must be … Read more
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118 Conclusion
4th Report - Legislative Scrutiny:…
The implications for Albanian women and children are particularly concerning.
The implications for Albanian women and children are particularly concerning. For example, an Albanian woman who has been trafficked to the UK and faces a real risk of reprisals and re-trafficking upon return to Albania, could be returned to Albania … Read more
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119 Conclusion
4th Report - Legislative Scrutiny:…
Section 59 includes a Henry VIII clause that permits the Secretary of State to add...
Section 59 includes a Henry VIII clause that permits the Secretary of State to add to the list of safe countries by regulations. This power is in force and has already been used to add Georgia and India to the … Read more
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120 Conclusion
4th Report - Legislative Scrutiny:…
In relation to Georgia, the Refugee Council notes that “in December 2024 the current Government...
In relation to Georgia, the Refugee Council notes that “in December 2024 the current Government sanctioned five Georgian officials for serious human rights violations. This included the Minister for Interior and the Director of the Tbilisi Police Department. The press … Read more
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121 Conclusion
4th Report - Legislative Scrutiny:…
In relation to India, Rainbow Migration shared two examples of clients who have been granted...
In relation to India, Rainbow Migration shared two examples of clients who have been granted asylum in the UK: a. “A trans woman from India came out to her parents at age fourteen. They reacted very negatively, locking her in … Read more
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122 Conclusion
4th Report - Legislative Scrutiny:…
In its observations on the Bill, the UNHCR states: “while designation of safe countries may...
In its observations on the Bill, the UNHCR states: “while designation of safe countries may be used as a procedural tool to prioritise or accelerate the examination of applications in carefully circumscribed situations, it does not displace the requirement for … Read more
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123 Conclusion
4th Report - Legislative Scrutiny:…
recommendation We share the concerns of our predecessor Committee that, whilst the states listed may...
recommendation We share the concerns of our predecessor Committee that, whilst the states listed may be considered safe in general, this does not guarantee the safety of all individuals from these states, especially those who are members of particular social … Read more
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124 Conclusion
4th Report - Legislative Scrutiny:…
The Bill does not repeal section 62 IMA.
The Bill does not repeal section 62 IMA. This means that if a person making a human rights or asylum claim does not allow the Home Office to look at everything (including private information) on their phone, then the Home … Read more
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125 Conclusion
4th Report - Legislative Scrutiny:…
In respect of this provision, the previous JCHR concluded in its report on the Illegal...
In respect of this provision, the previous JCHR concluded in its report on the Illegal Migration Bill: “we remain concerned that an asylum or human rights claimant’s credibility should not be damaged by conduct that may be explained by something … Read more
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126 Conclusion
4th Report - Legislative Scrutiny:…
recommendation Section 62 IMA should be amended, as recommended by our predecessor Committee, to make...
recommendation Section 62 IMA should be amended, as recommended by our predecessor Committee, to make clear that the credibility of a claimant who has provided a reasonable excuse for their failure to provide a password or other methods of access … Read more
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127 Conclusion
4th Report - Legislative Scrutiny:…
Clause 41 amends the current powers contained in paragraph 2(2) to Schedule 3 of the...
Clause 41 amends the current powers contained in paragraph 2(2) to Schedule 3 of the IA 1971, which permits the Secretary of State to detain individuals liable to deportation on the grounds that their presence in the UK is not … Read more
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128 Conclusion
4th Report - Legislative Scrutiny:…
The clause also amends section 141 of the Immigration Act 1999 (fingerprinting) and regulation 2...
The clause also amends section 141 of the Immigration Act 1999 (fingerprinting) and regulation 2 of the Immigration (Collection, Use and Retention of Biometric Information and Related Amendments) Regulations 2021 (photographs) to clarify that fingerprints and photographs can be taken … Read more
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129 Conclusion
4th Report - Legislative Scrutiny:…
The clause also amends section 51(2) of the Immigration Act 2016 (power to direct prison...
The clause also amends section 51(2) of the Immigration Act 2016 (power to direct prison officer or prison custody officer to search for nationality documents) to “clarify” that the Secretary of State may direct a prison officer or prisoner custody … Read more
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130 Conclusion
4th Report - Legislative Scrutiny:…
Despite the Government’s characterisation of this clause as clarificatory, the Impact Assessment makes clear that...
Despite the Government’s characterisation of this clause as clarificatory, the Impact Assessment makes clear that this involves retrospectively making it lawful to have detained persons (liable to deportation on the ground it was considered conducive to the public good) at … Read more
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131 Conclusion
4th Report - Legislative Scrutiny:…
We note that the House of Lords Constitution Committee has frequently raised concerns about retrospective...
We note that the House of Lords Constitution Committee has frequently raised concerns about retrospective provisions, arguing that retrospective legislation “is unacceptable other than in very exceptional circumstances” and that, when used, “measures with retrospective effect must have the strongest … Read more
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132 Conclusion
4th Report - Legislative Scrutiny:…
These provisions raise issues under Articles 5, 8, and 13 of the ECHR.
These provisions raise issues under Articles 5, 8, and 13 of the ECHR. Article 5 is engaged by this clause as those liable to deportation will be deprived of their liberty. Any interference with Article 5 is justified where it … Read more
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133 Conclusion
4th Report - Legislative Scrutiny:…
However, Clause 41’s purpose is to provide a legal basis for the Home Office’s current...
However, Clause 41’s purpose is to provide a legal basis for the Home Office’s current practice of detaining people early in the deportation process, i.e. after a “Stage 1” deportation decision has been made, while the Secretary of State considers … Read more
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134 Conclusion
4th Report - Legislative Scrutiny:…
This clause also engages Article 8 because it gives powers to obtain biometrics and search...
This clause also engages Article 8 because it gives powers to obtain biometrics and search documents. An interference with this right must be in accordance with the law and proportionate to the pursuit of a legitimate aim. It is the … Read more
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8 Conclusion
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135.
135. The denial of a remedy for unlawful detention also risks violating Article 5(5) and Article 13 ECHR (the right to an effective remedy). If individuals have been detained pending deportation between Stage 1 and Stage 2 171 UK Home … Read more
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136 Recommendation
4th Report - Legislative Scrutiny:…
recommendation 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 … Read more
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137 Conclusion
4th Report - Legislative Scrutiny:…
Clause 57 of the Bill also has retrospective effect.
Clause 57 of the Bill also has retrospective effect. It “establishes retrospective power for the charging of fees for services related to the comparability, recognition or assessment of qualifications obtained outside and within the United Kingdom”.176 Such fees have been … Read more
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138 Conclusion
4th Report - Legislative Scrutiny:…
There may be a breach of Article 1 of Protocol 1 if legislation deprives potential...
There may be a breach of Article 1 of Protocol 1 if legislation deprives potential claimants of the value of their claim. To constitute a property right protected by the ECHR, the claim must have a sufficient basis in national … Read more
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139 Conclusion
4th Report - Legislative Scrutiny:…
The ECHR memorandum suggests that a claim to recover fees would not meet this test,...
The ECHR memorandum suggests that a claim to recover fees would not meet this test, because its legal basis would be too uncertain.179 The Government argues that the relevant case law180 only covers claims wrongly levied by the State, and … Read more
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140 Conclusion
4th Report - Legislative Scrutiny:…
The Government maintains that in any event it is justified for legislation to take away...
The Government maintains that in any event it is justified for legislation to take away these claims, because it is fair and in the public interest that service users should pay a reasonable fee for the service, and it is … Read more
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141 Conclusion
4th Report - Legislative Scrutiny:…
conclusion The Government has provided for the retrospective validation of fees charged without any statutory...
conclusion The Government has provided for the retrospective validation of fees charged without any statutory basis. We ask the Government to clarify its justification for the retrospective validation of these fees. 181 Ipswich Town v Suffolk Chief Constable [2017] EWHC … Read more
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142 Conclusion
4th Report - Legislative Scrutiny:…
At Committee stage in the Commons, the Government added clause 43.
At Committee stage in the Commons, the Government added clause 43. This introduces an extension of the existing conditions that may be applied to any grant of limited leave to enter or remain in the UK under section 3(1) (c) … Read more
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143 Conclusion
4th Report - Legislative Scrutiny:…
The current restrictions, set out in section 3(1)(c) of the Immigration Act 1971, permit restrictions...
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 … Read more
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144 Conclusion
4th Report - Legislative Scrutiny:…
The safeguards are limited to a prohibition that these powers cannot be used in relation...
The safeguards are limited to a prohibition that these powers cannot be used in relation to a British citizen or settled person. Other than this, they can be used by immigration officers with no threshold and no time limit. The … Read more
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145 Conclusion
4th Report - Legislative Scrutiny:…
The Minister for Border Security and Asylum, Dame Angela Eagle MP, said during the Bill’s...
The Minister for Border Security and Asylum, Dame Angela Eagle MP, said during the Bill’s passage through the House of Commons that: “The powers will be used only in cases involving conduct such as war crimes, crimes against humanity, extremism … Read more
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146 Conclusion
4th Report - Legislative Scrutiny:…
Amnesty describes this as an “extraordinary overreach of power”.190 Public Law Project notes that these...
Amnesty describes this as an “extraordinary overreach of power”.190 Public Law Project notes that these restrictions are akin to those imposed on national security grounds (Terrorism Prevention and Investigation Measures), and that the same types of restrictions would be used … Read more
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147 Recommendation
4th Report - Legislative Scrutiny:…
Following an analysis of clause 43, the House of Lords Constitution Committee, in its report...
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 … Read more
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148 Recommendation
4th Report - Legislative Scrutiny:…
We note the Minister’s comments that these powers are intended to be used in cases...
We note the Minister’s comments that these powers are intended to be used in cases involving, amongst other things, serious international crimes. Where there is sufficient evidence that persons have been involved in serious international crimes such as genocide, such … Read more
Ministry of Justice
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149 Recommendation
4th Report - Legislative Scrutiny:…
recommendation The requirements in clause 43 for imposing conditions such as electronic monitoring, geographical exclusions,...
recommendation The requirements in clause 43 for imposing conditions such as electronic monitoring, geographical exclusions, and curfews, should be set out clearly on the face of the Bill and adequately circumscribed. In order to reflect the Government’s intentions as stated … Read more
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150 Conclusion
4th Report - Legislative Scrutiny:…
Clause 48 was added by way of Government amendment at Report stage in the Commons.
Clause 48 was added by way of Government amendment at Report stage in the Commons. It provides for the classification of certain sexual offences as “particularly serious” when determining exclusions from the protection against refoulement, regardless of period of imprisonment. … Read more
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151 Conclusion
4th Report - Legislative Scrutiny:…
The Refugee Convention, in its Article 33(2), allows for refugees to be excluded from non-refoulement...
The Refugee Convention, in its Article 33(2), allows for refugees to be excluded from non-refoulement protections where there are reasonable grounds for regarding them as a danger to the security of the UK or where if, having been convicted of … Read more
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152 Conclusion
4th Report - Legislative Scrutiny:…
For these purposes, a particularly serious crime, in domestic law, is a crime for which...
For these purposes, a particularly serious crime, in domestic law, is a crime for which a person is sentenced to a period of imprisonment of at least 12 months.197 The threshold is therefore amended by this provision in the Bill … Read more
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153 Conclusion
4th Report - Legislative Scrutiny:…
However, in practice, the lowering of this threshold may have very little effect.
However, in practice, the lowering of this threshold may have very little effect. Professor Sarah Singer told us: “the Nationality and Borders Act introduced a new interpretation of Article 33(2) [Refugee Convention]… It would be highly unlikely to have a … Read more
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154 Conclusion
4th Report - Legislative Scrutiny:…
In the supplementary ECHR memorandum published by the Government, it is noted that an individual...
In the supplementary ECHR memorandum published by the Government, it is noted that an individual affected by this amendment “would still be able to rely on Article 2 or 3 rights, if they faced a real risk of persecution, but … Read more
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155 Conclusion
4th Report - Legislative Scrutiny:…
The rebuttable presumption is an important safeguard to give refugees the opportunity to argue against...
The rebuttable presumption is an important safeguard to give refugees the opportunity to argue against the seriousness of their offence and the danger they pose to the community. The Convention also provides a safeguard as the principle of non-refoulement under … Read more
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156 Conclusion
4th Report - Legislative Scrutiny:…
conclusion Exclusions from the protections of the Refugee Convention are permitted in circumstances where individuals...
conclusion Exclusions from the protections of the Refugee Convention are permitted in circumstances where individuals have committed “particularly serious crimes”. We acknowledge that the exclusion of individuals who pose a danger to the community is an important measure, and we … Read more
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157 Conclusion
4th Report - Legislative Scrutiny:…
The Bill provides power to impose electronic monitoring as a requirement of a Serious Crime...
The Bill provides power to impose electronic monitoring as a requirement of a Serious Crime Prevention Order (SCPO). It also provides for the power to impose interim SCPOs whilst an application for a final order is pending. SCPOs, introduced by … Read more
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158 Conclusion
4th Report - Legislative Scrutiny:…
SCPOs can be obtained from the High Court in a stand-alone application or from the...
SCPOs can be obtained from the High Court in a stand-alone application or from the Crown Court by application following a person’s conviction for a serious crime. Only the DPP, the Director of the Serious Fraud Office and (in respect … Read more
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159 Conclusion
4th Report - Legislative Scrutiny:…
Clause 52 provides the courts with the power to impose electronic monitoring200 as part of...
Clause 52 provides the courts with the power to impose electronic monitoring200 as part of SCPO requirements. Electronic monitoring can be imposed where there are “reasonable grounds to believe that the [overall] order would protect the public” and that this … Read more
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160 Conclusion
4th Report - Legislative Scrutiny:…
Open Rights Group note that “the Bill’s provisions offer limited procedural safeguards (for instance, reliance...
Open Rights Group note that “the Bill’s provisions offer limited procedural safeguards (for instance, reliance on “reasonable grounds” rather than rigorous independent judicial oversight). Such a low threshold can lead to overly broad applications of state power.”201 Migrant Help states … Read more
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161 Conclusion
4th Report - Legislative Scrutiny:…
The power to impose electronic monitoring engages Article 8, which requires that any interferences with...
The power to impose electronic monitoring engages Article 8, which requires that any interferences with the right to private and family life are in accordance with the law, in pursuit of a legitimate aim and necessary and proportionate to that … Read more
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162 Conclusion
4th Report - Legislative Scrutiny:…
recommendation Given the severe infringement on the right to privacy posed by the imposition of...
recommendation Given the severe infringement on the right to privacy posed by the imposition of electronic monitoring, the threshold test for electronic monitoring should be one of “necessity and proportionality”, not whether it is “appropriate”. Clause 52 should be amended … Read more
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163 Conclusion
4th Report - Legislative Scrutiny:…
Clause 53 introduces a new interim SCPO (ISCPO) which would allow the High Court to...
Clause 53 introduces a new interim SCPO (ISCPO) which would allow the High Court to impose requirements on the subject while the full application is pending. The test for imposing an ISCPO is whether the court “considers it just to … Read more
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164 Conclusion
4th Report - Legislative Scrutiny:…
ISCPOs could be obtained without notice being given to the subject if the High Court...
ISCPOs could be obtained without notice being given to the subject if the High Court accepts that “the outcome sought by the applicant” (presumably protecting against serious crime) is likely to be prejudiced by notice being given. Where an order … Read more
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165 Conclusion
4th Report - Legislative Scrutiny:…
The provision is sufficiently clear and accessible.
The provision is sufficiently clear and accessible. The aim of preventing serious crime is legitimate. As to whether it is necessary and proportionate, it is notable that the threshold for imposing an ISCPO is merely that the court considers it … Read more
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166 Conclusion
4th Report - Legislative Scrutiny:…
conclusion Given that the threshold for imposing interim SCPOs is substantially lower than for full...
conclusion Given that the threshold for imposing interim SCPOs is substantially lower than for full SCPOs, there is a risk that they could be imposed in circumstances that do not justify a full SCPO. recommendation To ensure respect for Convention … Read more
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1 Conclusion
4th Report - Legislative Scrutiny:…
We are concerned that the breadth of these precursor offences poses a risk of unintended...
We are concerned that the breadth of these precursor offences poses a risk of unintended harms to those who are most vulnerable. To mitigate this risk, we consider that the precursor offences would benefit from greater circumscription and more robust … Read more
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2 Conclusion
4th Report - Legislative Scrutiny:…
We support the Government’s intention to disrupt and deter organised immigration crime and to safeguard...
We support the Government’s intention to disrupt and deter organised immigration crime and to safeguard life. However, we are concerned that the precursor offences, as currently drafted, create uncertainty, extend beyond the Government’s stated legitimate aim, and risk inadvertently criminalising … Read more
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3 Recommendation
4th Report - Legislative Scrutiny:…
In relation to clauses 13 and 14: a.
In relation to clauses 13 and 14: a. The Government should give consideration to amending the scope of the offences to ensure that they only apply to persons involved in the smuggling of persons for direct or indirect financial or … Read more
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4 Conclusion
4th Report - Legislative Scrutiny:…
Clause 15 should be amended to ensure that the list of exempted “relevant articles” includes...
Clause 15 should be amended to ensure that the list of exempted “relevant articles” includes items commonly used by asylum seekers. At a minimum, this must include items such as hygiene kits. (See Amendment 8, Annex). (Recommendation, Paragraph 52)
Ministry of Justice
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5 Recommendation
4th Report - Legislative Scrutiny:…
In relation to clause 16: a.
In relation to clause 16: a. The Government should give consideration to amending the scope of the offences to ensure that they only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain. … Read more
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6 Recommendation
4th Report - Legislative Scrutiny:…
More broadly, we agree with our predecessor Committee that the Government should fully incorporate Article...
More broadly, we agree with our predecessor Committee that the Government should fully incorporate Article 31 of the Refugee Convention into section 31 of the Immigration and Asylum Act 1999. Section 31 should include the new offences in this Bill … Read more
Ministry of Justice
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7 Recommendation
4th Report - Legislative Scrutiny:…
The Government should ensure that clause 18 is sufficiently clear and circumscribed, reflects the legitimate...
The Government should ensure that clause 18 is sufficiently clear and circumscribed, reflects the legitimate aim it is intended to achieve, and is proportionate to that aim. In particular, a mental element should be introduced to ensure that only conduct … Read more
Ministry of Justice
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9 Recommendation
4th Report - Legislative Scrutiny:…
We are concerned that clause 35(7) and (8), deeming transfer of personal data to third...
We are concerned that clause 35(7) and (8), deeming transfer of personal data to third countries and international organisations to be necessary for important reasons of public interest, inappropriately disapplies the normal safeguards in data protection legislation when data is … Read more
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10 Conclusion
4th Report - Legislative Scrutiny:…
Clause 37 of the Bill would repeal SORA in its entirety.
Clause 37 of the Bill would repeal SORA in its entirety. This is consistent with the current Government’s manifesto commitment to abandon the Rwanda policy. Repeal of SORA will remove the significant incompatibilities identified in the predecessor JCHR’s report. (Conclusion, … Read more
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11 Conclusion
4th Report - Legislative Scrutiny:…
Section 12 of the Illegal Migration Act modifies the common law position, making it for...
Section 12 of the Illegal Migration Act modifies the common law position, making it for the Secretary of State, and not the courts, to determine what is a reasonable period of detention. We agree with our predecessor 62 Committee and … Read more
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12 Recommendation
4th Report - Legislative Scrutiny:…
We agree with our predecessor Committee that section 29 IMA, which broadens the public order...
We agree with our predecessor Committee that section 29 IMA, which broadens the public order disqualification in section 63 of the Nationality and Borders Act, is not compatible with the UK’s obligations under ECAT and Article 4 of the ECHR. … Read more
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13 Conclusion
4th Report - Legislative Scrutiny:…
We share the concerns of our predecessor Committee that, whilst the states listed may be...
We share the concerns of our predecessor Committee that, whilst the states listed may be considered safe in general, this does not guarantee the safety of all individuals from these states, especially those who are members of particular social groups … Read more
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14 Conclusion
4th Report - Legislative Scrutiny:…
Section 62 IMA should be amended, as recommended by our predecessor Committee, to make clear...
Section 62 IMA should be amended, as recommended by our predecessor Committee, to make clear that the credibility of a claimant who has provided a reasonable excuse for their failure to provide a password or other methods of access requested … Read more
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15 Recommendation
4th Report - Legislative Scrutiny:…
The Government’s position is that clause 41 “clarifies” the law.
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 … Read more
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16 Conclusion
4th Report - Legislative Scrutiny:…
The Government has provided for the retrospective validation of fees charged without any statutory basis.
The Government has provided for the retrospective validation of fees charged without any statutory basis. We ask the Government to clarify its justification for the retrospective validation of these fees. (Conclusion, Paragraph 141) 63 Conditions on leave and bail Read more
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17 Recommendation
4th Report - Legislative Scrutiny:…
The requirements in clause 43 for imposing conditions such as electronic monitoring, geographical exclusions, and...
The requirements in clause 43 for imposing conditions such as electronic monitoring, geographical exclusions, and curfews, should be set out clearly on the face of the Bill and adequately circumscribed. In order to reflect the Government’s intentions as stated by … Read more
Ministry of Justice
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18 Conclusion
4th Report - Legislative Scrutiny:…
Exclusions from the protections of the Refugee Convention are permitted in circumstances where individuals have...
Exclusions from the protections of the Refugee Convention are permitted in circumstances where individuals have committed “particularly serious crimes”. We acknowledge that the exclusion of individuals who pose a danger to the community is an important measure, and we support … Read more
Ministry of Justice
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19 Conclusion
4th Report - Legislative Scrutiny:…
Given the severe infringement on the right to privacy posed by the imposition of electronic...
Given the severe infringement on the right to privacy posed by the imposition of electronic monitoring, the threshold test for electronic monitoring should be one of “necessity and proportionality”, not whether it is “appropriate”. Clause 52 should be amended accordingly. … Read more
Ministry of Justice
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20 Conclusion
4th Report - Legislative Scrutiny:…
Given that the threshold for imposing interim SCPOs is substantially lower than for full SCPOs,...
Given that the threshold for imposing interim SCPOs is substantially lower than for full SCPOs, there is a risk that they could be imposed in circumstances that do not justify a full SCPO. (Conclusion, Paragraph 166) To ensure respect for … Read more
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