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

Select Committee

Human Rights (Joint Committee) HC 789 20 June 2025

Report Status Government responded

Conclusions & Recommendations 118 items (16 recs)

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Recommendations

16 results

68

recommendation The Government should ensure that clause 18 is sufficiently clear and circumscribed, reflects the...

Recommendation

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

Ministry of Justice

81

conclusion We are concerned that there is a risk that the new powers of search,...

Recommendation

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

Ministry of Justice

89

conclusion We are concerned that clause 35(7) and (8), deeming transfer of personal data to...

Recommendation

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

Ministry of Justice

114

recommendation We agree with our predecessor Committee that section 29 IMA, which broadens the public...

Recommendation

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

Ministry of Justice

136

recommendation The Government’s position is that clause 41 “clarifies” the law.

Recommendation

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

Ministry of Justice

147

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 … Read more

Ministry of Justice

148

We note the Minister’s comments that these powers are intended to be used in cases...

Recommendation

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

149

recommendation The requirements in clause 43 for imposing conditions such as electronic monitoring, geographical exclusions,...

Recommendation

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

Ministry of Justice

3

In relation to clauses 13 and 14: a.

Recommendation

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

Ministry of Justice

5

In relation to clause 16: a.

Recommendation

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

Ministry of Justice

6

More broadly, we agree with our predecessor Committee that the Government should fully incorporate Article...

Recommendation

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

7

The Government should ensure that clause 18 is sufficiently clear and circumscribed, reflects the legitimate...

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 conduct … Read more

Ministry of Justice

9

We are concerned that clause 35(7) and (8), deeming transfer of personal data to third...

Recommendation

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

Ministry of Justice

12

We agree with our predecessor Committee that section 29 IMA, which broadens the public order...

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 ECHR. … Read more

Ministry of Justice

15

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 … Read more

Ministry of Justice

17

The requirements in clause 43 for imposing conditions such as electronic monitoring, geographical exclusions, and...

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 by … Read more

Ministry of Justice

Conclusions (102) Observations and findings — click to expand

69 Conclusion

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 helping asylum seekers to enter the UK. Scope of the …

70 Conclusion

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 (or may relate) to the commission of an offence under …

71 Conclusion

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 with a duty of onward disclosure to other agencies in …

72 Conclusion

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 migrants arriving in small boats from France. The court held, …

73 Conclusion

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 with the enjoyment of property (seizure and retention of electronic …

74 Conclusion

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 is adequate, relevant and not excessive.

75 Conclusion

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 only to be used once per entry, when an irregular …

76 Conclusion

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 “given the vast amount of data on mobile phones, it …

77 Conclusion

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 on those devices, raise serious privacy concerns. For migrants, refugees, …

78 Conclusion

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 result, mass device seizure as an immigration policy to target …

79 Conclusion

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, and losing their connection to family and friends was a …

80 Conclusion

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.

82 Conclusion

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 would cover, for example, crisis situations requiring evacuation. Biometric data …

83 Conclusion

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 necessary, and in any event no longer than 5 years, …

84 Conclusion

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 be appropriate safeguards to prevent misuse of the information, especially …

85 Conclusion

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 concentrated on those who are genuine. This aim is legitimate. …

86 Conclusion

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 purpose, the transfer will automatically meet the requirement in the …

87 Conclusion

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 UK GDPR, biometric data is categorised as special category data …

88 Conclusion

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 might be subjected to torture, inhuman and degrading treatment or …

90 Conclusion

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 to ensure that removals to Rwanda could go ahead without …

91 Conclusion

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; and state explicitly that it is only for a Minister …

92 Conclusion

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 introduced.130 The predecessor JCHR published a critical report on the …

93 Conclusion

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. Clause 38: Repeal of certain provisions of the Illegal Migration …

94 Conclusion

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 come directly from a territory where their life and liberty …

95 Conclusion

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 slavery protections for migrants who have committed criminal offences or …

96 Conclusion

The Explanatory Notes to the Bill notes that these provisions are not subject to repeal due to their “operational benefit”.133

97 Conclusion

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

98 Conclusion

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.

99 Conclusion

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 in an immigration detention system that was not consistent with …

100 Conclusion

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 under the common law, or proportionality as required by Article …

101 Conclusion

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 a time limit of 24 hours for detaining unaccompanied children …

102 Conclusion

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 not rely on section 12 and that when she does …

103 Conclusion

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 recommend the repeal of section 12 to restore certainty and …

104 Conclusion

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 based on grounds that the person is a threat to …

105 Conclusion

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 denied limited leave to remain in the UK, and may …

106 Conclusion

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 and reflects the findings of the ECtHR case of VCL …

107 Conclusion

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 application is narrow and there is a lack of awareness …

108 Conclusion

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. For example, “Asylum Aid recently represented a claimant, ‘EO’, whose …

109 Conclusion

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, which is a limited form of review and not a …

110 Conclusion

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% of all disqualified individuals were acknowledged as having an element …

111 Conclusion

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%. Without victims engaging there is no chance of prosecution. Those …

112 Conclusion

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 this period, the UK must not enforce any expulsion order …

113 Conclusion

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 a victim from access to the recovery and reflection period …

115 Conclusion

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 two things. First, it extends the list from EU nationals …

116 Conclusion

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 is derogating from the ECHR, and second, where the state …

117 Conclusion

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 possible for such individuals who face a real risk of …

118 Conclusion

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 unless she can demonstrate “exceptional circumstances” according to the determination …

119 Conclusion

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 list.156 There are serious 151 Under Article 7(1) TEU 152 …

120 Conclusion

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 release issued by the Foreign, Commonwealth and Development office at …

121 Conclusion

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 the house and refusing to let her out. They forced …

122 Conclusion

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 an individualised assessment of an asylum claim. Section 59 therefore …

123 Conclusion

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 groups facing persecution. It must be possible for such individuals …

124 Conclusion

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 Office shall take that into account as damaging the person’s …

125 Conclusion

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 other than dishonesty or an attempt to conceal relevant information. …

126 Conclusion

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 requested by the Home Office will not be affected. (See …

127 Conclusion

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 considered conducive to the public good.163 According to the Government, …

128 Conclusion

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 when the Secretary of State is considering making a deportation …

129 Conclusion

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 officer to search for nationality documents 163 Foreign nationals and …

130 Conclusion

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 a time when they did not have notice of an …

131 Conclusion

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 possible justification”.170 Compatibility with Convention rights

132 Conclusion

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 is in accordance with the law and proportionate to achieve …

133 Conclusion

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 whether to make a “Stage 2” deportation order.172 Medical Justice …

134 Conclusion

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 Government’s position that “the power to collect and hold biometric …

8 Conclusion

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 Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, …

137 Conclusion

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 charged by the Government without any statutory basis.177 This clause …

138 Conclusion

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 law, for example where there is settled case-law of the …

139 Conclusion

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 that it is open to question whether it would apply …

140 Conclusion

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 legitimate to rectify a technical mistake in the legal framework.182 …

141 Conclusion

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 375 (QB), at [77]; see also [80]-[81] (claim for restitution …

142 Conclusion

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) of the Immigration Act 1971. This covers persons not liable …

143 Conclusion

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 introduction of the power to impose curfews, exclusions, confinement, and …

144 Conclusion

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 ECHR memo states: “The fact guidance will need to specifically …

145 Conclusion

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 or serious crime, or where the person poses a threat …

146 Conclusion

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 against those who have lawful immigration status.191

150 Conclusion

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. The relevant offences are sexual offences under Schedule 3 of …

151 Conclusion

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 a particularly serious crime, they constitute a danger to the …

152 Conclusion

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 - a person could be excluded from protection under the …

153 Conclusion

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 case under the Sexual Offences Act that did not meet …

154 Conclusion

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 their claim for refugee status would not be accepted.”199 The …

155 Conclusion

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 certain rights, such as Articles 2 and 3, provides an …

156 Conclusion

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 support the Government’s intention to ensure that dangerous sex offenders …

157 Conclusion

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 the Serious Crime Act 2007, are civil preventative orders that …

158 Conclusion

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 of terrorism related serious crime) Chief Officers of Police can …

159 Conclusion

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 particular requirement is “appropriate for the purpose of protecting the …

160 Conclusion

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 that “the use of electronic monitoring is also actively discouraged …

161 Conclusion

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 aim. Generally, measures imposed by way of an SCPO will …

162 Conclusion

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 accordingly. (See Amendment 18, Annex). 201 Open Rights Group,, p4 …

163 Conclusion

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 do so”. The aim of this provision is to provide …

164 Conclusion

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 is made without notice, the subject of the ISCPO must …

165 Conclusion

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 “just”. It is arguable that a more rigorous threshold test …

166 Conclusion

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 rights, the prosecuting authorities and the courts must be careful …

1 Conclusion

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 safeguards and propose various amendments (below). (Conclusion, Paragraph 38)

2 Conclusion

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 persons who ought to be protected from criminal penalty. The …

4 Conclusion

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)

10 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. (Conclusion, Paragraph 93)

11 Conclusion

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 recommend the repeal of section 12 to restore certainty and …

13 Conclusion

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 facing persecution. It must be possible for such individuals who …

14 Conclusion

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 by the Home Office will not be affected. (See Amendment …

16 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. (Conclusion, Paragraph 141) 63 Conditions on leave and bail

18 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 support the Government’s intention to ensure that dangerous sex offenders cannot …

19 Conclusion

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. (See Amendment 18, Annex). (Recommendation, Paragraph 162)

20 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. (Conclusion, Paragraph 166) To ensure respect for Convention rights, the prosecuting authorities and the courts must be …