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Legislative Scrutiny: Borders, Citizenship and Immigration Bill

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Legislative Scrutiny: Borders, Citizenship and Immigration Bill House of Lords House of Commons Joint Committee on Human Rights Legislative Scrutiny: Borders, Citizenship and Immigration Bill Ninth Report of Session 2008-09 Report, together with formal minutes and written evidence Ordered by The House of Lords to be printed 24 March 2009 Ordered by The House of Commons to be printed 24 March 2009 HL Paper 62 HC 375 Published on 25 March 2009 by authority of the House of Lords and the House of Commons London: The Stationery Office Limited £0.00 Joint Committee on Human Rights The Joint Committee on Human Rights is appointed by the House of Lords and the House of Commons to consider matters relating to human rights in the United Kingdom (but excluding consideration of individual cases); proposals for remedial orders, draft remedial orders and remedial orders. The Joint Committee has a maximum of six Members appointed by each House, of whom the quorum for any formal proceedings is two from each House. Current membership HOUSE OF LORDS HOUSE OF COMMONS Lord Bowness John Austin MP (Labour, Erith & Thamesmead) Lord Dubs Mr Andrew Dismore MP (Labour, Hendon) (Chairman) Lord Lester of Herne Hill Dr Evan Harris MP (Liberal Democrat, Oxford West & Lord Morris of Handsworth OJ Abingdon) The Earl of Onslow Mr Virendra Sharma MP (Labour, Ealing, Southall) Baroness Prashar Mr Richard Shepherd MP (Conservative, Aldridge-Brownhills) Mr Edward Timpson MP (Conservative, Crewe & Nantwitch) Powers The Committee has the power to require the submission of written evidence and documents, to examine witnesses, to meet at any time (except when Parliament is prorogued or dissolved), to adjourn from place to place, to appoint specialist advisers, and to make Reports to both Houses. The Lords Committee has power to agree with the Commons in the appointment of a Chairman. Publications The Reports and evidence of the Joint Committee are published by The Stationery Office by Order of the two Houses. All publications of the Committee (including press notices) are on the internet at www.parliament.uk/commons/selcom/hrhome.htm. Current Staff The current staff of the Committee are: Mark Egan (Commons Clerk), Rebecca Neal (Lords Clerk), Murray Hunt (Legal Adviser), Angela Patrick and Joanne Sawyer (Assistant Legal Advisers), James Clarke (Senior Committee Assistant), Emily Gregory and John Porter (Committee Assistants), Joanna Griffin (Lords Committee Assistant) and Keith Pryke (Office Support Assistant). Contacts All correspondence should be addressed to The Clerk of the Joint Committee on Human Rights, Committee Office, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general inquiries is: 020 7219 2467; the Committee’s e-mail address is [email protected] . Legislative Scrutiny: Borders, Citizenship and Immigration Bill 1 Contents Report Page Summary 3 Government Bills 5 1 Borders, Citizenship and Immigration Bill (HL) 5 Background 5 Explanatory Notes 6 Significant human rights issues 6 (1) Positive duty to safeguard and promote the welfare of children 6 (2) Application of PACE safeguards to investigations and detention by immigration and customs officers 8 (3) Judicial review and access to court 9 (4) “Earned citizenship” 11 (5) Section 9 Asylum and Immigration (Treatment of Claimants etc.) Act 2004 16 Conclusions and recommendations 18 Formal Minutes 20 List of written evidence 21 Written Evidence 22 List of Reports from the Committee during the current Parliament 25 Legislative Scrutiny: Borders, Citizenship and Immigration Bill 3 Summary In this report, we welcome the introduction of the new positive duty to safeguard and promote the welfare of children in the discharge of immigration, asylum, nationality and customs functions. This is a human rights enhancing measure which is a long overdue reversal of the Government’s previous policy, which excluded children subject to immigration control from the protection of the UN Convention on the Rights of the Child. We will be looking carefully for evidence that this welcome change in policy will now make a practical difference to the many and well-documented human rights problems suffered by children in the UK who are subject to immigration control. We welcome the fact that the statutory guidance on the new duty will be joint guidance issued by the Home Office and the Department for Children Schools and Families and will closely follow the existing Children Act guidance. We also welcome the application of the procedural safeguards in the Police and Criminal Evidence Act 1984 to investigations conducted by, and persons detained by, immigration officers and customs officials. The Bill provides for judicial review applications relating to immigration or nationality decisions to be transferred from the High Court to the Upper Tribunal. We recommend that a means be devised for ensuring that judicial reviews which are of sufficient significance and complexity, including those in which important human rights are at stake, are heard by a High Court judge. The Bill implements the Government’s proposals on “earned citizenship” by tightening the requirements to be met for the acquisition of British citizenship by naturalisation, following the review of citizenship by Lord Goldsmith. Human rights law does not confer any free- standing right to be a citizen of any country, but we have a number of concerns about the proposals. Firstly, a person who is given probationary citizenship leave will be ineligible for 15 different types of benefit that are available to those with indefinite leave to remain. We ask the Government to reconsider its position. Secondly, we are concerned that the proposed community activity requirement may have a discriminatory effect on groups who are unable to undertake such activity for various reasons, such as physical or mental disability, caring responsibilities, or being in full time work. We call on the Government to publish in draft the regulations on this issue for further scrutiny. We also have concerns about possible retrospectivity and the possible impact on refugees. We also repeat our call for the repeal of section 9 of the Asylum and Immigration (Treatment of Claimants etc.) Act, which provides for welfare support to be withdrawn from families if they are considered to have failed to take reasonable steps to leave the UK voluntarily. The current Bill is a more limited measure than the Immigration Simplification Bill which was initially expected to be introduced this session and which is now due to be published in draft later this year. Legislative Scrutiny: Borders, Citizenship and Immigration Bill 5 Government Bills Bills drawn to the special attention of each House 1 Borders, Citizenship and Immigration Bill (HL) Date introduced to first House 14 January 2009 Date introduced to second House Current Bill Number HL Bill 29 Background 1.1 The Borders, Citizenship and Immigration Bill is a Government Bill introduced in the House of Lords on 14 January 2009. It had its Second Reading on 11 February 2009 and completed its Committee stage on 10 March 2009. It is scheduled to commence its Report stage on 25 March 2009. 1.2 The Government’s Draft Legislative Programme announced the Government’s intention to bring forward in this session an Immigration Simplification Bill, following publication of the partial draft Immigration and Citizenship Bill in July 2008. We issued a call for evidence on the Draft Legislative Programme, indicating that the Immigration Simplification Bill was likely to be one of the Committee’s main priorities for legislative scrutiny this session, as it was likely to raise a number of significant human rights issues. We received a large number of submissions on the partial draft bill. We are grateful to those who sent us evidence. 1.3 In the event, the Bill brought forward by the Government is very much narrower in scope than was envisaged in the Government’s Draft Legislative Programme because it no longer includes provisions for the simplification of immigration legislation. The Government’s Summary of Consultation on the Draft Legislative Programme states that the Government is committed to the comprehensive reform of immigration law, but explains that this is a major undertaking which it is more important to do well than to do quickly.1 The Government says that it will build on the pre-legislative scrutiny of the partial draft bill and will bring forward a full draft bill at a later date. 1.4 The main relevant purposes of the current Bill are to provide the legislative framework for immigration officers and officials of the Secretary of State to exercise revenue and customs functions exercised hitherto by Her Majesty’s Revenue and Customs, including provision about the use and disclosure of customs information; to revise the qualifying criteria for naturalisation as a British citizen; to enable judicial review applications in asylum, immigration and nationality matters to be transferred into the Upper Tribunal of the unified tribunal system established under the Tribunals, Courts and Enforcement Act 2007; and to impose a duty on the Secretary of State to make arrangements to ensure that certain immigration, asylum and nationality functions are discharged having regard to the need to safeguard and promote the welfare of children in the UK. 1 The Government’s Draft Legislative Programme: Summary of Consultation, Cm 7561 (December 2008) at p. 13. 6 Borders, Citizenship and Immigration Bill 1.5 Much of the evidence we received on the Government’s simplification bill is not relevant to the much narrower issues raised by this Bill. We publish it nevertheless with this Report, in order to put it in the public domain and to help inform debate on the draft simplification Bill which the Government intends to publish later this session. 1.6 We wrote to the Minister on 12 February 2009 to ask a number of questions about the human rights compatibility of the Bill.2 The Minister replied on 23 February.3 We are grateful for his prompt response.
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