It is a pleasure to serve under your chairship, Mr Efford. I thank the Backbench Business Committee for finding the time for this statement on the Joint Committee on Human Rights report on legislative scrutiny of the Border Security, Asylum and Immigration Bill. I also thank my fellow members of the Committee, Lord Alton, who is the Chair, and the staff, who worked very hard in the production of the report.
The Bill is intended to prevent loss of life at sea and to deter and disrupt organised immigration crime. The Committee welcomes that intention. The Bill introduces a number of new offences targeted at organised criminal gangs facilitating unlawful migration, but the Committee is concerned that the new offences are drafted excessively broadly and pose a serious risk of criminalising refugees and other vulnerable groups. It recommends some changes to address that issue.
Clauses 13 to 17 create three new precursor offences. Those measures are intended to target the activities of facilitators and organised criminal gangs that look to profit from organised immigration crime. The provisions engage rights under the refugee convention—in particular, article 31, which prohibits the general imposition of penalties on refugees on account of their unlawful entry or presence in the country where they claim asylum. Those offences could potentially also interfere in some cases with rights under the European convention on human rights—notably, article 5, the right to liberty and security, and article 1 of protocol 1, on peaceful enjoyment of possessions—which are incorporated in domestic law by the Human Rights Act 1998.
The Committee supports the Government’s intention to disrupt and deter organised immigration crime and to safeguard life. However, the Committee is concerned that, as drafted, the precursor offences create uncertainty, extend beyond the Government’s stated legitimate aim and risk inadvertently criminalising persons who ought to be protected from criminal penalty. The scope is broad, the thresholds are low and the penalties are high. In its report, the Committee proposes a series of amendments to deal with those issues.
Clause 18 makes it an offence for a person, while journeying by water to the UK from France, Belgium or the Netherlands, to have done an act that
“caused, or created a risk of, the death of, or serious personal injury”—
physical or psychological—
“to, another person.”
The Government should ensure that that clause is sufficiently clear and defined, reflects the legitimate aim that it is intended to achieve and is proportionate to that aim. In particular, the Committee believes that a mental element should be introduced to ensure that only conduct that is intentional or reckless is criminalised.
The Bill will repeal the Safety of Rwanda (Asylum and Immigration) Act 2024 in its entirety, as well as certain provisions of the Illegal Migration Act 2023. Repealing the 2024 Act removes the significant incompatibilities identified in the predecessor JCHR’s report. However, certain provisions of the 2023 Act have been kept, which raises human rights concerns. Section 12 of the Illegal Migration Act modifies the common-law position such that it is for the Secretary of State, not the courts, to determine what is a reasonable period of detention. The Committee agrees with its predecessor Committee and recommends repeal of section 12 to restore certainty and ensure compliance with article 5 of the ECHR. Section 29 of the Illegal Migration Act broadens the public order disqualification in section 63 of the Nationality and Borders Act 2022. The Committee believes that that provision is not compatible with the UK’s obligations under the Council of Europe convention on action against trafficking in human beings and article 4 of the ECHR, on prohibition of slavery and forced labour. The Committee recommends repeal of the provision.
Section 59 of the IMA 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. The Committee believes that it must be possible for such individuals who face a real risk of persecution on return to make a protection or human rights claim, which must be considered on its merits, in order to guard against the risk of refoulement. If the Government choose to bring section 59 of the Illegal Migration Act into force, they should, at the very least, periodically review the list of safe countries, with particular consideration of the rights of minority groups. In 2023, Georgia, India and Albania were added to the list of safe states to speed up the process of returning people who have travelled from those countries illegally, but we understand those states to be high risk in particular for LGBTQI+ people. It is therefore important that the Government take notice of the universal periodic review by the United Nations Human Rights Council of states listed, as well as other assessments, in order to judge their safety for specific groups, particularly those from the LGBTQI community.
Section 62 of the IMA 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 credibility when deciding whether to believe the person. The Committee believes that this provision should be amended to make it clear that the credibility of a claimant who has provided a reasonable excuse for their failure to provide a password or other method of access requested by the Home Office will not be affected.
Clauses 19 to 26 introduce new search, seizure and retention powers in relation to electronic devices. The Committee is concerned that there is a risk that the new powers of search, seizure and retention may in practice lead to a blanket policy to search and possibly seize and retain items such as mobile phones from asylum seekers, victims of trafficking and children. The Committee recommends that the Government clarify in the Bill how these invasive powers will be used, in order to guard against the risk of indiscriminate searches. The Committee also recommends that guidance clearly sets out that in circumstances where electronic devices are confiscated the authorities must facilitate the contact of individuals with their close family members.
The Committee is 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 transferred to third countries. The Committee recommends the removal of those provisions.
Clause 41 amends the current powers contained in paragraph 2(2) of schedule 3 to the Immigration Act 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. The Government state that the clause is intended to clarify that the Home Office may detain someone subject to deportation from the point at which the Home Office serves notification that deportation is being considered. 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 of the ECHR, which requires a lawful basis for detention, and article 13 of the ECHR, which guarantees an effective remedy. The Committee recommends the repeal of this clause.
The Committee believes that the requirements in clause 43 for imposing conditions such as electronic monitoring, geographical exclusions and curfews should be expressly limited to cases involving conduct such as war crimes, crimes against humanity, genocide, extremism or serious crime, or where the person poses a threat to national security or public safety. The Committee proposes an amendment to deal with this point.
The Committee acknowledges that the exclusion of individuals who pose a danger to the community is an important issue, and supports the Government’s intent to ensure that dangerous sex offenders cannot benefit from the protections of the refugee convention. Individuals will be able to argue against the presumptions made by the state regarding the seriousness of their offence and the danger that they pose to the community. This is important to give refugees the opportunity to argue against the seriousness of their offence and the danger they pose to the community.
Given the severe infringement on the right to privacy posed by the imposition of electronic monitoring, the Committee believes that the threshold test for electronic monitoring should be one of necessity and proportionality, not whether it is appropriate. Clause 52 should be amended accordingly.
Overall, the Committee welcomes the Government’s intentions in bringing forward this legislation but would like to see changes to ensure that the legislation is more tightly focused on criminalising those who exploit refugees and other vulnerable groups.