Immigration Bill could give rise to homelessness and discrimination

• Eighth Report - Legislative Scrutiny: Immigration Bill

Scope of the report

The Committee accepts that the measures in the Bill serve the legitimate aim of immigration control, but is concerned that some of them may be applied in practice in a way which breaches human rights in particular cases.

Article 3 ECHR

The Committee is particularly concerned about the risk of the new provisions relating to residential tenancies giving rise in practice to homelessness, in breach of the right not to be subjected to inhuman or degrading treatment in Article 3 ECHR, in the case of people who have no right to remain in the UK but face genuine barriers to leaving.  The Committee is also concerned to ensure that these measures do not give rise to an undue risk that migrant children will be exposed to homelessness or separation from family members.  The Committee urges the Government to explain fully to Parliament the safeguards that exist to mitigate the impact of these provisions on children.

Risk of racial discrimination

The Committee is also concerned that the provisions in the Bill on access to residential tenancies may heighten the risk of racial discrimination against prospective tenants, notwithstanding the fact that such discrimination is unlawful under the Equality Act.  The Committee is asking the Government not to commence these provisions until the Equality and Human Rights Commission and the Government Equalities Office are satisfied that there are sufficient safeguards in place to prevent such discrimination from arising in practice. 

Jurisdiction

The Committee believes that the First Tier Tribunal, not the Secretary of State, should decide whether it is within its jurisdiction to consider a new matter raised on an appeal.  It therefore recommends that the Government amends the Bill to achieve its purpose in a way which does not appear to make the scope of the tribunal’s jurisdiction depend on the consent of one of the parties to the appeal before it.  The Committee is also not satisfied with the Government’s reliance on the continued availability of judicial review to challenge the Secretary of State’s certification that a human rights appeal can be heard out of country, having regard to the unavailability of civil legal aid to bring such a claim and the proposed reforms of judicial review.

Conclusions of report

In the Report, the Committee concludes that the restriction on appeal rights might constitute a serious threat to the practical ability to access the legal system to challenge unlawful immigration and asylum decisions, and to enforce the statutory duty to have regard to the need to safeguard and promote the welfare of children when exercising immigration and asylum functions

It also:

• calls on the Government to explain further why there is a sound fit between the stated rationale that entitlement to free health care should be commensurate with immigration status and the selected criterion of indefinite leave to remain; and
• expresses concern that the Bill’s significant limitation of appeal rights against immigration and asylum decisions is not compatible with the common law right of access to a court or tribunal in relation to unlawful immigration decisions, and the right to an effective remedy, especially when viewed in the context of other proposed restrictions on access to court such as a residence test for legal aid and reforms to judicial review.

With regard to other issues in the Bill, the Committee:

• is uneasy about the statutory provision in the Bill which purports to tell courts and tribunals that “little weight” should be given to a particular consideration in any judicial balancing exercise, as is proposed by the Bill in relation to Article 8 claims in immigration cases;
• welcomes the Government’s clarification of its intention that nothing in the Bill is intended to change or derogate in any way from the children duty in s. 55 of the Borders, Citizenship and Immigration Act 2009, but seeks clarification that this applies to all children affected and recommends that new guidance be issued to ensure that the Government’s stated intention about the unaffected status of the children duty is in fact achieved in practice;
• welcomes the Government’s clarification of the intended definition of “family member” for the purpose of the single power of removal and the clarification that family members will always be notified if they are facing removal and recommends that the regulation-making power in clause 1(6)(c) of the Bill be amended to reflect this intention;
• notes that there is nothing inherently objectionable about the Bill’s proposed referral and investigation scheme with regard to sham marriages and civil partnerships but points out that the Government’s evidence for the size of the problem is questionable; and
• encourages the Government to work closely with the EHRC with a view to developing an approach to identifying suspect proposed marriages or civil partnerships without resorting to unjustified discrimination on grounds of nationality.

Dr Hywel Francis MP, the Chair of the Committee, said:

• "We commend the Department on conscientiously and constructively engaging with us in our scrutiny of this Bill and we welcome the fact that the Government’s ECHR Memorandum and the Minister’s letter shows that the best interests of children were properly considered when assessing the compatibility of some provisions in the Bill.
• Effective immigration control is recognised by human rights law as a legitimate aim which governments are entitled to pursue, and my Committee accepts that the measures in this Bill are intended to pursue that aim.  However, creating a “hostile environment” for illegal immigrants carries risks that the measures will have unintended consequences and lead to breaches of human rights and unjustified discrimination in practice.
• My Committee is especially concerned about the restrictions on accessing residential tenancies according to immigration status, as these may expose children, and other migrants who have no right to be in the UK but face genuine obstacles to leaving, to the risk of homelessness, and could be applied in a way which is racially discriminatory.  We likewise believe that the Bill’s significant limitation of appeal rights against immigration and asylum decisions, when considered alongside other proposals such as a residence test for legal aid and restrictions on judicial review, represent a serious threat to the practical ability to access the legal system to challenge unlawful decisions."