Immigration Bill
House of Lords
Report stage
Briefing regarding: Amendment 66 to Clause 37, Amendments 68 and 69 to Clause 39, Amendments 84 and 85 on Immigration detention and Amendment 117 to Schedule 10
15 March2016
For more information, please contact:
Parliamentary lead: Denise Morrisroe Tel: 0161 829 8109
Email:
Legal lead:
Name: Keith Ashcroft Tel:01618298408
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1. Introduction
The Commission recognises the legitimate aim of immigration policy to ensure that persons who have no legal right to remain in the UK return to their home country. However, we have concerns about:
- the potentially discriminatory impact of the right to rent provisions on non-British nationals and British nationals with ethnic minority backgrounds;
- the inability for the court to exercise discretion, taking into account individual circumstances, when determining whether or not it should order possession of a dwelling;
- the length of immigration detention proposed in the Bill;
- the impact of detention on certain vulnerable groups, and
- the removal of the right of appeal against decisions to withdraw support for failed asylum seekers with children.
2. Amendments
Amendment 66 to Clause 37: Offence of leasing premises
Commission's recommendation
Support Amendment 66.
Explanation
The Immigration Act 2014 requires landlords to check the immigration status of prospective tenants before offering them a tenancy to make sure that they are not disqualified from renting because of their immigration status (the “right to rent provisions”). Clause 37 introduces the new criminal offence of renting accommodation to an individual disqualified from renting or occupying a property because of their immigration status. Amendment 66 would require the Secretary of State to postpone the implementation of Clause 37 until a report evaluating the impact of the right to rent provisions is published.
Our analysis
The potential discriminatory impact of the right to rent provisions, particularly on non-British nationals and British nationals with ethnic minority backgrounds, has not been fully explored.
The Equality Act 2010 contains a duty (the Public Sector Equality Duty or PSED), which requires those carrying out public functions, including Government departments and Ministers of the Crown, to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations when carrying out their functions. This duty applies throughout the policy-making process, from the development of options and draft proposals through to legislation and implementation. To be most effective, Government departments should analyse the equality implications of a policy proposal at a formative stage, so that the assessment can inform policy development and the content of legislation. This will also ensure Parliamentarians have the information they need in order to scrutinise and debate Bills. A failure to analyse the equality implications of a proposal at an appropriate stage may mean the Government misses opportunities to tackle discrimination and breaches its obligations under the PSED. The Government should comply with this duty when considering whether to create this new offence. Evaluation of the right to rent provisions would help it to do so.
We are concerned that the right to rent provisions may have a disproportionately negative impact on non-British nationals and British nationals with ethnic minority backgrounds. A recent evaluation of the 2014/15 West Midlands pilot of the Right to Rent scheme[1] found instances of potentially discriminatory behaviours or attitudes. For example: White British mystery shoppers posing as potential tenants were asked less often to provide references (7%), compared to BME[2] shoppers (20%). Also, BME shoppers were more likely to have been asked how long they had lived in the local area (11%), compared with White British shoppers (1%).
A BME mystery shopper reported that: “The landlord said that if I was under that scheme he was not going to bother because he had a local person who wanted the property and it was much easier to rent to them”.
Another reported that: “I was told they needed to look at what they had that was suitable for me and they needed to check with the landlords on whether the landlord wanted to do the Right to Rent check because it cost extra”.
The Right to Rent scheme was rolled out nationally on 1 February 2016. It is the Commission’s view that a full assessment of its impact, particularly on non-British nationals and British nationals with ethnic minority backgrounds, should be carried out before the creation of an offence which complements the right to rent provisions.
The evaluation should also cover the likely impact of the proposals in Scotland and Wales. The Bill gives power to the Secretary of State to apply the residential tenancy provisions in relation to Wales, Scotland or Northern Ireland by regulations. Evaluation of the impact (or likely impact) of the residential tenancy provisions should not be based on an assumption that the housing markets in Scotland and Wales are the same as that in England.
Amendments 68 and 69 to Clause 39: Order for Possession of a dwelling house
Commission’s recommendation
Support Amendments68 and 69.
Explanation
Currently, when a court determines an application by a private landlord for possession of a property, the immigration status of a tenant is not a factor the court can take into account. Clause 39establishes a new ground on which a landlord can rely when seeking a possession order from a court, where the Secretary of State has given written notice to a landlord that a tenant, tenants or adult occupiers are disqualified from occupying the property due to their immigration status. The landlord may serve a notice seeking possession and, where the tenants do not wish to vacate the property, can rely upon the new ground in seeking a possession order from the courts. As currently drafted, the court has no option but to make an order for possession unless there is an existing tenant lawfully resident in the UK to whomthe tenancy could be transferred.
The effect of these Amendments is to give the court discretion, taking into account the individual circumstances, when determining whether or not it should order possession of a dwelling. Part 1 of Schedule 2 to the Housing Act 1988 contains the grounds on which a court ‘must’ order possession. Part 2 of the Schedule contains the grounds on which a court ‘may’ order possession. These Amendments would move the provisions in this Bill relating to the making of an order for possession of a dwelling house from Part 1 to Part 2 of Schedule 2 to the Housing Act 1998.
Our analysis
Article 8 of the European Convention of Human Rights(ECHR) contains the right not to be deprived of your home, unless this can be justified. It requires the state to put in place adequate procedural safeguards so that the reasonableness and proportionality of a proposed eviction can be assessed. This must involve consideration of the impact on an individual, in the light of his or her particular circumstances. If no such safeguard is in place, Article 8 may be breached. Protocol 1 Article 1 imposes an obligation on the State not to interfere with peaceful enjoyment of property. Clause 39 would allow individuals to be evicted from their home without consideration of their individual circumstances. Amendments 68 and 69 would allow the court to consider the individual circumstances in each case – for example, the existence of young children or disabled people living in the premises.
Article 14 ECHR provides that everyone should enjoy the other rights in the ECHR (including the right not to be deprived of your home) without discrimination on any ground. Measures which are on the face of it discriminatory may be justified if they are a proportionate means of achieving a legitimate aim. The Government accepts that Article 14 is engaged by the provisions in the Bill, which provide for different treatment in the enjoyment of Convention rights between those subject to immigration control and those who are not. This includes the provisions relating to residential tenancies. It has not, however, provided a clear explanation as to whether the potentially discriminatory impact is justified.
Amendment 84 to come after Clause 55: Immigration detention - time limits
Commission's recommendation
Support Amendment 84 with one reservation.
Explanation
The UK currently has set no time limit on immigration detention. This Amendment would require the Secretary of State to make an application to the First-tier Tribunal where she wishes to detain a person for more than 28 days. The Tribunal would be able to order a longer period of detention if the exceptional circumstances of the case require it. Sub-section 4 of the amendment provides that this protection will not be extended to individuals in immigration detention who have previously been sentenced to, and served,a term of imprisonment of 12 months or longer or who the Secretary of State has determined shall be deported.
Our analysis
Contrary to the United Nations High Commissioner for Refugees (UNHCR) Detention Guidelines[3], the UK has set no time limit on immigration detention. It has opted out of the EU Returns Directive, which sets a maximum time limit on detention of 18 months. The UK and Ireland arethe only EU countries not to have signed up to this Directive. Ireland has set its own time limit of 21 days. In 2014, 37 per cent of detainees in the UK had been held for between 29 days and over two years[4].
In our analysis, the use of indefinite immigration detention, particularly for individuals without any realistic prospect of removal, may be incompatible with Article 5 (right to liberty and security) of the ECHR. Article 5(1)(f) provides grounds for deprivation of liberty in a deportation context. The power to detain must be exercised “reasonably and for the purpose of facilitating deportation.”[5] The longer the period of detention, the less likely its purpose is to facilitate deportation and the more likely it is that Article 5 will be breached.
Indefinite or long-term immigration detention may also breach Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which also protects the right to liberty and security and prohibits arbitrary detention. In our submission[6] to the United Nations Human Rights Committee on the UK’s Implementation of ICCPR, we raised concerns about the wide use and duration of immigration detention. In this context, we agree with the recommendation of the UN Human Rights Committee that 'the State party should establish a statutory time limit on the duration of immigration detention'.
In order to promote compliance with Article 5 (ECHR) and Article 9 (ICCPR), we agree with the recommendations of the inquiry report by the All Party Parliamentary Group on Refugees and the All Party Parliamentary Group on Migration[7] on immigration detention that the maximum time limit should be set at 28 days in statute and that there should be a robust system to review the decision to detain an individual early in the period of detention.
We broadly support this Amendment to the extent that it provides for automatic judicial scrutiny of any extension of detention beyond 28 days and permits an extension only in exceptional circumstances. However, it is our view that all immigration detainees should be afforded this protection and we do not therefore support sub-section 4 of this Amendment.
Amendment 85 to come after Clause 55: Immigration detention and vulnerable persons
Commission's recommendation
Support Amendment 85.
Explanation
Amendment 85 would exclude defined groups of vulnerable people from detention. However, the First-tier Tribunal may order their detention on the basis that the exceptional circumstances of the case require it.
The protection in this Amendment would not apply to people who the Secretary of State has determined shall be deported immediately and who have not appealed against the determination.
Our analysis
Whilst we welcome the Government’s acknowledgment in Amendment 86 that guidance should be issued on the detention of vulnerable people, it is our view that this does not go far enough to address our concerns. In our analysis, a number of particularly vulnerable groups should not generally be detained for the purposes of immigration. The UK currently has set no time limit on detention and it is in that context that the impact on vulnerable individuals should be considered and assessed.
There is a growing body of evidence documenting the negative impact of detention on individuals. For example, Research by Medical Justice[8] (a network of doctors, lawyers, ex-detainees and detention centre visitors) found that 83 per cent of detainees interviewed had experienced a negative impact on their mental health from detention. This included: nightmares, suicidal ideas, hallucinations, paranoia, loneliness, depression, anxiety, emotional stress, memory loss, loss of confidence, fear, frustration and mood swings. Detainees reported that detention brought back memories of torture. They referred to emotional mistreatment in detention and stated that the fear of return to their home countries provoked re-traumatisation. Respondents reported similar effects on their physical health, with 83 per cent reporting a negative impact. This included: weakness, headaches, dizziness, weight loss, hair loss, back and joint problems, skin infection, abscess, diarrhoea, skin, eye and dental problems.
A report[9] into the use of detention in the UK by the All Party Parliamentary Groups on Refugees and Migration set out the impact of detention on women who had experienced gender-based violence. They recommended that women who are victims of rape and sexual violence, or pregnant, should not be detained for immigration purposes.
The Shaw report[10] recognised that fundamental change is needed on this issue. Home Office guidance provides that pregnant women must not normally be detained ‘unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this’. However, the Shaw Report stated that: ‘HM Inspectorate of Prisons told me [Mr Shaw] that, in its view, there is little to suggest that pregnant women are being detained only in exceptional circumstances. The Association of Visitors to Immigration Detainees (AVID) pointed out that an inspection of Yarl’s Wood had found eight pregnant women detained. They reported that “Pregnant women had been detained without evidence of the exceptional circumstances required to justify this”’.
With regard to detainees with Post Traumatic Stress Disorder (PTSD), the Shaw Report said: ‘I am particularly concerned by the evidence that detention, as a painful reminder of past traumatic experience, can trigger re-traumatisation. The effects of such re-traumatisation can include self-injury and worsening psychiatric morbidity’.
In terms of other vulnerable groups, it concluded: ‘I am sympathetic to the argument that transsexual people are unsuited to detention given what I have seen for myself is the inability of IRCs [Immigration Removal Centres] to provide an appropriate, safe and supportive environment’.
The Shaw report recommended about the particular groups that should be excluded from detention and they are all included in this Amendment.
In our analysis, this Amendment would provide more effective protection for these groups than guidance and would help the Government comply with Article 3 of the ECHR, which prohibits inhuman or degrading treatment. In six judgments[11] since 2011, the High Court has found that mentally ill detainees were detained by the Home Office in such conditions that their rights under Article 3 ECHR were breached.
The Government has previously raised concerns about the practicalities of identifying those who would be considered ‘vulnerable’ pursuant to this Amendment. We consider that it would be helpful for Home Office guidance to set out what approach should be taken to requiring evidence that an individual is within one of the identified protected groups. For example, guidance could make clear that independent medical evidence should be requested from a general practitioner to confirm a pregnancy or a diagnosis of PTSD.
Amendment 117 to Schedule 10 - Right of appeal on asylum support
Commission's recommendation
Support Amendment 117.
Explanation
Amendment 117 would maintain the current right of appeal to an independent tribunal against Home Office decisions to refuse or discontinue support for failed asylum seekers and their dependents.
Our analysis
Currently, failed asylum seekers and their dependants may be supported under section 95 (if there were children aged under 18 in their household at the time their asylum claim and any appeal was finally rejected) or under section 4(2) of the 1999 Act.
However, the provision in this Bill will mean that people with children in their household at the time their asylum claim and any appeal is finally rejected will no longer be treated as though they were still asylum seekers and so will no longer be eligible for support under section 95. Support will only be available for failed asylum seekers and their dependants who can demonstrate that they are destitute and that they face a genuine obstacle to leaving the UK at the point their appeal rights are exhausted.
In our analysis, unless there are robust arrangements to ensure that children are not put at risk by withdrawal of all support to their parents, there will be a risk of breach of the children's Article 3 rights. Article 3 of the UNCRC requires a state party to ensure that the best interests of the child are a primary consideration in all actions concerning children and that children receive the protection and care that is necessary for their well-being. These rights apply to each child within a State’s jurisdiction without discrimination of any kind, irrespective of nationality or other status.
The removal of a right of appeal (against denial of support) will weaken those arrangements and prevent judicial scrutiny of whether primary consideration has been given to the child’s best interests. This will increase the risk of a violation of the child’s Article 3 rights.
Between September 2014 and February 2015, 65 per cent of the appeals (837) lodged at the Asylum Support Tribunal resulted in a positive outcome for the appellant[12].The fact that such a substantial proportion of asylum support appeals are successful demonstrates the need for judicial oversight to provide effective safeguards.
About the Equality and Human Rights Commission
The Equality and Human Rights Commission is a statutory body established under the Equality Act 2006. It operates independently to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote human rights. It contributes to making and keeping Britain a fair society in which everyone, regardless of background, has an equal opportunity to fulfil their potential. The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It encourages compliance with the Human Rights Act 1998 and is accredited by the UN as an ‘A status’ National Human Rights Institution.