Last week, the House of Lords Constitution Committee published its report on the provisions of the Immigration Bill which is currently being considered by a committee of the whole House. The bill makes provision for a variety of aspects of immigration law; the report draws three clauses of the bill to the attention of the House. Here, we will discuss the three clauses namely Clause 11 (Appeal Rights), Clause 14 (Article 8 of the ECHR: public interest considerations) and Clause 60 (Deprivation of Citizenship).
Clause 11 of UK Immigration Bill: Appeal Rights
This clause involves a “significant streamlining of appeal rights in respect of immigration decisions” by reducing the grounds on which appeals can be made against decisions of the Secretary of State. The Immigration Bill intends to slash the number of grounds on which migrants can lodge an appeal from the current 17 to just 4. Currently, a right of appeal is expected to exist only where the decision is said to be ‘complex and fact-specific.’ The Government’s policy is that where there is no right of appeal, there may be an administrative review.
The House of Lords Constitution Committee state in their report that it is “disturbing” that a high proportion of immigration appeals to the Tribunal currently succeed (indicating that many adminstrative decisions may be wrongly made). In 2012-13 50% of entry clearance appeals succeeded, as did 49% of managed migration appeals and 32% of deportation appeals. The Committee is of the opinion that given this record, it may be questioned whether administrative review will be sufficient.
Clause 14 of UK Immigration Bill: Public Interest Factors
Clause 14 sets out in primary legislation what the public interest factors are in immigration decisions that engaged Article 8 of ECHR, namely the right to private and family life. This clause provides guidance to the courts and tribunal on what they must consider when assessing proportionality in an Article 8 case. Within clause 14 there are specific provisions concerning foreign criminals. The clause provides that the maintenance of effective immigration controls is in the public interest because migrants are less of a burden on tax payers and are better able to integrate into society.
The Committee is of the opinion that the clause is a “constitutional innovation” in that it seeks to define what the public interest factors are in immigration decisions that engage Article 8. Courts have to balance the public interest against individual rights under Article 8.
Clause 60 of UK Immigration Bill: Deprivation of Citizenship
Clause 60 would remove the restriction on the Secretary of State’s ability to rescind a naturalised British citizen’s UK citizenship if to do so would make him or her stateless. Last week, the Joint Committee on Human Rights (JCHR) published a report in which they expressed their fears that the main purpose of the power to deprive citizenship is to target naturalised Britons while they are abroad.
As such the committee raised a number of questions on clause 60, including:
- Is it intended that the power be exercised only in respect of naturalised citizens who are not in the United Kingdom?
- What would happen to any naturalised citizen in the United Kingdom who is made stateless by the exercise of the power? Would such a person be able to work / be housed / have access to healthcare, etc?
- What would happen to any dependants of a person who is rendered stateless by the exercise of the power?
- Should the new power be exercisable not by the Secretary of State but by a court on the application of the Secretary of State?
The Committee’s concerns have now been put forward to the House of Lords. The Committee stage will take place on 17 March 2014.