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Clarity needed on effect of key elements of Immigration Bill

11 January 2016

In a report published today, the Constitution Committee raises concerns that the Immigration Bill does not define what constitutes 'a genuine obstacle' to failed asylum-seekers leaving the UK—a condition which may prevent them receiving any support from the Government.

The Bill

The Immigration Bill permits the Home Secretary to provide support for failed asylum-seekers who may become destitute only if they do not face a 'genuine obstacle' to leaving the UK—but leaves the definition of what constitutes a 'genuine obstacle' to secondary legislation. The Committee says that the House may wish to consider whether it would be more appropriate for the term to be defined in greater detail on the face of the Bill so that it can be subject to full Parliamentary scrutiny.

Issues raised

The report, which informs the House ahead of the Immigration Bill's Committee Stage in the Lords, points out that Peers are being asked to legislate on a provision that will affect individuals in potentially desperate circumstances without a clear understanding of what the new rules will mean in practice.

The Committee also expresses concerns about provisions in the Bill which give the Home Secretary the power to overrule independent judicial decisions of the First-tier Immigration Tribunal on immigration bail conditions. The Secretary of State could, for example, require a bailed detainee to be subject to electronic tagging where this condition is not imposed by the Tribunal. The Committee questions whether a process that allows a Minister to override unilaterally the decision of an independent judicial body is compatible with the rule of law.

Chairman's comments

Commenting Lord Lang, Chairman of the Committee, said:

"The Immigration Bill raises some important constitutional issues that we have highlighted for the consideration of the House ahead of next week's debate.

“We are concerned about the lack of a definition of what constitutes a 'genuine obstacle' to a failed asylum seeker leaving the UK. Failed asylum-seekers who are judged not to face a 'genuine obstacle' to leaving will be prevented from receiving Government support. This is clearly a change that could have a profound effect on vulnerable individuals. We think it might be more appropriate for the definition, which will be crucial in determining whom will be affected, to be clear on the face of the Bill so the House can make an informed decision.

"We are also concerned by the proposal to give the Secretary of State the power to override bail conditions set by the First-tier Immigration Tribunal. This could be seen as undermining the rule of law. If the Government wants more immigration detainees to be subject to electronic tagging it should propose new criteria for the First-tier Immigration Tribunal to take into account rather than seeking to override judicial decisions."

Further information

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