WRITTEN EVIDENCE SUBMITTED BY DR ROSSELLA PULVIRENTI AND DR KAY LALOR

(FLS0016)

Summary

1. This written evidence is primarily concerned with the human rights implications of the Border Security, Asylum and Immigration Bill. We seek to address in this response questions 4 (a)(b)(c)(d), 5 and 9 from the call for evidence.

2. With regards to Q.4, we recommend that Government repeal sections 12, 29, 59 and 62 IMA because these sections contravene the requirements of the European Convention of Human Rights (ECHR), European Convention Against Torture (ECAT), Refugee Convention and the principles of necessity and proportionality (sections 5-29).

3. Additionally, in relation to Q 5, we urge Government to repeal Clause 41, which poses a risk of violations of Article 5(1) and a violation of Article 14 taken with Article 5 in situations involving the detention of vulnerable people (sections 30-36).

4. Finally, we encourage the Government to end its approach to asylum that relies upon frameworks of securitisation and criminalisation of people seeking asylum and to establish appropriate safe routes (sections 37-39).

Q4(a).

5. The lawfulness of detention, legal certainty, the prevention of arbitrary detention and the imposition of strict procedural protections for those deprived of liberty is a key aspect of Article 5 ECHR.[1] From this perspective, the proposed retention of section 12 IMA 2023 raises several issues.

6. First, section 12 of the IMA reduces judicial scrutiny and oversight of detention while simultaneously increasing the power and discretion of the Secretary of State.

7. This is particularly the case with respect to the ‘Hardial Singh Principles’ as summarised in R (I) v SSHD[2]:

i. The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

ii. The deportee may only be detained for a period that is reasonable in all the circumstances;

iii. If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

iv. The Secretary of State should act with reasonable diligence and expedition.

Section 12 IMA alters principles i and ii by further empowering the Secretary of State to decide the length of a ‘reasonable period’ of detention. This change was previously criticised by the JCHR.[3]

8. In previous evidence submitted to the House of Lords International Agreements Committee, we strongly criticised immigration legislation that sought to increase executive power, “circumvent the principles of rule of law and separation of powers and to frustrate the powers of both Parliament and the Judiciary”.[4] We would suggest that section 12 of the IMA 2023 was one such attempt to circumvent judicial powers. In retaining s12, the proposed legislation continues the unfortunate trend of immigration legislation that fails to fully embody key constitutional and rule of law principles.

9. Second, and following from the point above, the retention of section 12 of the IMA 2023 increases the lack of clarity and legal certainty with respect to the deprivation of liberty. Extensive Article 5 jurisprudence holds that the requirement for legal certainty and lawfulness mandates that law must be clearly defined and foreseeable in its application. Law must also be of sufficient ‘quality’ and consistently interpreted by domestic authorities. There must be sufficient protection against arbitrariness of detention and detention that is lawful domestically may still be found to be arbitrary under Article 5.

10. These key principles must be considered in relation to the increased executive power under section 12 IMA 2023, the reduction of judicial decision-making power or scrutiny, and also the well documented pressures, on the prison and immigration detention systems, including reports of further human rights violations while in detention.[5] In this context, it is foreseeable that the retention of section 12 IMA creates the conditions where it becomes more likely that detention will be arbitrary, unlawful, disproportionately lengthy in violation of Article 5.[6]

11. Third, alongside the general problems posed to satisfying the requirements for legal certainty and quality of law under Article 5, our research has shown that there is a significant positive obligation imposed upon the state in contexts where the person detained might be considered vulnerable. In particular, Article 5 taken in conjunction with Article 14 prohibits detention of vulnerable people on an arbitrary basis, where discrimination can include both foreign nationality,[7] and length of custodial sentence.[8]

12. ECtHR caselaw on Article 5 also suggests that individualised assessments of suitability of detention are required where proposed detainees are vulnerable.  Should no individualised assessment be made, detention may be unlawful and/or discriminatory.[9] We have argued elsewhere that although the Supreme Court has not considered removal, detention procedural fairness in relation to vulnerability specifically, ECHR case law suggests that failure to consider vulnerability in relation to detention may be in breach of Articles 5 and 14.[10]

13. Given the issues outlined above, retention of section 12 IMA 2023 retains the possibility of challenges under Article 5 ECHR as noted by the JCHR in earlier scrutiny of the IMA 2023.[11] We recommend that s12 be removed.

Q4(b).

14. The sole existence of a public order disqualification within the UK legal framework violates Article 4 of the ECHR. This Article establishes that prohibition of slavery is an absolute human right, which does not allow any balancing test against any public interest, such as being threat to public order.

15. This situation is further aggrieved by the fact that the current Bill maintains the broad definition of public order and excludes foreign nationals convicted and imprisoned for any period of time. Additionally, section 29 of the IMA, as amended by section 63 of NABA, made disqualification on public order grounds mandatory rather than a discretionary power when it changes the text from ‘may’ to ‘must’.

16. In failing to include those individuals in the National Referral Mechanism (NRM), the UK is in violation of Article 4 of the ECHR, which imposes states to undertake positive obligations to identify potential victims of trafficking and provide support and assistance to them, and several ECAT provisions. The latter international treaty mandates states provide to victims of modern slavery medical or other assistance (Article 12(3) ECAT); access to the labour market, to vocational training and education (Article 12(4) ECAT); a period of recovery and reflection of at least 30 days (Article 13 ECAT); the right to have access to a renewable residence permit (Article 14 ECAT); and the right to compensation and legal redress (Article 15 ECAT).

17. We are concerned that this blanked ban exclusion will operate as a barrier for survivors of modern slavery and it will significantly impact vulnerable groups who do not pose any risk to the actual public and who might have been victims of the same criminal exploitative dynamics by traffickers in other countries. Indeed, 2024 Home Office statistics shows that the 48% of the children are victims of criminal exploitation and there is the real risk that they are going to be re-trafficked.[12]

18. Additionally, this phenomenon has a negative knock-on effect on the Home Office’s Serious and Organised crime strategy 2023 to 2028.[13] Trafficking is a hidden crime, which means that the evidentiary basis mainly relies on witness testimonies. Our research shows that people seeking asylum need time to trust national authorities[14] and, without the necessary support through the NRM, it is unlikely that the British authorities will uncover more crimes.

19. We recommend that the Government should urgently repeal section 19 of the 2023 IMA on the public order disqualification because in violation of Article 4 of the ECHR and Articles 12-15 ECAT and abide its duty of care, as established by international treaties obligations.

Q4(c).

20. We are concerned that the retention of section 59 IMA violates the letter and the spirit of the Refugee Convention because it creates a new category of inadmissible asylum claims. According to the Refugee Convention, people seeking asylum are excluded from the the possibility of obtaining the refugees’ status, if the asylum applicants had already been recognised as refugees in the first safe country (Article 1(E)) and if they have committed certain crimes such as crimes against peace, war crimes, or a crimes against humanity; serious non-political crime outside the country of refuge prior to their admission to that country as a refugee and, finally, acts contrary to the purposes and principles of the United Nations (Article 1(F)). Section 59 IMA does not fall in any of these categories and hinders the right to seek asylum in the UK.

21. According to our research, section 59 IMA contains a fictional definition of ‘safe third country’, which is built around a close connection with the European Union (EU) countries (in addition to Albania, India, and Georgia) and uses this term as a synonym of the term ‘first safe country’.[15] The idea to have a list of safe countries derives from EU law, according to which EU states can adopt common rules to share certain duties, while the principle of mutual trust provide certainty that states will apply those rules effectively.[16] Brexit cancelled the legal justification for the existence this ‘safe list’. The UK should make that determination on a case-by-case basis according to the personal circumstances of the asylum applicant.

22. The same EU had already scrapped the assumption that certain countries are a priori safe for everyone.[17] This is evident, for instance, for Albania designated as a safe country while the latest Home Office statistics show that the second most common nationality to be referred as victims of modern slavery is Albanian (13%; 2,492).[18]

23. The designation of certain countries as ‘safe’ for everyone is in violation of Article 3 ECHR (protection from torture, ill-treatment and non-refoulement) together with Article 14 ECHR (right not to be discriminated against) because the UK does not take into consideration personal circumstances for individuals with protected characteristics, including LGBTQI+ people, trafficked women, single women who are outside the accepted family structure may all be at risk in some countries designated as safe.[19]

24. Additionally, section 59 is in violation of the right to a family life under Article 8 ECHR when it automatically excludes individuals who would be otherwise entitled to family reunification orders.

25. Finally, we are concerned that section 59 IMA will result in the emergence of a new liminal category of people seeking asylum under precarious conditions. They will not be able to apply for asylum because they are excluded by section 59 IMA but they cannot be returned to any other countries because at risk of torture or ill-treatment (principle of non-refoulement under Article 3 ECHR and jus cogens.

26. We urge the Government to repeal section 59 to prevent serious harm to people seeking asylum, especially those with protected characteristics, because in violation of the right to seek asylum under the Refugee Convention and Articles 3 and 14 of the ECHR.

Q4(d).

27. ‘Credibility’ is a culturally constructed norm, rather than a universal standard and how credibility is assessed will vary across different places and cultures. Research with sexual orientation and gender identity (SOGI) minorities has demonstrated the considerable harm that is caused by applying UK standards of credibility or Western definitions of sexual subjectivity to the claims of those seeking asylum on grounds of sexual orientation and gender identity.[20] Cultural assumptions about credibility can lead to reliance on stereotyping and outdated norms, rather than on the complex and varied experiences of people’s different sexual and gender identities and experiences.

28. It is important to ensure that similar prejudices do not influence procedure in the application of s62 IMA. In particular, our research with people seeking asylum and refugees demonstrates that individuals who have been traumatised will often need a significant period of time to talk about their trauma, with some taking years to disclose the full extent of what they have experienced.[21] For people who have experienced this trauma, it is perfectly rational to mistrust state authorities, those in positions of power or those perceived to be working for the state such as translators or even legal professionals. Additionally, our research with legal professionals has found that fear and trauma seem to inhibit some individuals’ capacity to take in and retain information, or to trust information with which they have been provided.[22]

29. Given these findings, we argue that section 62 IMA is neither necessary nor proportionate. On the contrary, it misunderstands the extent to which the sharing of information with those in authority may be initially very difficult for those who have experienced, hardship, trauma or mistreatment by state and non-state authorities.

Q5.

30. In our answer to Question 4 (above) we highlight the importance of legal clarity and the protection of the rule of law as a key aspect of Article 5 ECHR. In legal commentary, adherence to the rule of law creates a strong suspicion of retrospectivity. For example, in considering retrospective legislation Cathya Djanogly notes “Few would disagree with the proposition that the rule of law is at the core of democracy and that retrospective legislation is therefore morally reprehensible”.[23]

31. This sentiment has been echoed multiple times by the House of Lords:

Such provision engages the cardinal rule of law principle that individuals may be punished or penalised only for contravening what was at the time a valid legal requirement. According to the doctrine of the sovereignty of Parliament, retrospective legislation is lawful. Nonetheless, from a constitutional point of view it should wherever possible be avoided, since the law should so far as possible be clear, accessible and predictable. This applies to civil penalties as well as criminal offences.[24] 

32. Similarly, the House of Lords Select Committee on the Constitution has noted the “unacceptability of retrospective legislation other than in very exceptional circumstances”.[25] Evidence for the justification of this retrospectivity or the exceptional circumstances requiring this step has not been provided by the government.

33. Article 5 jurisprudence from the Strasbourg Court is similarly critical of retrospectivity. In Cramesteter v Italy[26], the retrospective extension of mental health detention that breached the maximum limit of a judicially imposed sentence was found to be a violation of Article 5(1). This finding of a violation was closely linked to the issue of lack of legal clarity and a lack of appropriate procedural safeguards.

34. There is no maximum upper limit to immigration detention in the UK and as such the situation here can be distinguished from Cramesteter. However, several cases have found that even when there is no maximum limit to detention, a failure to act with ‘due diligence’ (see also Hardial Singh principle four) can constitute a violation of Article 5.[27]

35. Moreover, the ECtHR has emphasised that “Where an applicant is subject to an indeterminate period of detention, the necessity of procedural safeguards becomes decisive”.[28]

36. The requirement for due diligence and the increased scrutiny of procedural safeguards in situations where there is an indeterminate period of detention must be juxtaposed against the points raised in our answer to Question 4 above, namely that the IMA affords considerable discretion to the Secretary of State and reduces judicial scrutiny of detention procedures. This sits alongside the HM Inspectorate of Prisons finding of a “worrying deterioration in safety”[29] in detention centres, a record of slow processing of asylum claims, and overcrowding that is likely to accompany increased detention. Taking all these circumstances together, Clause 41 poses a risk of violations of Article 5(1) and a violation of Article 14 taken with Article 5 in situations involving the detention of vulnerable people. We recommend that this clause be removed.

Q9.

37. The Bill continues to approach immigration from a securitisation and criminal perspective, as its predecessors had done before. Although no evidence exists that this approach has any deterrent effect on smugglers, our research shows that it contributes to the stigmatisation and discrimination of migrants.[30] This hostile environment fuels harmful rhetoric against people seeking asylum and contributes to the dehumanisation of those who come to the UK seeking safety, rather than for a consideration of the totality, the complexity and often the trauma of their experiences

38. A system which is not based on the careful evaluation of personal circumstances of every person applying to asylum might lacks adequate safeguards and oversight of the use of state power and might lead to arbitrary decisions and abuses. Thus, it has the potential to undermine individuals’ right to an effective remedy under Article 13 ECHR and right to fair trial under Article 6 ECHR.

39. We encourage the Government to end the criminalisation of people seeking asylum and to establish appropriate safe routes.

APRIL 2025