Parliamentary committee says amendments are needed to ensure bill does not punish victims of organised immigration crime
Parliament's Joint Committee on Human Rights (JCHR) last week published the report of its inquiry into the Government's Border Security, Asylum and Immigration Bill.
Image credit: WikipediaYou can read the report online here or download the 86-page PDF file here.
Importantly, the Committee finds that a number of amendments are necessary to ensure the Bill upholds human rights and targets the perpetrators of organised immigration crime, rather than punishing the victims of people smuggling and modern slavery.
The JCHR stated: "The Bill introduces a number of new offences targeted at organised criminal gangs that are facilitating unlawful migration. We support this aim. However, we are concerned that the new offences in the Bill are drafted excessively broadly and pose a serious risk of criminalising refugees and other vulnerable groups. Consequently, they risk breaching various international legal obligations, which protect against the penalisation of refugees, smuggled persons, and victims of modern slavery. Accordingly, we propose amendments to the Bill to narrow the scope of the offences and strengthen the safeguards."
In relation to the Bill's clauses 13 and 14 on 'supplying, or handling, articles for use in immigration crime', the Committee urges the Government to narrow the scope of the offences so they apply only to individuals involved in smuggling for financial or material gain. It also recommends raising the mental element of the offence from a low threshold of "knows or suspects" to a higher standard of "intends" or "is reckless," thereby preventing the criminalisation of those acting without culpable intent.
The Committee further calls for the "reasonable excuse" defence to be explicitly interpreted in line with international obligations, including Article 31 of the Refugee Convention, the UN Smuggling Protocol, and the Council of Europe Convention Against Trafficking. Additionally, it recommends that the offences in clauses 13 and 14 be added to the existing statutory defence in section 31 of the Immigration and Asylum Act 1999, which protects refugees arriving directly from danger.
Regarding clause 15, the Committee proposes amending the list of exempted "relevant articles" to include essential items commonly carried by asylum seekers, such as hygiene kits. For clause 16 on 'collecting information for use in immigration crime', the JCHR repeats the recommendation to limit the offence to those acting for financial or material gain and to raise the mental threshold in a similar way to clauses 13 and 14. It also calls for the same interpretive guidance on the "reasonable excuse" defence and recommends extending the section 31 statutory defence to cover this offence as well.
The Committee also reiterates its support for fully incorporating Article 31 of the Refugee Convention into domestic law via section 31 of the Immigration and Asylum Act 1999. This should include not only the new offences in the Bill but also the offence of illegal entry under section 24 of the Immigration Act 1971.
For the Bill's clause 18, the Committee recommends that it redrafted to provide greater clarity and to ensure it is narrowly tailored to its legitimate aim. The clause which creates a new offence for individuals travelling by sea to the UK from France, Belgium, or the Netherlands, where an act "causes or creates a risk" of death or serious physical or psychological injury to another person. Stakeholders warned the JCHR that this offence could capture a far wider group than those it is meant to target, especially as many small boats are overcrowded and in poor condition. The JCHR says the Bill should be amended to include a mental element so that only intentional or reckless conduct is criminalised.
With regard to the clauses 19 to 26, which gives new powers to search, seize and retain phones and other electronic devices, the Committee says greater clarity is needed on how this would be used in practice, as it may otherwise lead to indiscriminate searches and seizures.
Clause 52 is also recommended for amendment. The clause allows courts to impose electronic monitoring as part of a Serious Crime Prevention Order (SCPO), based on a broad test of whether it is "appropriate" to protect the public. This power permits monitoring for up to twelve months, with the possibility of indefinite extensions, yet the JCHR notes there are no clear criteria for such extensions. Given the serious intrusion into individuals' right to privacy, the Committee recommends that the threshold for imposing electronic monitoring should be higher and based on a test of necessity and proportionality, rather than mere appropriateness.
Clauses in the Bill that would allow the transfer of personal biometric data to other nations and international organisations should be scrapped, the JCHR recommends, as they inappropriately remove the normal safeguards in data protection legislation.
While the Bill repeals some sections of the Conservatives' Illegal Migration Act 2023 (IMA), others will remain in place. This includes section 59, which is partially in force and significantly expands the UK's inadmissibility regime by extending the list of so-called 'safe countries' to include non-EU states such as Albania, Georgia, and India. If fully enacted, all asylum and human rights claims made by nationals of the listed countries will be declared inadmissible and will not be considered.
The Committee states regarding section 59 of the IMA: "We share the concerns of our predecessor Committee that, whilst the states listed may be considered safe in general, this does not guarantee the safety of all individuals from these states, especially those who are members of particular social groups facing persecution. It must be possible for such individuals who face a real risk of persecution upon return to make a protection or human rights claim which must be considered on its merits in order to guard against the risk of refoulement. If the Government chooses to bring section 59 of the Illegal Migration Act into force, it should, at the very least, periodically review the list of safe, with a particular consideration of the rights of minority groups."
Summing up the Committee's overall findings, Chair Lord David Alton commented: "It is right that the Government does all it can to ensure a legislative framework is in place to help eradicate this terrible and dangerous criminality. But at present, the scope of the offences is too broad and the safeguards are too weak.
"The Bill needs to target those who are profiting from organised immigration crime. The people they are exploiting need to be protected, but at present there is a risk that the most vulnerable are caught by these new offences."
"Our report proposes a number of amendments to tighten up the Bill, to ensure it respects the UK's human rights obligations and provides clarity and oversight of the powers allowed. It has the right intent but it needs to be watertight."