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In this report, we welcome the introduction of the new positive duty to safeguard and promote the welfare of children in the discharge of immigration, asylum, nationality and customs functions. This is a human rights enhancing measure which is a long overdue reversal of the Government’s previous policy, which excluded children subject to immigration control from the protection of the UN Convention on the Rights of the Child.

We will be looking carefully for evidence that this welcome change in policy will now make a practical difference to the many and well-documented human rights problems suffered by children in the UK who are subject to immigration control. We welcome the fact that the statutory guidance on the new duty will be joint guidance issued by the Home Office and the Department for Children Schools and Families and will closely follow the existing Children Act guidance.
We also welcome the application of the procedural safeguards in the Police and Criminal Evidence Act 1984 to investigations conducted by, and persons detained by, immigration officers and customs officials.

The Bill provides for judicial review applications relating to immigration or nationality decisions to be transferred from the High Court to the Upper Tribunal. We recommend that a means be devised for ensuring that judicial reviews which are of sufficient significance and complexity, including those in which important human rights are at stake, are heard by a High Court judge.

The Bill implements the Government’s proposals on “earned citizenship” by tightening the requirements to be met for the acquisition of British citizenship by naturalisation, following the review of citizenship by Lord Goldsmith. Human rights law does not confer any freestanding right to be a citizen of any country, but we have a number of concerns about the proposals.

Firstly, a person who is given probationary citizenship leave will be ineligible for 15 different types of benefit that are available to those with indefinite leave to remain. We ask the Government to reconsider its position. Secondly, we are concerned that the proposed community activity requirement may have a discriminatory effect on groups who are unable to undertake such activity for various reasons, such as physical or mental disability, caring responsibilities, or being in full time work. We call on the Government to publish in draft the regulations on this issue for further scrutiny. We also have concerns about possible retrospectivity and the possible impact on refugees.

We also repeat our call for the repeal of section 9 of the Asylum and Immigration (Treatment of Claimants etc.) Act, which provides for welfare support to be withdrawn from families if they are considered to have failed to take reasonable steps to leave the UK voluntarily.

The current Bill is a more limited measure than the Immigration Simplification Bill which was initially expected to be introduced this session and which is now due to be published in draft later this year.

The 9th Report of Session 2008-09

Please be noted that BritishHongKong’s written evidence is on p23

To ask Her Majesty’s Government whether, in deciding how to abide by the judgment of the European Court of Human Rights in Hirst v United Kingdom, they will have regard to (a) the reasoning in the judgment of 8 December 2008 of Judge Andrew Cheung in the Court of First Instance of Hong Kong in Chan Kin Sum deciding that a blanket ban on prisoners’ voting is unconstitutional; and (b) the Government of Hong Kong’s response. [HL785]

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach):
As with previous legal challenges in other jurisdictions on the issue of prisoners’ voting rights, Her Majesty’s Government are studying (a) the reasoning behind this judgment and (b) the response by the Government of Hong Kong carefully. The Government must arrive at a solution that is best for the UK, and, to that end, remains committed to carrying out a second public consultation.

Asked by Lord Lester of Herne Hill

To ask Her Majesty’s Government further to the Written Answer by Lord Bach on 15 January (WA 168—74), whether they will be able to ratify the Fourth Protocol to the European Convention on Human Rights with appropriate reservations to meet their concerns in relation to passports and the right of abode. [HL938]

To ask Her Majesty’s Government further to the Written Answer by Lord Bach on 15 January (WA 168—74), which provision in Article 2 of the Fourth Protocol to the European Convention on Human Rights confers rights in relation to passports and a right of abode on British nationals who do not currently have that right. [HL939]

To ask Her Majesty’s Government further to the Written Answer by Lord Bach on 15 January (WA 168—74), whether their concerns about Articles 2 and 3 of the European Convention on Human Rights are based on rulings of the European Court of Human Rights; and, if not, what they are based on. [HL941]

Lord Bach:
The Government have no plans at this time to seek to ratify the Fourth Protocol with reservations. The Government’s concerns with Article 2 relate to the particular nature of British nationality and immigration arrangements which permit a person to be lawfully within United Kingdom territory without necessarily permitting them to be lawfully within all parts of United Kingdom territory. This may particularly conflict with the provision under Article 2(1) that “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”. This assessment has been made by the Government on the basis of the advice of officials and lawyers; there would obviously be no substantive assessment of the compatibility of British law and policy with these obligations by the European Court of Human Rights or our domestic courts unless and until the obligations were accepted by the United Kingdom.

http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90128w0003.htm

Asked by Lord Laird

To ask Her Majesty’s Government whether they have ratified the Fourth Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms; whether they intend to incorporate Article 1 of the Protocol (prohibition of imprisonment for debt); whether persons may be imprisoned in the United Kingdom for not fulfilling contractual obligations; and whether that Article has implications for the law of contempt of court and the powers of judges. [HL349]

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach):
In response to Question HL349, the United Kingdom has not ratified the Fourth Protocol to the ECHR. There are continuing concerns over Articles 2 and 3 of that Protocol, which could be taken, respectively, to confer rights in relation to passports and a right of abode on categories of British nationals who do not currently have that right. In the absence of any change in the arrangements for issuing British passports and the relevant provisions of our immigration legislation, it is not possible to ratify the Protocol. Given that Protocols may not be ratified in part, the Government has no plans either to ratify Article 1 of the Protocol nor to incorporate it into the Human Rights Act, as the framework of the Act permits incorporation only of those substantive rights by which the United Kingdom is bound under the ECHR. Nevertheless, there exists no provision in the law of England and Wales that directly permits the imprisonment of a person for a failure to fulfil contractual obligations or pay a private debt. Any such deprivation of liberty would therefore lack a lawful basis and constitute a breach of Article 5 of the ECHR.