Legislative Scruting: Borders, Citizenship and Immigration Bill  9th Report of Session 2008-09

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