Publications

Submission to House of Lords on the Border Security, Asylum and Immigration Bill

Summary of Recommendations

Below is a summary of our recommendations and messages.

You can also download the full document through the links provided.

2.5 The NIHRC recommends that peers seek confirmation from the UK Government on the assessment, if any, that was undertaken to ensure the compatibility of the retained provisions of the Illegal Migration Act 2023 and the Nationality and Borders Act 2022 with the UK Government’s international human rights obligations.

2.13 The NIHRC recommends that the Home Office, the Northern Ireland Office, the Cabinet Office, NI Executive and other relevant departments act promptly to ensure that judgments of the Northern Ireland higher courts on Windsor Framework Article 2 are reflected in the development and scrutiny of policy and legislation, unless or until there is a contrary ruling.

2.12 The NIHRC recommends that peers seek confirmation from the UK Government whether or to what extent the Bill reduces the rights of asylum-seekers below minimum standards set out in the EU asylum acquis to which the UK had opted in prior to its withdrawal from the EU.

3.13 The NIHRC recommends that to ensure compliance with the Refugee Convention, the Smuggling Protocol and the Europe Convention on Action against Trafficking in Human Beings, Clauses 13 to 17 be amended to limit their application to individuals involved in, or seeking to obtain, financial or material benefits from people-smuggling.

3.14 The NIHRC recommends that to ensure compliance with Windsor Framework Article 2, Clauses 13 to 17 be amended to protect from prosecution individuals who are compelled to participate in criminal activity as a consequence of human trafficking, modern slavery or relevant exploitation.

3.18 The NIHRC recommends that the Bill includes specific provision for legal aid safeguards to ensure access to legal representation.

3.21 The NIHRC recommends that the Bill be amended to ensure that the child's best interest is recognised as a primary consideration including specifically in the application of these provisions.

3.22 The NIHRC recommends that the Bill should ensure that there are explicit safeguards in place for particularly vulnerable individuals or individuals with specific needs in line with human rights obligations. This includes ensuring protections are in place for children, women and girls, persons with disabilities, older people, pregnant women, ethnic and racial minorities, single parents with children and individuals who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.

3.30 The NIHRC recommends amending clause 18 to clarify the type of conduct that will trigger the endangerment offence, and the intent required to ensure the law is accessible and predictable in line with Articles 5 and 7 of the ECHR.

3.32 The NIHRC recommends that to ensure compliance with Windsor Framework Article 2, Clause 18 be amended to protect individuals who are compelled to participate in criminal activity as a consequence of their experience of human trafficking, modern slavery or relevant exploitation.

3.34 The NIHRC recommends that the UK Government consider expanding safe and legal routes for seeking and obtaining asylum in the UK, whilst also addressing organised crime, in line with its international human rights obligations.

3.46 The NIHRC recommends that the UK Government develops guidance before the powers are deployed, adopting a human rights-based approach, which must include respect for the relevant EU law provisions outlined above and interpreted by the CJEU in the Landeck case.

3.51 The NIHRC recommends that the UK Government explores the potential for misalignment between the Data Protection Act 2018, as amended by the Data (Use and Access) Bill once the Bill comes into force, and the rules on the lawful transfer of data to third countries established by the EU Law

3.57 The NIHRC recommends that the UK Government includes in the forthcoming guidance, instructions on how to ensure Clauses 34 and 35 respect the data minimisation and purpose limitation principles of the EU Law Enforcement Directive.

4.11 The NIHRC recommends that the Bill is amended to repeal section 12 of the Illegal Migration Act 2023.

4.26 The NIHRC recommends that the Bill be amended to repeal section 29 of the Illegal Migration Act 2023.

4.27 The NIHRC recommends that the Bill be amended to ensure that Part 5 of the Nationality and Borders Act 2022 provides protection for victims and potential victims of modern slavery and human trafficking in accordance with Article 4 ECHR and the relevant EU Directives within scope of Windsor Framework Article 2.

4.28 The NIHRC recommends that the Bill be amended to ensure that all decisions and actions affecting children who may be victims of human trafficking are guided by principles enshrined in human rights law and Windsor Framework Article 2. This includes ensuring that the best interest of the child is recognised as a primary consideration.

4.50 The NIHRC recommends that the Bill is amended to repeal section 59 of the Illegal Migration Act 2023.

4.51 The NIHRC recommends that the Bill be amended to ensure that the law on individual consideration of applications for asylum, removals to a safe third country, the right to remain pending consideration of a claim and the right to appeal, comply with the full range of international human rights obligations including ECHR, ICCPR, UN CAT, the 1951 Refugee Convention and Article 2 of the Windsor Framework, by ensuring no diminution of minimum standards in the EU Procedures Directive 2005 and the EU Qualification Directive 2004.

4.70 The NIHRC recommends that clause 41 of the Bill requires thorough reassessment to ensure compliance with Article 5 of the ECHR. The result should ensure that any detention with a view to deportation is carried out in good faith and is subject to robust procedural safeguards to ensure compliance with the principle of non-arbitrariness.

5.6 The NIHRC recommends that the Bill include safeguards to protect individuals who are compelled to participate in criminal activity as a consequence of human trafficking, modern slavery or exploitation.

5.12 The NIHRC recommends that careful consideration be given to whether the expansion of serious crime prevention orders (SCPOs) under Clauses 48-52, which includes electronic monitoring and interim orders, ensure that any interference with the right to private and family life is proportionate and justified.

5.13 The NIHRC recommends introducing explicit statutory guidelines to inform the development of the code of practice for processing data collected from electronic monitoring, ensuring its necessary and proportionate use.