Home Secretary powers to override court judgments 'a rule of law issue'

Proposed powers that would allow the home secretary to vary or override court decisions on immigration are a rule of law issue and cannot be ignored, parliament’s joint committee on human rights has observed.

The committee is currently scrutinising the government’s Immigration Bill in the light of the requirements of human rights law.

A letter to Theresa May from the committee’s chair, Harriet Harman, highlighted a number of concerns about the government’s proposals, including the home secretary’s powers over bail; the freezing of bank accounts; certification of human rights claims; and the housing and support for migrants.

The letter comes following concerns raised by the House of Lord Constitution Committee that a lack of detail in the Bill could have a ‘profound effect’ on vulnerable individuals.

Harman said the human rights committee was concerned over schedule 7 of the Bill, which allowed the home secretary to vary or override decisions of the First-tier Tribunal on immigration bail.

The former legal officer to Liberty said that to ignore a court’s decision was a rule of law issue and referred the home secretary to Lord Neuberger’s observation in the case of R (on the application of Evans) v Attorney General [2015] UKSC 21.

‘It is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone including (indeed it may fairly be said, least of all) the executive,’ said the president of the Supreme Court.

The committee is also concerned about the financial loss that can occur where a bank account is frozen in error and suggested a facility to provide for the payment of compensation should exist.

The availability of compensation could be a ‘relevant factor in judging compliance with the right to peaceful enjoyment of possessions’ under the European Convention on Human Rights (ECHR), wrote Harman.

The ex-deputy leader of the Labour said it was unclear as to why compensation for an error is perceived to be disproportionate given the government’s confidence in resolving errors in real time.

Non-suspensive appeals

Elsewhere in the letter, the committee raised the difficulties faced by appellants if the non-suspensive appeals regime is extended.

Section 94B of the Nationality, Immigration and Asylum Act 2002 restricts the rights of non-EEA nationals, whose ‘deportation is conducive to the public good’ or where they have committed a criminal offence, to challenge deportation orders while they remain in the UK.

The ‘deport first, appeal later’ scheme means the subject must bring their appeal from outside the UK where the secretary of state is satisfied that it would not be unlawful under section 6 of the Human Rights Act 1998 to deport them.

The committee’s concerns surround the extension of non-suspensive appeals so that refusing a subject’s entry to the UK would be included in the Secretary of State’s considerations.

Appellants would have to pursue their claims out of country. The committee said that families with meritorious article 8 claims could be subjected to extensive separation.

Finally, Harman noted the concerns expressed by the Equalities and Human Rights Commission that the provisions relating to housing and support to migrants contained in the Bill  may not be compatible with articles 3 and article 8 of the ECHR.