Clause 41 of the Border Security, Asylum and Immigration Bill: A Rule of Law analysis report for House of Lords Committee stage

Executive Summary

The Bingham Centre welcomes provisions in the Border Security, Immigration and Asylum Bill that respond to rule of law problems arising from two recent Acts by repealing the Safety of Rwanda (Asylum and Immigration) Act 2024 and many provisions of the Illegal Migration Act 2023. 

The focus of the present report is on a clause that gives rise to new rule of law issues, distinct from the problems caused by the two Acts that are being repealed. Our focus is on Clause 41 and specifically its provisions on detention, rather than those relating to biometrics and searches for nationality documents. The clause is of extremely broad application. It applies to any person who is not a UK national, enabling their detention to be ordered when the Home Office is merely considering whether to deport them on the basis that their presence is not conducive to the public good (a long-established deportation ground). Until now, a 'decision to make a deportation order' has been a pre-condition for detention. 

We are particularly troubled that this expanded detention power is made fully retrospective. That is the first rule of law issue we discuss, both as a matter of constitutional principle and in view of its impact on past and present detainees whose unlawful detention would be validated by this measure. Further rule of law problems are considered in relation to the breadth of the discretion granted to detain people, including the dangers of abuse given the lack of effective safeguards. 

It appears that the drafting of Clause 41(2)-(5) and its authorisation of detention when merely 'considering' whether to make a decision to deport goes far beyond the limited aim of the Home Office to establish the lawfulness of its current practice of detention following a Stage 1 initial decision to deport a person. The Government's claim that the existing law authorises not only this but also detention during pre-decision consideration, so that it merely confirms rather than expanding the scope of the power, is unhelpful. It complicates parliamentary consideration of the rule of law issues arising, and is responsible for the lack of justification that has so far been provided for the Bill's retrospective effect. 

We have recommended that the retrospective elements of the detention power be removed, and its scope restricted, particularly if some more limited power to detain persons before making a deportation decision is required. We express no view on the policy question of whether such a power is indeed required, but if it is our proposed restrictions include specifying that this power is limited to persons who pose a national security risk, and introducing a time limit for detentions on this basis.