We round off our coverage of the Nationality and Borders Bill, the second reading of which continues today, with Part 5. This consists of eight “miscellaneous” clauses. Four of them are what the House of Commons Library describes as “placeholder” clauses which will be fleshed out by government amendment as the Bill progresses.

I am very grateful to Sarah Pinder for writing the sections indicated and for her comments on the rest of the article; any remaining mistakes or bad takes are my own.

Placeholder clauses

Age assessment (by Sarah Pinder)

The first placeholder clause concerns age assessments. This is where an asylum seeker claims to be under 18 (and therefore entitled to special treatment) but the authorities suspect otherwise. 

There is no scientific test that can definitively prove a human being’s age. In the event of a legal challenge, it is a question of fact to be determined by the court or tribunal itself, as the Supreme Court explained in R(A) v London Borough of Croydon [2009] UKSC 8. The process is set out in guidance rather than legislation.

The guidance currently instructs Home Office caseworkers, with regards to initial age assessments, that one of the circumstances in which they can treat someone as an adult is where:

two Home Office members of staff, one at least of Chief Immigration Officer or Higher Executive Officer grade, have independently assessed that the claimant is an adult because their physical appearance and demeanour very strongly suggests that they are 25 years of age or over…

Over the years, case law has developed to guide and ensure lawful age assessments. Much of the initial guidance to local authorities carrying out such assessments was set out in the High Court case of B v London Borough of Merton [2003] EWHC 1689 (Admin), giving us the term “Merton-compliant assessment”. Most recently, the same court in AB v Kent County Council [2020] EWHC 109 (Admin) reiterated the requirements as including:

• The decision needs to be based on particular facts concerning the particular person and is made on the balance of probabilities.
• There is no burden of proof imposed on the applicant to prove his or her age.
• The benefit of any doubt is always given to the unaccompanied asylum-seeking child since it is recognised that age assessment is not a scientific process.

A full and useful list of the relevant guidelines, as they currently stand, is set out at paragraph 21 of the judgment, amalgamating the requirements in Merton and subsequent case law.

Clause 58 as currently drafted says that the Secretary of State may make regulations on how to carry out age assessments. In particular, those regulations can make provision:

(a) about the test to be applied by immigration officers for determining whether a relevant person may be a child;

(b) conferring functions on the Secretary of State and on local authorities relating to decisions as to whether a relevant person is a child;

(c) setting out the general principles and procedures to be applied in any case where it is to be decided whether a relevant person is a child;

(d) about the use of scientific methods in deciding whether a relevant person is a child;

(e) for appeals against a decision about a relevant person’s age to be made to the First-tier Tribunal.

The explanatory notes tell us that the aim is to amend this to be more specific and so we will need to wait to find out more. At this stage, we wish to flag that (a) and (c) are already covered by case law but the notes do foreshadow the following in relation to (a):

Whilst acknowledging the difficulty in assessing age through a visual assessment of physical appearance and demeanour, the Government remains concerned that this threshold (being 25 years of age or older) presents an unacceptable safeguarding risk. The current position means that even where an immigration official believes that an individual who is claiming to be a child to be as old as 24, they must still treat them as a child, which in practice will mean that individual will be placed alongside children, pending the outcome of a subsequent assessment.

In order to mitigate against the risk that adults posing as children will be placed alongside vulnerable children, the intention is to replace this placeholder provision with a substantive provision setting a more appropriate threshold for initial age assessments. 

As we can see from the Home Office’s guidance extracted above, the 25 years of age or older threshold is embedded in Home Office policy and only concerns initial age assessments. This threshold was introduced in the first place in response to the Court of Appeal’s judgment in BF (Eritrea) [2019] EWCA Civ 872.

Prior to BF, the Home Office’s policy on initial age assessments permitted for a decision to treat a claimant as an adult if “their physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary”. This was held to be unlawful in BF without recognition of the margin of error in any such initial assessments by Home Office officials. BF is currently on appeal to the Supreme Court with the hearing concluding in March of this year; judgment is awaited.

We also learn from the notes that the non-placeholder version of (b) will provide for the establishment of a decision-making function in the Home Office, referred to as the National Age Assessment Board. The board “will primarily consist of expert social workers dedicated to conducting age assessments. This seeks to improve the consistency and quality of age assessments, reduce the incentive for claimants to provide incorrect ages and reduce the financial and administrative burden from local authorities”.

As for (d), scientific methods for the purpose of assessing age are controversial amongst immigration lawyers in the UK. The notes, in contrast, state that the UK is one of very few countries in Europe that does not commission or employ scientific methods of age assessment when seeking to determine age and so “the Government believes that decision-makers should be able to rely upon as wide an evidence base as possible before coming to an informed decision about someone’s age – this includes evidence derived from scientific methods of establishing age”. 

Lastly, with regards to (e), a right of appeal against the age assessment decisions of local authorities or the newly-established National Age Assessment Board. At first blush, this would be a welcome development as judicial reviews are costly and more limited in review scope.

Visa penalties

Clause 59 sets out to punish visa applicants for the sins of their compatriots. It would allow the Secretary of State to delay, suspend, charge more for or even declare invalid all visa applications from citizens of certain countries. A country can be targeted for such treatment:

if, in the opinion of the Secretary of State, the government of that country does not co-operate with the United Kingdom government in relation to the removal from the United Kingdom of nationals of that country who require leave to enter or remain in the United Kingdom but do not have it.

This is another placeholder clause, though. The notes say: “the government does not intend to use the power as drafted, but to replace it with a substantive provision once further work has been completed”. So forget everything you have just read, I suppose.

Electronic travel authorisation

Clause 60 is, you guessed it, another placeholder. This time it relates to “electronic travel authorisations”, or ETAs. These are similar to the ESTA scheme for the United States and the ETIAS scheme planned by the European Union: essentially a form to fill in before you visit the UK for people who don’t need a full-on visit visa. 

The idea is that everyone coming to the UK will need permission to travel in one form or another — whether a proper visa or an electronic travel authorisation — except for British and Irish citizens. ETAs will reportedly cost £9 but will not be in place for a few years yet: “by the end of 2024” is the target.

The placeholder clause just says that the Secretary of State will have power to make regulations to make ETAs a thing. It mentions that airlines and other carriers who bring someone into the UK without an ETA where required will be liable to fines, but that’s about all we know for now.

SIAC

Clause 61 is addressed to the Special Immigration Appeals Commission, SIAC. This is a secret court that deals with immigration and nationality appeals with a national security element (think Shamima Begum). The Home Office has identified a “SIAC gap”, in that many migrants challenging their removal (or exclusion) from the UK no longer have a right of appeal in the first place. Instead, they use judicial review, which SIAC does not cover. As such:

The purpose of the amendment to the legislation would be to ensure that any decision that could be challenged by judicial review (JR) could be certified [by the Secretary of State] so it is heard by SIAC in the same way that any decision that can be challenged by appeal can be certified.

As so often when the Home Office points to an element of the immigration system that is “broken”, one has to ask: who broke it? Was it a different government department that put forward legislation to denude appeal rights and create the SIAC gap in the first place? Answers on a postcard to 2 Marsham Street.

Actual clauses

The remaining Part 5 clauses are intended to pass into law as drafted.

Wasted resources orders

Clause 62 will put a new section 25A into the Tribunals, Courts and Enforcement Act 2007. Section 25A will give the immigration tribunal (both First-tier and Upper) the power to fine people for wasting their time. Specifically, fines can be imposed if:

(a) a relevant participant has acted improperly, unreasonably or negligently, and

(b) as a result, the Tribunal’s resources have been wasted.

A “relevant participant” is defined so as to cover legal representatives of both migrants and the Home Office, as well as the Secretary of State herself. In practice, the Secretary of State is often represented by civil servants called Presenting Officers. But, legally speaking, a Presenting Officer and the Secretary of State are “one and the same person” in this context (see Awuah & Ors (Wasted Costs Orders – HOPOs – Tribunal Powers : Ghana) (Rev 1) [2017] UKFTT 555 (IAC), paragraph 25).

That suggests that a Presenting Officer could be hit with one of these wasted resources orders, although whether they would have to stump up personally is less clear. This admirably level playing field presents an interesting contrast to wasted costs orders under section 29 of the 2007 Act, which cannot be made against a Presenting Officer.

Tribunal rules on wasted resources

The wasted resources orders set out in clause 62 are explicitly “subject to Tribunal Procedure Rules”. Clause 63 instructs the committee that makes those rules to flesh out what counts as acting “improperly, unreasonably or negligently”.

While they’re at it, they will also specify conduct that will trigger the tribunal’s existing powers of financial sanction: wasted costs orders under section 29 of the 2007 Act, and unreasonable costs orders under the Procedure Rules of each chamber.

For good measure, the power to make unreasonable costs orders will be put into primary legislation as well, as a new section 29(3A) of the 2007 Act. Like the existing power in the procedure rules, it will be available where “a party or its legal or other representative has acted unreasonably in bringing, defending or conducting the proceedings”.

Good faith (by Sarah Pinder)

The good faith requirements are set out in clause 64. It proposes that the Home Office, when making immigration decisions, must take into account whether the applicant has acted in good faith in connection with either or all of the following:

• The matter that is being decided;
• In their dealings, at any time, with a person exercising immigration/nationality functions;
• A claim made at any time, or civil proceedings brought at any time under any provision of immigration legislation;
• Judicial review proceedings brought at any time (with Scotland equivalent) relating to a decision taken by a person in exercise of immigration/nationality functions.

Whilst the above seems very wide-ranging, clause 64(3) limits “immigration decision” to the following decisions:

• On a person’s application for leave to enter/remain in the UK;
• Whether to cancel a person’s leave to enter/remain; or
• Whether to revoke a person’s indefinite leave to enter/remain in the UK under section 76 of the Nationality, Immigration and Asylum Act 2002. 

There is again little detail as to what is meant by “good” or indeed bad “faith” and how this would affect the making of a decision. The accompanying notes only add that “this provision aims to reduce the number of unmeritorious claims, appeals and legal challenges and ensure evidence is brought and considered at the earliest opportunity to improve efficiency in the immigration system, decreasing costs to the taxpayer and freeing up judicial and Home Office resources”. We’ve yet to see on what evidence the government bases its need for a good faith requirement and how this will be effective in practice, again against a backdrop of (reported and evidenced) high levels of inefficiencies in the Home Office itself.

It does appear however that this clause is limited to applicants/appellants/claimants and does not apply to their legal representatives, as was initially proposed in the New Plan for Immigration.  This is presumably because lawyers and OISC advisers are already subject to onerous and detailed codes of conduct. 

Legislative consolidation

Finally, there is clause 65:

The Secretary of State may by regulations make such amendments and modifications of the Acts relating to immigration as in the Secretary of State’s opinion facilitate, or are otherwise desirable in connection with, the consolidation of the whole or a substantial part of the Acts relating to immigration.

This obviously gives a strong hint that the various Acts of Parliament about immigration are being consolidated; in other words, repealed and re-issued as one giant Immigration Act. The explanatory notes bear that out, referring to a recommendation of the Windrush Review that the immigration statutes be consolidated in an effort to simplify things. The notes also say that the consolidation powers are “conditional on the passing of a future Act which will consolidate all or a large proportion of the Acts relating to immigration”, as per clause 65(4).

Read our coverage of Parts 1, 2, 3 and 4 of the Borders Bill here.