Clause 115

Criminal Justice and Immigration Bill – in a Public Bill Committee am 8:45 pm ar 27 Tachwedd 2007.

Danfonwch hysbysiad imi am ddadleuon fel hyn


Photo of Harry Cohen Harry Cohen Llafur, Leyton and Wanstead

I beg to move amendment No. 356, in clause 115, page 78, line 10, leave out ‘or 2’.

Photo of Edward O'Hara Edward O'Hara Llafur, Knowsley South

With this it will be convenient to discuss the following amendments: No. 357, in clause 115, page 78, line 17, leave out subsection (3).

No. 330, in clause 115, page 78, line 17, leave out ‘a member of the family’ and insert ‘the spouse’.

No. 358, in clause 122, page 82, line 12, leave out subsection (3).

Photo of Harry Cohen Harry Cohen Llafur, Leyton and Wanstead

I have tabled amendments to four of the next five clauses, so I shall try to be succinct. They have mainly been tabled on behalf of Liberty, as the Committee knows. A couple have been tabled on behalf of the Refugee Council. I have also received representations in recent days from the Joint Council for the Welfare of Immigrants, and I might mention a couple of its points.

The amendments particularly concern the definition of a family of a person designated with special immigration status. They are meant to relate to foreign criminals who are liable to deportation, but cannot be deported for all sorts of reasons—perhaps because of their human rights, or because of the risk of going back to a country where they will be tortured or killed. Such people are not necessarily criminals, by the way, but we will come on to that later. There might be a suspicion that they have been involved in something that has led to their designation under that status.

The clause mentions the family of a person, and by that the Government have included a person’s spouse and children. My amendments would delete any reference to children. The UN convention on the rights of the child makes specific provision to ensure that children are not disadvantaged as a consequence of the actions of their parents. Article 2.2 states:

“States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.”

That is clear. Special immigration status should not apply to children just because it has been applied to their parents—or to just one parent. That would be wrong. The child would be left in limbo and under all sorts of restrictions, perhaps severe restrictions. The status would apply to children under 18, but people who are under 18 can work and 16 or 17-year-olds could have a restriction placed on their ability to work. They might not have access to education or to child care. All sorts of other restrictions could be imposed, and that is a serious point. The Government should say why they are breaching the UN convention on the rights of the child through this clause.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I rise to support some of the contentions made by the hon. Member for Leyton and Wanstead. Indeed, I am a co-signatory to amendment No. 330. As is not unusual in my part of the world, I was brought up a nonconformist. I believe that the Catholic Church has now abandoned the concept of limbo as a waiting room in which nothing can happen between death and the transfer to paradise. The Government, however, are attempting to introduce their own equivalent of limbo in these clauses with a new, unique status that effectively prevents anyone with this special immigration status from having any capacity to do what might be normal for a person who is resident in this country. It is difficult to see the justification for the proposal. I assume that we will have a stand part debate on this clause, so I shall not cover all my points at this stage.

The hon. Member for Leyton and Wanstead raised an important issue about the position of young people and families. Amendment No. 330, which I support, would take the term

“a member of the family” out of the clause and insert “the spouse”, thus giving a more direct familial relationship than the wider family concept. We are otherwise in danger of extending the provisions more widely than could possibly be justified by the difficulties caused by a few cases that have been fairly well publicised. The Minister should clarify what may and may not be appropriate or applicable to an individual who is the principal holder of this new status and to any other person who has a familial connection with them. We are getting dangerously close to having a form of punitive action based on a sort of collective responsibility that is alien to the traditions of this country’s justice system.

Photo of David Burrowes David Burrowes Shadow Minister (Justice) 9:00, 27 Tachwedd 2007

I welcome the opportunity that the amendment gives us to debate the problematic issues concerning the family members of designated people. I acknowledge that the amendment is intended to distinguish the circumstances of such family members and to deal with them proportionately and fairly. It is also intended to amend the Government’s approach on dealing with people whom they do not wish to give ordinary leave to remain—perhaps due to a lack of ability to remove them. Let us not avoid the need to deal carefully with family members.

The purpose of the clause has been discussed, and we might debate it in more detail during the stand part debate. That issue is relevant when considering how to deal properly with family members. I understand from the research paper that the measures are intended to cover about 50 people. I am concerned whether they are intended to deal with those 50 people proportionately, or whether they are a response to the Afghan and other cases, which have caused public concern. It is important that the pressure to deal with this problem does not bring in its wake associated problems with family members. I look forward to hearing the Minister’s reply.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

In answer to the hon. Member for Enfield, Southgate, we anticipate that about 50 people will be subject to the special immigration status. I shall answer his other point when I remember it.

It might assist the Committee if I clarify why the Bill provides for the designation of family members. Special immigration status is, as the term implies, an immigration measure, and it was—I remember the point now—introduced as a result of the Afghan hijack and the various problems that arose from that.

As a matter of policy, the Border and Immigration Agency does not grant dependants with leave in line—a form of leave that is more favourable than that given to the principal applicant. A person’s claim to apply for leave as the dependant of another person stands or falls with that of their spouse, parent or partner. They cannot expect to emerge from the process with more than the person on whose claim their own claim is based. Consequently, if the principal applicant is given a new special immigration status, we must have the power to designate the family as well as the foreign criminal. I should make it clear that that is the only reason for extending designation beyond a foreign criminal.

I should also make it clear that we will designate family members only if the principal applicant is designated, and that a family member who has been designated will  be able to apply for leave in their own right and, if they qualify, be granted it. There is nothing to prevent a family member from applying in their own right before they are designated if it seems likely that the principal applicant will be designated. There are two aims behind the conditions that can be imposed: first, to prevent a foreign criminal from establishing links with this country that might constitute an additional obstacle to his eventual deportation; and, secondly, to maintain contact with a foreign criminal and his immediate family until such time as his removal becomes possible. The purpose of the conditions is not punishment, but merely to allow a situation to be managed.

The Bill creates a support regime to ensure that designated persons, whether a single adult or a family group, have access to some support. Children who are designated may be required to live with their parents, but one would expect that to happen anyway. Depending on their age, they may have to accompany a designated person when the latter attends a reporting centre, but that could apply even when the children are not required to report. That might be regrettable, but it is not a reason for not requiring the parents to report.

The purpose of the provision is to deal with an anomaly that arose following the Afghan hijack case. It is designed to manage the situation, not to punish. Other members of the family, other than the foreign criminal, can apply in their own right, and the various support and processes will be available to them, including if they are children. The UK Borders Act 2007, as I am sure my hon. Friend the Member for Leyton and Wanstead knows, introduces a code of practice to keep children safe from harm.

The issue is difficult, and no one intends to put children or others at a disadvantage. We believe that we have made a proportionate response to an anomaly that arose as a result of a particular circumstance.

Photo of Harry Cohen Harry Cohen Llafur, Leyton and Wanstead

I appreciate the Minister’s response, but I am not convinced. He says that he does not want to give links to a parent who is a designated foreign criminal by giving rights to a child by way of not designating the child. The solution is simple: do not allow the parents those rights in such circumstances, but do not take that out on the child. We could legislate, or have it as an administrative policy, that that link will not be made. The child should not necessarily be subject to the same special designated status.

As children approach 18 and beyond they will become increasingly independent and will expect their own rights, but they could face designation through no fault of their own for a long time and have their activities, chances and income restricted in their growing independence, thus keeping them in the same sort of poverty as their parents. I am not happy with the provision, and I hope that the Minister will ask his colleagues who deal specifically with immigration to look at that aspect again. I shall take a close look in Hansard at what he said.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I shall of course pass on my hon. Friend’s remarks and bring them to the attention of the Minister who deals with immigration. I shall ensure that that Minister is aware of all my hon. Friend’s comments on this group of amendments, and generally, and of the remarks made by other hon. Members as well.

Photo of Harry Cohen Harry Cohen Llafur, Leyton and Wanstead

I appreciate that. I had virtually concluded what I had to say. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of David Heath David Heath Shadow Leader of the House of Commons

This is the opportunity to widen the debate on this aspect of the Bill a little. As always, I accept the Minister’s good faith in proposing the clause and I appreciate that it is not his part of the Ministry that is pressing the proposal. Having said that, I find it impossible to reconcile the Secretary of State’s stated objective of simplifying immigration law with the inclusion in the Bill of this provision, which makes the law in that area more complex. It is complex enough already, yet the Bill will introduce an entirely new status.

If the Government intended to deal with the issue, it is hard to find adequate reason why that did not happen in the context of the UK Borders Act 2007, which could have dealt with it from the point of view of an Act concerning immigration. Instead, the provision is tacked on to a criminal justice Bill—although its presence means that this is actually the Criminal Justice and Immigration Bill. The Bill now contains a leftover from previous legislation that has been spatchcocked into the middle in the form of part 11.

There is a perfectly sound argument that the issue was, in fact, already dealt with by section 16 of the UK Borders Act, which provides for restrictions on residence and reporting. A new status is not needed in law to provide the sorts of safeguard that the Government believe are necessary to achieve their objectives.

I am sure that the Minister knows that the provision has caused a great deal of concern among those who have a particular interest in refugee matters. The hon. Member for Leyton and Wanstead has already mentioned the Refugee Council, and he could have mentioned the Immigration Law Practitioners Association, too. He could also have mentioned something that we shall come on to when we debate the next clause: the United Nations High Commissioner for Refugees. I do not like receiving a briefing from the UNHCR that points out deficiencies in a proposal to change British law. It is not appropriate for this Government or Parliament to be addressing proposals that fall foul of the commissioner, yet that is the position in which we find ourselves.

The arguments against the proposal can be summarised quite briefly. There is the argument that the status is unnecessary, and there is the argument that it is disproportionate and will affect members of extended families, as we have discussed. There is also the argument that it is a punitive sanction without an offence for which it is the punishment, in that it provides for people to be put into legal and economic limbo. There is an argument, too, on the support that will be given to the people affected. We thought that, except in exceptional circumstances, we had got rid of the voucher system, given the problems that it caused, but the Government are now bringing it back for this specific class of people. As the level of support is very limited, we are effectively condemning these criminals to progressive poverty without any expectation that their circumstances can change in the near future.

We have specific issues concerning the right of appeal. I know that the Government are always loth to provide any right of appeal in immigration cases, for fear that that will extend the process. However, it is a matter of natural justice that there should be a right of appeal against designation. There are abundant reasons why this House should not accept this proposal as being the best way of dealing with the problem that the Government have identified and for which I think there are other remedies.

Photo of David Burrowes David Burrowes Shadow Minister (Justice) 9:15, 27 Tachwedd 2007

I want to make two comments. The first is in relation to the UK Borders Act 2007. Why is it necessary to define foreign criminals in a different way from the definition within the 2007 Act? This issue moves into the debate on clause 116, but perhaps I could raise it now and not repeat it when we get to that clause. The 2007 Act is relevant when considering this part of the Bill because the issue of the definition of foreign criminals was considered in detail. There was pre-legislative scrutiny in which there was much consideration of the definition. It is important to draw the Minister, either now or when we discuss clause 116, on why there is a different definition for the purposes of automatic deportation within the 2007 Act, which excludes the categories that are within the designation and the definition of “foreign criminal” in the Bill.

The other point on which I ask the Minister for some guidance is on the right of appeal. It may well be that in the concern to deal expeditiously and appropriately with these designated foreign criminals, the Government will store up for themselves problems in relation to appeals. While the Bill does not provide for any normal route of appeal, it would still be open, through the administrative route, for an application to be made by way of judicial review. That process is lengthy and may well lead to those 50 or so cases a year being dealt with in a lengthy manner, while the right of appeal might be able to deal with them in a much more appropriate and expeditious manner. That would also be consistent with the principles of natural justice.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I thank hon. Members for their comments. To spell it out, the purpose of the part on special immigration status, as hon. Members know, is to deny immigration leave and its benefits to foreign criminals. That cannot be achieved through existing legislation. The denial of leave is necessary to demonstrate that, although these people cannot be removed because of our obligations under the European convention on human rights, they remain in the UK, to a certain extent only because we cannot remove them. The provisions will help to ensure that those people do not put down roots in this country by taking up employment and establish themselves here, which would make it difficult to remove them when the original barrier to deportation no longer applies.

Part 11, of which clause 115 is the first clause, creates the new immigration status in response to two rulings by the High Court and the Court of Appeal in 2006 in a case relating to the immigration status to be afforded to a group of men who arrived in the UK in February 2000, having seized control of an aircraft on an internal domestic flight in Afghanistan. The High Court ruled, and the Court of Appeal confirmed, that as these men  had won their appeals against the decision to refuse them leave to enter the UK, it was not open to the Government to leave them on temporary admission. The Court of Appeal commented that if the Secretary of State wanted to be able to withhold immigration leave, it was open to him to legislate to that effect. That is what part 11 will do.

We do not believe that it is appropriate that we should be put in a position where there is no option but to grant immigration leave, with all the advantages that flow from it, to individuals whose presence in the UK we consider undesirable and whom we would remove if there were no ECHR barrier to doing so. A person will be given the new status by being designated. Accordingly, the clause provides that certain persons may be designated by the Secretary of State. It allows him to designate a person who is a foreign criminal—a term defined in clause 116—who is liable to deportation but cannot be removed from the United Kingdom because of section 6 of the Human Rights Act.

The family members—that is to say the spouse or civil partner and any children under 18—of a foreign criminal liable to deportation may also be designated. As I have said, that is necessary to cover cases in which a person’s dependents have applied for immigration leave. As a matter of policy, the Border and Immigration Agency does not grant dependents who apply for leave “in line”—a form of leave that is more favourable than that given to the principal applicant. However, they may claim in their own right.

A person with the right of abode in the UK may not be designated, nor may designation occur if the Secretary of State thinks it would breach the UK’s obligations under the refugee convention or the person’s right under Community treaties. One effect of designation provided for by clause 117 is that individuals concerned do not have leave to enter or remain in the United Kingdom. In the normal course of events, foreign criminals who are guilty of serious crimes will face deportation, and there will be no question of granting any leave.

We believe that it is wrong that foreign criminals who cannot be deported should receive leave for which they would not otherwise qualify solely and simply because they cannot be removed. As I have said, we will not designate if it would breach the UK’s obligations under the refugee convention. In practice, that means that we will not designate a recognised refugee. Of course, if we discover that a person who has been recognised as a refugee falls within the scope of the exclusion clause in article 1F of the refugee convention, we may decide to revoke his refugee status.

In summary, the provision will enable us to place someone who is liable to be deported, but cannot be removed from the UK because of rights under the ECHR, on a new immigration status. It will not apply to British citizens, recognised refugees or persons in the UK exercising treaty rights. Subsection (1) states that the Secretary of State

“may designate a person who satisfies Condition 1 or 2”.

It does not state that the Secretary of State will designate that person. There is discretion available to the Secretary of State all the way through the clauses, and the word “may” is often used deliberately, rather than “will”.

Clause 115 ordered to stand part of the Bill.