Foreign National Offenders (Exclusion from the United Kingdom) Bill

Part of the debate – in the House of Commons at 1:19 pm on 6th March 2015.

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Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration) 1:19 pm, 6th March 2015

I was planning to address that specific point. My hon. Friend is right about the distinction between EU and non-EU and how it applies to deportation. However, I hope he will recognise the steps the Government have taken to put in place re-entry bans. The right of free movement is part of a broader and bigger debate than that related to the Bill and I certainly do not want to stray beyond it, Madam Deputy Speaker, but my hon. Friend’s intervention referred to our ability to keep out those who have been removed to other European countries. We have the right to impose a re-entry ban, because free movement is not unqualified. Under the existing requirement of free movement, a person has to exercise their right to work, to study or to set up a business. If they do not exercise any of those rights and abuse that power and our hospitality and freedoms by committing a crime, they should be removed and kept out, and our re-entry ban of one year helps us facilitate that. We may well wish to return to the issue in the fullness of time.

The Government’s approach was set out clearly by the Prime Minister in a speech just before Christmas, when he addressed those measures he wants to change in order to ensure that rights of free movement work in the best interests of this country. That is a broader debate than that on the specific issue of foreign national offenders.

Last July, new powers came into force to stop criminals using weak family life arguments to delay their deportation. The Government had already made clear that article 8 of the European convention on human rights should not be used to place the family and private life rights of criminals above the rights of the British public to be protected from serious criminals.

Section 19 of the 2014 Act put into statute the principle that the law should be on the side of the public and that the starting point is to expect that foreign criminals will be deported. The more serious the offence, the greater the public interest in the criminal’s deportation. Section 19 ensures that the courts can be in no doubt about when the public interest requires the deportation of foreign criminals.

We also changed the law so that when there is no risk of serious irreversible harm, foreign criminals can be deported first and have their appeal heard later. Those who have an appeal right will be able to appeal only once. Last October, the number of grounds on which foreign criminals could appeal against their deportation was cut from 17 to four. It is important to recognise that the system that we inherited allowed appeal after appeal after appeal to delay removal and frustrate the justice system. My hon. Friend the Member for Wellingborough understands the frustration that that built up and has recognised it in the Bill.

We have changed the law and changed the rights of appeal. We have also removed a significant number of foreign national offenders year on year, despite having to deal with the legal system we inherited and despite seeing a near 30% increase in the number of legal challenges. Our changes are not about denying people a right of appeal, but about streamlining an appeals system that offered too many bites of the cherry, took too long to conclude and, inevitably, led to foreign criminals remaining in the UK for longer than should have been the case.

We will always seek to deport serious foreign criminals. When the level of offending does not meet the threshold for deportation, we will take administrative action to remove offenders who have no right to be in the UK. Administrative removal is an effective outcome. Subject to certain exceptions, foreign national offenders who have received a custodial sentence can be administratively removed from the UK and will face a mandatory refusal under the immigration rules on entry clearance or leave to enter the UK.

The other power that is used to keep foreign national offenders out of the UK is exclusion, although I suspect it is not the exclusion envisaged in the title of my hon. Friend’s Bill. To avoid any misunderstanding, exclusion is a decision taken personally by the Secretary of State that is used to prevent a foreign national who is outside the UK from entering the country. Exclusion decisions are taken on the basis that the person’s exclusion from the UK is not conducive to the public good. As with a deportation order, an exclusion decision prohibits the person from entering the UK while it remains in force. It is similarly not time limited.

I think that my hon. Friend will recognise some of the ways in which we have used that power. Aside from cases of foreign criminals, we have used it to keep hate preachers out of the country. This Government have used exclusion to keep about 80 hate preachers out of this country, which is more than under any previous Government. I hope that that gives him some assurance on the firm and rigorous approach that the Government take in seeking to assure the security and safety of the citizens of this country from foreign national offenders and others who would seek to foment tension in our communities and the criminality that may arise from that.

My hon. Friend sought to draw a distinction between EU and non-EU citizens or, to use the technical terms, European economic area citizens and non-EEA citizens. It is important to understand that distinction. The free movement directive, by which all EU member states are bound, provides that EEA nationals and their family members have certain rights to live and work in other EU countries.

The UK has implemented the directive by way of the Immigration (European Economic Area) Regulations 2006, which provide the power to deport, exclude or administratively remove EEA nationals and their family members from the UK. EEA nationals can be deported from the UK on grounds of public policy, public security or public health. All EEA nationals who receive a custodial sentence are considered for deportation or administrative removal, including individuals who engage in persistent low-level offending. We take a robust approach when considering and pursuing the deportation of EEA national offenders, working within the terms of the directive.

A decision to deport cannot be made solely on the basis of a person’s previous criminal convictions and we must balance other factors. Therefore if the Bill intends that an EEA national convicted of an offence in the UK should be deported solely on the basis of that conviction, regardless of the nature of the offending and without the assessment of the case’s individual circumstances or the proportionality of deportation action, it would not be consistent with the freedom of movement directive.

My hon. Friend sets out his desire for a general approach, but other issues are at play. This is a complex picture, and I have highlighted one element in the freedom of movement directive. There is also the refugee convention, in which I know he has taken a long-standing interest, and other provisions are contained in that. We must therefore understand when legislating in this House the number of different international obligations, conventions, treaties—not to mention the European convention on human rights, which we can return to later—that we would need to consider. Perhaps the issue is a little wider and more complex than the Bill understands or recognises.