Clause 28

Part of UK Borders Bill – in a Public Bill Committee at 4:00 pm on 15th March 2007.

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Photo of James Clappison James Clappison Conservative, Hertsmere 4:00 pm, 15th March 2007

My hon. Friend is correct. However, that was not the final version of the Government’s thinking. To be fair, they moved on from the position of all imprisonable offences committed by a foreign offender resulting in a presumption of deportation, which was going to be put into statute and presumably was what they were thinking of at the time.

We then moved to the present Home Secretary, whose own proposals in this regard, which he described to the House in a written statement, seem to be on all fours with those in my hon. Friend’s amendment. I shall quote what he said in that statement:

“I believe it is essential to be clear about our long-term policy. My objectives are straightforward: all non-EEA nationals who are given a custodial sentence should face deportation; and deportation should happen as early as possible in that sentence.”—[Official Report, 23 May 2006; Vol. 446, c. 79W.]

There is not much room for doubt there as to what the present Home Secretary wanted. He wanted what I think appears in the form of my hon. Friend’s amendment.  So it would be interesting to hear from the Minister what has prompted the shift in the Government’s thinking: away from the Home Secretary’s predecessor, who wanted imprisonable offences to result in automatic deportation; to the present Home Secretary, who wanted all sentences of imprisonment to result in automatic deportation, and finally to this measure, which sets the trigger for automatic deportation at 12 months’ imprisonment.

It is quite natural to ask why the Government have engaged on this retreat. The public will want to know and I think that it is a fair question to put: why should foreign nationals who have abused their position in the UK by committing serious offences for which only a custodial sentence is appropriate be allowed to stay in this country? It might be the case that the Home Secretary and his predecessor were thinking similar thoughts when they made their proposals.

I would also like to point out that, if the Bill is amended to make the trigger mechanism a sentence of imprisonment rather than 12 months imprisonment, it appears to be the case that all the protections afforded to an offender in the Bill would remain. There are quite a lot of them. I have noted that there are a large number of exceptions, some of them in the form of protections for an offender, particularly in respect of offenders who are claiming asylum. There is also the full range of protections for a foreign offender under the European convention on human rights, including article 8, the right to family life. All those protections are in the Bill and they would apply as much to somebody who is sentenced to imprisonment following an offence as they would to somebody receiving12 months imprisonment. All those protections are in place, so I would like to hear from the Minister why he wants to give additional protections to someone who receives a sentence of imprisonment of less than12 months.

I turn to my amendments. Amendments Nos. 58 and 59 cover a slightly different case: the case of a person without leave to remain in this country who commits an offence. If I may, I pray in aid the support of Migrationwatch, because I asked it specifically about that issue. We heard a lot about Migrationwatch this morning; I think that the Minister was quoting Migrationwatch left, right and centre, if I can put it that way, and it was an unshakeable authority for the propositions that the Minister wanted to advance. What Migrationwatch had to say about the point that I put to it in support of amendment No. 58 was absolutely clear. It clearly thought that it was right that somebody in the country without permission to be here who offended and received a sentence of imprisonment should be asked to leave the country, and deported.

The case of somebody who commits an offence without having permission to be in the country is different from that of somebody who does have that permission, not least because, as the Minister will confirm, that person is liable for removal whether or not they have committed an offence. They will be subject to administrative removal rather than deportation, but it has the same effect—they are removed from the country. I know that the Government are interested in removing such people, because they produced a paper about it two weeks ago with great  fanfare. It explained how they would crack down on people who were illegally in the country by way of overstaying or whatever.

There is an important difference there, and in the light of that I hope that the Government will welcome the amendment. Somebody who is illegally in the UK, commits an offence and is arrested, charged, convicted and sentenced to imprisonment should automatically be deported, subject to the exceptions and protections in the Bill. My amendment would ensure that all offenders who commit an offence resulting in imprisonment and do not have leave to be in the country are deported.

As I said, such people are liable for deportation in any case. Are we to say that somebody who goes through the process of being arrested, charged, tried, convicted and sentenced to imprisonment should be released from prison to continue their illegal presence in the country and perhaps, who knows, to be texted a fortnight later to be told they should not be in the country? Perhaps great efforts would have to be made on the part of the IND to locate exactly where they were once they had left prison so that they could be removed from the country. Members of the public would want to know why such a person was not removed from the country as a result of their sentence of imprisonment as night follows day, subject to the exceptions in the Bill.

I turn to amendment No. 55 and I shall also make a few remarks about amendments Nos. 14 to 18, which stand in the name of my hon. Friend the Member for Monmouth. The amendments are on a separate issue. I have said that the trigger for automatic deportation will be 12 months imprisonment, but there is an issue of exactly what that means for that purpose. Under the interpretation in clause 34(1), it seems to me that a considerable number of offenders who receive a sentence of more than 12 months will not be subject to automatic deportation because of the meaning that the Bill gives to such a sentence.

I shall explain why 12 months will not mean12 months in a number of cases. The Bill prevents consecutive sentences totalling more than that from being counted as a 12-month sentence. So for example—the Minister can correct me if I am wrong—someone who offends on separate occasions and receives a series of two or more consecutive sentences in a single court appearance totalling more than 12 months will not be subject to automatic deportation, because he has not received a single sentence of 12 months. Under the Bill, however long the consecutive sentences are and whatever their total, as long as each individual sentence is less than 12 months such an offender will not automatically be deported.

I shall give one or two examples. A foreign national who commits two or three offences of burglary and receives nine months to be served consecutively for each offence—that is how the courts are told to sentence people who commit offences on different occasions—could be sentenced to a total of 18 or 27 months’ imprisonment and not be subject to automatic deportation. There is a problem with repeat offences, and the interpretation in clause 34 can be described only as a concession to serial offenders. My question to the Minister is why the Government are making that concession. Why are they showing generosity to people who repeatedly commit  offences? It is not just a single offence. They are committing repeated offences and violating this country’s hospitality. Why cannot they be subject to automatic deportation if their sentences total more than 12 months?

Amendment No. 55 covers a similar point. As the Bill stands, it could give rise to another case in which 12 months imprisonment will not necessarily result in automatic deportation. I am talking about offenders not being deported despite being sentenced to a total of more than 12 months imprisonment for separate offences in a single court appearance. AmendmentNo. 55 covers a slightly different point, too, although it is on the same lines, because under the Bill as drafted—the Minister will correct me if I am wrong—a suspended sentence is not taken into account even where the foreign national commits a further offence and the sentence is activated to run alongside a sentence for a new offence.

A foreign offender who commits an offence and receives a suspended sentence of 12 months imprisonment will not automatically be deported, and if during the period of his suspended sentence of imprisonment he commits a further offence and receives a further sentence of imprisonment, he will not be subject to automatic deportation unless the second sentence is itself more than 12 months imprisonment. He will not be automatically deported even if the suspended sentence is implemented consecutively so as to make a total sentence of12 months. Thus an offender who receives a sentence of 12 months imprisonment suspended for two years is not automatically deported.

Let us suppose that that offender commits a further offence within that two-year period for which he receives a sentence of nine months imprisonment in a separate court appearance. If he is sentenced to21 months imprisonment in which the 12-month suspended sentence is activated consecutively to the nine-month sentence of imprisonment, which is how courts regularly sentence people who are subject to these provisions—they are probably told to do so—he will not be subject to automatic deportation, even though he is a repeat offender. In his case, not only is he a repeated offender, but he has repeatedly appeared in front of the courts and taken no notice when they have told him, in no uncertain terms, that he will be sent to prison if he commits a further offence during the period of his suspended sentence.

The proposal is another concession for serial offenders which is capable of producing perverse results, and the public, if they heard about it, might well regard it as a loophole. I can easily envisage a scenario in which a foreign citizen receives sentences of more than 12 months in one of the ways that I described and in accordance with court sentencing practice he is not automatically deported and goes on to commit further, serious offences. The question would be asked why the person concerned, having received a sentence of more than 12 months imprisonment, was not deported in the first place, and the answer would be that Parliament left a loophole.

The amendment provides us with a chance to ensure that we do not leave a loophole, that we bring some coherence to the Government’s provisions and that we send a clear message to people that they should behave themselves in this country, especially if they are here illegally.