Clause 29

UK Borders Bill – in a Public Bill Committee at 11:15 am on 20th March 2007.

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Photo of David Davies David Davies Conservative, Monmouth

I beg to move amendment No. 9, in clause 29, page 15, line 4, leave out ‘18’ and insert ‘16’.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

With this it will be convenient to discuss the following amendments: No. 115, in clause 29, page 15, line 4, leave out ‘conviction’ and insert ‘offence’.

No. 54, in clause 29, page 15, leave out lines 5 to 7.

Photo of David Davies David Davies Conservative, Monmouth

The point of my amendment is that, in my view and that of the law, 16-year-olds know the difference between right and wrong. For a 16-year-old to get a prison sentence of 12 months—a situation that would have to pertain for them to face deportation—they would have to commit a pretty serious offence, or a large number of moderately serious offences. So, the point of this amendment is fairly simple. Where do the Government think that their priorities lie? Do they think that they lie in looking after the wishes and convenience of a 16 or 17-year-old serious offender who has made it clear that they have no respect for the rules or ways of life of this country? Or do they see it as their priority to protect members of the public who, in many major cities, are facing an onslaught of criminality?

My view is quite simple. A 16 or 17-year-old who knows right from wrong, and who has decided to show no respect whatever for the laws of this country, should not be given the right to remain here. The British public have the right to be protected from them, and would be better off without them.

Photo of James Clappison James Clappison Conservative, Hertsmere

I speak in support of the amendment in my name, amendment. No 54, but I also support that of my hon. Friend the Member for Monmouth. My amendment’s purpose is to probe a little more into one exception to what is termed automatic deportation, which is exception 3, where

“the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the Community treaties”.

My hon. Friend the Member for Ashford has just made some interesting comments about the concept of automatic deportation. The Bill is being presented to us, rhetorically at least, as one that would allow for the automatic deportation of foreign criminals who have committed offences resulting in a sentence of imprisonment of more than 12 months. Setting aside our previous debate on the Government’s interesting interpretation of 12 months imprisonment, there is the question of how big a hole is left by the subtraction of the exceptions contained in clause 29, because it seems that quite a substantial number of foreign criminals who are sentenced to 12 months imprisonment will fall within the exceptions stated there. The two most important, for these purposes, are exceptions 1 and 3. As I have said, my amendment relates to exception 3, but we also have exception 1, where somebody cannot be deported where it would result in a breach of their rights under the European convention on human rights. Given that one of those is the right to family life under article 8 of the convention, one suspects that that particular right under the convention would apply to quite a number of people who were convicted in the circumstances that I just described.

On top of that, all the obligations under the refugee convention would apply to somebody who has claimed asylum, or who is minded to do so following their arrest. Then, on top of those two exceptions, there is the one where deportation would place the United Kingdom in breach of European Community treaties. In this case, it would apply to all foreign criminals whose foreign country is a member country of the European economic area. Reading the Library briefing on this point, we are told that

“in practice EEA nationals and their family members will not be affected by most of the automatic deportation provisions because of the limited circumstances in which European law allows them to be deported”.

Rather than ask how big a hole is created by that exception, I am tempted to ask whether there are any circumstances in which EEA nationals will be deported. Do we simply subtract from the automatic deportation provisions all EEA nationals, together with all the people who can claim rights under the refugee convention or the European convention on human rights, including the right to family life? If one takes all those foreign criminals out of the picture, I submit to the Committee and the world that the term “automatic” is rather a misnomer, as my hon. Friend the Member for Ashford rightly said.

Photo of Kerry McCarthy Kerry McCarthy Labour, Bristol East 11:30 am, 20th March 2007

I rise to speak to my amendment No. 115, which relates to exception 2 under the clause, which provides that deportation will not happen

“where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.”

I am concerned by the issue of the date of conviction. I shall leave aside the question of age disputes, which we have addressed previously in the Committee. There is a general rule of the criminal justice system that the age of the offender on the date that the offence was committed is used as a guideline for how they should be sentenced.

It has been a long time since I practised criminal law—nearly 20 years—but my understanding then was that if somebody committed an offence as a juvenile but was convicted as an adult, they could not receive a suspended sentence, because in those days suspended sentences were not given to juveniles. They could receive only the penalties that were available according to their age at the date of the offence. We now have offences, such as possession of a handgun, that incur a minimum sentence of five years’ imprisonment if the offender was over 18 at the time of the offence. If the offender was between the ages of 16 and 18, they could receive only a three-year term of detention. Clearly, the principle is that the age at the date of theoffence governs the sentence that somebody should receive.

Under articles 37 and 40 of the UN convention on the rights of the child, which deal specifically with the rights of children who commit crimes, every person under the age of 18 at the time of the alleged commission of an offence must be treated under the rules of juvenile justice. It may be that the provisions in the Bill are not seen as part of sentencing procedure and that deportation is seen as a separate issue, but I have concerns in that respect.

On a practical level, my main concern relates to what happens as somebody goes through the criminal justice system. There could be a real risk of miscarriage of justice. If, for example, somebody commits an offence when they are a few months under the age of 18, there will be considerable pressure on them to plead guilty, because if they are convicted before their 18th birthday, they cannot be deported. If they choose to fight the case—they might be innocent and want the chance to prove their innocence in court—and are convicted after a trial after reaching the age of 18, they will be deported.

The other side of the coin is that if the police and prosecution service are considering bringing charges against somebody who is a few months short of their 18th birthday, they might think that if they charge them immediately and bring them before the court, they will plead guilty, but if they wait until after their birthday, they can be deported. An incentive to delay could therefore be built into the system.

Photo of David Davies David Davies Conservative, Monmouth

Is the hon. Lady seriously suggesting that the Crown Prosecution Service would deliberately delay prosecutions to get stricter sentences? If so, that cheers me up no end, but I wonder what contact she has had with the CPS recently.

Photo of Kerry McCarthy Kerry McCarthy Labour, Bristol East

I have not had much contact with the CPS recently, although I did when it was first established, when I was working at a magistrates court. I am not saying that there would be a deliberate intention to slow things down. However, it puts the offender at risk of the vagaries in the system, in that some cases are obviously brought quicker than others. It seems unfair that if somebody is arrested for an offence in an area where the Crown Prosecution Service is quicker at bringing cases to court than in others, they would be treated differently. I know that the Minister has concerns about the difficulty in pinpointing dates of offences, and I understand that that might be why they have chosen to go along the route of using the date of conviction. I know that, particularly in cases such as child abuse, it can be difficult to get the victim of a crime to specify when the offence happened. I understand why it has been suggested that date of conviction should be used instead, but I would be keen to know what safeguards would be built in, so that we do not have an anomaly where people, particularly close to their 18th birthday, might be treated differently.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

I rise to support the amendment tabled by my hon. Friend the Member for Monmouth. The Committee and the Minister will probably recall the appalling crime that was carried out when a mother was holding her baby at a christening party, and three individuals broke in, and she was shot dead. Those three gentlemen were convicted and were all, as I understand it, in the United Kingdom illegally. Two of them refused to make clear their age to the court, and the judge was not able to ascertain the age of the two defendants who were convicted, one of whom was a father at least once. They also then refused, as apparently they were entitled to do, to take any medical examination to establish their age. The judge then had to deal with them as though they were under 18, having taken some days to consider the matter to ensure that the judgment at which he arrived was going to be proof against any appeal.

My hon. Friend’s amendment would assist future judges finding themselves in that situation. He is absolutely right that defendants over the age of 16 plainly know the difference between right and wrong. It is pretty plain that if people convicted of serious offences, whether they are 16, 17 or 18 or older, are not entitled to be in the United Kingdom, we would not  wish them to continue to be here. I strongly urge the Committee to ensure that we can take at least a small step to ensuring that situations such as the one that arose in those circumstances, which are an absolute affront to any sense of justice and an outrage to the relatives and friends of the victim of that disgraceful crime, do not recur, by supporting my hon. Friend’s amendment.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

I, too, rise to support my hon. Friend’s amendment. The fact that we are discussing exceptions to automatic deportation puts into context what I thought was the Minister’s elegant formulation that there is a degree of automaticity about the deportation under the section of the Bill. I gently point out to him that I think that automaticity is like virginity; either one has it or not. There are no degrees involved. We have not got automatic deportation. The exceptions in clause 29 would be markedly improved by my hon. Friend’s amendment, reducing the age limit of the commission of the offence. It is important, as has been said, that we assume a large degree of personal responsibility in people who are over the age of 16, certainly if they commit the sort of crime that would render them eligible for deportation. Clearly, that would not be some kind of youthful prank of the type that we have discussed on previous clauses of the Bill. I think that in the modern world people would find it unacceptable that the cut-off point should be 18, rather than 16. Of course society as a whole still has a duty of care towards many people under 18, but for many, particularly those with drug problems that may cause mental illness, that duty of care will continue well beyond the age of 18. To that extent it is a question of seeking a cut-off point.

My hon. Friend’s point about those who falsely claim to be under 18 is a powerful one. It would be significantly minimised if the cut-off point were 16. It would be interesting to see whether the use of dental X-rays leads to any improvement. My understanding is that these are still not accurate to within two years. If that is the case, I suspect there will not be much practical improvement with that innovation. A judgment will still have to be exercised by immigration officers, police officers and judges about the age limit. Altogether, I think that the massive argument in favour of a cut-off point at 16 rather than 18 is pretty overwhelming. I hope that the Minister will take this amendment on board in the constructive spirit in which it is intended.

Photo of Liam Byrne Liam Byrne Minister of State (Home Office) (Immigration, Citizenship and Nationality)

I shall deal with the amendments in turn. They would effectively apply the process of automatic deportation, so obviating consideration for those individuals who are deemed to be 16 or 17, and shift our proposal that the relevant date is not the date of conviction but the date of the offence. The hon. Member for Hertsmere raised some important questions about EEA nationals.

There are two or three issues that need teasing out here. First, as a matter of Government policy our decision has been to continue with the principles set out in 1993 by a Conservative Minister, Charles Wardle, who told the House that it would be the Government’s policy not to remove people until the age of 18. We have  said repeatedly that where there are questions about their age we would not remove an unaccompanied child back to a country until we were satisfied that there were adequate reception arrangements in place. The cut-off date between childhood and adulthood is well discussed in legislation, most recently and powerfully in the Children Act 1989 where the initial starting point is 18.

When one has to deal personally with cases such as that raised by the hon. Member for Reigate and one has to drill into the detail and make decisions about what actions the British Government should take, one’s sympathy for the kind of amendment that the hon. Member for Monmouth proposes grows considerably. My concern would be that, because of the conflict with our policy not to remove children without the guarantee of adequate reception arrangements back in their country of origin, it would entail a consideration of each case individually. Our proposal in this Bill is not to remove the sanction of deportation for individuals in these circumstances, it is simply to retain the flexibility to consider cases on a case-by-case basis so that individual details can be examined rather than to trigger the sanction of automatic issue of deportation orders.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

The Minister said that it would be an exception. To be absolutely clear, there would be an effort to deport 16 and 17-year-olds if there were adequate reception arrangements and this is simply an exception from automaticity.

Photo of Liam Byrne Liam Byrne Minister of State (Home Office) (Immigration, Citizenship and Nationality) 11:45 am, 20th March 2007

That is absolutely right.

The second point raised by my hon. Friend the Member for Bristol, East is important, too. This is one of those issues where the balance of justice has to be struck. On the one hand, my hon. Friend posed the risk of perverse incentives operating on the individual if they are not far off their 18th birthday. On the other hand, the more important issue is that we have to be able to pin down a date for an offence. I think that that is best done at the point of conviction, because it provides clarity and certainty. She alluded to certain kinds of offences, whether drug dealing or sexual, and certain kinds of criminals, who have perpetrated an offence over a considerable period of time. My fear is that we end up having wrangles about the appropriate date of the offence to pin down in front of a court, which would slow down and hinder our ability to automatically deport people in cases such as that prayed in aid by the hon. Member for Reigate. I will not go into the case details, but many similarities are relevant here.

Actually being able to pin down a single date of conviction I think is the key. There are issues as to whether perverse incentives are created, but that kind of risk can be combated with other measures, such as using the inspectorate, the Crown Prosecution Service or greater transparency in the system. The greater necessity is for certainty and for people not to be able to avoid justice by creating confusion or complexity over when an offence was committed.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

I apologize for intervening here, but I want to go back to the original point. The exceptions include breaches of

“a person’s Convention rights,...the United Kingdom’s obligations under the Refugee Convention” and, under subsection (4), rights “under the Community treaties.” In the circumstances set out by the Minister, subsection (3), unless amended, would leave the United Kingdom in advance of the rights position laid out under the convention and other treaties. He can safely accept the amendment tabled by my hon. Friend the Member for Monmouth, because the position of people in such circumstances is still protected by the wider treaty obligations of the United Kingdom. I do not see why the United Kingdom should have a position in advance of the convention rights and the other international agreements listed among the exceptions.

Photo of Liam Byrne Liam Byrne Minister of State (Home Office) (Immigration, Citizenship and Nationality)

The individual may face risks, to which children might be especially vulnerable, that are not detected by convention rights. If we are deporting children, we need to be satisfied that there are adequate protections in place in order to avoid deporting a vulnerable person, even though I accept that the individual may have put themselves beyond the sympathy of an ordinary-thinking person because of the offences that they have committed in this country. However, we have obligations to children that merit case-by-case consideration. That is the important point. We are not taking young people or children outside the ambit of deportation. We are maintaining the sanction of deportation; all we are retaining is the ability to consider that case by case. That does not diminish our ambition or intention to deport young people who have committed a serious breach of the law in this country.

I want to turn to the points raised by the hon. Member for Hertsmere, because those too are important. Effectively, we have had to fit the Bill within the framework of European legislation, within which we find ourselves today. The result is that, for EEA nationals, we have to consider cases case by case. As the hon. Member knows—he might be more familiar with European legislation than I am—that imposes certain tests. Those who have been resident in this country for under five years, for example, have to be considered by the Secretary of State through the lens of whether their deportation can take place on the grounds of public policy or public security.

I will be open with the Committee—it is harder to deport EEA nationals than non-EEA nationals. However, the situation has the upside of our ability to negotiate, for example, prisoner transfer agreements between European states. We can, therefore, move European prisoners back to prisons in their own countries substantially easier than those from Jamaica, parts of Africa and parts of the less developed world. That is important because about a third of foreign national prisoners are from an EEA country; I will be corrected by my officials if I am wrong.

Our ability to deport EEA nationals is constrained. There is the upside of prisoner transfer agreements which allow us to move prisoners back to prisons in their country of origin. We took the power to remove the need for prisoner consent for those transfer  agreements in the Police and Justice Act 2006. [Interruption.] Sorry, the percentage of EEA nationals in prison is about 5 per cent. of foreign national prisoners.

The framework that we have sought to posit the Bill in, is that which comes from our membership of the EU—a deal done some time ago—and that provided by the transposition of the free movement of persons directive into immigration regulations in 2006.

Photo of James Clappison James Clappison Conservative, Hertsmere

My point is on the alleged automaticity of the provisions. Is the Minister saying that the prisoner transfers are those with a deportation order? If they are without one, what is to stop the prisoner coming back to this country at the end of their sentence?

Photo of Liam Byrne Liam Byrne Minister of State (Home Office) (Immigration, Citizenship and Nationality)

There are grounds on which we can exclude individuals from coming back into the country, but public policy and public security grounds must be proven. I am happy to write to the hon. Gentleman with a more detailed explanation of how those blocks occur. The prisoner transfer agreements are those where individuals are serving a sentence, so we are asking them to serve out their time to society where they came from.

Finally, the transposition of the free movement of persons directive required the approval of the House and was not prayed against when it was laid in 2006. One draws the assumption that it commands the support of all sides of the House. Therefore, it is a constraint, but one that Parliament has imposed.

Photo of David Davies David Davies Conservative, Monmouth

I have listened carefully to the arguments put by the Minister, but think that my hon. Friend the Member for Reigate made the most powerful point today in describing the horror that an excessive regard for human rights legislation can create. The upshot is that people are losing their lives quite unnecessarily as a result.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

Is my hon. Friend, like me, concerned at the complacency of the Minister on that issue, given the infamous memo written for the Under-Secretary of State for the Home Department, the hon. Member for Enfield, North about the undesirability of up to 45,000 possible foreign criminals arriving from Romania and Bulgaria from 1 January, given the fact that the Government deliberately exempted themselves from the pilot scheme to share criminal records data among seven other EU countries, as a preliminary step?

Photo of Sir David Amess Sir David Amess Conservative, Southend West

Order. I hope that the hon. Gentleman will not be tempted to respond to that point, which was interesting, but not exactly relevant to the amendment.

Photo of David Davies David Davies Conservative, Monmouth

I am happy to adhere to your advice, Mr. Amess, although it was indeed a very interesting point.

I want to finish by saying that I am in danger of telling too many tales from the front line as a special  constable. I was recently involved in an incident involving a foreign national in which various weapons were found. That left me thinking that, although that person was under the age of 18, there is no reason why the law of this country should protect people who walk around with knives and guns and who are prepared to use them. Therefore, it is important to put the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 8.

Division number 14 Nimrod Review — Statement — Clause 29

Aye: 5 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

I beg to move amendment No. 137, in clause 29, page 15, line 35, leave out paragraph (b).

Photo of Sir David Amess Sir David Amess Conservative, Southend West

With this it will be convenient to discuss amendment

No. 139, in clause 29, page 15, line 38, at end add—

‘(8) The deportation of a foreign criminal is always deemed conducive to the public good, even following the application of an exception.’.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

Amendment No. 137 disguises the simple question, what is the purpose of subsection (7)(b)? It seeks to delete it, and amendment No. 139 essays another version of it. Clause 29 (7)(b) reads:

“The application of an exception...results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good”.

It is not, on the surface, apparent what that seeks to achieve or what practical effect it would have. That is why amendment No. 139 states that the deportation of a foreign criminal is always deemed to be conducive to the public good. I am sure that there is a simple explanation for that, but I find it puzzling that this House is being asked to enact legislation that will enable it to do something that may or may not be conducive to the public good. I hope that the Minister can put me out of my confusion on that.

Photo of Liam Byrne Liam Byrne Minister of State (Home Office) (Immigration, Citizenship and Nationality)

I will certainly do my best to help the hon. Gentleman. The subsection aims to make it clear that the legislation will dovetail with the definitions and terms that are used in the Immigration Act 1971, in which the power of the Home Secretary is defined in terms of his ability to exercise certain powers and to deport people if that is deemed to be conducive to the public good. The subsection concerns exceptions that are relevant to the cases of mentally disordered offenders, to whom we might have obligations. For  example, it would not necessarily be to the public good to deport a mentally disordered offender who had been committed to an institution and was receiving care. On balance, it might be to the public good for us to continue to care for him until he was better so that he could be returned to his country of origin safely rather than as a rampaging psychopath. We want to reconcile this Bill and the 1971 Act where they relate to circumstances that trigger an exception.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

I am grateful to the Minister. His explanation clears up some of my confusion and I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 ordered to stand part of the Bill.