Clause 34 ordered to stand part of the Bill. - Clause 35 - Restriction on right of appeal from within the United Kingdom

Crime and Courts Bill [Lords] – in a Public Bill Committee at 4:15 pm on 5th February 2013.

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

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

We come to a slightly different element within the immigration system. The Opposition recognise that there are cases in which it is right and proper for the Home Secretary to act, but we want some reassurances about how this severe power will be used. It removes the right of appeal for persons who have leave to remain in the UK if their leave is cut short by the Secretary of State because they have left the country. The power is to be exercised if someone’s presence in the country is no longer conducive to the public good. I am sure that the Minister will want to tell the Committee about the particular case that has prompted the need to clarify this element of the law.

Clause 35 seeks to reverse the effect of the Court of Appeal’s judgment, and relates to that gentleman who left the UK under a European arrest warrant, had his leave removed and then was acquitted of the charges that he had been charged with in Italy but had his right to return to the UK blocked.

Obviously it is worth pointing out that this clause will only refer to those people who are non-European economic area nationals, and that there is separate legislation around EEA nationals. It is clear that the ability of the state to deal with those situations is unsatisfactory. However, the question for all of us is whether these new requirements will make it harder or easier to manage those situations. In particular, I would welcome the Minister’s comments on some of the following points.

First and foremost, how does the Home Secretary make an assessment that somebody should be refused the ability to return? It is not entirely clear how that process will be conducted. In particular, could this be a reason that is then used perhaps to refuse engagement with a warrant process? I know that we will come on to discuss issues around European warrants at a later date, but there is obviously a concern that if somebody was possibly to be denied their leave to remain as a result of their leaving the country, that may be grounds for refusing participation in a warrant process. At least it would be helpful to know if the Minister has received legal advice that that may be grounds for refusing participation in a warrant process.

It would also be useful to learn from the Minister what reasons for leaving the country could be used to trigger such a power. For example, if someone left the country because of a family bereavement or if there was intelligence about their intentions, would that be enough? What does that then mean for the original decision to grant leave, and for any persons who may be affected by that? Again, obviously those of us who deal on a regular basis with people who have leave to remain will be aware that they may have dependants who may be affected by that decision on leave to remain. Will this affect those individuals? It would be useful if the Minister could say a little bit about that.

Where does this process leave a person who is in the process of claiming asylum in the UK, and who is therefore unable to return to another nation from which to conduct an appeal in the first place? I think that is the point that all of us who are considering this power are most concerned about—persons who may be stateless. A person who is extradited may find themselves stranded outside the UK, unable to return to the UK  and in a country where they have no status, with all the risks to the protection of their human rights that that entails.

Indeed, that is why the United Nations High Commissioner for Refugees has expressed concerns that the clause might have potentially serious implications for those people who are recognised as refugees or stateless persons, in particular that it might cause refoulement, which is a wonderful word that all of us have had to learn. The hon. Member for Dover looks perplexed; “refoulement” is about a person being sent back to a place where they are at risk of persecution. [Interruption.] It is suggested that the hon. Member always looks perplexed. No, it is simply that he is studying his iPad with great and due diligence; I am absolutely sure of that. However, the concept of refoulement is a very serious concern in relation to this proposal. Can the Minister say whether the Government have taken any advice about that?

Again, what if a person against whom this power is used has family or dependants in the UK? I have already said that it would be helpful if the Minister would say what would happen to their leave to remain. Would they have any article 8 rights as a result of their being present in the country?

If someone cannot return to the UK, how will the Government ensure that there is a proper and fair process in which they can give evidence if they lodge an appeal from wherever they may be based at the time? How would the Government classify a person who was a “high-harm individual”, who are the persons that the Government suggest this power might be used against? If, for example, as in the case that we have seen, the charges were dropped against somebody, would they then have their leave automatically reinstated? Would there have to be a further process? What process of clarification would there be in such circumstances? That would be an issue.

There is also the fear that the Government might lie in wait for somebody to leave the country. Could the Minister say a little more about the evidence-gathering process under which this power would be used? Obviously, the suggestion is that it would be used if there was evidence that somebody had done something untoward overseas while they were out of the country. There is no case, or indeed process, on which to judge that, so it would be helpful if the Minister would set out how the Government see that power being used, and on what basis that evidence would be gathered.

The Opposition understand that there is a need to clarify this situation, but we just want to have the assurances and protections to ensure that this clause could not be misused, whether intentionally or unintentionally, by the Home Secretary in dealing with persons who have leave to remain in the UK. Let us be clear: we are talking about people who already have leave to remain in the UK, not people whose application for leave has yet to be determined. A judgment has already been made that this person has a right to be in the UK, so removing that right is a very serious measure indeed.

If the Minister said a little in response to my questions, that would be very helpful to the Opposition in understanding the implications of this clause.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice 4:30 pm, 5th February 2013

I am grateful to the hon. Lady for her tone in discussing the clause, which addresses a current anomaly in legislation that allows an individual to return here to appeal a decision to cancel their existing leave, despite their having been excluded by the Home Secretary from the United Kingdom. Exclusion from the UK is a key tool in tackling those who seek to cause harm to this country. Exclusion is used to tackle a range of conduct including terrorist-related activity, serious criminality and engagement in unacceptable behaviour. The exclusion power is used sparingly and is reserved for those considered to be the highest harm cases. Its purpose is to prevent those identified from coming to the UK, to deter others engaging in similar activity and, most importantly, to protect the public. It is therefore crucial that once the Secretary of State makes such a decision, it is given full and immediate effect. It should not be undermined by a separate immigration decision to cancel leave that is taken only to give effect to the exclusion and the accompanying appeal right that it brings.

Of course, any such decision by the Secretary of State should be open to challenge and review by the courts, but the Government believe that given the nature of such cases, it is wholly reasonable that judicial scrutiny of the facts should be carried out while the individual remains outside the United Kingdom. That is why we are seeking to make the change.

Clause 35 therefore seeks to provide the Secretary of State with a certification power where she decides that the decision to cancel leave under section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 was taken on the grounds that the individual’s presence in the United Kingdom would not be conducive to the public good. In practice, that means that the decision was taken to given effect to an exclusion decision. The effect will be that after certification, where the individual is outside the United Kingdom at the time of the decision, the in-country right of appeal under section 92 of the 2002 Act no longer applies to such a decision and is replaced by an appeal from outside the United Kingdom only.

The hon. Lady asked a number of detailed questions. She asked what types of conduct or individual would fall into that category. An exclusion decision by the Secretary of State is a direction that can be made in cases where the Secretary of State considers that an individual’s exclusion would be conducive to the public good. Those decisions are most frequently made in respect of individuals engaged in activity that constitutes a threat to the national security of the UK, serious criminal activity or activity that falls within the published policy of unacceptable behaviour.

A decision to cancel a person’s leave to enter or remain while he or she is outside the United Kingdom is taken under paragraph 13(7) of the Immigration (Leave to Enter and Remain) Order 2000. Such a decision may be taken on the grounds set out in paragraph 321A of the immigration laws, which state under paragraph 4 that an individual’s leave to enter or remain is to be cancelled where the Secretary of State has personally directed that the exclusion of that person from the United Kingdom is conducive to the public good. There is no definition in legislation of “not conducive to the public good”, but a high proportion of exclusion cases relate to individuals engaged in terrorist-related activity,  organised crime or unacceptable behaviours, and published criteria exist for unacceptable behaviours. As I have said, the exclusion power is widely drawn and is not defined in legislation, but it is very sparingly used and reserved for the highest harm cases.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

The Minister is obviously talking about people who have engaged in serious criminal activity. Does he not consider that we would not wait for such people to leave the country before we acted? There is therefore a slight anomaly about how the immigration system works with the criminal justice system. I am sure that he will say that the National Crime Agency will resolve all those challenges, but the people he is talking about will already have been dealt with in any case, in terms of their status and their ability to remain in the UK, by virtue of their criminal behaviour.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

The truth is that some will and some will not. I would not be hubristic enough to claim that the National Crime Agency will abolish serious and organised crime; would that that were the case.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

Yes, that is a long-term aspiration.

Sometimes new evidence comes to light on serious and organised criminals and in terrorist cases. If that evidence comes to light when somebody is not in this country, it is extremely important for the Home Secretary to have the power to exclude them. Once that evidence comes to light and the Home Secretary agrees that one of the criteria has been met, it can be done immediately. I should stress how sparingly the power has been used; it is used on about five individuals a year.

The hon. Lady asked about refugees and asylum. Excluding an individual with refugee status would involve the revocation, cancellation, or some other cessation, of that individual’s refugee status, which is a separate step that obviously would not be taken remotely lightly. However, where an individual poses a threat the UK, we believe that they should be excluded from the country. If somebody does have that status, there is that extra serious piece of thinking to be done.

The hon. Lady raised the point about whether there was a deliberate policy of waiting for individuals to leave the UK. As I have said, there is no policy to that effect. Indeed the Committee will be aware that a range of deportation cases in respect of national security activity are ongoing.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

I want to return to a point the Minister made about people who have asylum or refugee status. The concept of refoulement is a very serious concern in this instance. If the Government were to revoke somebody’s refugee status in the UK, that person may be forced back to a place where they would suffer persecution. If somebody has been granted asylum and refugee status in the UK, there is obviously a recognition that they are at risk of such persecution. I just want to test the Minister—could he say a little more about what provision the Government have made to ensure that that would not be the case in these circumstances?

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

The only time that that would apply in these circumstances would be if the person was actually in the country that they said was a danger to them at the time that their leave to enter was revoked. I have to tell the hon. Lady that from my experience as Immigration Minister I know of cases where people have claimed asylum from countries but been found to have travelled back and forth to those countries, so it is not an unknown circumstance, but let us assume for the sake of her argument that they would not have gone back there. One would assume that they would be in another country where they were not in danger and where there was no danger of refoulement.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

With respect, I think that the Minister is not correct. If somebody were to travel to another country, perhaps within the European Union, and their status were revoked, there would still be the possibility that they could be deported to the country from which they fled persecution, because they had been granted asylum in the UK, not in the country they were visiting. So, somebody would either end up as a stateless individual, or we could, by default, be responsible for their refoulement back to the country of original persecution.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

That would be the precise argument that would be tested in the courts. That person would perhaps be in another European Union country. They would be, by definition, in a perfectly safe country, or they may have gone back to the country where they were allegedly in danger. So, one way or another, they would be able to have their court case argued in this country. In any case, they would not be put back into danger, so we would not fall foul of the human rights convention.

I was talking about an individual who had left the UK. Characteristically, we are talking about a situation where an individual leaves the UK for a period of time to meet with like-minded people and potentially acquire new skills that would, if utilised back in the UK, pose a significant and serious threat to the population as a whole. That tends to be the sort of case that occurs in this particular area.

The hon. Lady asked about the effect on the family of the person excluded. The decisions does not have any effect on dependants. Again, there would be a court case and it would be open for the defendant’s legal team to bring up article 8 rights if they so wished.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

It seems to me that this issue of refoulement has been protected quite considerably. That was true in the case of Sani Adel Ali, a paedophile rapist from Sudan who could not be deported from this country after his crimes because of his human rights.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

Yes, my hon. Friend and I probably share views about cases such as that, as do the vast majority of the public. Nevertheless, we operate within the law.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

We all share concerns about those sorts of cases. I am pleased to see the hon. Member for Dover using his iPad. Obviously, he was talking about someone who was stuck in the UK—as opposed to someone who had already left the UK, which is what  the clause refers to—and then rescinding their right to remain in the UK. It is a different scenario when someone is outside the country and able to exercise their right of appeal, as opposed to someone who is in the UK. Perhaps if he continues to scroll down, he might read some examples of that.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice 4:45 pm, 5th February 2013

I feel we are going down a byway here. If it is possible to exclude serious rapists from this country, I would prefer to do so. Indeed, I would prefer them to be locked up anywhere around the world. The provision will be reserved for the highest harm cases. That is why we have restricted such a change to individuals whose presence is certified by the Secretary of State personally to be non-conducive to the public good. Since 2005, there have been an average of fewer than five individuals per year who have been excluded and in conjunction with the decision had their leave to enter or remain cancelled.

The clause seeks to maintain the operational integrity of the Secretary of State’s power to exclude an individual from the UK. The decisions are never taken lightly. They are reserved for the highest harm individuals and it is therefore imperative that such a decision remains operationally effective pending judicial scrutiny.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

The Minister did not answer one of the questions that is at the heart of the matter. He talks about the ability of people to exercise the right of appeal to the decision, but he has not addressed the question about how they might be able to give evidence themselves within a court process. What provision would be made to ensure that people could give evidence if they were not able to come back to the UK to take part? There is also the question about people who do not voluntarily leave the UK, but who leave as part of an extradition process. Has the Minister had legal advice as to whether the power would then be used by defendants who say that they could not take part in an extradition process because it would risk their ability to remain in the UK?

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I genuinely do not understand the hon. Lady’s last point. She talks about a defendant agreeing to take part in an extradition process, but in my experience nobody agrees to it. We extradite them. If we have removed them from the country, they presumably would not have had the right to remain.

I will address the hon. Lady’s first point. The conduct of the individual concerned should be placed in context. She is rightly concerned about the rights of people in court, but that right has to be balanced against what might be a severe danger to the population at large. The idea that the necessity to appear in person in a court case should outweigh the necessity to protect public safety in this country is a route that I hope she would not wish to go down. If she did, I certainly would not want to follow her there.

I see no reason why, on notification, the individual cannot instruct legal representatives of their own choosing to pursue an appeal from abroad. Indeed, that has happened in previous cases before the Special Immigration Appeals Commission and continues to be the case now. Technology allows for individuals to provide instructions to representatives and, if requested, via video link in  person to the appeal forum. In addition, it would not be unreasonable for the appointed legal team to visit the individual abroad to take instructions. Appeals before the Special Immigration Appeals Commission are provided with legal aid to fund an appeal, subject to the usual scrutiny on affordability of the applicant. Therefore, an individual in this position has access to the full merits appeal that the cancellation decision brings, even though it takes place outside the United Kingdom, in line with the exclusion decision.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

I thank the Minister for his answer. He saved himself by looking at what courts could do to ensure that they can take evidence from the person in question. I am sure that he would not want a court to decide to overturn the decision to remove somebody’s right to remain on the basis that they had not been given a fair and appropriate hearing, although some judges may want to do that.

May I press the Minister on what advice he has had, if there is this power and there has been the clarification, about whether people seeking to fight an extradition charge can argue that they would be at risk of refoulement or persecution if denied the right of appeal to remain in the UK? Such people’s rights would be summarily curtailed, and leaving the country would itself thus trigger the ability of the Secretary of State to use such a power, which might be problematic for them.

I hope that the Minister understands that my point is about the power being used as a reason not to extradite somebody, because it is exercised when that person is out of the country. He is still looking quizzical—I would love to offer him an iPad to look it up. Will he clarify the legal advice he has received about how to make this a robust power, so that there is no suggestion that it could influence any extradition proceedings? That would be very helpful.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I understand the hon. Lady’s point, but I looked quizzical because I was trying to work out the circumstances in which that might come about. [ Interruption. ] If the hon. Lady or anyone else has an example, they may wish to bring it up. She does—excellent.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

I suggest that the case we have discussed, which may well have triggered the need to resolve such an anomaly, is a good example. Somebody was extradited to Italy under a European arrest warrant. Could their legal team have argued against the extradition warrant on the basis that the person might lose their right to remain, as they did? I am seeking clarification about that from the Minister.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

The truth is that legal teams can and will seize on any argument in any case. I am not a judge or a lawyer—distinguished lawyers are sitting next to me in Committee—but it seems to me that it would be clutching at straws to argue in an extradition case that there was a danger that the client was potentially so dangerous to public order that they were one of those rare individuals who have to be personally excluded by the Home Secretary, because they met one of the most serious criteria for danger to the public at large. Anyone praying that in aid while arguing against someone’s extradition would be given fairly short shrift by the court. I genuinely do not see that as an objection.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

It is helpful that the Minister has said that, but it would be even more helpful if he clarified that he had thought through the process of refoulement. The other point that he has not yet addressed is the impact of the provision on the right to remain of any dependants.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

The Minister has talked about article 8 rights, but not about people coming here as dependants of somebody who has limited leave to remain. If their family moves, would they have the right to apply for leave to remain?

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I shall say this only once: the provision affects the individual concerned and not their family or dependants.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

With respect, the Minister has not been entirely clear, because there are people whose leave to remain in the UK is dependent on that of a primary  applicant. I am simply trying to clarify whether such decisions have any knock-on effects. It is not unreasonable for Opposition Front Benchers to ask such questions. The Minister might reflect that, if a question is repeatedly asked, perhaps the answer was not as clear as it might have been.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

For the third time, the answer is no, it would not. The provision affects the individual concerned and not the others. I cannot say it any more clearly than that.

Question put and agreed to.

Clause 35 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Mr Syms.)

Adjourned till Thursday 7 February at half-past Eleven o’clock.