Clause 35 - Article 33(2): particularly serious crime

Nationality and Borders Bill – in a Public Bill Committee at 5:30 pm on 26th October 2021.

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Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs) 5:30 pm, 26th October 2021

I beg to move amendment 51, in clause 35, page 34, line 1, leave out sub-paragraph (i).

Under this amendment, persons receiving certain prison sentences in the UK shall be presumed (as at present) but not automatically deemed (as proposed in the Bill) to have committed a particularly serious crime.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following:

Amendment 53, in clause 35, page 34, line 21, leave out “12 months” and insert “four years”.

Under this amendment, persons shall be deemed to have committed a “particularly serious crime” if they receive a prison sentence of more than four years in the UK (as opposed to two years at present, or 12 months as proposed in the Bill).

Amendment 52, in clause 35, page 34, line 24, leave out sub-paragraph (i).

Under this amendment, persons receiving certain prison sentence outside the UK, or persons who could have received such a sentence had they been convicted in the UK, shall be presumed (as at present) but not automatically deemed (as proposed in the Bill) to have committed a particularly serious crime.

Amendment 54, in clause 35, page 34, line 27, leave out paragraphs (b) and (c) and insert—

“(b) in paragraph (b), for “two years” substitute “four years”;

“(c) in paragraph (c), for “two years” substitute “four years””.

Under this amendment, persons shall be deemed to have committed a “particularly serious crime” if they receive a prison sentence of more than four years outside the UK (as opposed to two years at present, or 12 months as proposed in the Bill), or if they could have received such a sentence had they been convicted in the UK.

Clause stand part.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

The amendment is a probing one. The basic point is that if someone is at risk of persecution, we must be incredibly careful when creating gaps, loopholes and exceptions that would still see that person subject to removal to the very place where they would be at risk. The convention creates and recognises very specific exceptions to the fundamental principle of non-refoulement.

If someone is a danger to security here or has committed a particularly serious crime, they constitute a danger to the community. The amendment challenges the attempts in the clause to broaden the scope of the exceptions so that persons are automatically deemed and not just presumed to have committed a serious offence if they are sentenced to one year in prison, rather than two years. We have particular concerns about the circumstances where the crime has been committed overseas. How do the Government intend to be sure about the safety and appropriateness of prosecution, conviction and sentence?

Nobody is saying that refugees should not face appropriate punishment for their crimes, but the danger is that those sentenced to one year or more face an additional punishment that puts them at risk of persecution, torture and death. That is way beyond what is merited by the crime. The withdrawal of refugee rights should not be done in anything other than the most serious circumstances. We fear that the clause goes beyond what the convention envisages.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

I just wish to add to the points made by the SNP spokesperson. The whole UK criminal justice system is based on having magistrates courts that deal with the less serious offences, which have a maximum sentence of up to 12 months, and we then have the Crown court, which deals with the more serious offences, with a sentence above 12 months. Defining something as serious with 12 months’ imprisonment seems to be contrary to other aspects of our judicial system.

Labour also has concerns about people who have been trafficked who may have been forced to commit offences. They may have been convicted of a criminal offence as a result of their trafficking, whether that is because of drugs, prostitution or another such offence that might attract a penalty above 12 months. We have some concerns about the redefinition and I wonder whether the Minister can clarify what might happen to someone who has been trafficked, has committed an offence and has received a sentence of 12 months. Would the clause apply to them, because that does raise concerns about it? I do not know whether he will be able to assist in that regard.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I am afraid that we simply cannot agree to amendments that would allow individuals to remain in the United Kingdom despite being convicted of offences that are even more serious than those described under the current legislative framework. This Government cannot support provisions that allow dangerous foreign national offenders to remain in the United Kingdom, and if it means putting the public at risk.

This Government are committed to continuing to meet our international obligations, in particular those under the refugee convention and European convention on human rights. A key principle of the refugee convention is non-refoulement, also referred to as removal, of refugees to a place or territory where there is a real risk that their life or freedoms would be threatened. But the convention itself recognises that there have to be exceptions to this. Article 33(2) of the convention allows refugees to be returned when they have committed a particularly serious crime and as a result, constitute a danger to the community, or are a danger to the security of the UK.

The aim of clause 35 is to redefine a “particularly serious crime”. I would like to reassure Committee members that we have looked carefully at the type of offending that may be caught by a new lower threshold. It is that that has contributed to the Government’s position that offences with 12 months’ custody or more should be considered as being particularly serious.

It is worth taking a moment to consider some of those offences for which the Sentencing Council’s guidelines indicate that a year’s custody is the starting point. They include causing a child to watch sexual activity, inciting a child to engage in sexual activity and carrying a firearm in a public place, in certain circumstances. Hon. Members surely agree with me that they and the public would consider those crimes as particularly serious. Clause 35 as drafted, like all clauses in the Bill, is fully compliant with our obligations under the refugee convention.

I turn specifically to amendments 51 and 52. They seek to make the first limb of the article 33(2) assessment, that is whether an individual has committed a particularly serious crime, rebuttable. That would mean that an individual who had been sentenced to 12 months or more in prison could argue that their crime was not in fact serious. That is despite a court of law, based on all the facts in the case, taking into account mitigating and aggravating factors, determining that the offending was so serious that an individual should be deprived of their liberty for 12 months or more.

If we are agreed that a year’s imprisonment means someone has committed a crime that society clearly considers serious, this amendment seemingly gives offenders a second bite of the cherry to disagree with the ruling of the criminal courts in the UK—some of the most respected legal bodies in the world. The Government propose in clause 35 that a crime which has been punished by 12 months or more imprisonment is an appropriate definition, ensuring that all particularly serious crimes are captured. Such a sentence, which limits the freedom of an individual for a considerable period, would be inappropriate if the crime was not particularly serious.

I also stress that there is a safeguard in the process. If an individual commits a particularly serious crime, the bar on refoulement is not automatically lifted. The individual has an opportunity to rebut the presumption that they are a danger to the community in the UK. Only individuals who are unable to rebut the presumption will be considered for removal. I also flag the UK’s other international obligations, in particular those under the European convention on human rights. An individual would not be removed from the UK if doing so would breach our obligations under the convention. Instead, they would be granted shorter, more restricted forms of leave to remain, and would be removed at the earliest opportunity, when it is safe to do so.

Amendments 53 and 54 seek to redefine a particularly serious crime in section 72(2) and (3) of the Nationality, Immigration and Asylum Act 2002 as one that is punished by four years or more imprisonment, in comparison with the 12 months or more imprisonment proposed by the Government in clause 35. As I have outlined, the Government have identified 12 months or more imprisonment as an appropriate definition for a particularly serious crime.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby 5:45 pm, 26th October 2021

Is the Minister aware that in the Representation of the People Act 1981 the same 12-month sentence would disqualify a Member of Parliament—so what is sauce for the goose, I guess?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

My right hon. Friend puts the matter in a way that only he can. To raise the definition to a level that captures only crimes that have resulted in a sentence of four years or more imprisonment would be reckless, and would undermine the aims of the new plan for immigration to build a fair but firm immigration system. It would clearly send the wrong, and dangerous, message that the UK welcomes and rewards serious offenders. I do not believe that the people of the UK want that. The amendments would mean that individuals who commit some of the most serious crimes would continue to receive the generous benefits of refugee status in the United Kingdom. Their continued presence in the UK could also lead to avoidable reoffending. The Government would not be upholding their responsibility to protect the public of the United Kingdom by supporting the amendments.

The hon. Member for Enfield, Southgate queried the process for a person who has been trafficked. I can confirm that such a person will be tested under the second limb for whether they amount to a danger to the community. With regard to offences committed overseas, section 72(3)(c) of the Nationality, Immigration and Asylum Act 2002 contains a provision to ensure that any convictions abroad would result in a sentence of 12 months or above in the UK for a similar offence.

In the light of those points, I hope that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East will withdraw the amendment, and that the Committee agree that the clause stand part of the Bill.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

It is useful to have that on the record. I do not think that all the points were addressed, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 ordered to stand part of the Bill.