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

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

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Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office) 5:30 pm, 26th October 2021

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.