Clause 44 - Prisoners liable to removal from the United Kingdom

Nationality and Borders Bill – in a Public Bill Committee at 3:00 pm on 28th October 2021.

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Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark 3:00 pm, 28th October 2021

I beg to move amendment 143, in clause 44, page 41, line 7, at end insert—

“(1A) A prisoner who arrived in the United Kingdom before their tenth birthday is not eligible for removal from the United Kingdom under subsection (1).”

This amendment would prevent deportation as an FNO for those who arrived in the UK before their tenth birthday, in line with the age of criminal responsibility.

The amendment is not down in my name; it was tabled by my hon. Friend the Member for Sheffield Central, who has an urgent constituency engagement. Forgive me if I am not as eloquent as my hon. Friend. I will try to do justice to his amendment.

In recent months and years we have seen a multitude of cases of individuals who have lived in the UK almost all of their lives, and in some cases were even born here, being deported as a result of past convictions. The amendment seeks to prevent that happening if the individual came to the UK before the age of 10, the age at which the UK deems one becomes criminally liable for their actions. Assuming that the age at which criminal liability kicks in is the age at which we believe someone starts to become at least partly responsible for their actions, why should their previous country of residence change how they are dealt with in the criminal justice system years or decades down the line? My hon. Friend the Member for Sheffield Central has provided a case study.

We hear of cases such as that of Sam Trye, who was born within sight of this room, just over the river in St Thomas’ Hospital, where my daughter was born and where perhaps the son of the hon. Member for Stoke-on-Trent North will be born. We might not agree on many things, not least a scattergun approach to facts, but I congratulate him on his news, which I hope his wife gave permission for him to share before breaking it to us this morning. I hope our children have better life chances than Sam was afforded because he has since served a prison sentence for a non-violent crime, and the Home Office has been trying to deport him to Sierra Leone, from where his family moved to the UK. Despite Sam being born in the UK, he is treated differently as he lacks birthright citizenship. He has two British children and cares for his mum here in London, so his right to family life is therefore well established.

There is a question here about the UK’s responsibility. When a child is born here and has been through our education system and our support services, and has grown up British in every sense, we have a duty to ensure that if they commit a crime, the British state takes responsibility for that individual. It is nonsensical to deport those who have never known another country, who came to the UK before they were ever criminally liable in UK law, let alone an adult with full independence and responsibility.

That issue was raised during the Windrush report, and by Sir Stephen Shaw in his 2016 “Review into the Welfare in Detention of Vulnerable Persons” and his 2018 follow-up progress report. Sir Stephen stated:

“I found during my visits across the immigration estate that a significant proportion of those deemed FNOs had grown up in the UK, some having been born here but the majority having arrived in very early childhood. These detainees often had strong UK accents, had been to UK schools, and all of their close family and friends were based in the UK… Many had no command of the language of the country to which they were to be ‘returned’, or any remaining family ties there… The removal of these individuals raises real ethical issues. Not only does their removal break up families in this country, and put them at risk in countries of which they have little or no awareness. It is also questionable how far it is fair to developing countries, without the criminal justice infrastructure of the UK, for one of the richest nations on earth to export those whose only chance of survival may be by way of further crime.”

Sir Stephen’s recommendation 33 was that

“The Home Office should no longer routinely seek to remove those who were born in the UK or have been brought up here from an early age.”

That recommendation has been routinely ignored by Ministers, but we do know that the Government accept that premise in specific circumstances, so there is a precedent. Last year, when there was an outcry over their attempted deportation of people to Jamaica, the Government reached a private agreement with the Jamaican high commission that it would not deport those who came to the UK under the age of 12. When there were further charter flights this year, despite Ministers refusing to answer parliamentary questions from my hon. Friend the Member for Sheffield Central on the subject, as they wanted to hush up the agreement, we know that when the flights departed, no one who came to the UK under the age of 12 was on board. So which other countries does the Minister have other such agreements with, and which other countries are negotiating with him or others in the Government to secure such agreements? If the Minister has an agreement with Jamaica, which we know is sensible, why will he not make it a blanket policy? I invite him to respond if he can.

The amendment reflects British values, in the opinion of my hon. Friend the Member for Sheffield Central, and it take steps to enact Sir Stephen Shaw’s recommendations. I urge the Government to accept it.

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

I thank hon. Members for raising these important issues. Amendment 143 aims to prevent the deportation of a foreign national offender where they arrived in the UK before the age of 10. The clause enables the removal of a relevant prisoner at an earlier point in their sentence. The amendment would exempt FNOs who arrived in the UK before the age of 10 from the provision enabling them to be removed at an earlier point in their sentence, but it would not exempt them from deportation. I cannot see a rationale for exempting FNOs who arrived in the UK before the age of 10 from the provision enabling them to be removed at an earlier point in their sentence, given that they will still be liable to deportation at the end of the custodial part of their sentence if they have not been removed earlier.

The hon. Member for Bermondsey and Old Southwark stated that the purpose for the amendment is to align the age on arrival in the UK at which an exemption to deportation applies with the age of criminal responsibility. Almost all foreign national offenders that the Government deport from the UK have committed offences since they were adults. It does not make sense to provide an exception based on the age of criminal responsibility. Unlike England, Wales and Northern Ireland, the age of criminal responsibility in Scotland is 12.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

I am keen to explore this on behalf of my hon. Friend the Member for Sheffield Central. Will the Minister tell us more about the arrangement with Jamaica, and those with any other countries? He says that it would not make sense to have such an arrangement, but there is an existing one with a country. Perhaps he can tell us more about that specific arrangement, and any other countries we have entered into similar arrangements with.

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

I am grateful for that question. The hon. Member for Sheffield Central is not here. I promised earlier to write to Committee members on the RNLI issue. I will make sure that this issue is addressed in that letter, particularly so that the hon. Gentleman can see that information in its full context, given that he is unable to be here because of a constituency commitment.

The amendment is too broad in scope. It does not define what is meant by “arrived in” the UK. This could include anyone who visited the UK for a short period or who arrived here clandestinely, as well as those who have been lawfully resident here since the age of 10. It is technically deficient and, I argue, wrong in principle. I also refer hon. Members to the requirements under the UK Borders Act 2007, passed under the previous Labour Government. For these reasons, I ask the hon. Gentleman to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

With this it will be convenient to discuss Government new clause 8—Prisoners liable to removal from the United Kingdom.

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

Clause 44 is one of the six clauses drafted as placeholder clauses at the Bill’s introduction. As indicated in the Bill’s explanatory notes and the memorandum for the Delegated Powers and Regulatory Reform Committee, it was drafted as such in the interests of transparency, to make clear our intention to bring forward substantive provisions on the early removal scheme. New clause 8 is intended to replace clause 44.

New clause 8 forms part of a package of measures that will enable the swift removal of those who have no right to be in the UK. By expanding the existing early removal scheme and increasing the removal window from nine months to 12 months, we will have greater opportunity to remove as many foreign national offenders from the UK as early as possible. However, to ensure that those sentenced by the courts are not simply let off their sentence, and to maintain public confidence in the justice system, removal under the scheme is subject to at least half of the custodial period of the sentence—the “requisite custodial period”—being served in prison. The knowledge that offenders will serve punishment for their crime in prison and will be removed from prison and the UK before they have an opportunity to be released on licence will provide comfort for victims.

The new clause will also mean that eligible foreign national offenders can be removed at any point in their sentence provided they have served the requisite custodial period and are within 12 months of their earliest release point. Presently, the scheme does not permit removal for those foreign national offenders who are serving a recall—FNOs who have been released into the community after serving their custodial sentence and subsequently recalled to custody for breaching that licence. The new clause brings them into scope.

The new clause also serves to deter foreign national offenders who have already been deported once from returning to the UK through the introduction of a stop-the-clock provision. Should a foreign national offender ever return to the UK after being removed, they will be liable to immediate arrest and return to custody to serve the remainder of the custodial period of their sentence. This is in addition to a maximum 5-year prison sentence that may be imposed for returning in breach of a deportation order.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office) 3:15 pm, 28th October 2021

The Government will disagree to clause 44 and replace it with new clause 8, although I understand that new clause 8 has fundamentally the same principle as the clause. Clause 44 and new clause 8 will extend the length of time a foreign national offender can be considered for early removal from the last nine months to the last 12 months of their sentence if they become eligible for the scheme. The Opposition have concerns that increasing that time limit will lead to unfairness in accessing justice for foreign national offenders as well as leaving them with inadequate time to obtain access to legal representation.

In our already overpopulated and overworked prison system, foreign national offenders have limited access to legal support and resources even when compared with people detained in immigration detention centres. They have no access to mobile phones or the internet. In the limited time that they do have access to a phone, the contacts they can call are vetted by the prison and this process can take many weeks. Thus, acquiring adequate legal representation becomes near impossible. Time is of the essence to these individuals and increasing this early removal widow will only lead to exacerbating these difficulties.

Bail for Immigration Detainees produced a report in 2017 on the lack of legal advice available to prisoners, which found that only five of the 86 prison detainees surveyed had received independent advice about their immigration case. They found that detainees in prison are routinely denied access to basic information that might help their immigration case. Cuts to legal aid have only made this situation worse. The High Court earlier this year held that detainees in prison have suffered discriminatory treatment due to obstacles in getting legal advice—in particular, exemptions from legal aid eligibility.

Despite what high-profile recent Home Office failings might imply, when it comes to deportations the already heavily stacked deck is stacked against the deportee. Not having proper legal representation means that the detainees will almost certainly be denied the fundamental right to a fair hearing. It would mean that they could be deported to countries in which they face persecution, or it would be in breach of their human rights. We should not undermine that right by extending the length of time they have for removal. Charities such as Bail for Immigration Detainees are already stretched to breaking point trying to support these vulnerable individuals. Instead of limiting access to justice, the Government should work on increasing its efficiency so that foreign national offenders who have committed serious crimes are dealt with swiftly and those who have claims to remain are given a fair hearing.

Question put and negatived.

Clause 44 disagreed to.