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Mr. Byrne:
I am glad that the hon. Gentleman had the chance to make that point. I missed him at the beginning of the debate; I looked around for him anxiously, and I am pleased that he has had the chance to intervene. The point that I make to him is that the
application of the provisions is very wide. They apply to all foreign nationals who live in this country, and there may be some 3.4 million of them living here at any one time. That includes everybody who is granted indefinite leave to remain. The provisions could also apply to people born in this country to non-British parents after 1981, because they may not qualify automatically for British citizenship and may not have secured that privilege. It is quite possible for someone to have grown up in this country—to have come to this country for two or three weeks, but to have spent all their childhood and adult life here—and to be still subject to the automatic deportation provisions in the Bill. I want to avoid a situation in which someone who has spent all their life here and who is convicted and sentenced for something quite minor—such as the proverbial charge of council tax non-payment—is deported to a country that they have not been to in their living memory.
John Hemming: Does the Minister accept that as stealing electricity is an offence under the Theft Act 1968, any period of imprisonment for stealing electricity would result in automatic deportation?
Mr. Byrne: I will come to the arrangements that we will need to make under section 72 of the Nationality, Immigration and Asylum Act 2002 in a moment, but the point on which I want to finish is that there has to be a degree of balance. That is why we propose automatic deportation for those offences that attract a 12-month sentence or are referred to in section 72 of the 2002 Act. That is a very long list of offences—it is 40 pages long and includes 324 different offences. They are offences that the House has deemed serious, and I therefore believe that they should attract the automatic deportation provision.
David T.C. Davies: May I make a helpful suggestion? The Liberal Democrat Members sitting near to me seem to have a fixation about the theft of electricity. If the Minister could find a way to exempt people who steal electricity, and so not be deported, will the Liberal Democrat Members sitting on my left—they are very much to the left of me, in fact—offer to support the part of the Bill that we are discussing?
Mr. Byrne: We will find out the answer to that question in the not-too-distant future.
I come now to the amendments tabled by the hon. Members for Ashford and for Reigate (Mr. Blunt). I confess to having a great deal of sympathy with amendments Nos. 14 and 8, and there are only two insurmountable problems. First, there are offences for which the sanction is automatic deportation, but which attract, too, a sentence of less than a month. Because it is quite possible for someone to commit one of the 324 offences under section 72 of the 2002 Act, it is possible for them to be handed down a sentence of less than a month for an offence listed in that section. In that case, the provisions could not apply. Secondly, I am sympathetic to the notion that someone needs to be deported within six months of a deportation order being served. Again, the only obstacle—I am afraid that it is insurmountable—is that occasionally it may be impossible at the end of the six months, or within that period, to return the individual to a particular country.
I understand the argument that was made by the hon. Member for Monmouth and I will explore with
the Home Office human resources department whether there is any sort of secondment or contractual arrangement that we can enter into, bearing in mind the Register of Members’ Interests.
David T.C. Davies: I will do it for free.
Mr. Byrne: The offer has become better still.
Sometimes, legal barriers prevent us from deporting people. The individual may be unfit for travel, there may be an outstanding judicial review, or travel documentation may be unavailable, which would make it difficult in practice to enforce the provisions proposed by the hon. Member for Ashford, however sympathetic I am to them.
Amendment No. 8 would provide automatic deportation for all immigration offences. I would make two points. First, when it comes to assault occasioning actual bodily harm ofan immigration officer, common assault is listed in section 72, so it would attract automatic deportation. Secondly, we must remember that immigration offences are a broad class of offence and I do not necessarily think that we would want automatically to deport someone who, for example, had overstayed their visa for a couple of days to attend a graduation. I have received representations from Members on both sides of the House on such cases, particularly if someone cannot come back in after they are deported, so I would find it difficult to accept the amendment. It is important, however, to look again at the measures that we have proposed for consecutive and suspended sentences.
The hon. Member for Ashford tabled amendments Nos. 9 and 10, which are slightly unclear at the edges. I was not certain whether he was seeking to exempt people given sentences in institutions or hospitals or to exclude indeterminate sentences—that may, on one reading, be the outcome of the amendments. We believe that indeterminate sentences should be included in the remit of the provisions and time served in institutions, such as young offenders institutions, should be included. We think that time served in hospitals should be included, too.
We differ on the question that was posed in Committee by the hon. Member for Hertsmere (Mr. Clappison) about whether we should include in the automatic deportation provisions consecutive and aggregated sentences. I find it very difficult to construct a solution that would solve the problem of offences and sentences that are handed down at different points in time. It is possible, for example, for an individual to be convicted of two different offences 30 years apart and for the cumulative sentences to add up to more than 12 months. In some cases, it is difficult to see how automatic deportation should apply, so it is important to preserve the right of in-country appeal. The individual should still face deportation, but there may be appeal rights that it is important to retain.
On the question of suspended sentences, we have come to a quite different conclusion. The key issue to which Committee members sought to draw our attention was what we should do about recidivists. Members will be delighted to learn that since the Committee stage I have undertaken my own study of reoffending across 19 crime areas, where the rate of reoffending within two years ranged from 10 or 12 per
cent. to 80 per cent. The assurance that I can give the House is that 13 of the 19 categories of offence are section 72 offences, so they would attract automatic deportation. There are a couple of offences not in section 72 that we should consider, in particular drink driving offences and soliciting and prostitution. We will give the matter further consideration before we lay a new section 72 order later this year. That would be subject to the affirmative resolution procedure in the House, so hon. Members would be able to comment.
Offences such as violence, theft, burglary and robbery, as well as drug offences, are already included—many of the issues that were raised in Committee. I am not sure, from memory, whether theft of electricity is included, but burning down houses, another case that we discussed at length in Committee, is covered. The important thing is that there should be an opportunity for parliamentary scrutiny of the order.
The Government amendments provide that if somebody is given a suspended 12-month sentence or a suspended sentence for a section 72 offence, and any part of that sentence is subsequently activated, the automatic deportation provisions will apply. We think that if somebody is given a suspended sentence, in effect the court is saying, “The sentence that we are giving you is an indication that you haven’t committed an offence so serious that you should automatically be deported.” The individual therefore has a chance to play their cards right and stay in the country. If, however, they commit an offence and the suspended sentence is activated for whatever period, they have had their chance and blown it and the automatic deportation provisions should take effect.
We spent a great deal of time debating the matter in Committee and I am grateful to hon. Members for their contribution. These tougher provisions are right. Overall, the provisions are important. I said on Second Reading that there are 8,000 to 10,000 foreign nationals in our jails. We think that the provisions will apply to about 4,500—a substantial number—which sends out a clear signal not only to the British public, but to the foreign nationals who are here to enjoy our hospitality, that criminality cannot and will not be tolerated.
Mr. Kidney: We have had a good and sometimes lively debate on this group of amendments and on new clause 1. I am grateful to hon. Members in all parts of the House who spoke in support of the arguments that I put in favour of the new clause. I accept what my hon. Friend the Minister says about the statutory restrictions that prevent the Home Office and its agencies from giving the kind of information that I spoke about earlier. We are putting in place a new Act of Parliament and it is our responsibility to set a statutory framework that we think is right, so I urge my hon. Friend to go further than he has done so far.
I understand, too, that my new clause has legal ramifications, with which the drafting that I prepared may not fully deal. I, after all, do not have available to me the same resources for drafting legislation as the Minister and his Department, but by tabling the new clause I wanted to put down a marker to my hon. Friend that I will not go away and that the issue is important. I am pleased that, at the very least, our
debate has sparked a wholesale review of the Department’s policy on disclosure of information.
A fundamental point has still not been addressed with respect to the balance of rights between victims of crime and the offenders who commit those crimes, so there is a need for more to be done. I accept the Minister’s offer of a meeting, to discuss not just the interests of my individual constituent, but the wider issue to which I have just referred. I accept that he is going in the right direction and intends to do more. On the basis of his assurances, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
‘In section 11(1) of the Children Act 2004 (c.31), after paragraph (m) insert—
“(n) a regional office of the National Asylum Support Service;
(o) the centre manager of an immigration removal centre;
(p) the Chief Immigration Officer at a port of entry.’”.— [Damian Green.]
Brought up, and read the First time.
Damian Green: I beg to move, That the clause be read a Second time.
Madam Deputy Speaker: With this it will be convenient to discuss the following:
New clause 12— Children: exemption from reporting and residence conditions
‘After section 3(1) of the Immigration Act 1971 (c. 77) (limited leave to enter or remain) insert—
“(1A) A child making an asylum claim or a human rights claim whilst he is under the age of 18 shall not be subject to the conditions in subparagraphs (1)(c)(iv) and (v) above until he reaches the age of 18.
(1B) For the purposes of this section “asylum claim” and “human rights claim” have the same meaning as in section 113 of the Nationality, Immigration and Asylum Act 2002 (c. 41).”’.
Amendment No. 1, in page 3, line 14, Clause 5, after ‘person’ insert ‘aged 16 or over’.
Amendment No. 36, in page 15, line 37, Clause 30, at end insert—
‘(5) In section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) after subsection (5) add—
“(6) If there are reasonable grounds to believe that a person has been the victim of trafficking in human beings, that person shall not be removed from the UK until the process of identifying the person as a victim of an offence has been completed.
(7) If an unaccompanied child is identified as a victim of trafficking, the Secretary of State shall—
(a) provide for representation of the child by a legal guardian, organisation or authority which shall act in the best interests of that child;
(b) take the necessary steps to establish the identity and nationality of the child; and
(c) make every effort to locate the family of the child when the Secretary of State determines that this is in the best interests of the child.
(8) If an individual has been identified as a victim of trafficking the Secretary of State shall allow a recovery and reflection period of not less than 30 days.
(9) During the reflection period established under subsection (8) it shall not be possible to enforce any expulsion order against that person and the Secretary of State shall authorise the persons concerned to stay in the UK.”’.
4 pm
Damian Green: I wish to speak to three of the four amendments in this group and to support my hon. Friend the Member for Totnes (Mr. Steen) on amendment No. 36, which I recognise from proceedings in Committee and which seems extremely sensible.
New clause 2 would extend the duty under section 11 of the Children Act 2004 to make arrangements to safeguard and promote children’s welfare to those providing services to refugee children and families, specifically immigration removal centres, the National Asylum Support Service and those dealing with refugee children at ports of entry. Section 11 places a duty on relevant agencies providing services to children to have regard to the need to safeguard and promote their welfare in discharge of their normal functions. The services with primary responsibility for the welfare and support of refugee children and their families, including the immigration service, are currently excluded from the otherwise long list of those to whom the duty applies.
Ministers have addressed this issue. The Home Office’s consultation paper, “Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children”, which was published in February, says:
“Young asylum seekers, whether children in need or looked after children, matter every bit as much as other young people in the context of meeting each and all of the five outcomes of the Every Child Matters framework.”
That is not a great piece of prose, but the thinking behind it is extremely good. In this context it is noteworthy, and perhaps alarming, that the Government do not seek to offer refugee children the protection afforded by section 11. Ministers will be aware that the Refugee Children’s Consortium campaigned to ensure that refugee children would have the same protection as other children under the section 11 duty. The Joint Committee on Human Rights, whose Chairman I see in his place, has criticised the Government’s position, stating:
“the omission of this particular group of children from the institutional arrangements designed to fulfil the State’s positive obligations to children under articles 2, 3 and 8 raises the question of whether this gives rise to unjustifiable discrimination in the enjoyment of Convention rights.”
In the other place, Ministers argued that the inclusion of the refugee agencies would be overly restrictive. They also argued that in undertaking its primary function, the IND, as it then was, would do things that would be judged as inconsistent with a duty to safeguard and promote welfare.
That is the nub of a debate that has been running for a long time. It is worth going back to first principles. Section 11 of the 2004 Act is not an absolute duty—it simply requires agencies to make arrangements to have regard to the need to safeguard children and promote their welfare when they discharge their functions. As Ministers said in another place:
“We have been very careful in the way in which we have worded this clause: we do not put a duty on agencies that would make them unable to fulfil their primary functions.”—[ Official Report, House of Lords, 17 June 2004; Vol. 662, c. 995.]
Conservative Members certainly do not dispute that the primary function of the immigration service is to ensure effective immigration control, but similarly we would argue, as would everyone, that the primary function of the police is to ensure public order and prevent crime—yet the chief officer of police is included in the section 11 duty. The explanatory notes to the 2004 Act state:
“This duty is intended to ensure that agencies are conscious of the need to safeguard children and promote their welfare in the course of exercising their normal functions.”
The analogy is a good one. If the police can be regarded as exercising their proper central functions while having regard to the constraint, it is hard to understand from first principles why immigration bodies should not be able to fulfil their functions while operating under it.
The Refugee Children’s Consortium has taken legal advice, which states that section 11 would not prevent the Home Secretary from implementing removal directions for a child or his or her family and would, at most, affect the manner in which the removal occurred. Decent legal advice therefore shows that the exercise of the duty would not damage the proper functions of not only the front-line agencies but Ministers and officials when making the most difficult decisions about removal.
I am sure that the Minister knows that the Children’s Commissioner for England has described the refugee services’ omission from section 11 as “a great disappointment.” He also said that he believes that the exclusions are already having an impact on relations between those who are subject to the duty and those who are not. The Refugee Children’s Consortium argues that the standards of safeguarding for that group of children are inadequate. The Minister is a decent and humane man and will not wish children to be made more vulnerable through the lack of the duty, which would not impede the proper function of the immigration service.
In Committee, the Minister tried to assure us. He made the point that a wider debate was going on, and that discussions were taking place between the children’s champion in the immigration and nationality directorate and the Children’s Commissioner for England about the way in which the IND could be subject to section 11. He said that he did not want to pre-empt the outcome of those discussions, but he would explore what information he could provide at the earliest opportunity. Now is his chance not only to provide the information but to change the Government’s stance on the issue. I am clearly not alone in my view. A wide coalition of interests argues that the Government are simply wrong about the matter.
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