UK Borders Bill


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Clause 28

Automatic deportation
Mr. Clappison: I beg to move amendment No. 58,in clause 28, page 14, line 14, leave out ‘1 or 2’ and insert ‘1, 2 or 3’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 7, in clause 28, page 14, line 15, leave out ‘a’ and insert ‘any’.
No. 134, in clause 28, page 14, line 15, leave out from ‘imprisonment’ to end of line 16 and insert
‘has committed an offence which, in the opinion of the sentencing judge, merits deportation.’.
No. 8, in clause 28, page 14, line 15, leave out ‘of at least 12 months’.
No. 59, in clause 28, page 14, line 21, at end insert—
‘(3A) Condition 3 is that the person is convicted of an offence liable to imprisonment, the commission of which took place when the person did not have valid leave to remain in the United Kingdom.’.
No. 127, in clause 28, page 14, line 32, at end add—
‘(8) The Secretary of State shall lay before Parliament an annual report on the operation of the provisions under this section including the number of people deported under them.’.
No. 142, in clause 34, page 17, line 26, leave out subsection (1).
No. 13, in clause 34, page 17, line 28, leave out ‘does not include’ and insert ‘includes’.
No. 55, in clause 34, page 17, line 29, leave out ‘whether or not’ and insert ‘save where’.
No. 143, in clause 34, page 17, line 31, leave out paragraph (b).
No. 14, in clause 34, page 17, line 31, leave out ‘does not include’ and insert ‘includes’.
No. 15, in clause 34, page 17, line 38, leave out ‘at least 12 months’ and insert ‘any length of time’.
No. 16, in clause 34, page 17, line 41, leave out ‘(provided that it may last for 12 months)’.
No. 17, in clause 35, page 18, line 21, leave out from ‘(i)’ to end of line 23 and insert
‘for “does not include” substitute “does include”.’.
No. 18, in clause 35, page 18, line 24, leave out subsection (3).
New clause 5—Annual report by Secretary of State
‘Following consultation with Her Majesty’s Judges, the Secretary of State shall lay before each House of Parliament an annual report on the exercise of his powers in respect of the deportation of criminals.’.
Mr. Clappison: I shall be speaking to the amendments standing in my name and shall also say a few words about the amendments in the name of my hon. Friend the Member for Monmouth.
We now come to the subject of automatic deportation, as it is termed by the Government. Briefly, to assist the Committee, as the Bill stands, what is described as automatic deportation will generally be triggered when a foreign offender receives a sentence of at least12 months imprisonment. There are other circumstances in which it may be triggered under the clause, when an offence is specified under condition 2, but generallythe trigger mechanism is a sentence of 12 months imprisonment. My amendments are refinements on that, as are the amendments tabled by my hon. Friend. That is the starting point for the debate.
I should say, so as to give the Committee a complete picture, that in the case of sentences of less than 12 months imprisonment or of non-custodial sentences the existing law on deportation remains in place. As I understand it—the Minister will correct me if I am wrong—someone who does not set off or come within the ambit of the trigger mechanism of 12 months imprisonment may still be recommended for deportation by a court; or the Home Secretary may decide to deport the person concerned on the grounds that his or her presence in the United Kingdom is not conducive to the public good, even if the court has made no recommendation. That is the existing law. The Bill adds to that the category of automatic deportation. That is the difference that the Bill makes.
Amendment No. 58 seeks an additional trigger mechanism in the case of a person who receives a sentence of imprisonment for an offence committed at a time of not having valid leave to be in the United Kingdom; that means, basically, somebody who is an illegal entrant or an overstayer in the United Kingdom and who does not have permission to be in the country. The Committee may remember that I specifically raised that question with Migrationwatch.
I have some sympathy with the amendments tabled by my hon. Friend the Member for Monmouth. He would trigger automatic deportation when a foreign offender receives any sentence of imprisonment, as opposed to what is on the face of the Bill, which is a sentence of 12 months imprisonment or one of the offences specially listed by the Home Secretary. I do not know what the Minister will reply, but whatever else he says, I do not think he will be able to say that my hon. Friend’s amendments are entirely unreasonable, because the Government had the same idea originally. The Committee will remember that there is quite a history as far as the provisions are concerned, from the early part of last year—the Minister winces at that recollection. I do not propose to go over the whole of that history; I will save the Committee that, but I think it highly relevant to the amendment to remember what the then Home Secretary originally said to the House when dealing with the aftermath of the problems—if I may put it that way—over foreign deportations:
“We will consult on whether that presumption should be made statutory through primary legislation”—
he was referring to the presumption that deportation would follow, unless there were “special circumstances” where it could not.
“Such a presumption would include all criminals sentenced to imprisonment, all those convicted for an offence listed in an order under section 72 of the Nationality, Immigration and Asylum Act 2002, all those on the sex offenders register, repeat offenders and, of course, all those recommended for deportation by the sentencing judge. We believe that there is a strong case for extending those proposals to any individual who is convictedof an imprisonable offence, whether or not a sentence of imprisonment was actually given, and we will consult on that too.”—[Official Report, 3 May 2006; Vol. 445, c. 972.]
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David T.C. Davies: I am grateful to my hon. Friend for giving way and for enlightening us in that manner. Is it not the case, therefore, that the original proposals put forward by the Government were far less moderate than the proposals that I am putting forward today?
Mr. Clappison: My hon. Friend is correct. However, that was not the final version of the Government’s thinking. To be fair, they moved on from the position of all imprisonable offences committed by a foreign offender resulting in a presumption of deportation, which was going to be put into statute and presumably was what they were thinking of at the time.
We then moved to the present Home Secretary, whose own proposals in this regard, which he described to the House in a written statement, seem to be on all fours with those in my hon. Friend’s amendment. I shall quote what he said in that statement:
“I believe it is essential to be clear about our long-term policy. My objectives are straightforward: all non-EEA nationals who are given a custodial sentence should face deportation; and deportation should happen as early as possible in that sentence.”—[Official Report, 23 May 2006; Vol. 446, c. 79W.]
It is quite natural to ask why the Government have engaged on this retreat. The public will want to know and I think that it is a fair question to put: why should foreign nationals who have abused their position in the UK by committing serious offences for which only a custodial sentence is appropriate be allowed to stay in this country? It might be the case that the Home Secretary and his predecessor were thinking similar thoughts when they made their proposals.
I would also like to point out that, if the Bill is amended to make the trigger mechanism a sentence of imprisonment rather than 12 months imprisonment, it appears to be the case that all the protections afforded to an offender in the Bill would remain. There are quite a lot of them. I have noted that there are a large number of exceptions, some of them in the form of protections for an offender, particularly in respect of offenders who are claiming asylum. There is also the full range of protections for a foreign offender under the European convention on human rights, including article 8, the right to family life. All those protections are in the Bill and they would apply as much to somebody who is sentenced to imprisonment following an offence as they would to somebody receiving12 months imprisonment. All those protections are in place, so I would like to hear from the Minister why he wants to give additional protections to someone who receives a sentence of imprisonment of less than12 months.
I turn to my amendments. Amendments Nos. 58 and 59 cover a slightly different case: the case of a person without leave to remain in this country who commits an offence. If I may, I pray in aid the support of Migrationwatch, because I asked it specifically about that issue. We heard a lot about Migrationwatch this morning; I think that the Minister was quoting Migrationwatch left, right and centre, if I can put it that way, and it was an unshakeable authority for the propositions that the Minister wanted to advance. What Migrationwatch had to say about the point that I put to it in support of amendment No. 58 was absolutely clear. It clearly thought that it was right that somebody in the country without permission to be here who offended and received a sentence of imprisonment should be asked to leave the country, and deported.
The case of somebody who commits an offence without having permission to be in the country is different from that of somebody who does have that permission, not least because, as the Minister will confirm, that person is liable for removal whether or not they have committed an offence. They will be subject to administrative removal rather than deportation, but it has the same effect—they are removed from the country. I know that the Government are interested in removing such people, because they produced a paper about it two weeks ago with great fanfare. It explained how they would crack down on people who were illegally in the country by way of overstaying or whatever.
There is an important difference there, and in the light of that I hope that the Government will welcome the amendment. Somebody who is illegally in the UK, commits an offence and is arrested, charged, convicted and sentenced to imprisonment should automatically be deported, subject to the exceptions and protections in the Bill. My amendment would ensure that all offenders who commit an offence resulting in imprisonment and do not have leave to be in the country are deported.
As I said, such people are liable for deportation in any case. Are we to say that somebody who goes through the process of being arrested, charged, tried, convicted and sentenced to imprisonment should be released from prison to continue their illegal presence in the country and perhaps, who knows, to be texted a fortnight later to be told they should not be in the country? Perhaps great efforts would have to be made on the part of the IND to locate exactly where they were once they had left prison so that they could be removed from the country. Members of the public would want to know why such a person was not removed from the country as a result of their sentence of imprisonment as night follows day, subject to the exceptions in the Bill.
I turn to amendment No. 55 and I shall also make a few remarks about amendments Nos. 14 to 18, which stand in the name of my hon. Friend the Member for Monmouth. The amendments are on a separate issue. I have said that the trigger for automatic deportation will be 12 months imprisonment, but there is an issue of exactly what that means for that purpose. Under the interpretation in clause 34(1), it seems to me that a considerable number of offenders who receive a sentence of more than 12 months will not be subject to automatic deportation because of the meaning that the Bill gives to such a sentence.
I shall explain why 12 months will not mean12 months in a number of cases. The Bill prevents consecutive sentences totalling more than that from being counted as a 12-month sentence. So for example—the Minister can correct me if I am wrong—someone who offends on separate occasions and receives a series of two or more consecutive sentences in a single court appearance totalling more than 12 months will not be subject to automatic deportation, because he has not received a single sentence of 12 months. Under the Bill, however long the consecutive sentences are and whatever their total, as long as each individual sentence is less than 12 months such an offender will not automatically be deported.
I shall give one or two examples. A foreign national who commits two or three offences of burglary and receives nine months to be served consecutively for each offence—that is how the courts are told to sentence people who commit offences on different occasions—could be sentenced to a total of 18 or 27 months’ imprisonment and not be subject to automatic deportation. There is a problem with repeat offences, and the interpretation in clause 34 can be described only as a concession to serial offenders. My question to the Minister is why the Government are making that concession. Why are they showing generosity to people who repeatedly commit offences? It is not just a single offence. They are committing repeated offences and violating this country’s hospitality. Why cannot they be subject to automatic deportation if their sentences total more than 12 months?
Amendment No. 55 covers a similar point. As the Bill stands, it could give rise to another case in which 12 months imprisonment will not necessarily result in automatic deportation. I am talking about offenders not being deported despite being sentenced to a total of more than 12 months imprisonment for separate offences in a single court appearance. AmendmentNo. 55 covers a slightly different point, too, although it is on the same lines, because under the Bill as drafted—the Minister will correct me if I am wrong—a suspended sentence is not taken into account even where the foreign national commits a further offence and the sentence is activated to run alongside a sentence for a new offence.
A foreign offender who commits an offence and receives a suspended sentence of 12 months imprisonment will not automatically be deported, and if during the period of his suspended sentence of imprisonment he commits a further offence and receives a further sentence of imprisonment, he will not be subject to automatic deportation unless the second sentence is itself more than 12 months imprisonment. He will not be automatically deported even if the suspended sentence is implemented consecutively so as to make a total sentence of12 months. Thus an offender who receives a sentence of 12 months imprisonment suspended for two years is not automatically deported.
Let us suppose that that offender commits a further offence within that two-year period for which he receives a sentence of nine months imprisonment in a separate court appearance. If he is sentenced to21 months imprisonment in which the 12-month suspended sentence is activated consecutively to the nine-month sentence of imprisonment, which is how courts regularly sentence people who are subject to these provisions—they are probably told to do so—he will not be subject to automatic deportation, even though he is a repeat offender. In his case, not only is he a repeated offender, but he has repeatedly appeared in front of the courts and taken no notice when they have told him, in no uncertain terms, that he will be sent to prison if he commits a further offence during the period of his suspended sentence.
The proposal is another concession for serial offenders which is capable of producing perverse results, and the public, if they heard about it, might well regard it as a loophole. I can easily envisage a scenario in which a foreign citizen receives sentences of more than 12 months in one of the ways that I described and in accordance with court sentencing practice he is not automatically deported and goes on to commit further, serious offences. The question would be asked why the person concerned, having received a sentence of more than 12 months imprisonment, was not deported in the first place, and the answer would be that Parliament left a loophole.
The amendment provides us with a chance to ensure that we do not leave a loophole, that we bring some coherence to the Government’s provisions and that we send a clear message to people that they should behave themselves in this country, especially if they are here illegally.
Chris Mole (Ipswich) (Lab): I appreciate the hon. Gentleman’s point about what he described as a loophole but I am sure he realises that there is a back-stop in section 3 of the Immigration Act 1971 that allows the individuals he described to be considered for deportation by the Secretary of State.
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Mr. Clappison: I am grateful for the hon. Gentleman’s intervention. I said that the public might regard it as a loophole. As I am sure that he will recollect that, at the beginning of my speech in support of the amendments, I mentioned that the Bill is in addition to the provisions in existing legislation. The court recommended the deportation of offenders or a separate power for the Home Secretary to deport someone whose presence in the country is not conducive to the public good. Those provisions were in place in the spring of last year when we experienced all those problems.
The provisions are subject to a legal mechanism and a series of appeals. The proposals before us are the outcome of the Government’s attempts to improve the situation in the light of last spring. It is the case that the sort of person who I described might be deported, but as we found out last spring, that is not always the case. Let us imagine that the public found out that such a person, having not come under the provisions of the Bill, had committed more serious offences, having already received more than 12 months in prison, but not been automatically deported. I can picture in my mind’s eye the television reporters on the steps of the court saying that because of a loophole, X, Y or Z was able to remain in the country, even though theyhad been sentenced to more than 12 months’ imprisonment. The Committee has the chance to say, “We have seen the loophole so let us close it”.
John Hemming: This is a complex area, with which the Bill tries to deal with too few words, unless discretion is given to the courts. A lot of different circumstances could arise. Reference has been made to EEA citizens, but the Bill refers only to British citizens. The legal position of EEA citizens with a legal right to be here is unclear. Furthermore, it is entirely unclear whether suspended sentences count as periods of imprisonment.
We face an odd situation. The clause provides for a simple process of automatic deportation when certain conditions are satisfied. Where else should that apply? What approach should we take? In a couple of words, we could specify whether any sentence of imprisonment, or one of a year or more, would be necessary. Alternatively, would it be best to leave that decision to the discretion of the judge who can consider all the issues on the hearing at first instance? In effect, the judge could apply a number of sanctions: fines, imprisonment—suspended or otherwise—or he could press the button for deportation, although, obviously, the Secretary of State would actually order the deportation. Under the previous system, the Secretary of State could consider deportation. The newer one says that it will ensue, unless the Secretary of State pulls back.
David T.C. Davies: A lot of people would say that that is not correct. The message needs to go out to fellow burglars from the country that that person came from that they cannot simply come here, commit burglaries, wait until they have been caught and then be given a free flight home with nothing lost. People who commit burglaries should be punished, which means that they should, indeed, spend several years in prison before deportation.
John Hemming: I am not saying, “Come here, steal things and we will give you a free ticket back”. I gave the example of six months vis- -vis two years. We must consider the extent to which we need to go beyond that. It is an issue to be considered, but not necessarily now by this Committee. Our amendment gives the judge the discretion to say in certain circumstances that are not covered by the automatic provisions or the list in the statutory instrument, “Let us put this person on the conveyor belt towards deportation. When he has completed his sentence, he will be deported.”
The point is that different people find themselves in very different circumstances, and that needs to be considered at the court of first instance. One of my constituents, who does happen to be a British citizen, was imprisoned for five years for dropping a cigarette. It is a complex case that has gone badly wrong, and we are hoping to take it to the Court of Appeal. However—
David T.C. Davies: I do not know whether it is entirely in order, but that is such an incredible example that I think that the hon. Gentleman should spell out in more detail how anybody can have been locked up for five years for dropping a cigarette.
John Hemming: It happens that my constituent has mental health problems and he dropped the cigarette in his home, where his parents live. A fire ensued and it was deemed to be reckless arson. Let us look at the mens rea issue—the question of intent. Consider the offence of careless and reckless driving by somebody who has lived in the country for a number of years. They lean down inside their car to pick something up, and it happens to run into other people. They get a short period of imprisonment, not necessarily a year. Are we saying that, having lived here for 30 years, they should automatically be put on the conveyor belt for deportation? That is a very different sort of offence from that committed by somebody who goes around burgling lots of people, where there is identifiable intent to cause misery to others.
We are proposing an alternative approach. In certain circumstances, it will be a lot firmer because it will involve a shorter sentence than a year—so the example of the repeat burglar would be trapped by that. However, in other circumstances, it will allow consideration of the circumstances of the individual. As I mentioned, people come here on student visas, and odd things can happen. It is a complex situation and I do not think that trying to deal with it simplistically deals with it properly in the long term. A good example is that of the lad in the Orkneys. Hon. Members might remember that there was a major campaign to prevent his deportation. It had a lot of public support. He was not deported. That related to an arson offence committed on a previous occasion.
There is a role for condition 2 and a statutory instrument determining a list of types of offence. However, wherever the number of months or years is set, there is going to be a problem. That problem is best resolved by giving discretion to the judge. I wish to press amendment No. 134 to a vote later.
David T.C. Davies: This country has a proud history of offering hospitality to people who have chosen to come here for different reasons, and it is right that that should continue. Unfortunately, while there have been many good examples of people coming here in large numbers and living constructive lives, there has been a tendency recently for some people from certain countries—I might give an example later—to come with the deliberate intention of breaking the law, in order to profit from doing so. My view, which may be shared by Labour Members and even Liberal Democrat Members, is that we should not have to tolerate that. There is a widespread view among all communities that if people come here and abuse our hospitality, any obligations that we have to them become null and void.
The purpose of my two amendments is to ensure that anyone who received a prison sentence would face automatic deportation as a result. Given what my hon. Friend the Member for Hertsmere has just said about the Government’s original proposals, they are very moderate amendments indeed. I probably ought to become the hero of the Guardian-reading classes for coming up with something that is eminently more moderate.
Mr. Byrne: Polly Toynbee.
John Hemming: Let us understand a little about that case. The people who came to me to complain about the sentence were the other people living in that house, because they felt that it was wrong.
David T.C. Davies: I think that I would probably feel that it was wrong if somebody had put out a cigarette and started a fire in my house. I am not aware of the full situation that the hon. Gentleman is talking about. He was a bit misleading when he gave that as an example. He gave us a few other examples, though. He talked about the drunken student; I have never been a student, but I have been drunk a few times.
Chris Mole: Shocking.
David T.C. Davies: Yes, it is shocking, isn’t it? In my teenage years I did one or two rather silly things. Let us put it this way: it did not involve dressing up in £1,000 tail-coats. Let us not go down this road; I can feel an imaginary shovel in my hands as I continue.
Let us be reasonable. People who are young—by that I mean under the age of 20, and even a little bit older—do silly things. I should think that most of the people in the Room have done silly things and I certainly include myself in that. One does not go to prison for doing one-off silly things, or for doing things as a drunken student.
John Hemming: The question is: which rules, if contravened, should result in deportation? Students can do silly things that contravene the rules and get fined for it. We are talking about the wider issue of how far somebody goes before they get deported.
David T.C. Davies: It is clear from the amendment. We are talking not about people who get fined, but about people who get sentenced to any form of imprisonment. I purposely tabled the amendments so that they would not include people who get involved in a drunken prank while they are a student, or somebody else who shoplifts something. They would not face any form of imprisonment and therefore would not be automatically deported either. We have to draw the line somewhere. I have clearly referred to anyone who gets a sentence of imprisonment. It is quite difficult to get such a sentence. One has to do something quite serious to get it
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David T.C. Davies: To be truthful, the problem with setting any limits on any rules is that there will always be cases that make the rules look a bit silly. The truth of the matter is that if the amendments are passed, there will occasionally be somebody deported who one might reasonably think should not be deported. That will happen, but rarely. The problem at present is that there are many thousands of people in this country who should be deported—I believe that Government Members would agree with that—but who are not.
I give one example. I was looking on the force computer a couple of weeks ago and learned that a gang of pickpockets from Chile is operating in tube stations. There are about a dozen in the gang. They are constantly being arrested, but every time one is arrested, everyone else clubs together to get them a solicitor and get them out of jail, whereupon they go straight back to the tube and carry on picking pockets. It is done in an organised fashion and the people who are involved are doing nicely out of it. They are never, or very rarely, sent to prison, which surprises me, but if they were sent to prison, they would not be sent for12 months, because one is not sent to prison for12 months for picking pockets.
I suspect that everyone in this room would agree that those people should automatically be deported. There is no reason why they should not be sent back to Chile or why we should enable them to stay here to pick pockets on the tube, yet they are not deported.
John Hemming: I did not mention the last thing on my piece of paper, but the hon. Gentleman must have seen it. The point is that those people are clearly causing a continual public nuisance, but are not being imprisoned. Should not the judge be given the opportunity to say that the offence warrants deportation?
David T.C. Davies: I hear sounds behind me that indicate that another intervention may be coming my way. The hon. Gentleman makes a perfectly reasonable intervention, but my suggestion would also take care of the matter. The judge would have the power to sentence somebody for repeatedly picking pockets to at least several weeks, if not months, in prison.
Mr. Clappison: I understand the Liberal Democrat Member’s point, but is not the answer that neither my hon. Friend’s amendments, nor my amendments, nor the Bill itself will take away the existing power of the judge to recommend deportation if he thinks that it is appropriate—that is the discretion to which the hon. Gentleman refers—or for the Home Secretary, quite independently of what happens in the courts, to make an order that somebody’s presence is not conducive to the public good? The problem is that the procedures are so labyrinthine and subject to uncertainty and bureaucracy that we end up with the problems that we had last spring, but the powers remain in place.
David T.C. Davies: Before we start to go around in circles, I want to come back with one point about mens rea, which, as the hon. Member for Birmingham, Yardley knows, is all about intent. I shall not name the country this time, because I know that it will get me into trouble, but there is a problem in my force area with a certain community that is constantly breaking driving regulations. That has led to accidents, and people are driving around without tax, insurance, MOTs or anything else whatsoever.
The issue that concerns me is not simply that the driving rules are being flouted, but that people driving without licences are causing a danger to others. Should they be involved in an accident, imprisonment of more than 12 months is unlikely because there will not have been an intent to cause serious harm to somebody, although that might be what actually happens. I put it to the Committee that people who deliberately flout rules in a systematic fashion should not be made welcome in this country, and we should have no obligation to them, regardless of whether they do or do not intend to cause somebody a serious injury.
John Hemming: On the power to recommend and consider, Liberal Democrats are simply suggesting that the court of first instance deal with the matter. That would mean that a system that does not currently work would actually start working.
David T.C. Davies: If the hon. Gentleman considers what I have suggested, he will find that it is very simple. Automatic deportation will be presumed if somebody is sentenced to any period of imprisonment. I do not see anything wrong in that, given the fact that people are not sent to prison unless they have done something fairly serious or are doing less serious things on a repeat basis. It is a perfectly reasonable amendment and far more reasonable than the ones put forward earlier by the Government. I offer it up as a third way. It is a moderate compromise that we can all get behind and support, and I put it to members of the Committee that they should do so.
Damian Green: I rise to support the amendment of my hon. Friend the Member for Hertsmere, to speak to my own amendments and, as my hon. Friend did, to put this large group of amendments in the context of the debate of the past 15 months.
For a few minutes, the Committee appeared to agree that if a person is drunk when they commit a crime, it is somehow not as bad. That is simply not the case.
David T.C. Davies: At that point in the debate I was taken down a path down which I would rather not have been taken. I thank my hon. Friend for putting more eloquently than I did exactly the point that I was trying to make before I was rather cleverly distracted by hon. Members.
Damian Green: I give way to the hon. Member for Birmingham, Yardley.
John Hemming: What I was trying to get at is that we are looking at the wider issues. At what point is it appropriate to deport somebody?
Damian Green: Exactly so. I am particularly grateful to the hon. Gentleman for clarifying his position.
I shall return to the debate. My hon. Friend the Member for Hertsmere carried out an extremely good forensic examination of the way in which the Government’s position on deportation has oscillated, not just from Home Secretary to Home Secretary, but between the existing one and the legislation before us. However, I seek always to be kind to the Home Secretary. The phrase that makes an extraordinary appearance in clause 28—“automatic deportation”—should not be laid at his door. I think that that phrase was used originally by the Prime Minister in an unguarded moment at Prime Minister’s questions. Many of the difficulties and knots in which the Government have entangled themselves ever since have resulted from an attempt to justify the use of that phrase by the Prime Minister. Nothing in the Bill suggests that anything will be automatic.
In that regard, the remarks of the Immigration Law Practitioners Association are very relevant. On the provisions to which the amendments refer, it said:
“These provisions do not address the problem, which came to light last year—that IND had not been making decisions in respect of foreign criminals, who were then released from prison into the community without any consideration of whether a deportation order should be made. The Bill refers to automatic deportation, which is a misnomer. Deportation will not follow automatically. Officials will still have to apply the provisions, and if officials do not do so no deportation will follow.”
That is clear, and to a large extent unarguable. ILPA continued:
“These provisions constitute an abrogation of responsibility on the part of the Secretary of State. He is empowered to make a deportation order, but currently has discretion not to do so if deportation is not justified on the particular facts of the individual case. As drafted, the Bill would remove the Secretary of State's discretion”.
Again, I am sure that that point appeals to the hon. Member for Birmingham, Yardley. I hope that the Minister will address it when he responds to the amendments.
ILPA went on to make a point that I feel very strongly about:
“These provisions effectively allow for indefinite detention”.
Mr. Byrne: Will the hon. Gentleman take this opportunity—I know that it is not on his point—to congratulate the emergency services on their response to the incident at Campsfield?
Damian Green: Absolutely. I am more than happy to do so, because I know how serious it was. It clearly could have been even more serious, as the Harmondsworth incident became. I know that the emergency services and those who were sent in to sort out the situation behaved admirably, bravely and quickly to minimise its effect. However, the incident illustrates starkly the fact that if we carry on doing what we are doing, the position will remain unsatisfactory.
The clause is not one of the parts of the Bill that will affect what might happen in future or in a theoretically constructed situation. It affects things that are happening now and going very wrong. That is why there are so many amendments for us to discuss and why I, my hon. Friends and the hon. Member for Birmingham, Yardley are seeking to improve the provisions. At the moment there is a toxic interaction of a prison estate that is too full and a deportation system that is not working. The only safety valve is the immigration detention estate, which is not designed to take people who have been sentenced to prison for serious offences. I am sure that that particularly unpleasant combination of failures is one thing that keeps the Minister awake at night.
I shall speak briefly to the amendments in my name. As the Bill is drafted, people will be liable to automatic deportation only if they have been sentenced to prison for at least 12 months. We have all sought different ways to improve that and relax that constraint. I seek to remove that criterion so that automatic deportation applies to any person who has served a prison sentence.
Despite the length of the debate, I suspect that nobody has said much with which the Minister does not agree. We all agree that the deportation of foreign prisoners is desirable in most cases—the debate is about prisoners only, which is an important distinction. We know that at the moment only people who have committed serious offences are sentenced to prison. That is all the more true given the current overcrowding in the prison estate. It therefore seems to us extremely easy to argue that if a foreign criminal has been given a prison sentence, by extension they should lose their right to stay in this country. They have abused the hospitality that it has afforded them and should therefore lose their right to be here.
I have referred several times to prison overcrowding. I am sure that it would help if the ability to deport foreign criminals who have been given a prison sentence were extended so that it was not restricted to those who had been sentenced to more than 12 months.
Mr. Byrne: Obviously, we need to distinguish the stock and the flow. I am grateful to the hon. Gentleman for helping me to clarify that point. The stock of foreign national prisoners is about 10,000, but what I said on Second Reading was that there would be about 4,500 considerations each year. Obviously, some people will be locked up for much longer and that figure will not always be appropriate.
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Damian Green: I appreciate that. Clearly, the prison population changes on a constant and daily basis. Nevertheless, the underlying point is that the process will not be automatic for a large number—many thousands—of foreign prisoners. Frankly, there is a gap between the rhetoric and the reality of what the Government are promising.
Amendment No. 142 is consequential to the previous amendment and, again, it would expand the range of the clause. This debate has been enormously important and if the Bill is designed to secure our borders, a much better deportation system than the present one is necessary. I am sure that the Minister recognises that and it is presumably why these clauses are in the Bill. The various amendments tabled by me and by my hon. Friends simply try to make that system genuinely effective and, once and for all, to make it clear that Britain’s borders are open. People are welcome to come to this country, but they are not welcome to come here and prey with criminal intent on its people. We need to clearly send out that message.
Mr. Byrne: I am grateful to hon. Members for an excellent debate. In some of the exchanges betweenthe hon. Members for Hertsmere, Monmouth and Birmingham, Yardley—who is my neighbour—we have seen the different dynamics and ends of the debate. I will take the Committee through the journey that I have travelled because I have an enormous amount of sympathy with the argument that has been eloquently put by the hon. Member for Hertsmere.
What the Government have tried to do in the clauses that we have structured is provide for a degree of balance. The starting point for the debate is that those who come to this country, commit a crime and receive a criminal sentence face the prospect of deportation. As the hon. Member for Hertsmere said, existing powers on the statute books provide for that. The question left is how to ensure a stronger link between criminality and deportation. What we have tried to do, as the Immigration Law Practitioners’ Association has recommended, is to remove some of the Home Secretary’s discretion when making those decisions. The Home Secretary was clear that those who commit offences should face the prospect of deportation. What we are debating in these clauses is the manner of execution for that decision.
These clauses will accelerate the removal of foreign national prisoners from the country while increasing the certainly of removal. One of the current problems is that when foreign national prisoners are considered for deportation and handed a deportation order, nearly three quarters appeal against the order despite the fact that about 55 per cent. of appeals are dismissed and25 per cent. are withdrawn. That process of appeal takes up to six months and that is too long. When serious offences have been committed, we need to deport the individuals effectively and if they wish to undertake an appeal, they can do so from their country of origin, thanks very much.
The amendments that we have debated this afternoon fall into four categories. AmendmentsNos. 7, 8, 15 and 16, and 142, which is in the name of the hon. Member for Ashford, challenge the threshold. The hon. Member for Hertsmere raised a related point about offences committed by individuals without leave and raised points, on which there a number of related amendments, about suspended and consecutive sentences. The hon. Member for Birmingham, Yardley put a point from the other end of the spectrum about eliminating some of our proposals. I shall canter through those points as quickly as I can.
I shall reflect again on the debate that we have had this afternoon, because it has been important. I need to consult with colleagues in both the Home Office and the Department for Constitutional Affairs in order to explore whether there are areas in which we need to go further than we have provided for in the Bill. I understand that hon. Members may wish to put some of the issues to a vote, and that is fine. However, this is a signal that I shall reflect carefully on what has been said.
The starting point for the question of balance is important. We have deliberately drawn the debate widely; we have drawn the applicable population as broadly as we can. I said earlier that the debate covers some 3.4 million foreign nationals. The hon. Member for Monmouth asked where that figure came from. It came from the operational modelling, data analysis and reporting services published by IND in February 2007. If he wants more details, I shall be happy to try to provide them.
The point about the foreign national population in this country is that it includes individuals who might have arrived in this country moments after they were born. Indeed, there may well be foreign nationals in this country who were born in Britain after 1981 to parents who were not British, and are therefore not British citizens. They are foreign nationals with indefinite leave to remain; none the less, for the purposes of the Bill, they are classed as foreign nationals and are therefore subject to the foreign nationals clauses. Those individuals might have spent all their lives in this country, so we need to inject a degree of balance into cases in which we take into account people’s personal circumstances. That is why I think that it is not necessarily appropriate to remove all discretion for all offences that carry a sentence.
Some individuals, such as those born here to foreign national parents after 1981, have grown up in Britain and are to all intents and purposes British, but are not British citizens. If one of them committed an offence that was subject to a sentence of imprisonment, he would automatically be deported. Having reflected long and hard on that, I think that that would be disproportionate.
We have therefore sought to structure in a supporting mechanism, and that is recourse tosection 72 of the Nationality, Immigration and Asylum Act 2002. I do not know whether Committee members have had a chance to look at that, but it is important to do so. It is about 40 pages long and lists some 324 offences. Almost all of the examples that have been given by hon. Members this afternoon, whether of burglary, picking pockets or other types of theft, concern offences that appear on the section 72 list and therefore carry the sanction of automatic deportation. We wanted to avoid the situation in which somebody who was born in this country after 1981 is convicted of the non-payment of a fine and sentenced to a period of imprisonment and is then automatically deported. That is not the same as saying that he should not face deportation; provisions that are already in place mean that he would do so. However, the outcome would beat the discretion of the court or of the Secretary of State.
An important point was very well made by thehon. Member for Hertsmere about the automatic deportation of those who commit offences when they are here without leave. I confess to him that I started in precisely the same place as he did. However, what leads me to suggest that his amendments Nos. 58 and59 should be withdrawn is the fact that there could be situations in which injustice results from the changes that he proposes.
The scenario that has been put to me—it is, I am afraid to say, perfectly plausible in my experience as a constituency MP—is that of a woman who came over as a spouse, possibly through an arranged marriage, and her husband did not allow her to apply for indefinite leave to remain. Through no fault of her own, she therefore found herself without leave to remain in this country and then became a victim of domestic violence. Maybe one day she fought back, committed an offence and was therefore liable for imprisonment—that is how the hon. Member for Hertsmere has drafted the amendment—and she ends up being given a community sentence. However, under the precise drafting of the amendment, she would therefore be automatically deported. The protections that we have put in place might simply not bite in that case.
That is not to say that that individual—the woman in question—would not face automatic deportation; indeed, she would face automatic deportation. My argument is that, in cases as complicated as that, we may need the consideration process rather than an automatic process to unfold and it may be appropriate to provide for an in-country right of appeal, rather than, say, an appeal from Pakistan.
In the case that the Minister has outlined to us, if the lady in question committed an offence that resulted in a sentence of more than 12 months’ imprisonment, under his own trigger mechanism she would face automatic deportation in any case. In both cases, whether it is any sentence of imprisonment or more than 12 months’ imprisonment, that person would have the full protections afforded by exception 1, which would bring into play the question of her rights under the European convention on human rights, including the right to family life under article 8. I suspect that those rights would cover the sort of case that the Minister referred to.
Mr. Byrne: I think that the amendment that was tabled in the name of the hon. Member for Hertsmere is No. 59, which says:
“Condition 3 is that the person is convicted of an offence liable to imprisonment, the commission of which took place when the person did not have valid leave to remain in the United Kingdom.’.
I understand, however, that there are a lot of amendments in this group.
I am less convinced than the hon. Gentleman that article 8 would kick in as a protection and I agree that, under my own provisions, if the sentence were for longer than 12 months there would indeed be automatic deportation. However, I do not think that there would be a court that, on review of the facts of that case, would necessarily hand down such a sentence.
I was also grateful to the hon. Gentleman for his point about administrative removal, which is, of course, important. That is because against administrative removal, the right to appeal is out-of-country; to come back in, one would obviously require entry clearance.
The point about suspended and consecutive sentences was one of the most important parts of the debate this afternoon. The examples of offences that were given were all offences that would have been captured by section 72 of the Nationality, Immigration and Asylum Act 2002 and therefore would have resulted in automatic deportation. The argument about suspended sentences comes back to some of the points made by my neighbour, the hon. Member for Birmingham, Yardley. We want to try to retain the link between serious offences and automatic deportation.
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I do not dispute the fact that that individual should face the prospect of automatic deportation, but I think the force of the automatic deportation provisions may be the wrong approach and risk an injustice, which would be unwise. The protection of an in-country right of appeal may also be important in order to provide that the Secretary of State does not get it wrong. The point is simply that the period is difficult to stipulate and the number of offences committed within that period is difficult to set in stone. Again, I am not in a very different place from the hon. Member for Hertsmere, because his real concern is about serial offenders or recidivists.
A different way to tackle that problem is by amending section 72 of the 2002 Act. That Act contains an order-making power, so it would not be difficult for the Government to amend the section 72 list and introduce changes. I was interested that the hon. Gentleman included burglary in the crimes he mentioned, because that is already on the list. It is a faster, more appropriate way to tackle the problem that he highlighted. The problem of defining the time window in which the offences are committed is so difficult that it may warrant a different process for considering automatic deportation.
I think I have picked up most of the points that were made except the one that was raised by ILPA, cited by the hon. Member for Ashford, which was concerned that we might be locking people up indefinitely. There are, of course, the usual protections under the European convention on human rights. We cannot lock people up indefinitely; the IAT—the immigration appeal tribunal—takes a pretty stiff view of that and looks for the immediate prospect of deportation and removal.
Mr. Clappison: I am grateful to the Minister for the manner in which he has replied to the debate. My hope throughout has been that he would at least indicate a preparedness to think constructively about the amendments, which highlight problems that must be tackled and would improve the Bill if they were implemented.
I want to get one little disagreement out of the way and then I shall move on to more constructive matters. The Minister deftly fudged the distinction between facing deportation and automatic deportation. When the Home Secretary was speaking about facing deportation he was clearly talking about these provisions for automatic deportation. There would have been no point in his making those statements if he was going to leave the existing system as it was in the spring of last year.
We all know about the existing provisions for deportation; one could say that somebody was facing deportation in those circumstances. But when the Home Secretary talked about facing deportation he meant automatic deportation, as is clear from the context and the words that he used. However, we will not get far by going over that ground again. I am trying to improve what is presented as automatic deportation.
On the person who is here illegally, the Minister is quite right; I was talking about the amendment tabled by my hon. Friend the Member for Monmouth. The amendments that address people who are illegally present in the country relate to the commission of an offence. However, I would ask the Minister to reflect on that. I listened to the example of the lady who comes to this country in the sad circumstances of a marriage that does not turn out to be happy and has problems of domestic violence; if she does not have leave to remain, such a person would be liable none the less for administrative removal.
Such a person would have rights to have that case considered, but I believe that those rights would be on all fours with what is contained as a protection in the existing Bill—namely, the right to have the case considered against the background of the European convention. Such a case would be covered by the exception of the person’s rights under that convention. As I have already pointed out, if the sentence that the person received happened to be more than 12 months, quite likely in those circumstances, that person would face automatic deportation in any case. I would invite the Minister to think about that.
Would the Minister also think carefully about the position of repeat offenders? He has been trying to find examples which might give a little wriggle room on these questions. His point was about repeat offences which were a long time apart, of somebody who commits an offence as a young man and then later commits another offence.
I would respectfully remind the Minister that this amendment is about somebody who is being sentenced on the same occasion for a number of offences. It is not a question of repeat court appearances; it is about someone who is sentenced on the same occasion and the court chooses to impose consecutive sentences for each offence.
Mr. Byrne: The hon. Gentleman is being generous, but as I understand it—and I am not a lawyer—it is possible that an individual might be sentenced on the same day in the court to consecutive sentences for offences that were committed a very long time apart. It could just be that the offences are brought together on that day.
Mr. Clappison: The Minister is right. That was the case that I had in mind. However, at a single court appearance that person might receive a sentence of imprisonment for one offence, which, although it is unlikely, may have been committed some time beforehand, and then receive a prison sentence for another offence, which was presumably committed more recently. Therefore that person would receive a total of two sentences. It is still repeat offending.
I cannot find it in myself to feel that such a person should receive additional protections. If a person repeatedly offends, even if the offences are a little way apart, and on each occasion it is considered that the offence is so serious that only a custodial sentence can be imposed, the totality of that person’s offending should bring that person within these provisions for automatic deportation.
The Minister’s example goes to the furthest reaches. Nine times out of 10, if not 99 times out of 100, the offences will be much closer together in time than that. Such a person would have the protection of the exception for their convention rights, the right to family life and all the other protections that arein place. I ask the Minister to think carefully about that.
I would also like the Minister to consider the problem of suspended sentences. There, even his example could not apply because when someone receives a suspended sentence, that person is told that it will last for a certain length of time. It is usually two years, although the time could be shorter—I think it is a maximum of two years; it might be three. It is certainly for a limited period. We are talking about somebody who receives such a suspended sentence and then commits another offence during the currency of that suspended sentence so as to produce a total sentence of more than 12 months imprisonment; a person who repeats offences close together, has two court appearances and refuses to heed thewarning that has been given through the first court appearance.
I am grateful to the Minister for confirming that my understanding is correct—at least he has not said that it is wrong. However, it is just that the Minister can think of some examples that might result in hard case stories. That is my interpretation of the provisions. I cannot see any conceivable circumstances in which a person in that position should be treated more leniently than a person who appears in court and for a single offence receives a prison sentence of 12 months and faces automatic deportation. It is not just or in the public interest to have someone in this country who commits repeated offences and takes no notice of what the courts have said.
I am grateful to the Under-Secretary of State for the spirit with which she has replied to the debate. I am not prepared at this point to retreat from the substance of what I have said, but I will reflect carefully on what the Minister has said. He has promised to think carefully about what I have said in the debate. If he is prepared to do that he may produce amendments that are better technically and have the same effect of dealing with the problem of repeat offences, or perhaps deals with them in a different way.
There is a problem here of dealing with repeat offenders. In other evidence that it has given, Migrationwatch highlighted that problem. I think that it may have been mentioned on Tuesday, but it has been highlighted on previous occasions. I believe that in existing provisions, which the Home Office has had as guidelines for dealing with deportation, recognition has been made of the case of repeat offenders. Therefore, we have to deal with repeat offenders here. On the basis that the Minister is prepared to think about and reflect on what I have said and possibly come back with some further measures at a later stage in the Bill’s consideration, I seek leave to withdraw my amendments.
Amendment, by leave, withdrawn.
Amendment proposed: No. 134, in clause 28, page 14, line 15, leave out from ‘imprisonment’ to end of line 16 and insert
‘has committed an offence which, in the opinion of the sentencing judge, merits deportation.’.—[John Hemming.]
Question put, That the amendment be made:—
The Committee divided: Ayes 1, Noes 10.
Division No. 12 ]
AYES
Hemming, John
NOES
Byrne, Mr. Liam
Campbell, Mr. Alan
Davies, David T.C. (Monmouth)
Green, Damian
Hodgson, Mrs. Sharon
McCarthy, Kerry
Mole, Chris
Ryan, Joan
Ussher, Kitty
Wright, David
Question accordingly negatived.
Further consideration adjourned.—[Mr. Alan Campbell.]
Adjourned accordingly at thirteen minutes past Five o’clock till Tuesday 20 March at half-past Ten o’clock.
 
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