Memorandum submitted by Foreign National Prisoners Network (UKB 10)
About the Foreign National Prisoners Network
1. The Foreign National Prisoners Network has a broad membership base of specialist criminal, immigration and prison law solicitors and barristers, together with representatives from interested practitioners' and campaign groups. The Network's 177 members work in a wide range of firms, Chambers and organisations including the Prisoners' Advice Service, the Immigration Advisory Service, the Refugee Legal Centre, the Irish Commission for Prisoners Overseas, the Immigration Law Practitioners' Association, Liberty and Justice.
2. The Network was formed in late Spring 2006 in response to a sharp rise in litigation and enquiries involving foreign national prisoners. Members of the Network have provided training, disseminated information leaflets for prisoners and those working with them, and collated and shared resources on law and procedure. The Network also acts as a referral mechanism to identify those with the capacity to take on individual cases. Members have assisted in the submission of freedom of information requests, and parliamentary questions. The Network is apolitical and works on a wholly voluntary basis. We are uniquely placed to provide a view from the front line of what is happening in foreign national prisoner cases. This is our first parliamentary briefing.
This Briefing Note
3. This briefing note deals only with those aspects of the UK Borders Bill that directly affect foreign national prisoners - Clauses 28-35 and Clause 44 (4) (d).
4. This note represents the collective view of the Foreign National Prisoners Network. It does not represent the position of any other organisation.
Main Concerns - A Summary
· 'Automatic' deportation means less, not more accountability for the Home Secretary. The Home Secretary will not be accountable for the exercise of his discretion in making an 'automatic' deportation order - because he will not have one.
· Because 'automatic' deportation orders will be made before, not after, appeals have been exhausted, the Home Secretary will be able to tell Parliament how many 'automatic' deportation orders he has made. This will tell us nothing about whether those people are actually to be deported or not.
· The loss of the Home Secretary's discretion over most deportations cannot be justified as being in the public interest. The public benefits from legislation that provides for flexibility, with individual cases judged on their own merits. The loss of the Secretary of State's discretion and the limitation of the powers of the Asylum and Immigration Tribunal in 'automatic' deportation cases means that long-resident foreign nationals who have made worthy contributions to society may be expelled for criminal behaviour that is wholly out of character and which they will not repeat and even where the public interest clearly does not lie in deportation.
· After strong recommendations from Her Majesty's Chief Inspector of Prisons, the Government publicly committed to taking deportation decisions earlier and well in advance of foreign national prisoners completing their sentences, to avoid unnecessary and prolonged detention post-sentence. But the proposed legislation has the opposite effect: it removes any expectation of when deportation decisions will be taken.
· The lack of any specified time-frame for making 'automatic' deportation orders risks leading to foreign nationals spending long and avoidable periods in immigration detention after completing their sentences while the Home Secretary 'considers' whether the 'automatic' deportation provisions apply. More and longer detentions will affect not only foreign national prisoners but prison establishments (already overcrowded) and the tax-payer.
· The Bill permits the Home Secretary to detain people indefinitely while he 'considers' whether the 'automatic' deportation provisions apply, or where he merely 'thinks' that 'automatic' deportation provisions do apply - even where those provisions do not, in fact, apply. Again, this increases the risk of arbitrary, unnecessary and protracted detentions.
· The presumption of detention for people subject to an 'automatic' deportation order which appears to be created by the Bill is incompatible with the presumption of liberty under fundamental constitutional principles and under Article 5 ECHR.
· The Bill allows the Home Secretary to pick and choose, through further separate orders, which offences should or should not result in 'automatic' deportation after the primary UK Borders legislation has been passed. This suggests that the 'automatic' deportation provisions are rushed, unnecessary and overly ambitious. It will also leave the final ambit of 'automatic' deportation provisions largely outside the proper detailed scrutiny of Parliament.
Background on Deportation
5. There are two ways in which non-British citizens can be expelled from the UK. One is administrative removal, which is used in cases where the person has no entitlement to remain in the UK. The other is deportation.
6. If a deportation order is made, it invalidates any existing leave the person has to be in the UK and also bans the person from returning to the UK until the deportation order is revoked. Unlike administrative removal, deportation can be used against EEA nationals.
7. A deportation order can be made:
o Where the Home Secretary considers that the person's presence in the UK is 'not conducive to the public good' including in cases where a Court has made a 'recommendation to deport' following a conviction for of a criminal offence.
o For a family member of a person being deported.
8. In cases of EEA nationals, deportation is not based upon the 'not conducive to the public good' test, but on tests laid down under European law, which are different depending on the person's residence rights and length of stay. The deportation of EEA nationals will not and cannot be affected by the measures in the Bill or any national legislation, as is recognised in Clause 29(4) of the Bill.
9. Because it is a harsher sanction, and can be used against people who otherwise have permission to be in the UK, deportation has historically been subject to a greater level of scrutiny and used less frequently than administrative removal.
10. Historically, the Home Secretary retained a good deal of discretion about whether or not to deport someone. Until July 2006, the Immigration Rules (HC 395 paragraph 364) required the Home Secretary to weigh and balance all the competing factors when considering whether to deport. In summary, the Home Office would weigh the public interest in deporting criminals against the individual's personal circumstances.
11. In July 2006, the Immigration Rules were amended so that now the public interest in deportation is outweighed by personal circumstances only in exceptional circumstances - except in refugee and human rights cases where the law prohibits return.
Individual Clauses of the UK Borders Bill
Clauses 28 -29
Explanation of Clauses 28 and 29
12. Clause 28 makes 'automatic' the deportation of certain foreign national offenders. There are a number of exceptions where deportation is not automatic: these are contained in Clause 29. To understand the new scheme, Clauses 28 and 29 must be read together.
13. By Clause 28, the Home Secretary surrenders his discretion in relation to the deportation of foreign nationals who have been convicted in the UK of a criminal offence where either of the following two conditions applies:
(1) The person has been sentenced to imprisonment for at least 12 months.
(2) The person has been sentenced to imprisonment for an offence specified by the Home Secretary.
14. A very long list of offences has already been specified. This specification was done for a different purpose: to set out those who should not receive recognition as a refugee because of their conduct (even though the law or policy may prohibit their removal from the UK). The specified offences range from the most serious offences (such as possession of a nuclear weapon) to offences which can carry light sentences (such as shoplifting offences under the Theft Act ; or reckless damage to another's property).
15. For foreign nationals who satisfy either of these two conditions (a prison sentence of 12 months or more or imprisonment for any of the specified offences), the Home Secretary must make a deportation order and their deportation is deemed conducive to the public good.
16. Clause 29 sets down exceptions to this regime. The exceptions are where there are existing statutory provisions exempting a person from deportation and also:
(1) People whose deportations would breach their human rights and refugees.
(2) People whom the Home Secretary "thinks" are under 18 on the date of conviction.
(3) EEA nationals and others who rely on EU rights.
(4) People subject to extradition proceedings.
(5) People subject to certain provisions of mental health legislation.
17. For these five exceptions, the Home Secretary may still make a deportation order, but does not have to do so. Clause 29(7) provides that for exceptions (1) and (4), deportation is still deemed conducive to the public good. For all the other exceptions, there is no assumption that deportation is conducive to the public good but nor is there an assumption that it is not conducive.
18. Under Clause 28, the Home Secretary cannot revoke a deportation order unless he thinks that an exception under Clause 29 applies or unless the application for revocation is made from outside the UK (in practice, after the person has returned to his/her country of origin).
19. Under Clause 28 (7), there is no right to take civil action where the Home Secretary fails to make an 'automatic' deportation order against a person who was liable for 'automatic' deportation.
Commentary on Clauses 28 and 29
20. The Immigration Rules were tightened in July 2006. Less than a year later, the Home Office seeks to introduce further change and an even less flexible regime.
21. To understand Clause 28, the clause must be read together with the long list of offences already specified in the order made under section 72 of the Nationality, Immigration and Asylum Act 2002. By virtue of the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004, a person who is convicted for using a chemical weapon is treated in the same way as a person who is imprisoned for shoplifting: both are specified offences.
Summary of concerns on Clauses 28 and 29
§ There is no good reason to reduce the Home Secretary's discretion further than the changes to the Immigration Rules in July 2006.
§ The Government has not justified - nor can it justify - this measure as being in the public interest: the public benefits from legislation that provides for flexibility, with individual cases judged on their own merits.
§ The number and range of specified offences means that people who have made worthy contributions to society may be expelled for criminal behaviour that is wholly out of character and which they will not repeat. Deportation orders will be 'automatically' made in cases where the public interest does not lie in deportation.
§ There is no public interest in automatically preventing people from applying to revoke a deportation order prior to their leaving the UK.
§ The proposed scheme is very difficult to square with the notion of a fair, effective, transparent and trusted Home Office. The Home Secretary will not be accountable for the exercise of discretion in making a deportation order, because he will not have one. It will not be possible to compare how many notices of intention to deport resulted in an order being made, because there will be no separate notice of intention to make a deportation order.
§ The Secretary of State will be able to tell Parliament how many deportation orders he has made. This will tell us nothing about whether those people are actually to be deported or not (since the deportation order will be made, though not enforced, before any appeal).
Who would be automatically deported under the proposed new regime?
Sakchai Makao is a young Thai man from the Shetland Islands whose deportation case was reported extensively in mid-2006. At the age of 20, he was sentenced to 15 months' imprisonment (serving eight) for fire-raising. Lerwick Sheriff Court heard that a mobile building and car destroyed by fire in "two moments of madness" when he was drunk.
However, Mr Makao had lived in the Shetland Islands for thirteen years, since the age of ten. He was a talented amateur athlete and worked as a lifeguard. His employer had given him his job back after his release from prison.
A petition against Mr. Makao's deportation was signed by 7,000 Shetland Islanders. An Early Day Motion was signed by 113 MP's noting Mr. Makao's valued place in his community and calling on the Home Secretary to rescind his decision to deport him.
Mr.Makao appealed against the Home Secretary's decision to deport him and won - not on asylum or human rights grounds but under the Immigration Rules.
Under the Bill, the Home Secretary would not have any discretion in a case such as Mr. Makao's: the Home Secretary would not be able to make up his mind on the facts of the case. The Home Secretary would have to make an 'automatic' deportation order - even if he were persuaded by the arguments of the 7,000 islanders.
Moreover, under the Bill a person in Mr. Makao's position would not be able to appeal against an 'automatic deportation' order to the Asylum and Immigration Tribunals on the grounds that Mr. Makao won on (the 'balancing exercise under the Immigration Rules').
Explanation of Clause 30
22. Clause 30 concerns the timing of 'automatic' deportation orders.
23. Clause 30 (1) enables the 'automatic' deportations of foreign nationals to take place within the Home Secretary's own time-frame.
24. Clause 30 (2) provides a procedural safeguard and ensures that 'automatic' deportation orders cannot be made in relation to people who have pending appeals against their original conviction or sentence or who are within time to bring an appeal in their criminal case.
Commentary on Clause 30
25. Under Clause 30 (1), there are no time constraints on the Home Secretary's power to make 'automatic' deportation orders. The Home Secretary can make an 'automatic' deportation order at any time of his choosing. Therefore, on the face of Clause 30, nothing prevents the Home Secretary making an 'automatic' deportation order a long time after a person has completed his sentence - or even after the foreign national has been released from prison and has re-integrated to the community.
26. As set out further below, the Home Secretary will have the power, under Clause 32, to detain individuals after the completion of their criminal sentences while he 'considers' whether the automatic deportation provisions apply. Because there is no time limit on the making of an 'automatic deportation order, there is, at least on the face of the statute, no limitation on how long the Home Secretary can detain an individual while 'considering' whether the automatic deportation provisions apply.
Summary of concerns on Clause 30
· The lack of a specified time-frame for making 'automatic' deportation orders risks leading to foreign nationals spending long and avoidable periods in immigration detention after completing their sentences while the Home Secretary 'considers' whether the automatic deportation provisions apply. More and longer detentions will affect not only foreign national prisoners but prison establishments (already overcrowded) and the tax-payer.
· Because Clause 30 deprives foreign national prisoners of any certainty as to whether or when they will be liable to deportation, Clause 30 undermines the prospect of rehabilitation, reintegration and offender management for those foreign national prisoners who will not, in fact, be removed.
· The open-ended time-frame established by Clause 30 undermines the stated objective of ensuring that foreign national prisoners are dealt with swiftly and fairly. There already exists an acute problem within the Criminal Casework Team of the Immigration and National Directorate of a failure to make timely decisions (or sometimes any decisions) in the deportation process. The deportation process has fallen into disrepute not because the Home Secretary lacks powers to deport, but because he has failed to exercise the powers he already has. Changing the legislation to remove even the expectation of when deportation decisions will be taken will provide a statutory underpinning to the Home Secretary's failures in making timely deportation decisions.
Explanation of Clause 31.
27. Clause 31 amends certain appeal provisions in the Nationality Immigration and Asylum Act 2002 Act.
28. Currently, a decision to make a deportation order is made before the deportation order itself and the decision to make the deportation order is what triggers rights of appeal to the Asylum and Immigration Tribunal. No deportation order can be made until any appeals in the Asylum and Immigration Tribunal have been exhausted.
29. The amendments in Clause 31 (2) will mean that 'automatic' deportation orders can be made - though not enforced - before an in-time appeal is brought or while an appeal is pending. An automatic deportation order will not have the effect (as does a deportation order made under the present regime) of invalidating any leave to enter or remain for as long as there is an appeal pending.
30. Currently, only a decision to deport can be appealed, not the deportation order itself. Clause 31 (2) makes provision for appeals against 'automatic' deportation orders.
31. Currently, there is provision for an in-country right of appeal against the decision to make a deportation order. Under Clause 31(4) people will have no in-country appeal right against an 'automatic' deportation order unless they have made a human rights or asylum claim or both.
32. Under the present system, even where a person makes a human rights or asylum claim, they can be denied an in-country right of appeal if the Secretary of State certifies that claim as 'clearly unfounded'. Any challenge against such certification is by judicial review in the High Court. Clause 31(5) applies these provisions to cases where people with automatic deportation orders make asylum or human rights claims. Individuals whose asylum and human rights claims have been certified will not be able to exercise an in-country right of appeal against 'automatic' deportation prior to deportation.
Commentary on Clause 31
33. At present, individuals can appeal in-country against a decision to make a deportation order, not only on asylum and human rights grounds, but also on grounds that the decision is racially discriminatory, that the decision contravenes the Immigration Rules, or on the grounds that the decision is 'not in accordance with the law' (for example, the decision was improperly made). Clause 31 strips away those additional grounds of appeal from individuals facing 'automatic' deportation orders.
34. Deportation often involves the expulsion of very long-established individuals and difficult decisions over the balance to be drawn between an individual's offending behaviour and his or her contribution to and ties to the UK. This is why the present deportations regime preserves the Home Secretary's discretion in deportation cases, albeit, since July 2006, only in the most exceptional cases, and preserves rights of appeal for individuals facing deportation.
35. Under Clause 31, the grounds on which foreign nationals will be able to bring an in-country appeal against automatic deportation orders will be limited to asylum and human rights grounds, which the Home Secretary will be entitled to certify as 'clearly unfounded'. This is likely to lead to more challenges being brought in the High Court to 'clearly unfounded' certificates. It is also likely to lead to many individuals who would have an in-country appeal right under the present system now losing this appeal right. Because of the difficulties of bringing an out-of-country appeal, the loss of an in-country appeal right means, in effect, the loss of any appeal right.
36. The proposals are likely to lead to considerable administrative problems in practice. Under the new system, 'automatic' deportation orders will be made, though not enforced, before any appeals. What is to happen under the Bill if an 'automatic' deportation order is made and a person then wins an in-country appeal? Will they have to apply for their deportation order to be revoked, remaining in detention all the while? Will it be 'automatically revoked' and if so, what communication systems will give effect to the revocation? A person against whom a deportation order is in force cannot enter the UK. One can envisage an appellant who succeeds on an out of country appeal going to a British Consular post abroad and being turned away, on the basis that they are subject to a deportation order, even if the post is made aware of a successful appeal, because the order has yet to be revoked.
Summary of Concerns on Clause 31
· For the same reasons that it is harsh, unnecessary and inflexible, as set out above (see the Sakchai Makao example) to remove the Home Secretary's discretion when considering whether to 'automatically' deport, it is harsh, unnecessary and inflexible to reduce the scope of the Asylum and Immigration Tribunal's powers when considering whether to uphold an 'automatic' deportation decision, and to reduce access to the Asylum and Immigration Tribunal for individuals facing 'automatic' deportation decisions.
· There is no public interest justification for departing from the current system of first making a decision to deport and then making the order at the end of any in-country appeals. Under the present system, the making of the deportation order itself does not give rise to a separate, further right of appeal against the deportation order. Likewise, powers to detain exist as soon as the decision to deport is made.
· The proposal that 'automatic' deportation orders should be made while in-country appeals can still be brought will only lead to administrative confusion (the Bill fails to address the question of what will happen to the 'automatic' deportation order where the foreign national succeeds in his or her appeal against it - will it be 'automatically' revoked?)
· The proposals will also undermine rather than improve accountability and transparency. The Home Secretary will make more deportation orders, because these will be made pre-appeal. But this will tell us nothing about whether these orders survive an appeal on human rights or asylum grounds.
Explanation of Clause 32
37. Clause 32 concerns the detention of people liable to 'automatic' deportation. It creates wide-ranging new powers of immigration detention.
38. Clause 32 creates a power to detain people who have served a period of imprisonment (1a) while the Home Secretary 'considers' whether the automatic deportation provisions apply to the individual and (1b) where the Home Secretary 'thinks' that the 'automatic' deportation provisions apply, pending the making of the deportation order.
39. Under Clause 32 (2), once an 'automatic' deportation order has been made, the Home Secretary is required to (he 'shall') exercise his powers of immigration detention unless he thinks it inappropriate to do so.
40. Under Clause 32 (3), a court determining an appeal against conviction or sentence can direct the release of a person who has been detained under the automatic deportation provisions.
41. Under Clause 32 (4) as with other forms of immigration detention, a Chief Immigration Officer and Immigration Judges of the Asylum and Immigration Tribunal will have the power to grant bail.
42. Under Clause 33 (5) people who are liable to be detained under 32 (1) (ie all those who have served a period of imprisonment and for whom the Home Secretary is 'considering' whether they are liable to automatic deportation or where the Home Secretary 'thinks' that they are liable to automatic deportation) can be subjected to restrictions on their residence and occupation and to reporting conditions.
Commentary on Clause 32
43. Clause 32(1) creates an apparent power to detain an individual who has completed a period of imprisonment under Immigration Act powers relating to automatic deportation even if the automatic deportation provisions of Clause 28 (5) do not, in fact, apply to the individual.
44. This is because Clause 32(1) (a) empowers the Home Secretary to detain the person under Immigration Act powers while 'considering' whether the automatic deportation provisions apply; and Clause 32 (1) (b) empowers the Home Secretary to detain a person where the Home Secretary 'thinks' that the automatic deportation provisions apply.
45. Existing powers of detention relating to deportation allow the Home Secretary to detain only where the deportation machinery is already in play (ie where a court has recommended deportation, or where a notice of intention to deport has been given or is ready to be given, or where a deportation order is in force). It is well established under current law that if the steps in the deportation process have been taken unlawfully (for example, because the detainee was British or otherwise exempt from deportation) then detention pending the steps in the deportation procedure will also be unlawful.
46. Clause 32 creates a gap between the deportation proceedings and the detention. As presently drafted, detention powers under Clause 32 are not contingent on the steps in the deportation process but on the Home Secretary's 'consideration' of whether to initiate deportation and 'thinking' that the automatic deportation provisions apply to the individual.
47. Clause 32(2) appears to create a presumption that a person will be detained where an automatic deportation order has been made. Such a presumption is contrary to the fundamental constitutional principle that there is a presumption of liberty and also incompatible with Article 5 ECHR.
48. The detention powers of Clause 32 are all the more troubling because there is no statutory time limit on detention under these provisions (there is, for example, no limit on how long the Home Secretary would need to 'consider' whether the 'automatic deportation' provisions apply to an individual).
49. This is particularly problematic because there is no automatic oversight of immigration detention: the system relies on the detainee or their representative initiating the bail hearing. Meanwhile, as has been documented by Her Majesty's Chief Inspector of Prisons, foreign national prisoners face acute problems in accessing legal advice and representation on their immigration matters when they are held in immigration removal centres and still more so when they are held in prisons. Many foreign national prisoners are unaware of how to apply for bail or even (given that instructions in the reasons for detention forms are written in English and rarely explained) of their right to apply for bail.
50. Clause 32 (5) also contains a significant extension to the reporting, occupational and residential restrictions imposed on foreign nationals facing deportation. At present, paragraph 2(5)of Schedule 3 Immigration Act 1971 ('the 1971 Act'), provides that a person who is the subject of a court recommendation to deport, or who has been served with a notice of intention to deport, or for whom such a notice is ready to be given, or who has a deportation order in force, 'shall' be subject to such restrictions as the Home Secretary sees fit to impose. Because the detention powers under Clause 32 are not triggered by steps in the deportation procedure but rather by the Home Secretary 'considering' whether to initiate those steps or 'thinking' that the automatic deportation provisions apply, the effect of Clause 32 (5) is that a person can be subject to restrictions (for an indefinite period) post -sentence even though the Home Secretary may subsequently decide not to initiate deportation proceedings at all.
Summary of concerns on Clause 32
· It is unnecessary, and will lead to a sharp rise in avoidable and protracted detentions of people who will never in fact be deported, to give the Home Secretary a period of time after the completion of a criminal sentence during which he can detain a person while considering whether deportation provisions apply. The Home Secretary can and should consider his powers of deportation during the criminal sentence.
· Her Majesty's Chief Inspector of Prisons and the National Audit Office have recommended that deportation decisions should be made earlier in foreign national offenders' sentences. The present proposals sit ill with government expressions of willingness to act on the recommendations of Her Majesty's Chief Inspector of Prisons and the National Audit Office.
· Powers of immigration detention and to impose restrictions relating to deportation must be tied to the deportation process itself (service of an appealable decision)- as is presently the case. To allow the Home Secretary to detain while 'considering' whether deportation provisions apply or where the Home Secretary merely 'thinks' that deportation provisions apply risks encouraging and permitting the unnecessary and protracted detention of people to whom deportation powers will never, in fact, be applied.
· The presumption of detention for people subject to an automatic deportation order which appears to be created by Clause 32 (2) is incompatible with the presumption of liberty under fundamental constitutional principles and under Article 5 ECHR.
· If these powers of detention are introduced, we strongly recommend the introduction of automatically scheduled bail hearings before the Asylum and Immigration Tribunal. This would provide a measure of accountability at an early stage in detentions.
Explanation of Clause 33
51. Clause 33 of the Bill concerns the deportation of the family members of foreign national offenders.
52. The Home Secretary already has the power to deport the non-British family members of people against whom there is a deportation order, provided that this is done before, or within 8 weeks of the deportation of the principal. Family members are defined as the spouse and children, including adopted children, under 18 of the principal.
53. Clause 33 of the Bill amends s.5 of the Immigration Act 1971 to set out when the 8 week period will begin in cases involving automatic deportation orders. Where the principal against whom the 'automatic' deportation order was made has not appealed, the 'relevant period' begins when the deadline for appealing expires. Where the principal against whom the 'automatic' deportation order was made has appealed, then the 'relevant period' begins once the appeal is no longer pending.
Commentary on Clause 33
54. The amendments made by Clause 33 are consequential.
55. Our understanding is that family members will still face deportation under existing procedures and not 'automatic' deportation. This is important: the more 'automatic' the deportation of the principal becomes, the more it is questionable whether the deportation should affect family members, who may have leave to remain in the UK, including Indefinite Leave to remain, in their own right, and who are not guilty of any criminal offence.
56. Particular concerns arise where children are involved. Because children can be reunited with their parents in Immigration Removal Centres prior to deportation, a rise in the number of foreign nationals being detained for deportation risks increasing the incidence of the detention of children.
57. There are also child protection issues. Were a British Citizen to be released from prison in circumstances where there were concerns for the safety of his/her children if s/he returned to the family home, child protection procedures would come into play. This should be no less the case where the Home Office proposes to reunite a family to deport. Social services should be involved, and child protection concerns and the best interests of the child assessed.
Summary of Concerns on Clause 33
· We seek confirmation that family members will not be subject to 'automatic' deportation but that the Secretary of State will have discretion, as now, not to order their deportation and that family members will have an in-country right of appeal on the exercise of that discretion.
· We ask the Home Secretary to outline the steps that will be taken to ensure that children being deported are detained only in exceptional circumstances; and that where children are detained for deportation, they are not detained for long periods and their health, welfare and educational needs are kept under close and regular review.
· We also ask the Home Secretary to clarify how child protection issues will be addressed when it is proposed to deport a child along with a parent who may pose a risk to them.
Clauses 34 and 45
Explanation of Clauses 34 and 35
58. Clause 34 is an interpretation clause. Clause 35 deals with consequential amendments to other legislation.
59. Suspended Sentences: Under Clause 34(1)(a), any reference to having served a term of 'imprisonment' in the 'automatic deportation' clause does not include a person who has received a suspended sentence. Under Clause 34(2), even if the sentence is subsequently activated, for the purposes of 'automatic' deportation, the person will not be deemed to have served a sentence of imprisonment. Clause 35 (1-2) makes a consequential amendment.
60. Aggregate terms of imprisonment: Under Clause 34(1) (b), any reference to a person who is sentenced to a period of imprisonment of at least 12 months in Clause 28(2) does not include a person who has been sentenced to a total of 12 months because of consecutive terms aggregating to a total of 12 months. Clause 35 (3) makes a consequential amendment.
61. Detention: Under Clause 34(1) ( c) and (d) and Clause 34 (2) (b), any reference to having served a term of 'imprisonment' in the 'automatic' deportation clause does include a person who is sentenced to detention in a young offenders institution or a hospital.
62. Insanity: If the jury passes a special verdict on a defendant, i.e. that he or she did the act alleged but that s/he is insane, the court can pass a number of orders relating to detention in hospital or a guardianship order. Under Clause 34(3), for the purposes of 'automatic' deportation, this special verdict will not be taken to be a conviction.
63. Further definitions: Under Clause 34(4), 'Convention Rights' and 'Refugee Convention' carry their usual understanding. As in the Immigration Act 1971, a person bears the burden of proof in proving that he or she is a 'British citizen'. 'Deportation Order' also carries the same meaning as in the Immigration Act 1971.
Commentary on Clauses 34 and 35
64. Clause 34 contains necessary protections for certain classes of offenders from 'automatic deportation. Suspended sentences are not taken to be sentences of imprisonment. The 12 month term for the purposes of determining liability to 'automatic deportation' cannot be made up of the aggregation of sentences. Those who have committed offences but who are deemed to be insane are not considered to have been convicted.
65. However, Clause 34 also has the effect that 'automatic' deportation provisions do apply to under 21's and also to those found to be responsible in law for their offending but who are suffering from a treatable mental illness.
Summary of Concerns on Clauses 34 and 35
66. The provisions as to suspended sentences and aggregate sentences provide important safeguards: they give weight to the views of the sentencing judge who has heard the evidence in the criminal case.
67. However, it is harsh to impose 'automatic' deportation on young people. Likewise, where it has been accepted that, while the individual is responsible for their criminal act, they are suffering from a treatable mental illness, it is harsh to make the period in which they spend in hospital under a court order count in the same way as if it were a period of imprisonment. Cases of young people and the mentally ill are examples of cases in which the Home Secretary 's discretion over whether to deport can provide an important protection which will be lost under the proposed 'automatic' deportation procedure.
Explanation of Clause 44(4) (d)
68. Clause 44 deals with commencement.
69. Clause 44(4)(d) makes special provision for the commencement of the 'automatic' deportation provisions.
70. Under Clause 44(4)(d) (i), 'automatic' deportation powers can be applied to those who commit offences prior to the date the legislation is enacted.
71. Clause 44 (4) (d) (ii) permits the commencement order for the 'automatic' deportation provisions to modify the application of the 'automatic' deportation provisions so as to disapply or limit the application of the automatic deportation measures to 'specified' offences.
Commentary on Clause 44 (4) (d)
72. The effect of Clause 44 (4) (d) (i) is that 'automatic' deportation can be applied retrospectively to offences committed before those provisions come into force. There is no time limit on how old the offence can be - though the person must still be in custody at the time of the introduction of the legislation.
73. It is not clear from the Bill what the position will be for those cases where, prior to commencement, the Secretary of State has already decided not to pursue deportation or where a Tribunal or Court has judged the Secretary of State's decision to deport to be unlawful.
74. Clause 44 (4) (d) (ii) leaves very wide discretion to the Home Secretary as to the ambit of 'automatic' deportation after the UK Borders legislation has been passed by Parliament. It provides what can properly be described as tantamount to Henry VIII powers This is because the commencement order will itself determine whether 'automatic' deportation powers will arise in cases where an offence is specified and the person is sentenced to a term of imprisonment.
75. Clause 44(d)(ii) impedes parliamentary scrutiny of the Bill because every time a parliamentarian raises an example of unfairness in the operation of the provisions, s/he can be told that this can be dealt with by specifying the particular offence in an order, with no guarantee that this will happen. This is a case in which the Draft Statutory Instrument should be produced for the consideration of parliamentarians during the passage of the Bill.
Summary of concerns on Clause 44 (4) (d)
· An Order made for a completely different purpose should not be used to specify which offences will be subject to 'automatic' deportation.
· Allowing the Home Secretary to pick and choose, through further separate orders, which offences should or should not result in 'automatic' deportation after the primary UK Borders legislation has been passed will leave the actual ambit of 'automatic' deportation largely outside the proper detailed scrutiny of Parliament.
· For the reasons set out earlier, we are strongly opposed to 'automatic' deportation where a person has been imprisoned for less than 12 months for one of the many offences (including theft or criminal damage) specified in the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. However, allowing the Home Secretary the discretion to disapply or apply only parts of that Order to 'automatic' deportation after the UK Borders legislation makes the ultimate scope of 'automatic' deportation impossible to predict.
· This attempt to defer decisions as to which offences should trigger 'automatic deportations until after the passing of the primary legislation suggests that the 'automatic' deportation provisions are rushed, unnecessary and overly ambitious.
 Offences are specified by orders made under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002.
 In the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (SI 2004/1904).
 Clause 30 (2) (a)
 Clause 30 (2) (b)
 Her Majesty's Chief Inspector of Prisons in Foreign National Prisoners: a thematic report (July 2006, published 3 Novemer 2006) states (in her Introduction) that it is an
'essential building block of provision ... to ensure that all foreign nationals are prepared for their eventual removal or release. All of them need to know, as early as possible in sentence, whether or not it is proposed to deport or remove them. They need to have access to appropriate regimes: not only to reduce the risk of reoffending, wherever they are released, but also because safety, security and decency within prisons depend upon prisoners having access to purposeful activity.'
 Her Majesty's Chief Inspector of Prisons, in the Annual Report for 2005-2006 (HC210), published on 31 January 2007, stated that administrative problems at the Immigration and Nationality Directorate were continuing:
'Inspections during the year continued to reveal systemic problems... Since April 2006, many more ex-offenders have been detained in prisons by IND after the endof sentence; and some who had been living law-abiding lives in the community after their release from prison were arrested and re-detained. This has placed further pressure on an already overcrowded prison estate. Notices of intention to deport were issued without any consideration of individual circumstances: in some cases to people who were British, and in others to people not liable to deportation, or who had decades of residence in the UK and had not committed serious offences. These were not then swiftly followed up, so that many detainees remained in prisons orimmigration removal centres without further information, access to legal advice or action, even when they wished to be returned home. Continuing contact with the immigration authorities remained a major problem in many prisons during the early autumn. The human cost, and the effect on the safety of prisons and prisoners, was considerable, and there was evidence of a rise in self-harm among foreign nationals'.
 Her Majesty's Chief Inspector of Prisons said in Foreign National Prisoners: a thematic report
'...it emerged that many foreign nationals leaving prison had neither been identified nor considered for deportation. This was not because of a gap in legislation or powers. It was an acute symptom of the chronic failure of two services to develop and implement effective policies and strategies'
 Under s.79 Nationality Immigration and Asylum Act 2002
 Under s.82 Nationality Immigration and Asylum Act 2002
 Under s.94 Nationality, Immigration and Asylum Act 2002
 As to the success rate of these reviews, see the Annual Report of the Certification Monitor for 2004, published on 21 July 2005, the most recent such report. For the period ending on 21 December 2004, she identified only 12 cases which proceeded to a substantive judicial review, of which 3 were successful. However, she identified a further 147 cases in which the certificate was withdrawn by the Home Office, 133 after judicial review proceedings were commenced. She expresses concern that the Home Office do not monitor why certificates are withdrawn (para 127).
 See the Annual Report of the Certification Monitor for 2004, published on 21 July 2005, paragraph 8, where the Certification Monitor states that for 2118 certification decisions made by December 2004, only 207 out of country appeals had been lodged and determined, and of these, only 3 succeeded. At paragraph 99, the certification monitor notes of out of country appeals:
'In most cases the Appellant was not represented. In none of the files I reviewed were witnesses called on behalf of the Appellant. No Appellant attended their appeal hearing.'
And at paragraph 101
'Also in none of the files I reviewed was there an application that the
Appellant be allowed to give evidence by video link. Of course, many
Appellants are not represented by the time of their hearing, and in any
event may feel too unsafe to give evidence in this way from their home
country, since in many countries which generate asylum seekers giving
evidence by a video link would probably attract attention to the
appellant and might be officially monitored. The Home Office's
position is that it would oppose any such application...'
 which applies the relevant sections of the Immigration Act 1971 to detention of people facing automatic deportation
 contained in Schedule 3 of the Immigration Act 1971 and s.53 Immigration Asylum and Nationality Act 2006
 R (Abbassi) v SSFCA  UKHRR 76 "The underlying principle, fundamental in English law, is that every imprisonment is prima facie unlawful...This principle applies to every person, British citizen or not, who finds himself within the jurisdiction of the court."
 Existing deportation provisions appear to create a presumption that a person will be detained where he is the subject of a court recommendation for deportation that is in force (paragraph 2 (1) of Schedule 3 of the Immigration Act 1971 provides that such people 'shall' be detained unless the court otherwise directs). However, the High Court has confirmed in R (Sedrati) v SSHD  EWHC Admin 418 that a presumption in favour of detention would be incompatible with Article 5 ECHR and that the provision must be read as retaining the presumption of liberty
 For example, http://inspectorates.homeoffice.gov.uk/hmiprisons/inspect_reports/irc-inspections.html/5estintsum1.pdf
 From her thematic report on Foreign National Prisoners, 2006, para 3.15:
' Little independent specialist advice was available in prisons Even those making a real effort...were confronted with a national shortage of specialist advice, which might be particularly acute in their area. One officer commented that there was little scope to check the quality of solicitors, as there were so few immigration solicitors, and it was so hard to persuade any to visit prisons, that he had to settle for anyone prepared to make the journey.
....Only 39% of our sample currently had a solicitor; only half of those said they had received a visit from their adviser, while 20% said they could not even remember getting a letter."
 The situation as identified by Her Majesty's Chief Inspector of Prisons accurately reflects the experience of the members of the Foreign National Prisoners' Network. The Network has worked hard to address the question of legal advice, providing information to prisoners and their representatives, providing trainings, acting successfully in bail applications and in habeas corpus applications for foreign national prisoners and acting as a referral agency for individual cases. We are proud of what the Network has achieved but are only too aware that late identification of need and lack of capacity by legal representatives to meet it remain enormous problems for foreign national prisoners.
 Her Majesty's Chief Inspector of Prisons in her 2006 Report on Foreign National Prisoners (paragraph 3.29):
'Defensible decisions on whether or not to proceed to deportation or removal, which take account of all the circumstances of the case, should be made as early as possible in sentence and at least six months before the earliest date of release.'
 The National Audit Office, as cited by the Rt Hon Charles Clarke MP, Hansard 3 May 2006, col 971:
'The NAO report also noted that action on criminal cases was not being initiated early enough to allow preparations for removal to be made pre-release from prison'
 See Hansard HL 31 Jan 2007 : Column WA59, Lord Bassam of Brighton:
'The Home Secretary made it clear that by spring of 2007 we will reach the position where the consideration of deportation for all foreign nationals will begin six months before the end of their sentences. We are making steady progress towards that as we deal with the backlog and the director-general of the Immigration and Nationality Directorate confirmed in December that deportation is now considered around two months before release in many cases. As progress is made in this area, we will be able to complete consideration and make arrangements for deportation in appropriate cases without the need to detain foreign national prisoners beyond their normal release date.'
 The Immigration and Asylum 1999 Act s.44 had introduced a right to two automatic references to the magistrates' court for bail for people held in immigration detention. These provisions were never brought into force and were repealed by the Nationality Immigration and Asylum Act 2002 s.68.
 Under s.3 (5) (b) of the Immigration Act 1971
 S. 5(4) of the Immigration Act 1971
 A suspended sentence is, in law, a sentence of imprisonment, albeit that it does not result in immediate custody. A typical example would be a sentence of 6 months imprisonment, suspended for 2 years. This means that the custodial term of 6 months is not activated immediately, but in the period of the next 2 years that term could be activated and the person required to serve 6 months in custody. A sentence could be activated if any of the conditions of the suspension were breached or a further offence was committed.
 To the definitions in s 72(11)(b)(i) of the Nationality, Immigration and Asylum Act 2002.
 If a defendant is sentenced at the same time for a number of offences, separate terms of imprisonment will be passed for each offence. These terms of imprisonment can ordered by the judge to run concurrently or consecutively.
 To the definitions in s 72(11)(b)(ia) of the Nationality, Immigration and Asylum Act 2002.
 If a person under the age of 21 is sentenced to a period of custody, it is not called 'imprisonment', and the person is not sent to a 'prison'. While the reality is exactly the same, they are in fact sentenced to 'detention'in a 'young offenders' institution', e.g. Feltham. This clause confirms that for the purposes of the 'automatic' deportation provisions, 'imprisonment' and 'detention in a YOI' are identical.
 In the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004).
 See Delegated Powers and Regulatory Reform Committee, Guidance for Departments April 2005: " a power in a bill which enables primary legislation to be amended or repealed by secondary legislation with or without further parliamentary scrutiny".
 The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004, made in the context of determining eligibility for refugee status