Supplementary memorandum submitted by Immigration Law Practitioners' Association (UKB 12)
UK Borders Bill - Tuesday's oral evidence
I am writing, firstly, to thank the Committee for the opportunity to give evidence on Tuesday.
Secondly, I note that the Committee did not have time to ask ILPA all the questions that Members had on the deportation provisions. That is disappointing, especially given that the evidence from IAS did not reach the deportation provisions. This means that on the current schedule of witnesses there will be no practitioners, and very few other experts (Liberty will provide some opportunity), whose oral evidence can address such questions.
With this in mind, Steve Symonds has written to Kerry McCarthy as it was clear that she, in particular, had further questions on deportation which she would have wished to put, had there been more time. I enclose a copy of that letter in case it may of wider interest to other Members.
Letter to Kerry McCarthy MP - Deportation Powers - UK Borders Bill, clause 28-35
I am writing to you on this subject because you raised a question at Tuesday's oral evidence session and spoke on this issue at Second Reading debate.
Firstly, I hope you will have time to consider the points raised by ILPA in the Memorandum of Evidence, which we have submitted to the UK Borders Bill Committee. Also, I am aware that the Foreign National Prisoners Network has submitted detailed evidence on the provisions on deportation in the Bill, and you may well find that evidence of interest. However, I wanted to take the opportunity to make some brief points:
Refugee Convention & Human Rights Convention:
1. Your question on Tuesday concerned the impact of the Refugee Convention and European Convention on Human Rights (now incorporated into UK law through the Human Rights Act 1998); and this was a matter you raised at Second Reading.
2. The Refugee Convention does not preclude removal of refugees (I use the word removal as it has a wider meaning that deportation, though includes the latter), who have committed a particularly serious offence in the host country and are a danger to the community in the host country. The Somali example from your constituency, which you cited at Second Reading, would not escape deportation by reliance upon the Refugee Convention.
3. The European Convention on Human Rights (in particular Article 3) prohibits torture, inhuman or degrading treatment. Leading judgments of the European Court of Human Rights in Strasbourg (Soerring, Chahal) have held that this prohibits removing a person to a place where he or she is at real risk of torture or other ill-treatment within the scope of Article 3. I do not know the full facts of the Somali case, but it may be that Article 3 prohibits his deportation to Somalia.
4. As I explained yesterday, ILPA considers that Article 3 and its interpretation enshrine a fundamental principle of human rights. We accept, as the Somali example plainly demonstrates, that this can have very serious implications for a country from which a dangerous person cannot be removed because of the dangers he or she may face elsewhere.
5. In any event, so far as the Bill is concerned, the position in domestic and international law is plain. The Government cannot remove the Article 3 bar on deportation in cases such as the Somali example. (I note, however, that the Government is seeking to water down the Article 3 interpretation in relation to removal in a case currently before the European Court of Human Rights - they have intervened in Ramzy v The Netherlands.)
Our concerns with the deportation provisions:
6. Following the coming to light in April 2006 of the serious administrative failings whereby foreign criminals had been released from prisons without any consideration of whether they ought to be deported, the Government changed the Immigration Rules on deportation.
7. The Rule change was to introduce a presumption in all such cases that deportation would be in the public interest and should be the result for those convicted of crimes in the UK. The general criteria whereby deportation had historically been assessed were removed from the Rules for these purposes. The Rules emphasised the importance of the executive being able to deport foreign criminals, and the presumption and this emphasis was thereby directed to both the Home Office caseworkers who would decide on deportation and the immigration judiciary considering deportation appeals. The Home Affairs Committee supported the introduction of this presumption in the Rules.
8. ILPA did not support the change. As all respected commentators accept (e.g. Home Affairs Committee, HM Chief Inspector of Prisons), the problems, which came to light in April 2006, did not arise because of any lack of power to deport (whether in the Rules or legislation). The problems simply arose out of failure in the administration.
9. However, even though the change in the Rules indicated a hardening-up of the approach to deportation, they did not remove the discretion of the Secretary of State to consider all the relevant facts to make the right decision in any particular case. Nor did they remove the right of appeal so that independent judicial oversight could ensure the right decision was made in any particular case. The provisions in the UK Borders Bill would achieve both of these results (we note the provision for an out of country appeal, but that is inadequate by prejudicing the appellant's ability to obtain legal representation, put forward evidence or respond to anything said by the Home Office to the immigration judge).
10. We note reference was made to the cases of Ernesto Leal and Sakchai Makao in Second Reading debate. I know you will be familiar with the former case, as I note you signed an Early Day Motion opposing his intended deportation (59 other Members of Parliament signed that or a related EDM). The latter case is referred to in some detail in the Memorandum we have submitted to the Committee (113 Members of Parliament signed an EDM opposing his deportation).
11. It is relevant to note that Ernesto Leal (assault occasioning grievous bodily harm) and Sakchai Makao (culpable fire raising) were convicted of relatively serious offences. However, under the provisions in the UK Borders Bill, they would face the prospect of deportation, without any consideration of their personal circumstances, even if their offences were of a very much lesser degree of seriousness - e.g. theft (that could include a minor shoplifting offence); or criminal damage (that could include a graffiti offence) - if they were sentenced for any (that is even one day's) period of imprisonment.
12. It would be right to note that both Ernesto Leal and Sakchai Makao would, on the facts available to me, in such circumstances likely look to rely upon Article 8 of the European Convention on Human Rights (that is the right to respect for private and family life). However, in immigration matters, this tends to focus somewhat narrowly on dependent family relations.
13. Under the provisions in the Bill, both would risk having any Article 8 objection to deportation certified by the Secretary of State to preclude any consideration of it before deportation. It is noteworthy that Sakchai Makao's appeal was allowed on ordinary deportation grounds, not on human rights/Article 8 grounds.
ILPA is deeply troubled by the provisions regarding deportation in this Bill. It was, therefore, disappointing to us that so little time was allowed to discuss deportation at Tuesday's oral evidence session. With that in mind, and having regard to the interest you have already expressed in the subject, I have taking this opportunity of writing direct to you. However, I have copied this letter to the Chairman in case he considers that it would be helpful to be made available to any other members of the Committee.