Clause
115
Designation
Harry
Cohen:
I beg to move amendment No. 356, in
clause 115, page 78, line 10, leave
out or
2.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 357, in
clause 115, page 78, line 17, leave
out subsection
(3).
No.
330, in
clause 115, page 78, line 17, leave
out a member of the family and insert the
spouse.
No.
358, in
clause 122, page 82, line 12, leave
out subsection (3).
Harry
Cohen:
I have tabled amendments to four of the next five
clauses, so I shall try to be succinct. They have mainly been tabled on
behalf of Liberty, as the Committee knows. A couple have been tabled on
behalf of the Refugee Council. I have also received representations in
recent days from the Joint Council for the Welfare of Immigrants, and I
might mention a couple of its points.
The
amendments particularly concern the definition of a family of a person
designated with special immigration status. They are meant to relate to
foreign criminals who are liable to deportation, but cannot be deported
for all sorts of reasonsperhaps because of their human rights,
or because of the risk of going back to a country where they will be
tortured or killed. Such people are not necessarily criminals, by the
way, but we will come on to that later. There might be a suspicion that
they have been involved in something that has led to their designation
under that status.
The clause
mentions the family of a person, and by that the Government have
included a persons spouse and children. My amendments would
delete any reference to children. The UN convention on the rights of
the child makes specific provision to ensure that children are not
disadvantaged as a consequence of the actions of their parents. Article
2.2
states:
States
Parties shall take all appropriate measures to ensure that the child is
protected against all forms of discrimination or punishment on the
basis of the status, activities, expressed opinions, or beliefs of the
childs parents, legal guardians, or family
members.
That is clear.
Special immigration status should not apply to children just because it
has been applied to their parentsor to just one parent. That
would be wrong. The child would be left in limbo and under all sorts of
restrictions, perhaps severe restrictions. The status would apply to
children under 18, but people who are under 18 can work and 16 or
17-year-olds could have a restriction placed on their ability to work.
They might not have access to education or to child care. All sorts of
other restrictions could be imposed, and that is a serious point. The
Government should say why they are breaching the UN convention on the
rights of the child through this clause.
Mr.
Heath:
I rise to support some of the contentions made by
the hon. Member for Leyton and Wanstead. Indeed, I am a co-signatory to
amendment No. 330. As is not unusual in my part of the world, I was
brought up a nonconformist. I believe that the Catholic Church has now
abandoned the concept of limbo as a waiting room in which nothing can
happen between death and the transfer to paradise. The Government,
however, are attempting to introduce their own equivalent of limbo in
these clauses with a new, unique status that effectively prevents
anyone with this special immigration status from having any capacity to
do what might be normal for a person who is resident in this country.
It is difficult to see the justification for the proposal. I assume
that we will have a stand part debate on this clause, so I shall not
cover all my points at this
stage.
9
pm
The
hon. Member for Leyton and Wanstead raised an important issue about the
position of young people and families. Amendment No. 330, which I
support, would take the term
a member of the
family
out of the clause
and insert the spouse, thus giving a more direct
familial relationship than the wider family concept. We are otherwise
in danger of extending the provisions more widely than could possibly
be justified by the difficulties caused by a few cases that have been
fairly well publicised. The Minister should clarify what may and may
not be appropriate or applicable to an individual who is the principal
holder of this new status and to any other person who has a familial
connection with them. We are getting dangerously close to having a form
of punitive action based on a sort of collective responsibility that is
alien to the traditions of this countrys justice
system.
Mr.
Burrowes:
I welcome the opportunity that the amendment
gives us to debate the problematic issues concerning the family members
of designated people. I acknowledge that the amendment is intended to
distinguish the circumstances of such family members and to deal with
them proportionately and fairly. It is also intended to amend the
Governments approach on dealing with people whom they do not
wish to give ordinary leave to remainperhaps due to a lack of
ability to remove them. Let us not avoid the need to deal carefully
with family members.
The purpose
of the clause has been discussed, and we might debate it in more detail
during the stand part debate. That issue is relevant when considering
how to deal properly with family members. I understand from the
research paper that the measures are intended to cover about 50 people.
I am concerned whether they are intended to deal with those 50 people
proportionately, or whether they are a response to the Afghan and other
cases, which have caused public concern. It is important that the
pressure to deal with this problem does not bring in its wake
associated problems with family members. I look forward to hearing the
Ministers
reply.
Mr.
Coaker:
In answer to the hon. Member for Enfield,
Southgate, we anticipate that about 50 people will be subject to the
special immigration status. I shall answer his other point when I
remember
it.
It
might assist the Committee if I clarify why the Bill provides for the
designation of family members. Special immigration status is, as the
term implies, an immigration measure, and it wasI remember the
point nowintroduced as a result of the Afghan hijack and the
various problems that arose from that.
As a matter
of policy, the Border and Immigration Agency does not grant dependants
with leave in linea form of leave that is more favourable than
that given to the principal applicant. A persons claim to apply
for leave as the dependant of another person stands or falls with that
of their spouse, parent or partner. They cannot expect to emerge from
the process with more than the person on whose claim their own claim is
based. Consequently, if the principal applicant is given a new special
immigration status, we must have the power to designate the family as
well as the foreign criminal. I should make it clear that that is the
only reason for extending designation beyond a foreign
criminal.
I
should also make it clear that we will designate family members only if
the principal applicant is designated, and that a family member who has
been designated will
be able to apply for leave in their own right and, if they qualify, be
granted it. There is nothing to prevent a family member from applying
in their own right before they are designated if it seems likely that
the principal applicant will be designated. There are two aims behind
the conditions that can be imposed: first, to prevent a foreign
criminal from establishing links with this country that might
constitute an additional obstacle to his eventual deportation; and,
secondly, to maintain contact with a foreign criminal and his immediate
family until such time as his removal becomes possible. The purpose of
the conditions is not punishment, but merely to allow a situation to be
managed.
The
Bill creates a support regime to ensure that designated persons,
whether a single adult or a family group, have access to some support.
Children who are designated may be required to live with their parents,
but one would expect that to happen anyway. Depending on their age,
they may have to accompany a designated person when the latter attends
a reporting centre, but that could apply even when the children are not
required to report. That might be regrettable, but it is not a reason
for not requiring the parents to
report.
The
purpose of the provision is to deal with an anomaly that arose
following the Afghan hijack case. It is designed to manage the
situation, not to punish. Other members of the family, other than the
foreign criminal, can apply in their own right, and the various support
and processes will be available to them, including if they are
children. The UK Borders Act 2007, as I am sure my hon. Friend the
Member for Leyton and Wanstead knows, introduces a code of practice to
keep children safe from
harm.
The
issue is difficult, and no one intends to put children or others at a
disadvantage. We believe that we have made a proportionate response to
an anomaly that arose as a result of a particular
circumstance.
Harry
Cohen
:
I appreciate the Ministers response,
but I am not convinced. He says that he does not want to give links to
a parent who is a designated foreign criminal by giving rights to a
child by way of not designating the child. The solution is simple: do
not allow the parents those rights in such circumstances, but do not
take that out on the child. We could legislate, or have it as an
administrative policy, that that link will not be made. The child
should not necessarily be subject to the same special designated
status.
As
children approach 18 and beyond they will become increasingly
independent and will expect their own rights, but they could face
designation through no fault of their own for a long time and have
their activities, chances and income restricted in their growing
independence, thus keeping them in the same sort of poverty as their
parents. I am not happy with the provision, and I hope that the
Minister will ask his colleagues who deal specifically with immigration
to look at that aspect again. I shall take a close look in
Hansard at what he said.
Mr.
Coaker:
I shall of course pass on my
hon. Friends remarks and bring them to the attention of the
Minister who deals with immigration. I shall ensure that that Minister
is aware of all my hon. Friends comments on this group of
amendments, and generally, and of the remarks made by other hon.
Members as well.
Harry
Cohen:
I appreciate that. I had virtually concluded what I
had to say. I beg to ask leave to withdraw the amendment.
Amendment,
by leave, withdrawn.
Question proposed, That
the clause stand part of the
Bill.
Mr.
Heath:
This is the opportunity to widen the debate on this
aspect of the Bill a little. As always, I accept the Ministers
good faith in proposing the clause and I appreciate that it is not his
part of the Ministry that is pressing the proposal. Having said that, I
find it impossible to reconcile the Secretary of States stated
objective of simplifying immigration law with the inclusion in the Bill
of this provision, which makes the law in that area more complex. It is
complex enough already, yet the Bill will introduce an entirely new
status.
If the
Government intended to deal with the issue, it is hard to find adequate
reason why that did not happen in the context of the UK Borders Act
2007, which could have dealt with it from the point of view of an Act
concerning immigration. Instead, the provision is tacked on to a
criminal justice Billalthough its presence means that this is
actually the Criminal Justice and Immigration Bill. The Bill now
contains a leftover from previous legislation that has been
spatchcocked into the middle in the form of part 11.
There is a
perfectly sound argument that the issue was, in fact, already dealt
with by section 16 of the UK Borders Act, which provides for
restrictions on residence and reporting. A new status is not needed in
law to provide the sorts of safeguard that the Government believe are
necessary to achieve their objectives.
I am sure
that the Minister knows that the provision has caused a great deal of
concern among those who have a particular interest in refugee matters.
The hon. Member for Leyton and Wanstead has already mentioned the
Refugee Council, and he could have mentioned the Immigration Law
Practitioners Association, too. He could also have mentioned something
that we shall come on to when we debate the next clause: the United
Nations High Commissioner for Refugees. I do not like receiving a
briefing from the UNHCR that points out deficiencies in a proposal to
change British law. It is not appropriate for this Government or
Parliament to be addressing proposals that fall foul of the
commissioner, yet that is the position in which we find
ourselves.
The
arguments against the proposal can be summarised quite briefly. There
is the argument that the status is unnecessary, and there is the
argument that it is disproportionate and will affect members of
extended families, as we have discussed. There is also the argument
that it is a punitive sanction without an offence for which it is the
punishment, in that it provides for people to be put into legal and
economic limbo. There is an argument, too, on the support that will be
given to the people affected. We thought that, except in exceptional
circumstances, we had got rid of the voucher system, given the problems
that it caused, but the Government are now bringing it back for this
specific class of people. As the level of support is very limited, we
are effectively condemning these criminals to progressive poverty
without any expectation that their circumstances can change in the near
future.
9.15
pm
We
have specific issues concerning the right of appeal. I know that the
Government are always loth to provide any right of appeal in
immigration cases, for fear that that will extend the process. However,
it is a matter of natural justice that there should be a right of
appeal against designation. There are abundant reasons why this House
should not accept this proposal as being the best way of dealing with
the problem that the Government have identified and for which I think
there are other
remedies.
Mr.
Burrowes:
I want to make two comments. The first is in
relation to the UK Borders Act 2007. Why is it necessary to define
foreign criminals in a different way from the definition within the
2007 Act? This issue moves into the debate on clause 116, but perhaps I
could raise it now and not repeat it when we get to that clause. The
2007 Act is relevant when considering this part of the Bill because the
issue of the definition of foreign criminals was considered in detail.
There was pre-legislative scrutiny in which there was much
consideration of the definition. It is important to draw the Minister,
either now or when we discuss clause 116, on why there is a different
definition for the purposes of automatic deportation within the 2007
Act, which excludes the categories that are within the designation and
the definition of foreign criminal in the
Bill.
The
other point on which I ask the Minister for some guidance is on the
right of appeal. It may well be that in the concern to deal
expeditiously and appropriately with these designated foreign
criminals, the Government will store up for themselves problems in
relation to appeals. While the Bill does not provide for any normal
route of appeal, it would still be open, through the administrative
route, for an application to be made by way of judicial review. That
process is lengthy and may well lead to those 50 or so cases a year
being dealt with in a lengthy manner, while the right of appeal might
be able to deal with them in a much more appropriate and expeditious
manner. That would also be consistent with the principles of natural
justice.
Mr.
Coaker:
I thank hon. Members for their comments. To spell
it out, the purpose of the part on special immigration status, as hon.
Members know, is to deny immigration leave and its benefits to foreign
criminals. That cannot be achieved through existing legislation. The
denial of leave is necessary to demonstrate that, although these people
cannot be removed because of our obligations under the European
convention on human rights, they remain in the UK, to a certain extent
only because we cannot remove them. The provisions will help to ensure
that those people do not put down roots in this country by taking up
employment and establish themselves here, which would make it difficult
to remove them when the original barrier to deportation no longer
applies.
Part
11, of which clause 115 is the first clause, creates the new
immigration status in response to two rulings by the High Court and the
Court of Appeal in 2006 in a case relating to the immigration status to
be afforded to a group of men who arrived in the UK in February 2000,
having seized control of an aircraft on an internal domestic flight in
Afghanistan. The High Court ruled, and the Court of Appeal confirmed,
that as these men
had won their appeals against the decision to refuse them leave to enter
the UK, it was not open to the Government to leave them on temporary
admission. The Court of Appeal commented that if the Secretary of State
wanted to be able to withhold immigration leave, it was open to him to
legislate to that effect. That is what part 11 will
do.
We
do not believe that it is appropriate that we should be put in a
position where there is no option but to grant immigration leave, with
all the advantages that flow from it, to individuals whose presence in
the UK we consider undesirable and whom we would remove if there were
no ECHR barrier to doing so. A person will be given the new status by
being designated. Accordingly, the clause provides that certain persons
may be designated by the Secretary of State. It allows him to designate
a person who is a foreign criminala term defined in clause
116who is liable to deportation but cannot be removed from the
United Kingdom because of section 6 of the Human Rights
Act.
The
family membersthat is to say the spouse or civil partner and
any children under 18of a foreign criminal liable to
deportation may also be designated. As I have said, that is necessary
to cover cases in which a persons dependents have applied for
immigration leave. As a matter of policy, the Border and Immigration
Agency does not grant dependents who apply for leave in
linea form of leave that is more favourable than that
given to the principal applicant. However, they may claim in their own
right.
A
person with the right of abode in the UK may not be designated, nor may
designation occur if the Secretary of State thinks it would breach the
UKs obligations under the refugee convention or the
persons right under Community treaties. One effect of
designation provided for by clause 117 is that individuals concerned do
not have leave to enter or remain in the United Kingdom. In the normal
course of events, foreign criminals who are guilty of serious crimes
will face deportation, and there will be no question of granting any
leave.
We
believe that it is wrong that foreign criminals who cannot be deported
should receive leave for which they would not otherwise qualify solely
and simply because they cannot be removed. As I have said, we will not
designate if it would breach the UKs obligations under the
refugee convention. In practice, that means that we will not designate
a recognised refugee. Of course, if we discover that a person who has
been recognised as a refugee falls within the scope of the exclusion
clause in article 1F of the refugee convention, we may decide to revoke
his refugee
status.
In
summary, the provision will enable us to place someone who is liable to
be deported, but cannot be removed from the UK because of rights under
the ECHR, on a new immigration status. It will not apply to British
citizens, recognised refugees or persons in the UK exercising treaty
rights. Subsection (1) states that the Secretary of
State
may designate a
person who satisfies Condition 1 or
2.
It does not state
that the Secretary of State will designate that person. There is
discretion available to the Secretary of State all the way through the
clauses, and the word may is often used deliberately,
rather than
will.
Clause
115 ordered to stand part of the Bill.
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