Criminal Justice and Immigration Bill


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Clause 116

“Foreign criminal”
Harry Cohen: I beg to move amendment No. 332, in clause 116, page 78, line 28, leave out ‘any’ and insert ‘either’.
The Chairman: With this it will be convenient to discuss amendment No. 331, in clause 116, page 78, line 36, leave out subsection (4).
Harry Cohen: The amendments relate to the definition of “foreign criminal”, particularly as it applies to article 1F of the refugee convention, which is basically the exclusion clause. It specifically excludes from refugee protection
“any person with respect to whom there are serious reasons for considering that”
they have committed a crime and so on. There needs only be a suspicion that there are serious reasons for considering that—it does not say that the person must have committed a crime. As I understand it, there will be no hearing or a chance for people to defend themselves against the charge. That is why Liberty makes the point that the special immigration status with which a person could be designated can be applied to people with no conviction at all or convicted of a relatively minor offence. That represents inappropriate and excessive conditions upon them.
The Refugee Council has gone through the history of the matter. The Minister mentioned the Stansted Afghans, whose case was obvious in some respects—they would have fallen under article 1F. The United Nations High Commissioner for Refugees has emphasised that the exclusion clauses should be interpreted narrowly, in particular Article 1F (c) which is
“only triggered in extreme circumstances by activities which attack the very basis of the international community’s coexistence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceable relations between states as well as serious and sustained violation of human rights would fall under that category.”
The Government have not interpreted it in that narrow way. They have taken it as broadly as possible and it could even extend to unacceptable behaviour as far as I understand it and as the Refugee Council suggests. There is an important point that it could include acts such as encouraging criminal damage in order to coerce the state. It may readily include many political refugees who have opposed repressive regimes in their home countries.
The Joint Committee for Human Rights fears that
“it will be used to deny asylum to individuals who may have been engaged abroad in resistance to an oppressive regime, but are caught by the UK’s very broad definition of terrorism.”
That signals some problems. It is very easy to talk about foreign criminals when we are dealing with convicted foreign criminals, but if some of them have not been proved to be criminals, there are problems. Again, it is incumbent on the Government to give a clearer explanation of their position in this regard.
Mr. Heath: I want to speak about the UNHCR concerns about article 1F. I want to read into the record its concern about the way that the British Government have interpreted article 1F in previous UK legislation. It draws attention to section 54 of the Immigration, Asylum and Nationality Act 2006, where article 1F(c), which deals with persons
“guilty of acts contrary to the purposes and principles of the United Nations”
is then extended and expanded to encompass
“acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence)”
as well as acts of encouraging or inducing others to do the same.
The UNHCR says that there is a very good reason why article 1F is a narrowly drawn provision. While it accepts that any participating state under the convention
“has the prerogative to define terrorist acts more broadly to encompass acts that may not have an international dimension, not all acts so defined as ‘terrorist’ would fall under Article 1F (c).”
So there are two subsets that are not coterminous in terms of interpretation. The UNHCR states:
“It has been a long-standing practice of many states party to the 1951 convention to maintain a restrictive interpretation and application of article 1F (c), especially given its vague nature and potentially grave consequences. It is UNHCR’s position that article 1F(c) must be read narrowly. Furthermore, UNHCR is concerned that exclusion from the protection of the 1951 Refugee Convention should not be equated with conviction for the excludable acts, due to the contrast between the lower standard of proof in deciding Article 1F cases (clear and credible evidence is required, no conviction is necessary) vis- -vis the ‘beyond reasonable doubt’ standard for criminal convictions in the UK.”
As a result of those reservations the UNHCR says that it
“questions whether it is appropriate to designate persons excluded under Article 1F as foreign ‘criminals’.”
As I say, this is a serious criticism from an impeccable source. If we are sensible in our interpretation of the law and in our commitment to the 1951 refugee convention, we must have regard to what the body charged with interpreting that convention has to say about the proposals. The Minister needs to respond directly to the criticisms from the UNHCR, and to accept that it has reservations about the way in which we have interpreted the convention’s requirements on our domestic legislation, and that it has raised a serious issue of compliance. Our legislation does not require a certificate of compliance with the refugee convention in the way that Ministers are required to certify that provisions comply with the convention on human rights. However, if we are party to such agreements, we should have regard to its provisions and seek to ensure that our domestic law is compliant with it. The UNHCR is saying that it will not be, if we accept the provisions before us.
9.30 pm
Mr. Burrowes: I rise to draw upon the remarks of the hon. Member for Somerton and Frome. He mentioned the concerns of the UNHCR, but subsection (4) stipulates that a person cannot be designated if it would breach his rights under the refugee convention. It has been suggested that anyone considered for designation could be excluded from protection under the convention. I do not want to get the Minister out of jail, but it seems to be explicit in the Bill that such a person’s rights under the refugee convention cannot be contravened. Having said that, I would be interested to hear his response.
Mr. Coaker: I thank my hon. Friend the Member for Leyton and Wanstead for tabling his amendments and for raising these important matters. He has given me the opportunity to comment on them. They would strike out the exclusion from refugee status, granted by article 1F of the refugee convention, as one of the grounds for designation for the purposes of special immigration status. I know that he will be aware of the wording, but it is worth bearing mind that article 1F says:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious grounds for considering that:
(a) he has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”
By virtue of section 54 of the Immigration, Asylum and Nationality Act 2006,
“acts contrary to the purposes and principles of the United Nations”
include acts of committing, preparing or instigating terrorism and acts of encouraging or inducing others to commit, prepare or instigate such acts.
If the amendments were accepted, designation would be restricted to cases where a person had been convicted and sentenced to imprisonment for two years or more for any offence, either in the UK or overseas, or to imprisonment for an offence specified in the order made under section 72 of the Nationality, Immigration and Asylum Act 2002, or for an analogous offence overseas.
My hon. Friend says that designation should be limited to cases where we are certain that a criminal offence has been committed, as evidenced by the fact of the conviction. However, we are not talking about cases in which there is a vague suspicion of wrongdoing on the part of an individual, but about cases where there are serious grounds for considering that an individual is guilty of actions so serious that even if he has a well-founded fear of persecution in his country of nationality, he is to be denied the protection normally afforded to a refugee by the international community. The requirement to have serious grounds before making any consideration means that there will need to be clear and credible evidence on which to base a decision to exclude. Often, people will not have been prosecuted, still less convicted. Indeed, sometimes, the reason why such people cannot be prosecuted is that they are in the United Kingdom. We are unable to bring them to trial here, and we are unable to remove them for human rights reasons.
Sometimes, people cannot be tried here for procedural reasons: in other words, the events happened abroad and the evidence was gathered there, and witnesses would have to be brought here. In other instances, our courts do not have jurisdiction, even for serious offences. For example, our courts have no jurisdiction to try a foreign national for a murder committed overseas. Ideally, we would prefer to deport rather than designate such individuals, but if our international human rights obligations mean that we cannot deport a person, we want to be in a position to designate, so we are not forced into a position whereby we are forced to grant leave for the person to remain here.
I need hardly remind the Committee that this new status is being created in response to the Court of Appeal ruling on the Afghan hijackers. If the conduct in question is sufficiently serious to debar a person from the protection of the international community as expressed in the refugee convention, we believe that it is also sufficiently serious to disentitle them to enter or remain in the UK. With those remarks, I hope that my hon. Friend feels able to withdraw the amendment.
Harry Cohen: I appreciate the Minister’s reply, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr. Burrowes: I wish to address the issue of how far the clause will go with regard to another other problem area—namely, European economic area nationals and their families, and the question of whether they can be designated and the effects of such action on them.
Mr. Coaker: The answer to the question is no, they cannot.
Mr. Burrowes: So they cannot be designated?
Mr. Coaker: I am sorry—I did not mean to be rude. I apologise to the hon. Gentleman, but I was simply answering his question.
The Chairman: Mr. Burrowes, I would like you to come to an orderly conclusion.
Mr. Burrowes: Thank you, Mr. O’Hara. The Minister has helped to clarify a point made in the Library research paper. In its commentary on the clause, the Library paper indicated that the measure would be rarely used, and I was going to ask how rare is rare, and about the numbers who would be subject to designation. The Minister has made it clear, however, that the public security threshold is too high to designate the nationals to whom I referred.
Mr. Coaker: If the hon. Gentleman looks at clause 115(5), he will see that it states:
“The Secretary of State may not designate”
people when that would breech
“the United Kingdom’s obligations under the Refugee Convention or...the person’s rights under the Community treaties.”
Question put and agreed to.
Clause 116 ordered to stand part of the Bill.
Clause 117 ordered to stand part of the Bill.

Clause 118

Conditions
Harry Cohen: I beg to move amendment No. 333, in clause 118, page 79, line 28, at end insert—
‘(2A) Any condition imposed under subsection (2) must not—
(a) be excessively restrictive in all the circumstances;
(b) have a punitive impact upon the designated person;
(c) be intended to prevent the commission of further offences.’.
The Chairman: With this it will be convenient to discuss amendment No. 341, in clause 118, page 79, line 28, at end insert—
‘(2A) Any condition imposed under subsection (2) must not—
(a) be excessively restrictive in all the circumstances; or
(b) have a punitive impact upon the designated person.’.
Harry Cohen: It is known that I tabled the amendment on behalf of Liberty. Basically, it would mean that any condition that imposes someone’s designation would not be “excessively restrictive” or “have a punitive impact”, bearing it in mind that the measures will bring people to trial or judicial hearing. I shall not go further than that other than to take the opportunity to ask for an assurance, which has been asked for by the JCWI. If the clause is to remain part of the Bill, JCWI wishes to seek an assurance that the measure allowing designation with special immigration status will not in any circumstances be employed against refugees. Using the measure against refugees would extend it beyond the focus on foreign criminals.
Mr. Coaker: Refugees will not be designated. They are one of the groups of people that cannot be designated, so I can reassure my hon. Friend on that point.
Harry Cohen: I am grateful to my hon. Friend for answering that point, which I am sure will go back to the JCWI.
Mr. Heath: I tabled amendment No. 341; the more assiduous and less myopic Members will have noticed that it bears a marked resemblance to amendment No. 333, with the exception that subsection (c) is missing. I thought that it was worth tabling it to deal with the issues of appropriateness and proportionality without introducing the further complication of whether it is appropriate to provide a pre-emptive condition to prevent further reoffending on the part of a person who has already been defined as an offender under the terms of the Bill.
The amendment will allow us to explore with the Minister whether the concept of proportionality and appropriateness might find favour. Amendment No. 333, tabled by the hon. Member for Leyton and Wanstead, is more encompassing—I agree with it, incidentally—but might fall foul on the basis that the Minister is determined that it would be appropriate to have a condition that attempts to prevent the commission of further offences by the person when in this country. Mine is a sort of Cohen-lite amendment, in an attempt to curry favour with the Minister.
Mr. Coaker: I cannot support the amendments. Normally I say that I will consider them, but it is getting late and we are all getting a bit tetchy. On the face of it they appear reasonable, but they are unnecessary, to some extent undesirable and overall they appear to be based on a misunderstanding of the new status.
Paragraph (a) is unnecessary. Without the amendment, the conditions imposed must be reasonable and cannot be excessively restrictive. That is clear. The hon. Member for Somerton and Frome may say that that depends on the circumstances of the case, but those circumstances will be taken into account when imposing the conditions. I do not consider that the limitation that paragraph (a) imposes would necessarily assist in that respect.
Mr. Heath: Can the Minister show where it is clear that the conditions must be reasonable and not excessively restrictive, and what possibility is there for challenging the view that a condition, when imposed, is excessively restrictive?
Mr. Coaker: The conditions that may be imposed match those which apply to individuals with temporary admissions under the Immigration Act 1971, which have been in operation successfully for over a third of a century. We do not, therefore, believe that it is necessary to alter wording that is already established in immigration law. Also, the Human Rights Act 1998 makes it unlawful for public authorities to act in a way that is incompatible with the convention.
Paragraph (b) of amendment No. 341 suggests a possible confusion about the purposes of designation and conditions. The new status is not an additional punishment, and the purpose of the conditions that might be imposed is not to punish. The condition relating to employment is designed to prevent the designated person establishing firm roots within the UK, as I have already said. The conditions relating to residence and reporting are designed to enable the BIA to maintain contact until such time as the ECHR barrier to removal has passed, so that the removal can be effected. If a condition is considered necessary to achieve those aims, we should not prevent it from being imposed.
9.45 pm
Finally, I am happy to make it clear that the purpose of any conditions that may be imposed is not to prevent the commission of further offences. Again, discussion on that has revealed a misunderstanding of the purpose of creating the new status. As it is has been stated, the aim of imposing conditions is not crime prevention or reduction, and that holds good whether or not the clause is amended to state that explicitly. The purpose of conditions is to manage the situation.
I ask the hon. Member for Leyton and Wanstead to withdraw the amendment.
Harry Cohen: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 118 ordered to stand part of the Bill.
 
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Prepared 28 November 2007