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-Ã -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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