Strengthening the link between
criminality and deportation
132. In his statement to the House of Commons on
developments in the prison population over the summer recess,
the Home Secretary said that IND has been taking a robust approach
to the deportation of EEA nationals, which has been defeated consistently
in the courts, and that the Government will be changing the law
"to strengthen the link between criminality and deportation".
Baroness Scotland has undertaken to provide us with overall figures
for appeal outcomes between April and October 2006, the nationalities
involved and an analysis of the reasons why the appeals of some
EEA nationals were allowed.
133. Legally, there is little, if any scope for changing
the approach to the deportation of EU and EEA nationals, which
is governed by EU law (Council Directive 2004/38/EC) and implementing
Regulations (The Immigration (EEA) Regulations 2006), which impose
a high threshold on the removal of EU and EEA nationals. Baroness
Scotland accepted that there is less scope to change the legislation
and indicated that the presumptions planned for the new legislation
will focus mainly on non-EEA nationals.
In light of this, we are concerned that the Home Secretary
may be blaming the courts for something which he is powerless
to do anything about because of the provisions of EU law, thereby
helping to perpetuate the myth that it is the courts which are
responsible for frustrating the Government's wish to deport more
134. Even in relation to non-EU and non-EEA nationals,
Article 8 ECHR also imposes a minimum requirement which prevents
deportation of offenders where it is disproportionate having regard
to matters such as the seriousness of their offence, their propensity
to re-offend, the offender's age, their length of residence in
the UK, their degree of social and cultural integration in the
UK and the extent of their links with their country of origin.
Baroness Scotland confirmed that the Government will not be
seeking to deport anyone in contravention of Article 8.
Racial profiling and risk assessment
135. The Reforming the IND paper proposes
to combine rigorous risk assessment with identity management to
enable the Home Office to target activity on high risk routes
and traveller profiles.
136. In the Roma Rights case, the House of
Lords found the Home Office's policy of targeting Roma for pre-entry
clearance at Prague airport to be inherently racially discriminatory
and therefore unlawful. The proposal in the Government's paper
raises the question of whether race or ethnicity will form any
part of the traveller profiles envisaged.
137. We asked Baroness Scotland what steps the Government
has taken in response to the decision of the House of Lords in
the Roma Rights case to ensure that any future targeting
of IND activity on high risk routes and traveller profiles will
not be inherently racially discriminatory and therefore unlawful.
She replied that there was no racial profiling in making such
decisions, only lawful acting on data "where there is an
evidence base for a certain nationality".
94 Nineteenth Report of 2005-06, The UN Convention
against Torture (UNCAT), HL Paper 185-I/HC 701-I, at
para. 26. Back
Ibid at para. 25. Human Rights Watch pointed out in oral evidence
to that inquiry that the implications of a revision of Chahal
would be likely to be widely felt, beyond cases involving questions
of national security, and extending to deportations of non-nationals
in general: Q37 Back
Appendix 7 Back