Joint Committee On Human Rights Thirty-Second Report

6  Reforming the IND


126. On 25 July 2006 the Home Secretary published his proposals to reform the Immigration and Nationality Directorate: Fair, effective, transparent and trusted - Rebuilding confidence in our immigration system. In this part of our report we consider some of the most significant human rights issues raised by the Government's outline proposals.

127. We wrote to the Home Secretary on 11 May 2006, to make him aware of our preliminary concern that the intention to introduce a presumption that various categories of foreign criminals will be deported, including those convicted of imprisonable offences even if not imprisoned, was likely to raise serious human rights issues. We asked for a memorandum of evidence with the pending consultation paper, explaining why any interference with Convention rights is justified.

Presumption of deportation for foreign nationals

128. In the Reforming the IND paper it is proposed that the Government will amend the law to introduce a legal presumption that foreign national prisoners will be deported. The Home Office did not, however, submit a memorandum to us as we had requested when it brought forward these proposals.

129. We are concerned by the Prime Minister's announcement of an automatic presumption of deportation for foreign prisoners, irrespective of any claim that they may have that the country to which they are returning may not be safe, and his suggestion that the Government will consider legislating to amend the Human Rights Act, if necessary, to ensure that such an automatic presumption applies. If the Prime Minister means that the presumption of deportation will apply even where the person faces a real risk of torture or other inhuman or degrading treatment, and that the Human Rights Act will be amended to achieve this, this will inevitably lead to violations of Article 3 ECHR by the UK. We would be concerned if that were what the Prime Minister intended, just as we would if, in the case of the Afghani nationals, he were to advocate returning them notwithstanding that the courts have found that they would be exposed to a real risk of torture or death at the hands of the Taliban.

130. We acknowledge that the Government is currently intervening in a case before the European Court of Human Rights to attempt to persuade the Court to overturn Chahal so that national security considerations can be balanced against the risk of torture. In our recent report on the UN Convention Against Torture, we expressed our concern that this intervention undermines the absolute prohibition on torture, by sending the wrong signal that deportation to face a risk of torture can sometimes be justified. [94] We also expressed the view that the Government was unlikely to succeed in persuading the Court of Human Rights to overturn its judgment in Chahal.

131. We would point out, however, that even if the Government were successful in that intervention, it would only cover national security, not public safety. In our recent report on UNCAT, we also expressed concern that any dilution of the absolute prohibition on torture in cases involving national security considerations will have an impact beyond that category of cases, and lead to a further erosion of the absolute nature of the right to freedom from torture, in cases where other pressing policy considerations apply.[95] In our view the Prime Minister's statement demonstrates this danger, because it raises the prospect of deportation of a convicted criminal to a country where there is a real risk of treatment contrary to Article 3 ECHR on grounds of public safety rather than national security.

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.[96]

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.[97] 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 foreign nationals.

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.[98]

Racial profiling and risk assessment by IND

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".[99]

94   Nineteenth Report of 2005-06, The UN Convention against Torture (UNCAT), HL Paper 185-I/HC 701-I, at para. 26. Back

95   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

96   Appendix 7 Back

97   Q96. Back

98   Q99. Back

99   Q102. Back

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