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Lord Filkin: Clause 65 would give the Secretary of State the power to revoke the indefinite leave to remain of a person who is liable to deportation or removal but who cannot be removed due to legal or practical reasons. It also confers the power to revoke the indefinite leave of a person who is acting in such a way that they would cease to be a refugee under the parallel provisions in the Geneva Convention.
The grant of indefinite leave to remain entitles a person to remain without any time limit unless they are served with a deportation order, removal directions or remain outside the United Kingdom continuously for two years or more. A person with ILR may be deported if they have committed a criminal offences of a certain severity. As the Committee knows, legal obstacles such as Article 3 of the ECHR can prevent a deportation order being issued.
A person with ILR may be removed if they have obtained their leave by deception. However, again, legal obstacles such as ECHR or practical difficulties can make that impossible or impractical.
Where a person is liable to deportation or removal but cannot be removed, the revocation of indefinite leave is a sanction designed to indicate displeasure at his conduct and to disentitle him to the benefits associated with indefinite leave, such as immediate family reunion—if he has not made use of this right already—and the assumption of permanent settlement. It may also make removal easier in the future if circumstances change.
However, once indefinite leave has been revoked it is likely to be replaced with short periods of limited leave— for example, six months at a time. I hope that that responds to the question from the noble Lords, Lord Kingsland and Lord Dholakia.
I turn to the specific eight amendments. Amendment No. 186 seeks to delete Clause 65(1). The noble Lord, Lord Kingsland, kindly indicated that it is a probing amendment. It would prevent an important sanction being taken against criminals and other undesirables who are liable to deportation but cannot be removed. The Committee knows how Article 3 of the ECHR bites on that without my going into it at this time.
I should also add to the disbenefits that the person would experience that they would not become eligible for naturalisation. The intention would be to remove the individual from the UK if it became possible in the future, and revoking indefinite leave might assist, as I have indicated.
Amendments Nos. 189A and 193A would require the Secretary of State to grant further leave in cases where indefinite leave is revoked under subsections (1) or (2);. that is, in circumstances where a person is liable to deportation but for a practical reason we cannot deport them. In requiring the duration of leave granted to be no less than the period for which the barrier to removal persists, we feel that the amendments are unworkable. We consider that the duration of the barrier will usually not be known at the outset. It will depend in each case on various factors, often outside the control of the Secretary of State. As a result, the only option available in light of these amendments would often be the granting of indefinite leave.
Where a person has their indefinite leave revoked under subsections (1) or (2), in most cases it will be appropriate to grant a period of limited leave, as I indicated earlier. The only exception to that is if a person is expected to become removable in the very near future, even if there is no certainty about this expectation.
I shall take Amendments Nos. 193B and 194C together. These would prevent the Secretary of State revoking leave and subsequently removing a person who has ceased to be a refugee as a result of their own actions. The 1951 convention envisages that refugee status and its accompanying protections can come to an end in certain circumstances and therefore it is perfectly legitimate for the United Kingdom to end protection when these circumstances arise. This power will apply only where a person ceases to be a refugee due to their own actions and excludes situations where the circumstances in connection with which the person was recognised as a refugee cease to exist, which is a fundamental point which addresses some of the concerns raised.
We did not consider it appropriate to take away indefinite leave due to circumstances beyond the control of the individual. But where, for instance, a person voluntarily re-avails themselves of the protection of their country of nationality, they will have indicated that they no longer require the protection of the United Kingdom.
The law would not permit the Secretary of State to exercise this power in an unreasonable manner, and there will be circumstances where it would not be appropriate to revoke leave. Compassionate factors, such as the need to travel to the original country to visit a sick or dying relative, would be taken into consideration.
Furthermore, the Secretary of State would not act in breach of his international legal obligations, so that removal could not take place where the individuals concerned have built sufficient ties to the United Kingdom for this to be in breach of Article 8 of ECHR. This is not a power to keep refugees permanently on
their toes but a prudent measure to enable former refugees to be removed in circumstances where it is clear from their own actions that they no longer need protection.The noble Lord, Lord Kingsland, raised the important and sensitive issue of dependants. Amendment No. 194 to Clause 65(3) would prevent us from revoking leave and subsequently removing dependants in circumstances in which that is legitimate. It is important that, where appropriate, we can remove the dependants of those who have ceased to be refugees for the reasons described in Clause 65(3). But we do not intend the power to apply to all dependants. Where dependants are refugees in their own right, it will not normally be appropriate to revoke their indefinite leave unless they also cease to be a refugee for one of the reasons described in Clause 65(3). There is no suggestion that we would breach our obligations under the 1951 convention by seeking to remove from the UK those who are still refugees.
However, where dependants are not refugees in their own right and where there are no compelling reasons why they should remain in the UK, it will usually be appropriate to revoke indefinite leave and seek to remove the family group. The principle of family unity should apply in those cases. Therefore, where the main applicant falls to be removed and the dependants have no independent basis on which to remain in the UK, it is important that we can remove the family as a group. The power to revoke the leave of dependants and subsequently remove them will be exercised only where it is appropriate to do so.
There are safeguards in place in the immigration rules to ensure that when exercising the removal powers under Section 10 of the 1999 Act, the Secretary of State takes into consideration compassionate factors such as the strength of ties to the UK, length of residence and the status of the spouse and child at the time of removal. For instance, where the spouse and child have been living apart from the person being removed, it would not normally be appropriate to remove them in line with that person. The power to remove those who have their leave revoked is to be inserted in Section 10 of the Immigration and Asylum Act 1999, so those safeguards will apply. It should also be noted that we intend to take such compassionate factors into consideration prior to the revocation of leave, so that where removal is not appropriate for such reasons those concerned will normally retain their indefinite leave.
Dependants are not included under Clause 65(1) and (2), as we would not seek to revoke their leave in those circumstances. The fault that has resulted in the person being liable to deportation or removal will be on the part of the main applicant. Unless the dependants themselves have behaved in a way that brings them under the provisions of Clause 65(1) and (2), or it becomes possible and appropriate to remove the family group, their leave will be unaffected.
However, that will not be the case for former refugees and their dependants under Clause 65(3). Removal will, we hope, immediately be possible in those cases. Clause 65(3) therefore includes the power to revoke the indefinite leave of dependants.
Amendments Nos. 194A and 194B concern the retrospective provisions. I shall not speak to them, as they were not raised in debate.
The noble Lord, Lord Kingsland, asked about legal status. The status of someone whose leave is revoked is that he has no leave—that is slightly tautological. In cases in which someone cannot be removed for legal or practical reasons, we will substitute short periods of limited leave, except where we reasonably expect him to be removed quickly, as I said. So while he would not have indefinite leave, he would have shorter periods of leave.
I turn to the point raised by the noble Lord, Lord Avebury, and take the example of Sri Lanka. Where a person has indefinite leave to remain as a refugee, he will not be required to return to Sri Lanka simply because the country's circumstances have changed. I previously referred to that as being something outwith the control of the actions of the person himself. Clause 65 does not bite in such circumstances.
The noble Lord, Lord Hylton rightly asked what would happen to people whose indefinite leave to remain had been revoked. National Health Service and education rights of refugees and families would remain. The revocation of indefinite leave does not cover the wide area that the noble Lord suggested. It merely removes discretion in such areas as naturalisation, being joined by the family and facilitating removal, if that is thought appropriate or possible.
The noble Lord, Lord Avebury, raised concerns about returning. Removal will in all cases be subject to the Home Secretary's international obligations, such as Article 8 on family reunion rights.
The noble Lord, Lord Kingsland, asked about other undesirables. The short answer is that the Secretary of State may deem that deportation would be conducive to the public good. Each case will, however, be judged on its merits. In general, deportation may be considered for immigration offences involving violence against the person, drugs offences or offences for which a sentence of 12 months or more is imposed by criminal court.
I regret that it has been such a lengthy response. They are complex issues, as the Committee is aware.
9.30 p.m.
Lord Avebury: Could the Minister address his mind to the question that I asked about people who wished to return to their country of origin to see whether it was safe to go back permanently? I quoted the case of the Bahrainis, many of whom were in that situation. At the time, several of them asked the Home Office whether it would be in order for them to go to Bahrain to see whether it was politically satisfactory for them to resume their life there. They did not get an answer from the Home Office.
Will the Minister amplify what he said about the short periods of leave to remain that would be substituted for indefinite leave? How will that affect dependants? Would children attending state schools be entitled to continue their education? Would they be thrown out because of the forfeiture of their parents' indefinite leave to remain?
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