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Lord Rooker: My Lords, I shall do my best to answer as many of the detailed questions as I can before I sit down. I understand that this was a normal order in the other place. They had 90 minutes for debate. It is up to the people who are debating to choose whether the Minister has enough time to respond. I have been involved in silly game playing in the other place where you deliberately leave the Minister only two or three minutes so you can go around complaining that he did not answer all your questions. I hope that that was not the attitude of today's debate.
I shall not speak overlong, but I will certainly have to take slightly more than the 12 minutes Des Browne took in the other place. Perhaps I may say by way of
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introduction, because I suspect that most of what I say is not going to go down very well, do not commit the crime. Basically, that is the end of the line—do not commit the crime.
Only people who have committed crimes and been before the courts will be affected. That applies equally to British citizens as to visitors—asylum seekers or refugees. If you commit the crime, there are consequences. For certain classes of people the consequences could be quite severe; in other words, as identified in the order.
I will give some background first and then come to the individual points that have been raised as they are all valid questions that deserve answers. One point goes back to what my noble friend Lord Judd said. I was Home Office Minister in 2001-02 when we were planning what is now the Nationality, Immigration and Asylum Act 2002. I remember the early discussions about the issue. Obviously, during the course of ping-pong, we achieved a much more satisfactory solution due to the intervention of the noble Lord, Lord Kingsland. Quite rightly, tribute has been paid to him.
One of the things we wanted to get clear when planning the legislation was an asylum system—and it is true that lots of Bills had gone through—which was fair to everybody, but which was also robust and credible in the eyes of the public. Certainly, in many respects, our systems were not robust and credible in the eyes of the public. That meant that we had to consider every asylum claim individually—which is what happens now—while being as tough as possible on the very small proportion of asylum seekers or refugees committing serious crimes. Indeed, to answer one of the noble Baroness's questions, the vast majority of people are not affected by this legislation.
Frankly, we do not want to accommodate in our country those who abuse our hospitality and sanctuary through criminal activity. No one in their right mind can stand up and defend that. The Section 72 order builds on and reinforces the progress we have made in dealing with the misuse of the asylum system in many different ways. There is no one quick fix on this.
I will just say a few words about the background to Section 72 of the Nationality, Immigration and Asylum Act 2002. The section provides an interpretation of Article 33(2) of the refugee convention and is applicable both to persons who are already refugees and to asylum seekers. That answers one of the questions asked by the noble Baroness. In a moment I shall come to the point she asked about those with indefinite leave to remain.
Section 72(2) provides a rebuttal presumption that for the purposes of Article 33(2) a person convicted of a crime and given a non-suspended custodial sentence of two years or more has been convicted of a particularly serious crime and is a danger to the community in the UK.
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Unless the presumption is rebutted, a person will not then be able to rely on the refugee convention to prevent his removal. So the presumption is rebuttable—something of which the noble Lord, Lord Lester, forgot to remind the House.
What does the order actually achieve, because we are debating the order and not the legislation? Section 72(4) applies a similar presumption to those convicted of any offence specified in this order, irrespective of the length of sentence imposed. For serious crimes listed in the order, the normal expectation is that the courts would impose a sentence in excess of two years. I will give examples of why I think that that would be an expectation. We fully accept that there may be rare situations where a shorter sentence is imposed—that is up to the judge, looking at the circumstances of the case—or where, for example, the sentence imposed is three years, of which only 18 months is in prison and the rest is suspended.
The order ensures that there is no loophole in the application of Article 33(2) for those criminals who get shorter sentences when convicted of these offences. As has already been mentioned, during the debates on the Bill in 2002, the noble Lord, Lord Kingsland, rightly pointed out that loophole, raising the possibility of those committing serious crimes against children falling outside the scope of Section 72. The noble Lord was right to highlight the shortcoming, and the introduction of the order-making power to list specific offences arose from his helpful intervention—even though that was not how it appeared to the noble Baroness at the time. It really is good for governments to sleep on things. In this case, we have a better Act as a result of it.
I fully accept that there has been criticism in this debate and in the report of the Joint Committee on Human Rights that the list of offences in the order is too long. It has also been mentioned that our position is at odds with that taken by the United Nations High Commission for Refugees. We do not accept those criticisms. They are criticisms that need to be rebutted, but we do not accept them.
In considering what offences to include, we looked first at the seriousness of the offence, for which the maximum imposable sentence is a good guide. Of the offences listed in the order, 40 per cent have a maximum sentence of life. If one takes the order in its totality, 85 per cent of the offences have a maximum sentence of 10 years or more, including the 40 per cent which I have just mentioned.
The report of the Joint Committee on Human Rights mentions a few offences that it considers to be low level, but the description of the offences in the report is not always complete. For example, paragraph 27 of the report of the Joint Committee on Human Rights lists the offence of,
That is followed by a comma. The report then lists the further offences of,
That is not a full description of the offence in the order. I invite noble Lords to look at page 8 of the order, which lists offences under the Theft Act 1968. The third offence in the list, in Section 9(1)(a) of that Act, is described as,
"entering a building as a trespasser, intending to steal, inflict or attempt to inflict grievous bodily harm or rape".
Perhaps the printers of the report did not have enough pages or print to describe the offence in full, but it does not do justice to the case to include less than a full description of the offence. The fuller description better reflects the potential seriousness of the offence and the dangerous nature of those who commit it.
We accept without qualification that our list of offences goes wider than the United Nations High Commission for Refugees recommends. The UNHCR is of course entitled to its view on what offences should be included, but the Joint Committee on Human Rights report is wrong in its implication that the United Nations High Commission for Refugees provides the proper interpretation of the refugee convention. It does not.
Interpretation of the convention is a matter for the courts and the legislatures of the sovereign states.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. Does he agree that the supervisory nature of the UNHCR in the interpretation and enforcement of the refugee convention is an obligation that has to be recognised by all contracting states? Can he explain how, to take a couple of examples, a breach of the peace—not even a racially aggravated breach of the peace—or malicious damage to property can on any ordinary English meaning be characterised as a particularly serious offence?
Lord Rooker: My Lords, on the first part of the noble Lord's question, I accept what might have been the convention, but the fact is that the interpretation of the convention is a matter for the courts and the legislatures of the states. I pay tribute to the UNHCR. I am not in any way being critical of the work that it does; far from it. However, it is a matter for the courts and legislatures of states. This partly answers the second part of the noble Lord's question. The report of the Joint Committee on Human Rights does not mention that other contracting states have chosen to define Article 33(2) and that, in some respects, they have included a broader definition of "particularly serious crimes" than we have done. I had hoped that there would be several examples but I have only one. In Australia, violent drug or property crimes carrying a maximum sentence of three or more years meet that definition—they are shorter sentences. So Section 72 and this order are not out of step with practice elsewhere.
I agree that the order goes beyond what might be considered. The majority of offences on the list in the order fall into six broad categories: sexual crimes, violent crimes, drug-related crimes, racially motivated crimes, crimes against children and terrorist offences. In our view and that of the public those who have committed those
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offences are a danger to communities. It is up to them to make the case that they are not a danger to the communities. We do not think that that is impossible.
I want to make it absolutely clear that each case will be assessed individually. We are not moving away from that position. I shall quote from the Minister's letter before moving on. In the four schedules of the order,
"there are 228 offences of which 91 (40%) have a maximum sentence of life, a further 59 (26%) have a maximum sentence of 14 years and 45 have a maximum sentence of 10 years".
Just a few have a maximum sentence of fewer than 10 years. Seven have a maximum sentence of two or three years. They are very much the minority of offences on the list.
Each case will be assessed individually. Where we are considering an application for asylum based on the refugee convenion and we think that a Section 72 presumption applies, the individual concerned will be given an opportunity, at a pre-decision stage, to rebut the presumption that he poses a danger to the community. The assessment of the danger that a wrongdoer might pose to the community is an assessment of the present or future danger. It is made on the basis of the evidence of their past conduct and the likelihood of their repeating such conduct in the future—for example, parole reports or prison reports, which provide an assessment of the person's character near the end of sentence. A successful rebuttal of that presumption, no matter how serious the offence committed, means that Section 72 will not apply. Remarks about the burden of proof are therefore misplaced.
As the report of the Joint Committee on Human Rights says, the burden will lie on an individual to rebut the presmption that they are a danger to the community. We consider it right that, where a person commits a crime of that magnitude, and by definition he has been convicted, the burden should rest on that individual to say that he is not a danger to the community. It is not an insurmountable hurdle, as the individual has the facts available to make out his case.
Furthermore, any decision we take in reliance on Section 72 will be subject to the oversight of the appellate authorities. In that respect, it is not the final decision; it can be appealed. They will consider whether our decision to issue a certificate under Section 72 was correct. Both we and the courts will also have to consider all relevant ECHR issues, since the existence of Section 72 and the order in no way alter our obligations under that treaty.
Suggestions that the order is unfair, that it will lead to unlawful removals or that it will prevent individual consideration of cases—by the appellate authorities as well as the Immigration and Nationality Directorate—are therefore misplaced.
I shall now briefly answer some of the points raised rather than use the rest of the notes. The noble Lord, Lord Lester, raised a point that the order provides no balancing test between the seriousness of the offence and the gravity of fear. He said that the order puts a burden on the individual to rebut the danger to the
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community. It is not the order but Section 72 which rules out the balancing test and puts the burden on the individual to rebut the danger to the community. Section 72 of the Act was approved by Parliament and that is not being debated today; we are debating just the order.
As regards the two issues he raised, first, Article 33(2) provides no balancing test. It is perfectly reasonable for our law to reflect that. Secondly, if a person commits an offence under this order it is perfectly reasonable to put the onus on the individual to rebut the presumption that they are a danger.
I have not noted which noble Lord raised the next point as regards offences overseas. It is an important point because it returns to what the noble Baroness, Lady Anelay, said about age. Section 72, and therefore the order, will apply very rarely to offences committed abroad. We would consider its use only where the person committed the offence abroad having already been recognised as a refugee here before committing that offence—they would have gone abroad and returned or an asylum seeker would have gone abroad. It is not unknown for asylum seekers to arrive in this country, file a claim for asylum and go abroad while the application is being dealt with.
Where we considered the use of Section 72 for offences committed overseas we would take account of any suggestions that the conviction was unreliable and whether the offence would be a crime in the United Kingdom. I hope that that will satisfy noble Lords. My noble friend Lord Judd raised the issue of depriving a refugee when a Section 72 order applies. Why deprive the refugee of asylum status? That allows us to keep the refugee's position under review. Obviously, the refugee would not be returned to a country if it were one to which we did not return them for all the reasons we understand and which I shall not go into. I call them human rights reasons.
However, if the situation changes in the country concerned we will return the refugee because refugee status here has been lost. It is as simple as that. The refugee should understand that before committing the crime. If return is not possible, it is right that the person committing the serious crime and posing a danger to the community should not benefit from all the benefits of asylum seekers such as family reunion rights. That is absolutely right: there will not be any family reunion rights because they will be lost as part of the cost of committing crime.
The noble Lord, Lord Avebury, asked me about the human rights element of an appeal where the order applies. There would be a single appeal, as in other immigration appeals. Section 72 requires the appellant authorities first to consider whether the Secretary of State was right to say that Section 72 applies. If the appeal body agrees with the Secretary of State that ends the asylum aspect of the appeal. The other grounds of appeal, including human rights, will lie to be considered and that is quite right. I hope that that answers the noble Lord. If the appeal body disagrees with the application
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of Section 72 then it will consider whether the person has a well founded fear of persecution unless that has already been accepted.
The noble Lord, Lord Avebury, also asked about the comments of the noble Lord, Lord Filkin, on individual consideration. There would be consideration of individual circumstances in applying Section 72 or the order. This individual consideration would be in assessing whether a person had rebutted the presumption that they were a danger to the community. As I said before, we do not believe that it is impossible for a person to have the facts to rebut that; for example, as regards the comments of the court when sentencing, the police reports, probation reports and court reports.
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