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The High Court and the Court of Appeal ruled that, as these men had won their appeals against the decision to refuse them leave to enter the United Kingdom, it was not open to the Government to leave them on a “temporary admission” because under Schedule 2 to the Immigration Act 1971 temporary admission is not intended to be used in those circumstances. In giving judgment, the Court of Appeal commented that, if the Secretary of State wanted to be able to withhold immigration leave, it was open to him—as was then the case—to legislate to that effect. The then Home Secretary announced his intention to do so, and here we now are. That intention translates into eight clauses covering some
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At issue is what immigration status should be accorded to an individual whose actions are such as to warrant his deportation from the UK but who cannot be removed because to do so would be contrary to our obligations under the ECHR. At present, following the ruling by the Court of Appeal, the practice is to grant short periods of leave—usually for six months at a time. At the end of the period granted, the person has to apply for further leave, his position is reviewed and, if it is still not possible to remove him, there is no option but to grant an extension of that leave.
I remind the Committee that we are talking here about people with no entitlement to remain beyond the fact that they cannot lawfully be removed. They are here not because they qualify to remain here under the Immigration Rules; they are here by default. As I say, at present there is no alternative but to grant them leave of some sort, and the practice is to grant short, time-limited periods of leave. It would be possible to grant longer periods, or even indefinite leave, but to do so would effectively be to reward bad behaviour. However, at present even the short periods of limited leave granted carry with them certain benefits, such as access to employment and to the mainstream benefits system. The result is that the group in question enjoy the advantages of an immigration leave to which they have no entitlement beyond the fact that, at present, there is no alternative. The right to work, in particular, represents a financial advantage to them. It also allows them to establish roots in the UK which may make it much harder to deport them if and when the original barrier to removal has been overcome.
I take it from the fact that the noble Lord is seeking to delete Part 12 that he is content that that should continue to be the case; namely, that we should be compelled to grant leave. I am not seeking to put words into the noble Lord’s mouth but the logic of his position is that, no matter what a foreign national may have done, if his removal would be contrary to the ECHR, he has to be granted leave to remain. That may be the position of the noble Lord but it is not one that the Government consider appropriate. We believe that immigration leave is valuable and that people should get it only if they are entitled to it. It should not be the default option.
The Government do not accept that we should be forced to grant immigration leave to someone whom—for good, objective reasons—we do not want in the country at all. That is the argument in a nutshell. Should the Government be compelled to grant immigration leave to those people who are liable to be deported because of their actions but who cannot be deported because their removal would breach their human rights?
This is not in any way to suggest that those rights are not important. They are; they are fundamental. Even so, there are limits to what is required, and it is perfectly legitimate to ask whether we should be
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We could discuss where to draw the line. I believe that the Bill draws it in the right place; others may disagree. However, the fundamental point is, in my view, sound: there are some people who do not qualify for leave to enter or remain under the Immigration Rules and who, because of their actions, simply do not deserve to be given it. We are therefore creating a new statutory category to accommodate them.
Even if the designated person cannot be removed at the moment, removal remains the ultimate objective, and I see no justification for allowing the sort of people for whom special immigration status is intended to enjoy the benefits of immigration leave in the mean time. The future removal of the individuals concerned is a key factor. The purpose of the conditions that can be imposed is to help to maintain contact and to prevent them establishing roots in the UK which will make their eventual removal much more difficult.
It may be helpful if I remind the Committee to whom the new status is intended to apply. Clause 181 creates the power to designate foreign criminals who are liable to deportation but who cannot be removed due to a human rights barrier. This power also applies to members of a foreign criminal’s immediate family—that is, their spouse or civil partner and any minor dependent children—and I should like to take a moment to explain the reason for this.
The reason—and the only reason—that the Bill provides for family members to be designated is to deal with the situation where an individual applies for leave under the Immigration Acts and his or her family members apply for leave “in line”. In effect, they are saying, “My application for leave to enter or remain stands or falls with his or hers. Treat me in the same way”. In those circumstances, it would be illogical for someone whose application for leave to remain rides on the coat-tails of another to end up in a better position than the person wearing the coat.
As a matter of policy, at present the Border and Immigration Agency does not grant someone who applies in line leave that is more favourable than the leave given to the principal applicant. However, unless the Bill provides for family members to be designated, that policy will be breached once the provisions in this part come into force and someone who is a principal applicant is designated. That is the only reason we have extended the provision beyond the “foreign criminal” himself or herself. I repeat the assurance given by the Minister in Committee in another place, that we will not designate family members unless we designate the main applicant. I repeat also that there is nothing to prevent family members applying for
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Clause 182 defines the term “foreign criminal” for the purposes of Part 12. It includes any foreign national who has received a custodial sentence of two years or longer for any offence, or a custodial sentence of any length for one of the offences listed in the 2004 order made under Section 72 of the Nationality, Immigration and Asylum Act 2002, or who is excluded from refugee status by Article 1F of the 1951 refugee convention.
As I have just explained, for technical reasons, special immigration status will also apply to the family members of such persons where they have applied for leave “in line”, but in all cases it will apply only where the foreign criminal cannot be deported for human rights reasons. Designation will not apply to British citizens, who of course cannot be deported; to recognised refugees; or to persons exercising rights under the European Community treaties.
I am aware that concern has been expressed by some commentators about the fact that exclusion under Article 1F of the refugee convention is a condition which can result in designation. They take the view that if we are going to take the serious step of refusing to grant immigration leave, we should do so only in cases where the person’s wrong-doing has been established beyond reasonable doubt. The Government do not agree. To take such an approach is to apply the wrong test and to treat special immigration status as essentially a criminal justice measure. As the name suggests, special immigration status is an immigration provision that is intended to be used in cases where the person is liable to deportation but cannot be removed from the United Kingdom for human rights reasons.
I remind your Lordships of the exact wording of Article 1F, which states that the provisions of the convention,
“(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;
Where there are serious reasons for considering that a person has acted in a way that would result in his exclusion from the refugee convention, there are, in my view, proper grounds for considering that their deportation would be “conducive to the public good”, which is—as I am sure I do not need to remind the Committee—the test which applies when taking deportation decisions under Section 3(5)(a) of the Immigration Act 1971. So the sort of person we are dealing with is someone whose actions are, on the face of it, sufficiently serious to warrant deportation, but who cannot actually be removed for human rights reasons. The position at present is that if we are
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In my view, if there are serious reasons for considering that a person has acted in a way that leads to their exclusion from the refugee convention, which means they are denied the protection of the international community, that is just as strong a ground for deportation as a criminal conviction of the kind described in the other two conditions in this clause. It follows that we consider the case for their designation is equally strong. The Government’s position is that where such people can be deported, they should be deported, and where they cannot be removed for human rights reasons, it should be possible to designate them under this part of the Bill. As Clause 183 makes clear, a designated person does not have leave to enter or remain in the United Kingdom, although he will not be regarded as being here in breach of the immigration laws.
Clause 184 makes it possible to impose conditions as to residence, employment, occupation and reporting. The designated person may also be required to comply with electronic monitoring. Failure to comply with these conditions without reasonable excuse will be a criminal offence. Pending the coming into force of the relevant provision in the Criminal Justice Act 2003, a person who commits such an offence is liable to a fine of up to £5,000 or to imprisonment for up to six months. As and when that provision comes into force, the maximum custodial sentence which the court can impose will increase to 51 weeks in England and Wales.
The noble Lord, Lord Avebury, mentioned trafficking. The SIS is not designed to catch trafficked women; it is designed to enable us to deny immigration leave to individuals who do not deserve it. As I said, designation is discretionary, not mandatory, and so does not have to be used in the case of someone who has been trafficked even if they have been prosecuted and received a custodial sentence for one of the offences listed in the 2004 order, and if the person wishes to challenge their designation as unreasonable, they can do so by way of judicial review.
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I am also aware of the concerns of the UNHCR about Section 54 of the Immigration, Asylum and Nationality Act 2006. It expressed its concerns at the time of the 2006 Act. Our position then—and our position now—was that Section 54 was essentially declaratory and that the construction set out in that section and accepted by Parliament in passing the provision had always applied. If UNHCR is concerned that people are being excluded from the protection of the refugee convention when they should not be, the appropriate response is to challenge the decision to exclude, not to say that people who have been correctly excluded should nevertheless be granted immigration leave.
In view of the misleading comparisons that have been drawn between designation and control orders, I
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The intention is that a designated person will not be able to take employment. Clause 185 of the Bill therefore provides for a designated person to be supported and accommodated by the Secretary of State if he is, or is likely to become, destitute, and Clause 186 makes supplemental provision regarding support. Support may be provided in the form of accommodation adequate to the person’s needs, support for essential living needs and in any other ways which the Secretary of State thinks necessary to reflect the exceptional circumstances of a particular case. Support may not be provided wholly or mainly in cash. Therefore, it will generally be provided in the form of vouchers.
Clause 187 specifies that designation will come to an end if the person concerned is granted leave to enter or remain; if he is notified that he has a right of residence under the Community treaties; if he leaves the UK voluntarily; or if a deportation order is made.
Finally, Clause 188 defines some of the terms used in Part 12. Special immigration status is a new status. We do not expect it to apply to very many people—we estimate about 50 initially. However, we strongly believe that such a status is a necessary alternative to granting immigration leave in the specific circumstances I have outlined. I therefore ask the noble Lord to withdraw his amendment.
Lord Thomas of Gresford: I would be interested to know whether the 50 people to whom the noble Lord referred include the Afghan hijackers. It seems—according to the Explanatory Notes, with which we have been served—that it is concern about them that has raised the special immigration status. I declare an interest as having defended one of the Afghan hijackers. He was the only one to be acquitted in the first trial that took place.
Lord Thomas of Gresford: There were 12 defendants but only one was acquitted, and he was represented by me. Much more intellectual members of the Bar defended the rest and got them off on appeal. My point is that the defendants were escaping from the Taliban. We are at war with the Taliban. The defendants were professional people with no record of criminality in their home country who took steps to escape from a regime which they believed had rumbled their attempts to set up an opposition party against the Taliban.
If one went back to a time prior to the Second World War and suggested that the refugees who came to this country fleeing the Nazis—with whom we later went to war—should have special immigration status, there would have been uproar. We would never have heard the end of it, and rightly so. To condemn
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Lord West of Spithead: I am delighted for the noble Lord; I now know where to go for legal assistance if I ever get into trouble. Between that and the success of the Welsh rugby team, it has been a good day for him.
The provision makes no difference at all to refugee status. The Jewish refugees coming before the Second World War would still have had refugee status; the same would apply today. I was hoping to have received a specific answer from the Box on whether the Afghanis would be excluded under this but I have not had one yet. Perhaps I can take that away and get back to the noble Lord before Report.
The Earl of Sandwich: The Minister has ranged over amendments that are not in this group. I wanted to say a few words on Amendment No. 171, which I assume that the noble Lord, Lord Avebury, will no longer wish to move. Perhaps I may do so now.
The principle of non-refoulement is not respected everywhere but it is respected in this country, and I am sure we all accept that the only exceptions should be those who have been convicted of a particularly serious crime. However, Section 72 of the NIA 2002 Act sets a conviction of two years’ imprisonment as a benchmark. The related specification of particularly serious crimes order specifies crimes such as shoplifting, graffiti and even road traffic offences, regardless of the duration of the sentence. Why are we permitting such a low threshold for the return of someone who may be a genuine refugee, as we have already heard?
On Clause 181(4), Section 54 of the IAN 2006 Act again broadens the interpretation of the convention by redefining Article 1F(c)—which, as the Minister said, refers to persons,
As he acknowledges, the UNHCR is concerned about this. It has been throughout the passage of these Acts. It questions, as I do, whether it is appropriate to designate persons excluded under Article 1F as foreign criminals. The Minister has covered those points, but I do not think that he will have satisfied the United Nations refugee agency.
Lord West of Spithead: I shall not go back over all those points, but I reaffirm that refugees will still have refugee status. Normal procedure will apply for refugees.
Lord Thomas of Gresford: I note that paragraph 94 of the Explanatory Notes, under the heading “Special Immigration Status”, states:
“Part 12 gives effect to the Home Secretary’s commitment to legislate to deny leave to enter or remain to certain foreign nationals who can not be removed from the UK compatibly with
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That was the case of the Afghan refugees. I ask again: does the 50 include them? From the Explanatory Notes, it looks as though it most certainly does. If so, it is a disgrace. It is a disgrace to create a special immigration status, with all the restrictions that the orders will impose, as a result of a court decision relating to these poor people who fled the Taliban.
Lord Avebury: It certainly is a disgrace. I can see that the Minister has no reply to that allegation. He repeated twice that there was no difference in refugee status, but that is factually incorrect. The difference in refugee status is caused by the statutory interpretation by the Government of Articles 1F and 33(2) of the convention. Those points have been taken up by the UNHCR, and I am also glad to have the support of the noble Earl, Lord Sandwich, as well as my noble friend Lord Thomas. The Government have deliberately ignored the advice that was given to them by the UNHCR that each case should be determined on its own merits, which means that it is always finally and ultimately a matter for the courts to interpret Article 1F. At least, it should be for the courts to determine how the provisions of the refugee convention are interpreted, instead of these provisions being laid down in statute, which places greater restrictions on refugees than the UNHCR considered to be warranted.
These cases are entirely about the Afghans and the fulfilment of threats made originally by the Home Secretary immediately after the plane landed that he would see them off and return them to their own country. When he found that that was impossible because of the decision in the Court of Appeal, the Government decided that they would make life as difficult as possible for them by the enactment of these clauses, which, as the noble Lord has confirmed, are totally unnecessary, because they apply to a mere handful of people who were formerly dealt with, as he said, by the granting of short periods of leave to remain—six months at a time—with no option but to be renewed for as long as he could not get rid of them. What are we to do with these people? Will they remain here indefinitely with no tariff, as it were, under this special regime where they are kept in NASS-like conditions, inferior accommodation and with support that is less than that received by someone on social security, and with all that that implies not only for the persons involved but for their spouses and children?
The noble Lord reiterates what was said in the Minister’s letter, which was that the spouses and children could apply for asylum in their own right, but I have already told him what happened in the two cases that we know about. To reinforce the point, I shall give the Minister another example. Mrs Z arrived in the United Kingdom in 2005, having been married to one of the hijackers before he left Afghanistan in 2000. She and the two children with her claimed asylum in their own right in June 2005.
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