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I was going to give details of what is happening in the particular cases of the wives and children but as the hour is very late I will simply say that there has
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Lord Thomas of Gresford: My Lords, I support my noble friend. I have already disclosed an interest in this case. I shall be interested to hear whether the Minister can answer my noble friend’s request about what happened to the 10th defendant who was acquitted in the first trial and whose application for asylum has been pending for eight years. He is not convicted and never has been. He did not have to rely on appeal. His case was that he was going with his wife to a wedding in Mosul and found himself caught up in these events. The jury accepted that case. Therefore, I should be very grateful to know from the Minister what has happened to him.
Lord West of Spithead: My Lords, the issue raised by this group of amendments is simple. The fundamental point that we are considering is this. Where a foreign national has a conviction of a particular kind, or where, because of his conduct, he comes within the terms of Article 1F of the Refugee Convention, but he cannot be deported due to a human rights barrier, should the Government be compelled to grant that person leave under the immigration Acts, with all the advantages that flow from having such leave? Or should there be the option of a new immigration status as an alternative to immigration leave as provided for by Part 10 of the Bill?
From the fact that the noble Lord seeks to delete Part 10 in its entirety, I take it that he is opposed in principle to the idea of a status that is an alternative to immigration leave and considers that, no matter what the person concerned may have done, if he cannot be deported for human rights reasons, he must be given immigration leave. That is one way of approaching the issue, but it is not one that the Government believe is appropriate. The Government take the view that immigration leave is something valuable and something worth having. Immigration leave should be given to people who qualify for it, and, by the same token, it should not be awarded to people whose only claim to leave is that they cannot be deported because of our obligations under the ECHR. That is the point of principle at stake.
In our view, people who meet the criteria for designation should not be entitled to the advantages that flow from immigration leave, such as access to mainstream benefits and the right to work. In
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As I said in Committee, we could discuss where to draw the line and what the threshold for the new status should be. However, that is not what this group of amendments seeks to do. The amendments seek to erase the line completely and to perpetuate the current anomalous position whereby, apart from the duration of the leave, there is no distinction between the immigration leave granted to individuals who have committed even the most serious crimes and any other foreign national who requires leave to enter or remain. In practical terms, there is no distinction at all at present.
Let me remind the House to whom the new status would apply. It would not apply to British citizens or persons with the right of abode in the United Kingdom. It would not apply to recognised refugees, and it would not apply to people exercising rights under the Community treaties. However, it would apply to anyone else who had been convicted of an offence and had received a custodial sentence of two years or longer, or to an offence listed in the order made under Section 72 of the Nationality, Immigration and Asylum Act 2002 who had received a custodial sentence of any length. It would apply to anyone who would be excluded from refugee status under the terms of Article 1F of the Refugee Convention; that is to say,
- “any person with respect to whom there are serious reasons for considering that: ... he has committed a crime against peace, a war crime, or a crime against humanity ... he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee ... he has been guilty of acts contrary to the purposes and principles of the United Nations”.
In addition to those three groups, it would also be possible to designate the spouses and minor dependent children of such people.
As the Government have previously made clear, the power to designate family members would be used only where they have applied to be dealt with in line with a principal applicant who falls to be designated. There is nothing to prevent the family members applying for and, provided they qualify, being granted leave in their own right.
In Committee, the noble Lord, Lord Avebury, gave examples of the way in which applications for leave by the family members of some of the Afghan hijackers had been dealt with and complained that all that happened in practice was that,
I accept that the applications that he mentioned have not been dealt with as quickly as we would have wished. I regret in particular that the application by Mrs Y was associated with the case of her husband, when they had married only some time after their arrival in the United Kingdom, and that she was then incorrectly told that she was being granted exceptional leave “outside the Immigration Rules” rather than under the rules. I hope that the other two
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However, I do not wish to concentrate exclusively on the Afghan hijackers, although I will say more about them. Contrary to what has been asserted, this provision is not entirely about the Afghans. In fact, it is not even mainly about them. As I have said, it will be possible to designate someone who has been sentenced to imprisonment for two years or longer for any offence, or someone who has received a custodial sentence of any length for certain specified offences.
Let me give two concrete examples drawn from people who have not been convicted of any offence and who would qualify because they come within the terms of Article 1F. In doing so, I must make it clear that I am not saying that the individuals concerned will be designated. Any decision would need to be taken in the light of the circumstances at the time, but they are examples of the type of case where we believe it is desirable to have the option of an alternative to immigration leave.
Let us take the case of Mr A—not his real name or even his real initial. Mr A is a senior member of a body called the Justice and Equality Movement in the Sudan, which, despite its name, has been found by the International Commission of Inquiry on Darfur to be complicit in war crimes. Because of his standing in the Justice and Equality Movement, Mr A has been excluded from the protection of the Refugee Convention by virtue of Article 1F. However, he cannot be removed from this country for human rights reasons. At present there is no alternative but to grant him discretionary leave. Under the provisions in this Bill, Mr A would fall to be given special immigration status. Is the noble Lord really insisting that he should continue to be given immigration leave?
Then there is the case of Mr B, a South African citizen. He is a former member of the Afrikaner Widerstand’s Beweging (AWB) and of the South African secret service in the apartheid era. He admits to having undertaken a number of operations in what is now Namibia, including an attack on the UN. Mr B’s application for asylum was refused, but his appeal was allowed on human rights grounds. It is nevertheless clear that he falls within the terms of Article 1F and that it applies to him, which in turn means that he could be given SIS. We believe that it would be appropriate to be able to deny leave under the Immigration Acts to someone who has done the sort of things Mr B admits to, and we believe it should be possible for us to do it.
I did not want to focus on the Afghanistan cases, but they have been raised to a considerable extent, and I ought to say a little more about them. It is best if I remind the House of the circumstances of their arrival in the UK and the reasons why they are
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- “serious reasons for considering that [they had] committed a serious non-political crime outside the country of refuge prior to [their] admission”.
The noble Lords, Lord Avebury and Lord Thomas of Gresford, said that the hijackers were escaping from the Taliban. That is correct, but the reason that they were excluded from the convention was not the fact that they were escaping, but the manner of their escape. This issue was considered in detail by the panel of adjudicators which heard the appeal. The reasoning on this specific point runs to 18 pages out of the determination’s total of 118 pages.
Lord Avebury: My Lords, does the noble Lord agree that the panel of adjudicators reached its decision on the application of Article 1F before the individuals’ appeals had been won in the Court of Appeal against their conviction and that, therefore, there should have been a reconsideration of whether Article 1F applied to them or not?
Lord West of Spithead: My Lords, I would like to run through how the panel’s judgment or assessment was arrived at, because I do not think that what the noble Lord has said would have made any difference to that assessment.
Lord Avebury: My Lords, can the noble Lord confirm that the panel of adjudicators reached its decision before the Court of Appeal quashed the convictions?
Lord West of Spithead: My Lords, my understanding is that that is correct, but perhaps I may complete what I was about to say, because one will see the logic of what the adjudicators were talking about in terms of this offence. The adjudicators took into account the guidance in the UNHCR’s handbook—in particular, paragraph 158, which states:
“Whilst for the purposes of the present exclusion ... it may be possible to overlook the fact that a refugee, not finding any other means of escape, may have evaded the border in a stolen car, decision will be more difficult when he has hijacked an aircraft ... forced its crew, under threat of arms or with actual violence, to change destination in order to bring him to a country of refuge”.
The handbook goes on to state that,
- “the question of exclusion under Article 1F(b) of an applicant who has committed an unlawful seizure of an aircraft will also have to be carefully examined in each individual case”.
The adjudicators had regard to a background note issued in 2003, which suggested that among the issues requiring consideration in such circumstances was,
- “whether the hijacking was a last and unavoidable recourse to flee from the danger at hand, that is, whether there were other viable and less harmful means of escape”.
In addressing these issues, the adjudicators concluded that hijacking an aircraft is, of its nature, a serious crime. I do not suppose that any of us would dissent from that.
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Following the formulation established by the Judicial Committee, the adjudicators were also satisfied that this particular hijacking was not a political crime. This is relevant because the article is limited to non-political crimes.
Finally, while acknowledging that there were,
the adjudicators came to the view that there were,
- “no serious grounds for concluding that the appellants were placed in such a position that they were compelled to carry out the hijacking nor were they under such pressure as to justify the hijacking”.
There was no immediate danger of arrest and there were alternative routes by which they could have left the country.
The adjudicators also concluded that, having chosen to escape from Afghanistan in this way, the appellants had no need to prolong the hijack. The aircraft landed first in Tashkent and then in Moscow before arriving in the UK. Those responsible for the hijacking could easily have claimed asylum in either country. There was no necessity to extend or repeat the offence by forcing the pilot to take off again and fly to a second and then a third destination.
That, in brief, is why the adjudicators ruled as they did. It had nothing to do with the statutory interpretation of Article 1F, which had not been enacted at the time and which in any event relates to a different subsection. Nor did it have anything to do with the definition of a serious crime for the purposes of Article 33.
I believe that the adjudicators were right to conclude that the Afghan hijackers were excluded by Article 1F of the refugee convention. They may have been fleeing from a terrible regime of which they did not approve, but there was no necessity to choose the manner of escape that they did or to threaten the lives and safety of the crew and the other passengers. Also, although this did not form part of the adjudicators’ reasoning, there was no justification for keeping the crew and the other passengers cooped up in the aircraft for another four days once they had landed in the United Kingdom. The noble Lord may regard the hijackers as victims but, in my view, the decision to exclude them from the convention was absolutely right.
In the examples that I have given, we are not talking about a large number of people. The estimate is about 50. However, the examples that I have described, including the ones relating to South Africa and Darfur, illustrate the type of case where, in the Government’s view, the conduct of the person concerned means that they should not be put on a par with other foreign nationals in terms of their immigration status. If it were possible, we would want to remove them from the United Kingdom altogether. However, where that is not possible for human rights reasons, we say that, in certain limited circumstances, we should at the very least be able to deny them immigration leave and the benefits that flow from having such leave. On that basis, I ask the noble Lord to withdraw his amendment.
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Lord Thomas of Gresford: My Lords, the noble Lord has not answered my question about the 10th person, who was never convicted. I remind him that the defence of duress was accepted by the jury. Indeed, the Court of Appeal ultimately decided that the judge had wrongly directed the jury in respect of the others on duress. The judgment that he has read out shows that the panel was under the impression that duress did not apply. That was not the case. No further prosecution was brought against them.
Lord West of Spithead: My Lords, I apologise to the noble Lord for not having answered his point on that. I am afraid that I do not have that information. I shall make inquiries and get back to him.
Lord Avebury: My Lords, I said that these clauses were primarily designed to affect the position of the Afghan refugees; I did not say that they were exclusively designed to do so, as the noble Lord claimed. I accept that the circumstances of the Afghans are totally different from those of the other people whom he cited, such as Mr B, the South African. However, I should like the noble Lord to reflect on the purpose of keeping even Mr B in indefinite suspended animation. He is not allowed to work, so he is not contributing anything to the economy. He is simply wasting away his life in this country because it is considered unsafe to return him. Although I had not heard about this before tonight, I question whether the Government are right in thinking that it would be unsafe to return him to South Africa—a democratic country ruled by people who respect human rights—in spite of the offences that he committed under the apartheid regime. Many other people committed equally horrible offences in the days of the white racist Government and are now living freely and peacefully in South Africa. In that case, I do not accept that it would necessarily be unsafe for us to return Mr B.
However, as I said, if necessary, people can be kept on six months’ leave to remain at a time until either it becomes safe to return them or they can be given indefinite leave to remain in the United Kingdom. That has always been the position in the law in the past, and it was only when these Afghanis arrived in the United Kingdom that the Government suddenly changed their mind and said that a special immigration status had to be created to satisfy the knee-jerk reaction of Mr Jack Straw at that time.
The noble Lord kindly went into some detail on the reasons why the special adjudicators panel reached the decision that it did but, as I pointed out to him and as he ignored in running through the argument, its reasoning was arrived at prior to the judgment of the Court of Appeal, to which my noble friend has rightly just drawn attention. The Court of Appeal quashed the convictions on the ground that the defence of duress had not been properly directed by the trial judge. That fact was not before the panel of adjudicators when it said that Article 1F applied. It could have reached a completely different decision had it had that information, and there was no review of the decision by the adjudicators panel. The Court of Appeal having made its decision, these people were then granted asylum, and it was to prevent the effect of that decision that the Government introduced these clauses.
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The existing immigration law is adequate and we have never had a provision of this kind in our law in the past. The noble Lord’s decision confines a group of people who are victims of an oppressive regime to an indefinite limbo where neither they nor their wives or children can resume a normal life. As I should have liked to demonstrate if there had been time, it is totally incorrect to say that there is nothing to prevent these families applying for asylum in their own right and being granted it if they qualify.
An indefinite delay in considering the applications did not just occur in the cases that I quoted on the previous occasion; the 10th person, to whom my noble friend drew attention, was acquitted by the trial and is still awaiting a decision on his application. Mrs S has had to apply for a judicial review of the eight-year delay in responding to her application and is still awaiting a hearing on that JR application. She has four children, three of them born in this country. This is not the way to treat the victims of a vicious regime and, if it had not been so late, I should definitely have asked for the opinion of the House to be tested. As it is, I shall seek an opportunity to return to this matter at a later date but, in the meanwhile, and with great reluctance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 130 [“Foreign criminal”]:
[Amendment No. 114G not moved.]
Clause 131 [Effect of designation]:
[Amendment No. 114H not moved.]
[Amendment No. 114J not moved.]
[Amendment No. 114K not moved.]
Clause 134 [Support: supplemental]:
[Amendment No. 114L not moved.]
Clause 135 [End of designation]:
[Amendment No. 114M not moved.]
Clause 136 [Interpretation: general]:
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