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Criminal Justice and Immigration Bill

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 particular, the right to work constitutes a financial advantage and enables the individual concerned to establish roots in the United Kingdom which may make it harder to deport them when the human rights barrier to removal has passed. 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, "““they were kept indefinitely on the hook””.—[Official Report, 10/3/08; col. 1356.]" 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 applications will be resolved reasonably soon, but the issues are not straightforward. I accept that it is taking a long time to reach a decision, but there are complex issues involved and, in such circumstances, it is not unprecedented for such delays to occur. The principle remains, however. Family members who are given special immigration status because they are family members will be able to apply for leave in their own right and, if they qualify for leave—I stress ““if””—then it will be granted. 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 excluded. The reason that they were excluded is that, in the words of Article 1F(b) of the convention, there were, "““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.