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Criminal Justice and Immigration Bill

My Lords, I am grateful to the noble Lord, Lord Avebury, for bringing the House’s attention back to the provisions relating to the special immigration status. The first of these amendments would introduce an additional condition which would have to be satisfied in order for someone to be treated as a foreign criminal for the purposes of Clause 128. In addition to being someone who has been sentenced to imprisonment for two years or more, or who has been given a custodial sentence of any length for one of the offences listed in the order made under Section 72 of the Nationality, Immigration and Asylum Act 2002, or who is excluded from refugee status by virtue of Article 1F of the Refugee Convention, a person would be a ““foreign criminal””, and hence liable to designation, only if, in addition, the Secretary of State certifies that he or she constitutes a danger to the community. I do not consider that additional restriction appropriate, and I am therefore unable to accept this amendment. Why? I remind noble Lords that the new special immigration status is intended to apply primarily to foreign criminals as defined in this clause who are liable to deportation, but who cannot currently be removed for human rights reasons. They are people who we would want to remove from the United Kingdom if we possibly could. We would seek to remove the person concerned whether or not he or she represented a continuing danger to the community. Special immigration status, as the phrase suggests, is an immigration measure. It is not about public protection. The test for deportation in Section 3(5)(a) of the 1971 Immigration Act is that the Secretary of State deems the person’s deportation to be conducive to the public good. That test can be met on the basis of the person’s past conduct alone, irrespective of whether or not they represent a continuing danger to the community. Let us take the hypothetical example of someone who has committed a serious offence and has served a lengthy custodial sentence well in excess of the two-year threshold. It may be that on their release they are no longer a danger to the community. Indeed, if the person concerned has been given a life sentence, the Parole Board will not recommend the person’s release if they consider that he or she is still a danger to the community. We might nevertheless wish to deport that person, and, if we are unable to do so for human rights reasons, we would wish to be able to designate them under this part of the Bill. In the case of someone who is excluded from refugee status by virtue of Article 1F, the point may be even more starkly defined. Where a person is guilty of a crime against peace, a war crime or a crime against humanity, their ability to commit the crime is quite often linked to their status or position in the country where the crime occurred. Once they are in the United Kingdom, they will normally have lost that status or position, and, even if they have not, they are very unlikely to constitute a danger to the community of the United Kingdom. For example, Mr A—mentioned by the noble Lord—the founder member of the Sudanese Justice and Equality Movement whose case I mentioned on Report, posed no danger to the community of the United Kingdom. Again, it is likely that we would wish to deport such a person. If we are unable to do so for a human rights reason, we would want to be able to designate them under these provisions. The Government’s position is that it should be possible to deny foreign criminals as defined by this clause immigration leave, and prevent them establishing ties which may make their removal at a later date, when things change, more difficult, whether or not they constitute a current danger to the community. Their past actions alone would be sufficient grounds for taking deportation action. However, since they cannot be deported at the present time, we say that the same test—that is, the individual’s past actions, without any attempt to assess whether or not they continue to pose a danger to the community—should apply to designation for the purposes of special immigration status. I am aware that the provisions of Section 72 of the Nationality, Immigration and Asylum Act 2002 require there to be consideration of whether the person constitutes a danger to the community. While we have drawn on the provisions of that section to set the threshold for some of the conditions which may result in a person being designated under Part 10, the two are not an exact parallel. It is important to note that their position is very different from those who would be liable for designation for special immigration status. Section 72 applies for the purpose of the construction of Article 33(2) of the Refugee Convention, and it is Article 33(2) which requires this assessment to be made. The reason for that is that Article 33(2) permits signatory states to return a refugee to a country where he fears persecution. That is obviously a serious step to take, which is why Article 33(2) requires that the refugee must not only have been convicted of a particularly serious crime but must constitute a danger to the community in the country of refuge in order for removal to take place. In the case of special immigration status, we would not be removing an individual to face possible persecution. The status is designed for those who we accept can not be removed for human rights reasons and does not apply to recognised refugees. That is fundamentally different from the application of Article 33(2). I turn to Amendment No. 46 relating to the introduction of an appeal mechanism. I have technical concerns about the operation of the proposed appeal arrangements, which I will cover briefly before turning to issue of principle. First, any appeal against certification would be to the Asylum and Immigration Tribunal. There is no provision for an appeal to be transferred to the Special Immigration Appeals Commission, as might happen in the case of an appeal against an immigration decision. Secondly, as drafted, the amendment provides for an appeal against certification and for an appeal against a refusal to revoke the certificate. There would be nothing to prevent someone who had been designated appealing against certification, losing that appeal, and applying immediately for the certificate to be revoked with a further right of appeal if that is refused. If that appeal is also unsuccessful, there would be nothing to prevent a further application for the certificate to be revoked. Even though we have said that we expect the number of cases where the new power will be used to be small, the possibility of successive applications and appeals represents a potential waste of resources in terms of time, money and people. It has been the Government’s position throughout the passage of the Bill that a free-standing right of appeal is unnecessary and that judicial review provides an appropriate vehicle for challenging any decision to designate. Under the provisions as currently drafted, once the Bill comes into force a person who has been designated will be able to bring a judicial review on the grounds that the decision to designate is unlawful, unreasonable, procedurally unfair or incompatible with their ECHR rights. In our view, this provides an adequate safeguard and is preferable to introducing a new appeal mechanism with multiple layers of litigation. My principal objection is not to the deficiencies of the proposed appeal mechanism. The Government have made their position clear: we believe it should be possible to designate people with the new status simply on the grounds of what they have done in the past, and that it is unhelpful and unnecessary to introduce the additional requirement to assess whether or not they currently represent a danger to the community. On that basis, I ask the noble Lord to withdraw his amendments.