The Chair
The Minister for Immigration (James Brokenshire)
Q 203 Sir Keir highlighted the Court of Appeal case; I think I am right in saying that. Mr Gill, I believe that you were acting in respect of that case. Am I right in saying that some of the concerns that you have expressed to this Committee were considered as part of that hearing?
Manjit Gill: Some of the concerns were raised, but the way sin which the Court of Appeal dealt with things is this, and I certainly do not support any solution that puts people of this country at risk; nobody is suggesting that. If there was significant evidence of immediate risk to people, then it was accepted in the Court of Appeal—by me—that there might be some limited category of cases in which there would need to be an appeal from abroad, but that is a limited category.
Some of the concerns about the difficulties of the appeal process were raised, to get back to your point, but the way in which the Court of Appeal dealt with them—I do not particularly want to talk about individual cases, but since you asked—was to say, “Well, there may be those sorts of difficulties, but it will be up to the system to sort them out?” Now, what does that mean? Is the Home Office going to provide the money? Is the Minister of Justice going to provide the money? Who is going to sort it out?
James Brokenshire
Q 204 The reason I asked that question, Mr Gill, was that obviously a judgment was handed down in the Court of Appeal last week; I have certainly seen a note of that case. Does that judgment represent the current law in respect of the assessment of the principles of the Immigration Act 2014?
Manjit Gill: To the extent that the Court considered them. When one looks at the judgment, one sees that all the Court was saying is—first, it is very important to recognise this—that the test is not one of a real risk of serious, irreversible harm; definitely not the test. In fact, your own counsel conceded that at the hearing, but had not done so at any instance prior to that. The test remains one that asks, “Will there be a breach of human rights?”
Secondly, the Court said that the guidance that had been given to the Home Office staff was absolutely hopeless. That was sort of conceded by Lord Keen saying, on your behalf, that we will have to clarify the guidance. The Court said, “Well, it goes a good deal further than that”, and it was much more scathing in the hearing room itself. In other words, the Court was attacking the practice that is being operated at first-instance level within the Home Office. We await the guidance, so we do not know what guidance will emerge.
As to the practicalities of the appeal process and the difficulties of appealing from abroad, which I think is what you are asking me about, the Court said that in principle you could have an appeal from abroad. I have paraphrased those words; you will have to look at the judgment for more detail. But that does not mean that in practice the process necessarily works. On the practical problems, they said, “Well, there are practical problems, but that is something that will have to be dealt with.” That gets us back to those practical problems: who is going to sort out the delays in the system, who is going to ensure that the preparation is capable of being done, who is going to provide the funding for that and if a person has to be brought back for a hearing, which they contemplated but Home Office staff have not, who is going to pay for that? None of those problems is dealt with in the judgment because that is throwing them back on you.
James Brokenshire
Q 205 If I can take you back to my original question on the legal principles of the operation of the Immigration Act that you were challenging just then, the Court upheld the soundness of the principles in the context of human rights legislation.
Manjit Gill: I accepted, as did my co-counsel, Mr Richard Drabble QC, that you do not need an in-country right of appeal in every case. The Court of Appeal has noted that. There is no dispute about that, and I will tell you why it is accepted. The Strasbourg Court says that it is not imperative that in every case you need an in-country human rights appeal. You will certainly need it in article 2 and article 3 cases, which the Home Office accepts. There is no dispute about that; the issue is about article 8 cases. When the European Court uses the phrase “not imperative”, what it means is that you may well need it in a lot of cases but in some cases you may not.
That gets us back to which types of cases there are in which you can avoid giving people an in-country human rights appeal, and the question that was asked there. Supposing you have someone who is going to be a real danger to people on the streets—not just a low risk of reoffending but an Abu Qatada or someone who is going to immediately threaten to go around committing atrocities and so on. We cannot have that sort of person in the country pending appeal. I entirely accept that. Such a person should have to go abroad to appeal. It would depend on the individual case, of course, but I can see powerful arguments for saying such a person should.
We are not talking about such a person. We are talking about people such as the person Mr Yeo mentioned. To give a practical example, we mean someone who has been here since the age of six or seven, breaks up with his girlfriend, goes back to the flat and breaks the door down, frightens the girl but does not harm her, takes his belongings and goes. Quite properly, he gets locked up for a couple of years. That is a foreign criminal under the legislation. Should such a person, who may have been here for 25 years, and who may have a child from that relationship, then be forced to appeal from abroad? That is not an Abu Qatada-type character.
What is now being proposed is that the out-of-country appeal rights, which in principle can be had in a limited category of cases, should not be limited to that category but should be applied for everybody. That is contrary to a principle.
Craig Whittaker
Q 206 Just to clarify something you said, Mr Gill: this character broke down the door, scared his girlfriend a little bit but did not harm her, and got two years for that. Is that what you are saying?
Manjit Gill: I am giving you a practical example.