Immigration (Persons Designated under Sanctions Regulations) (EU Exit) Regulations 2020

Baroness Williams of Trafford Excerpts

Wednesday 2nd September 2020 Grand Committee

Moved by

[Baroness Williams of Trafford]

That the Grand Committee do consider the Immigration (Persons Designated under Sanctions Regulations) (EU Exit) Regulations 2020

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, this instrument is a technical one; unusually it does not create any new powers, but simply relates to the immigration consequences for someone who is designated or sanctioned for immigration purposes under the Sanctions and Anti-Money Laundering Act 2018, which I will refer to as SAMLA from now on.

I will first set out some background to international sanctions, particularly travel bans, with which these regulations are concerned. Under current arrangements, travel bans can be imposed by a resolution of the UN Security Council or by a decision of the Council of the European Union. In the vast majority of cases, they are imposed on individuals who are outside the UK and who have no connection with the UK. However, in the unlikely event that a travel ban is imposed on a person who is in the UK, then this would, as a matter of domestic law, have consequences for their immigration status in the UK as they will lose the right to remain here and will be subject to removal.

A person who is affected in this way may argue that removal would be an interference with their rights under the European Convention on Human Rights, or that it would be contrary to our obligations under the refugee convention. As a result, they may make a human rights or humanitarian protection claim to prevent their removal. These claims can give rise to a right of appeal before the Immigration and Asylum Chamber of the First-tier Tribunal, where a well-developed machinery has grown up to ensure that it is both fair and effective and that it complies with our international obligations.

Now that the UK is leaving the European Union and we have the ability to create autonomous domestic sanctions regimes, a similar situation may arise. A human rights or protection claim may be made against the immigration consequences of a travel ban imposed under SAMLA. Again, this is most likely to arise where an individual is in the UK and would lose their right to remain here as a result of being sanctioned.

I turn to the purpose of the regulations. Noble Lords will recall the issue of interface between challenges to sanctions and challenges to the immigration effect of sanctions being raised during the passage of SAMLA through this House. SAMLA has established an administrative assessment process for sanctions and a court review process in the High Court, or, in Scotland, the Court of Session. This is new; no such mechanism has been needed until now because challenges to UN or EU sanctions are made to them directly.

Now that the UK is creating its own domestic sanctions regimes, we could have a situation where someone wishes to challenge their travel ban in the civil courts, but at the same time also lodges an appeal to the Immigration and Asylum Chamber against the immigration effect of the travel ban—that is to say, the refusal of their human rights or protection claim against removal from the UK. Cases of this kind are likely to be extremely limited in number, but the Government consider it important to ensure that such claims are handled appropriately.

We do not want domestic sanctions to unjustifiably interfere with fundamental rights or run contrary to our obligations under the Refugee Convention. However, at the same time it is also important that the effectiveness of our domestic sanctions regime is not compromised by becoming muddled with immigration claims. The Government have therefore considered how to address this and have concluded that, as a starting point, we should seek to maintain the status quo, so that the Immigration and Asylum Chamber should remain the appropriate decision maker for appeals against the refusal of a human rights or protection claim. Both the Home Office and the tribunal are vastly experienced in this area, having disposing of 53,179 appeals in 2019.

I am sure noble Lords will agree that it is right for this to continue, but we need to manage situations where there would otherwise be the possibility of the High Court and the tribunal considering the same issue. To illustrate the point, whereas the tribunal would be best placed to determine an appeal of an immigration decision, determining the lawfulness of a ban on entry to the UK is a decision that is better suited to the High Court. These regulations ensure that each jurisdiction does not consider matters which are properly the remit of the other, that we continue to comply with our international obligations and that the effectiveness of our domestic sanctions regime is not compromised. I commend these regulations to the Committee. I beg to move.

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[Baroness Williams of Trafford (Con)]

I thank noble Lords for their contributions.

The noble Baroness, Lady Hamwee, asked about the different types of sanctions that might be imposed. First, they can be used to fulfil a range of purposes, including supporting foreign policy and national security objectives, maintaining international peace and security and preventing terrorism. They do not operate or succeed in a vacuum. The noble Lords, Lord Singh and Lord Randall, alluded to the fact that this is not just about people. It can be about states and how those who are sanctioned elsewhere—we can think of some very obvious cases—can find succour in the UK. That is absolutely right. Think about the extradition process: a judge will look into whether any extradition request has been made maliciously or whether there would be a threat to a person’s life if they were extradited to a country where they would certainly face torture and, in some cases, death.

I will go through some recent asset freezes and travel bans to illustrate the point. Some 25 Russian nationals involved in the mistreatment and subsequent death of Sergei Magnitsky were subject to them, as were 20 Saudi nationals involved in the murder of Jamal Khashoggi. So were two high-ranking Myanmar military generals involved in the systematic and brutal violence against the Rohingya population and other minorities by the Myanmar armed forces, and two organisations involved in forced labour, torture and murder in North Korea’s gulags. Those are just some examples of the types of organisations and people that we have imposed asset freezes and travels bans on.

Several noble Lords, including the noble Lord, Lord Kennedy, and, I think, the noble Lord, Lord Cormack —although I cannot be sure—talked about the almost hiding in plain sight of assets that sit in our capital city, which may or may not be the product of dirty money, for want of a better expression. Of course, they will also have shared the experience of taking through legislation the year before last on how we can get hold of assets that people have attempted to hide and how we ensure that proceeds of crime are uncovered.

The noble Lord, Lord Singh, asked if these sorts of sanctions would cover cybercrime. Yes, they very well could do given some of the effects that cybercrime can have. The noble Baroness, Lady Hamwee, asked whether someone can appeal from abroad. The answer is yes. What if someone is here unlawfully? Obviously, there are two things to untangle: first, someone’s immigration application or, indeed, asylum appeal, and then a sanction, if indeed one is necessary.

On Crown dependencies, a revised Explanatory Memorandum was laid today and the Crown dependencies confirm that they do not need regulations extended to their jurisdiction. However, we do not ignore our international obligations. Those who claim fear of persecution or a breach of their fundamental rights still have a statutory right of appeal against a decision to refuse those claims.

I reiterate that these regulations do not change the status quo and, on that note, I ask that the Motion be approved.

Motion agreed.