Crime and Courts Bill [HL]

Lord Avebury Excerpts

Tuesday 18th December 2012 Lords Chamber

Moved by

[Lord Avebury]

1: After Clause 20, insert the following new Clause—
“Immigration appeals: asylum and humanitarian protection
(1) Section 83 of the Nationality, Immigration and Asylum Act 2002 is amended as follows.
(2) In subsection (1)(b) omit the words “Kingdom” to the end and insert “, and—
(a) the leave has been granted for a period exceeding one year (or periods exceeding one year in aggregate); or(b) the person is under 18 years of age at the time of the grant of leave; or(c) there are reasonable grounds to believe that the person is a victim of human trafficking.”

[Lord Avebury]

My Lords, this amendment provides that an appeal against a refusal of asylum by someone who has been granted leave to enter for a year or less can be exercised by a child or trafficked person. On Report a similar amendment to remove restriction in all cases was considered. The Minister complained that this was too wide, because it would have afforded a right of appeal to people other than children and trafficked persons. I have therefore confined this amendment to those classes of persons in the hope that a more restricted version of the amendment may prove acceptable to the Government.

Children and trafficked persons who are refugees are entitled to recognition as such, and to enjoy the rights and entitlements of refugees, including for example higher education at home student rates, a travel document and family reunion, and obviously to the security that that recognition brings. The law should not take them to the brink of removal before they can assert their rights to recognition. The Minister suggested that the delay imposed on these children’s applications for asylum was not unreasonable because they were close to adulthood. Actually, time and again the courts have ruled that adulthood is not a moment of sudden transition at which the risks to which children are exposed suddenly disappear. Lord Justice Maurice Kay summarised the authority in a recent case, KA (Afghanistan), when he stated that,

“it does not matter that the appellants are now over 18 because ‘there is no temporal bright line across which the risks to and the needs of the child suddenly disappear’. The line of authority which is said to support this analysis includes”—

and here the judge rattled off a list which I will not bore your Lordships by repeating.

My noble friend kindly wrote to me on 20 November, saying that the amendment would lead to costly multiple appeals. This is, in fact, not the case. Those who appeal and are recognised as refugees will obviously not need a further appeal. The only persons who would have more than one appeal are those whose applications are rejected, who then lose the appeal against refusal, and who the Home Office decides to remove. They would then have a right of appeal against removal, as would anyone else facing that decision. The appeal would, no doubt, rest to a large extent on evidence from the earlier appeal on both sides, and therefore the costs are not likely to be large.

I am not sure where my noble friend gets his idea of multiple fruitless appeals from, and his suggestion that my original amendment would have resulted in significant cost to the taxpayer was not accurate. This amendment is even less open to that criticism, and the limited costs that it entails must be set against the failure to respect the rights of refugees who are denied protection for a year. I ask my noble friend whether the Government have sought the views of the UNHCR on this matter and, if not, whether they will do so and circulate the answer in time for those views to be considered when the Bill is debated in another place.

When the Government ratified the Council of Europe Convention on Action against Trafficking in Human Beings, the Immigration Law Practitioners’ Association tried to persuade them to grant trafficked persons leave to remain for a year and a day in order to avoid this problem. The request was refused, and if the Home Office was concerned that it would have meant a handful of people aged 16 years and nine months getting three months’ more leave than they would otherwise have done, the amendment offers an alternative, whereby the Home Office can grant the period of leave that it chooses but an appeal against refusal of asylum can still take place.

I turn to the second amendment in the group. There were some misunderstandings in the debate on this proposed new clause on Report, and it is in the hope of clearing them up that I ask your Lordships to spend a moment or two once again considering an amendment similar to one I moved previously, which recognises the true circumstances in which the clause is intended to be used. The Minister said that,

“it may be that the conduct that leads to the Home Secretary making this decision takes place while this individual is abroad. I think the notion that this is a premeditated trap is false. It is more to do with the possibility that the individual, while abroad, makes contact with someone, or evidence comes to light as to their true intent, or what they might do when they return to this country becomes apparent, and the Home Secretary wishes to deal with the problem”.—[Official Report, 12/12/12; col. 1103.]

He was speculating, but what he described is contrary to stated Home Office policy. I am reliably informed that this policy is to wait until a person is outside the country to deprive them of leave to remain. This has been repeatedly confirmed in meetings with the Immigration Law Practitioners’ Association and, indeed, at the semi-public ILPA annual general meeting, which was attended by some 100 members on 27 November 2010. On that occasion, the statement was made by Tony Dalton MBE, then assistant director and chief case worker at the nationality and European casework department of the UKBA. ILPA tells me that it is not aware of any case in which some intervening act has prompted the deprivation. That is not to say that it has never happened, but it is certainly not the norm. In many cases, the deprivation notice is served immediately after the person has left the country. There is simply no time for new evidence to come to light or for the person to have done anything that would make him subject to the notice.

ILPA dealt in detail with this in its evidence to the Joint Committee on Human Rights inquiry into extradition policy in January 2011. Subsequent to that, there was the decision of Mr Justice Mitting, sitting in the Special Immigration Appeals Commission in the case of L1, where the matter at stake was deprivation of citizenship. In paragraph 12(i) of his ruling, the judge said:

“The Secretary of State’s decision to deprive the Appellant of his citizenship was one which had clearly been contemplated before it was taken. The natural inference, which we draw, from the events described, is that she waited until he had left the United Kingdom before setting the process in train”.

The Minister may also have unintentionally misled the House when he said in reply to the noble and learned Lord, Lord Woolf—also in column 1103—that exclusion while a person is out of the country has been part of the immigration process for a substantial period. It was indeed at one time, until it was declared unlawful on 16 January 2012 as a matter of statutory construction in the case of MK, as discussed in the Immigration Law Practitioners’ Association’s evidence on extradition to the Joint Committee on Human Rights. If it is done at the moment then the law is being broken.

--- Later in debate ---

I have sought to answer all the questions put to me, and in the light of my remarks, I would ask my noble friend to withdraw his amendment.

[Lord Avebury]

My Lords, I am most grateful for the renewed support of the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss, the noble Earl, Lord Listowel, and the noble Baroness, Lady Smith of Basildon. What they have said demonstrates that there is still serious concern across the Floor of the House with regard to both these amendments, particularly in the case of the noble Earl, Lord Listowel, on the rights of the child, which are being jeopardised by the current system. There is a serious question as to whether the system we have now is compatible with our signature to the UN Convention on the Rights of the Child. However, both that and concerns about the right of appeal only from abroad may have to wait for further consideration in another place, where I hope that these issues will be picked up. I honestly do not think that my noble friend, although he has tried hard, has given us satisfactory answers to many of the points that have been raised. I mention in particular whether the Home Office has a policy of lying in wait. I cited the detailed evidence which has been—

[Lord Taylor of Holbeach]

I am sorry but I did make it patently clear that there is no policy of waiting for people to leave the country before taking these proceedings. That is a matter of fact. I did answer the question.

[Lord Avebury]

I know that my noble friend said that, but he did not respond to the point I made about the evidence which has been provided for us by the Immigration Law Practitioners’ Association. It says that in many cases the notice is served the day after a person has left the country and that the policy was acknowledged by a senior UKBA official when the matter was addressed at the ILPA AGM in front of 100 people in November 2010. My noble friend did not deny that that evidence existed, nor did he attempt to refute it. If he had said that in the cases where a person’s presence was deemed to be “non-conducive to the public good” the Home Office would not wait until somebody went abroad for a short period, I would have been far happier. The case that he described—where someone is known to be departing from the United Kingdom with the intention of plotting with like-minded individuals abroad to commit or plan further offences against our laws—is, again, hypothetical, but the existence of the suspicions could have enabled the Secretary of State to serve that person with a notice before he left the country. Therefore, there was an element of premeditation in the way that the Secretary of State exercised her powers in the particular case that my noble friend described.

I do not think that we are going to get any further with this matter this afternoon. I shall have to leave it for our colleagues in another place to renew the discussions on both these amendments, as I hope they will. In the mean time, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.