Counter-Terrorism and Border Security Bill (Sixth sitting)

Afzal Khan Excerpts

Committee Debate: 6th sitting: House of Commons
Thursday 5th July 2018 Public Bill Committees

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

The Minister and I discussed some of these powers privately, and I welcome the chance to discuss them again. He is aware of a number of cases that I am concerned about regarding detention or stopping and searching at borders. I make it absolutely clear that, when needed to protect public safety—whether from hostile state activity or from those travelling abroad or entering this country to commit acts of terrorism—the powers must absolutely be there to enable searching, detention and other necessary processes to deal with that and to keep the public safe.

However, there are two crucial points. The first is that, wherever possible, action should be taken before we have to detain or search or interdict somebody at a border, particularly if that person is leaving the UK. We should, if possible, detain them at their home or interview them elsewhere—voluntarily or otherwise—because if we get to the stage at which somebody attempts to board a plane or a ship or a Eurostar or whatever, there will be a risk both to public safety and of unnecessarily detaining or disrupting the travel of individuals who are not guilty of any offence.

The second point, which the Minister is aware of, is that we need to be aware that individuals may travel with family members or other individuals who are in no way connected and should not be under the reasonable suspicion that may be directed at that individual. What steps are being taken to ensure that information and processes are being shared to ensure that such detentions, searches and interdictions take place at the earliest possible opportunity? What arrangements are there to ensure that relevant information is shared, wherever possible, between airlines or other forms of transport, the Border Force, the Passport Office, the security services, the police and others to ensure that those things I mentioned are done at the earliest stage? I will move amendments on that issue later.

[Afzal Khan (Manchester, Gorton) (Lab)]

I shall be brief. I would like the Minister to take a couple of my questions into account when answering those raised by other Members. It is clear that this whole area gives a lot of power to officers, and that the term “hostile activity” risks casting an extremely wide net; in essence, anyone could be subject to the Bill’s invasive powers. Will the Minister explain how any confidential material obtained at the border will be protected? How do the Government intend to ensure that these powers will not lead to ethnic and religious profiling? In view of these broad powers, will the Minister also clarify whether any training will be given to officers?

[Mr Wallace]

First, the use of, effectively, no-suspicion stops on our border is not new. In fact, as we heard from those giving evidence to the Committee last week, lots of stops happen on our border, because borders are particularly vulnerable spaces. There are screening stops, in which people are asked questions about where they are coming from or going. There are also customs and excise stops, which go beyond that, and in which people are stopped and their bags and luggage are properly searched, perhaps in a side room. That is detaining, in a sense. It is not for a long period of time; it is certainly not as long as some of the scheduled stops that we will talk about.

Until someone is arrested, their access to legal advice and so on is different, because our vulnerability at a border, and our need to establish who, what and when, is really important for our national security. That is why many of those stops, in different guises—whether customs or identity screening—have been in place, sometimes, for hundreds of years. This is a development of that. In the Terrorism Act 2000, passed by the last Labour Government, the feeling was that, given our vulnerability at the border in a fast-moving world of millions of passengers, it was important to give our Border Force and our law enforcement community the ability to establish that information.

Some 89% of all stops at the border are done in under an hour. The vast majority are inward not outward, but to the point made by the hon. Member for Cardiff South and Penarth, I also have a constituent who was stopped when outward bound. My constituent was held up, and a family holiday and lots of money were effectively lost. Having met the hon. Gentleman, we have started a piece of work to look at exactly what we can do to minimise that. A good example would be asking whether it is really necessary to stop someone on the way out; they could perhaps be stopped only on the way back in. If we do not think they are going to travel to fight in Syria, but we think they might be going to do something else, we could just wait until they come back, and people are much less likely to suffer financial risk if they are done.

In answer to the question by the hon. Member for Manchester, Gorton, only officers who are specially trained are allowed to conduct a stop, search and detail. I think it would be illegal, and it would certainly be against the powers, to do it for arbitrary or discriminatory reasons. That would cover doing it on the basis of race or anything else. The no-suspicion power has been incredibly useful and has caught a significant number of terrorists, predominantly due to the fact that they have been stopped and data or biometrics has been seized. We have seen a number of cases. There was a guy from Wembley, I think, who was convicted of murder based on material recovered from a stop.

There will be safeguards in this new power. Our terrorism stops are reviewed by the Independent Reviewer of Terrorism Legislation. I have asked the Judicial Commissioner, Lord Justice Fulford, to review the use of the hostile state power on an annual basis. One of the reasons why we have introduced this is that the Independent Reviewer of Terrorism Legislation had serious concerns that in the past we were using a counter-terrorism power to stop people on a national security or hostile state concern. This is our response to what I think was David Anderson’s recommendation to take that forward.

The hon. Member for Torfaen and the Scottish National party have spoken about no-suspicion and the fact that we should have reasonable grounds. The biggest challenge is that the way our intelligence is presented to us can often be very broad. It can be based on a method, on a threat on a date, or on a plane, rather than on a person. The Government’s reading of the law is that if we had to have reasonable grounds, it would be too narrow for us to be able to respond to some of that intelligence threat.

It may even be that we have gone to a state of “critical”, where an attack is imminent but we do not know from which direction. I have personal experience, doing this job, of where we had some “reliable” intelligence about an attack in one part of the country, but in fact an attack happened in an entirely different place at another end of the country. The information was enough to consider raising the threat level, but not enough to know exactly where it was happening. I remember having rather an uncomfortable night, going out and having in the back of my head what I had been told might happen; while I was pleased that it did not happen, something else then happened elsewhere. It is a challenge; it is a difficulty. It is the way our intelligence is often presented to us, and that is why we need a no-suspicion stop.

There are protections for journalistic material and legal privilege. Because the seizing at this stop would not be under suspicion, the examining officer would have to apply to the Judicial Commissioner for that to be further examined, and the Judicial Commissioner could say no. We have included protections for journalists, lawyers and so on, to ensure that that happens, because we do not want the power abused, especially when we are talking about a hostile state rather than terrorism. Of course, hostile states are pretty clever at how they try to penetrate or come into the country.

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[Mr Wallace]

I understand the hon. Gentleman’s point. All such schemes, including his, restrict people’s right to a lawyer, one way or another. They either say, “I don’t trust your lawyer, so you can have my lawyer,” or—this is how the Government are doing it—“We have exceptional grounds, authorised by a chief officer, because we are suspicious of something”.

The hon. Gentleman makes a point about police stations, but many of these examinations are about establishing who, what, where and when. We should remember that in the port stops power, to balance the removal of some rights, these verbal discussions are not admissible in court as evidence, unlike in a police station, where everything said can be taken down in evidence and used. We give that protection, as my hon. Friend the Member for Cheltenham (Alex Chalk) pointed out.

[Afzal Khan]

I accept what the Minister says about trying to balance rights by not allowing such conversations to be used as evidence, but would it not be better and in the wider interest to allow the use of solicitors from a pool and be able to use those conversations as evidence?

[Mr Wallace]

If I were to propose such a restriction on which lawyers could be consulted, I would find difficulty in the House of Lords. Let me proceed.

Accepting the amendments would in effect offer an opportunity to those engaged in activity of such severity to frustrate and obstruct an examination. Let me address the key point raised—the evidence we heard last week on restriction of the right to consult a solicitor in private. We must be clear that schedule 3 would allow use of the power only when an officer at least of the rank of commander or assistant chief constable has reasonable grounds for believing that allowing the examinee to exercise his or her right to consult a solicitor privately will have certain serious consequences.

The provisions are largely modelled on similar provisions in PACE: namely, where there are reasonable grounds to believe that private consultation will result in interference, injury to another person or hindering the recovery of property. Due to the potential severity of an act of terrorism, schedule 8 to the 2000 Act outlines additional consequences that might justify allowing the legal consultation to take place only within the sight and hearing of a qualified officer. Those include interference with information-gathering relating to an act of terrorism, alerting a person and making it more difficult to prevent an act of terrorism.

Schedule 3 to the Bill contains a similar consequence as a ground for allowing non-private legal consultations, namely the consequence of interference with information gathering about

“a person’s engagement in hostile activity.”

The need for the restriction is clear. It is there to disrupt and deter a detainee who seeks to use their right to a solicitor to pass on instructions to a third party. It already exists in legislation in schedule 8 to the 2000 Act, which the Bill seeks to replicate. In giving evidence to the Committee, the chair of the Law Society’s criminal law committee questioned why this restriction went beyond the equivalent provisions in PACE code H, which relate to a situation where an individual has been arrested on suspicion of a terrorism offence. PACE code H provides that:

“Authority to delay a detainee’s right to consult privately with a solicitor may be given only if the authorising officer has reasonable grounds to believe the solicitor the detainee wants to consult will, inadvertently or otherwise, pass on a message from the detainee or act in some other way which will have any of the consequences specified under paragraph 8 of Schedule 8 to the Terrorism Act 2000.”

Those consequences include harming others or tipping off terrorism suspects. In such circumstances,

“the detainee must be allowed to choose another solicitor.”

We have considered that carefully, but there are two main reasons why it is not feasible from an operational standpoint. First, in the circumstances described, where the police are concerned that an individual will use their solicitor to pass on instructions, allowing them access to a different solicitor in private will not prevent that possibility. The solicitor might be completely oblivious to the fact that their client is using them to pass on instructions to a third party. For instance, a detainee might ask the solicitor to contact someone and pass on a specific message, such as the fact that they are being detained and their location, with the solicitor unaware that the message will trigger some prearranged activity.

Secondly, inviting the detainee to choose another solicitor is not as straightforward at a UK port as it is at a police station. Unlike a detention under PACE, where there is time and access to a duty solicitor, it might take a substantial amount of time for an alternative solicitor to arrive at a UK port. To offer that option up front to the detainee, who is already presenting reasons to believe they are up to no good, provides another means for them to obstruct and frustrate the examination against a ticking detention clock.

Despite those reservations, I draw the Committee’s attention to two important safeguards that govern the exercise of such a direction. The first will ensure that a direction may be given only by an officer of the rank of assistant chief constable. The second will ensure that the officer present during the detainee’s legal consultation must not be connected with the detainee’s case. I reassure the Committee that the safeguards to the schedules have been carefully considered, following lessons learned through the exercise of the equivalent police powers, the work of the independent reviewers of terrorism legislation and our engagement with the public in respect of the existing powers for counter-terrorism purposes.

In relation to the amendments before us today, I stress that we should not hinder the ability of our law enforcement professionals to disrupt and deter those who present a threat to this country due to their involvement in terrorism or hostile state activity. Accordingly, I invite the hon. Member for Paisley and Renfrewshire North to withdraw his amendment.

Counter-Terrorism and Border Security Bill (Fourth sitting)

Afzal Khan Excerpts

Committee Debate: 4th sitting: House of Commons
Tuesday 3rd July 2018 Public Bill Committees

Therefore, with the Committee’s leave, I would like to indicate clearly that we are going to look at a better solution for the issue in the amendment, which will take on board the very clear recommendations from Opposition Members and others, to make sure that the Bill reflects an offence that deals with the current threat of streaming.

[Afzal Khan (Manchester, Gorton) (Lab)]

Will the Minister look at not only the question of the clicks, but what possible safeguards could be incorporated? For example, we talked about journalists and academics.

Counter-Terrorism and Border Security Bill (Fifth sitting)

Afzal Khan Excerpts

Committee Debate: 5th sitting: House of Commons
Tuesday 3rd July 2018 Public Bill Committees

[Mr Wallace]

TACT—Terrorism Act 2000—offenders’ data can be retained if a national security determination is made by a police chief irrespective of whether or not they have been convicted. If someone is convicted of any offence—certainly a serious offence or terrorist offence; I will seek guidance as to whether this applies to a minor offence—their DNA data can be detained for a much longer period, if not indefinitely. This mainly concerns people who have been arrested but not convicted. That is why this measure is important. It is specifically aimed at the more serious offences of terrorism. One of the other challenges in the law is that if someone is arrested under PACE, it may be for terrorism, but it might not be for a terrorist offence. What someone is arrested for defines the subsequent powers that we have. We would like to match that to allow a PACE arrest to lead into us retaining that data.

To give the hon. Member for Scunthorpe some reassurance, the Biometrics Commissioner will review this. If he feels next year or the year after that we are holding data for too long or for too little time, no doubt the Government of the day, as the hon. Member for Paisley and Renfrewshire North says, would be wise to listen to those recommendations, return to the House and do something about it. That is why we have these independent reviewers, tribunals or whatever they are making a judgment on us. Any responsible Government will listen to their advice.

[Afzal Khan (Manchester, Gorton) (Lab)]

Clearly there is an issue of trying to balance liberty and security. One of the points that the written evidence from Liberty pushes is that

“the retention of innocent people’s DNA has a disproportionate impact on people from BAME backgrounds. Estimates vary, but it has been projected that between a half and three-quarters of young black men have had their DNA stored on the DNA Database.”

What is the Minister’s view on this?

[Mr Wallace]

I would need to see whether Liberty means people convicted or people arrested but not convicted. If people are convicted of offences, it does not matter what their background is. They are convicted of an offence and their data is stored.

[Afzal Khan]

They are not convicted.

[Mr Wallace]

In the terrorist space, it would reflect the threat of the day. Undoubtedly, at the moment the single biggest threat to us going about our lives in the United Kingdom is from Daesh/al-Qaeda. There is our proscription of National Action and a growth in the number of people from the neo-Nazi far right. If we had had a DNA database in the ’80s, the vast amount of the DNA would probably have been from those of Irish descent linked to Irish nationalist and loyalist terrorism. I am afraid the database reflects the threat of the moment. Nearly all the terrorist operations I have ever seen are intelligence-led—they are not rustled up. It is a thoughtful, deliberate process. I do not think the database is indiscriminate or that it targets people based on their black and minority ethnic background. It is just a reflection of the threat we face at the moment, and I suspect that it will shift. In 10 years’ time, the hon. Gentleman and I might be standing here talking about another section of society. In the north-east of England, far-right referrals to Channel outstrip Islamist referrals. If that were to feed into the terrorist threat, in a few years’ time we may see a greater amount of DNA retained from white British people in the north-east.

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[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

I wish to echo some of what my hon. Friend the Member for Cardiff South and Penarth said. I share some of the concerns of my hon. Friend the Member for Ealing Central and Acton about the materials, although I suspect some of them have been updated. If simply having a beard made one a suspect, Father Christmas would be in trouble—were he to exist.

As co-chair of the all-party group on counter-extremism and someone who represents a constituency that has been attacked, I recognise the benefits of Prevent. After last year’s attack at London Bridge and Borough market, I spoke to the five mosques in my constituency, which frankly wanted to open their doors. They wanted to know that their sons and daughters—in particular their sons—would not be targeted by those who seek to groom the innocent and turn them into people who seek to attack and undermine our way of life. They also wanted engagement, to counter the Islamophobia that grows when attacks occur. There is a role for Prevent in such situations. We should not forget that the attackers at London Bridge and Borough market chose to commit their atrocity at the very time when real Muslims were breaking fast. They were not Muslims, and it is not Islamophobic to try to prevent such men from committing atrocities.

There was community concern about the nature of the people targeted by groomers, for want of a better word—people with learning disabilities and mental health problems. Given the circumstances they live in, there is nervousness about providing information about such people. That is where communities need reassurance about the support that is available outwith the influence of those who seek to corrupt. That would be welcome, and that is what amendment 31 gets to. A review could help to build trust and demonstrate what the Government do to support those who are genuinely vulnerable in such circumstances. I therefore hope the Government welcome the amendment.

[Afzal Khan]

I will try to be brief. I echo much of what colleagues have said. I was involved with the 7/7 taskforce and served in the European Parliament as a vice-president of security and defence, so I know there are many aspects involved, but I urge the Minister seriously to consider a review.

People have different perspectives on Prevent, from feeling picked on to feeling under siege. Some talk about preventing Prevent. Others say it is toxic. At the heart of it, the trust of communities is key. Some mainstream groups have taken issue with Prevent—the Muslim Women’s Network UK is the largest to have done so. The Muslim Council of Britain, another large organisation with more than 500 affiliates, also thinks there needs to be a review.

The journey we have been on in the past 12 years or so has clearly had positive elements, and elements that we need to learn from to improve. A review would help us all. The emphasis on the far right, which has clearly become an aspect of Prevent in the past few years, is welcome.

If the Minister wants expansion, it is vital that there is sufficient funding both for training, so that we do not end up with prejudices pushing the agenda, and for local authorities. We have seen the cuts to local authorities in the past eight years—they will need sufficient resources to take the strategy forward.

[Nic Dakin]

It is a pleasure to serve under your chairmanship, Mrs Main. I appreciate the comments by my hon. Friends, who drew on rich experience. As my hon. Friend the Member for Bermondsey and Old Southwark said, there is a clear role for Prevent, which has done a lot of good work. However, as my hon. Friends the Members for Manchester, Gorton and for Ealing Central and Acton pointed out, there are areas where it does not command the trust of communities. It is therefore important that we have a proper review. As my hon. Friend the Member for Manchester, Gorton said, that would rebuild trust and strength, which would benefit everyone.

I go back to what Assistant Commissioner Basu said at our evidence session. The strongest piece of evidence I heard was when he said:

“The biggest problem we have in counter-terrorism, without a doubt, which is making this a generational challenge, is radicalisation.”—[Official Report, Counter-Terrorism and Border Security Bill Committee, 26 June 2018; c. 6, Q3.]

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[Mr Wallace]

It is important to talk about whether we need a review. I say that we do not need a review because a lot of the perception issues out there are peddled by myths rather than facts. When you start to examine the facts, you realise that there is an element of Chinese whispers. People go round and round in circles and everyone else is now in a space in which people are confirming facts that are not facts, and the myth is undermining the policy in itself. If you look at the core of where some of these myths come from, it is from the enemies of Prevent, not people with a genuine worry about Prevent.

[Afzal Khan]

The point I am trying to get across is that there are major organisations that are not buying it. I gave two examples to the Minister: the Muslim Council of Britain and 500-plus affiliate organisations across the country, and the Muslim Women’s Network, which is the largest organisation of its kind. What steps are you taking to make sure that they buy into this? We need that.

[The Chair]

I am sure the Minister will answer, not me.

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[Mr Wallace]

I am open to the hon. Lady’s suggestion. In fact, where Prevent works best already, those communities do help. In parts of Birmingham there are some good examples where those communities have helped to shape Prevent with the local Prevent co-ordinator, and it has a really good impact. I am completely pragmatic about how we design Prevent below the national level of the Government and about how it is delivered. On the point made by other colleagues about funding, I understand the pressure on funding. That is why the pilots we are looking at have a multi-agency approach, which again will broaden it out. The Home Office will fund those three pilots centrally, so it is not a pressure on the local authority.

A review of Prevent is not necessary. There are a lot of other things to do with Prevent, to improve it and evolve it, but I do not think that reviewing it is right. There are a lot of statutory bodies already out there. The lead Commissioner for Countering Extremism could, I am sure, do a review if she wants to: she is the lead Commissioner for Countering Extremism. There are independent commissioners out there who can look at these things from outside. Andy Burnham is undertaking a strong review.

[Afzal Khan]

First, the Minister uses the figure of 500, which we welcome, if we have been able to achieve that, but that figure of 500 is from over 9,000. If we look at the ratio, it is 1:18. Does he not want to see more improvement than that? Secondly, what is the loss if we have a proper review?

[Mr Wallace]

My rebuttal to that would be: what is the gain? What would the reviewer do? Yes, we can be more accurate; we can reduce from 7,000 referrals to fewer, but what is interesting is that in the two years of the published figures we see exactly that. Prevent is evolving; we are seeing better reporting and we are seeing the sections of society that are and are not reporting. We see exactly the same proportions that we see in wider safeguarding referrals. In Prevent, 30% of the 7,000 need other safeguarding. They do not need to go to Prevent for terrorism purposes, but they go into other safeguarding for domestic abuse or something else. That is exactly the same percentage as we see in the wider safeguarding. If Prevent is the entrance to getting my children better safeguarding, I am happy with that. If somebody is taking an interest in behaviour or actions being inflicted on a child or vulnerable person, I do not mind whether the person who spots it is a Prevent officer or a safeguarding officer; we just want it to be dealt with.

The hon. Gentleman is right that these figures allude to Prevent’s accuracy, but they also allude to its success, in my book. That is the first start point. A review that is frozen in time is not necessary when Prevent is starting to have real success. The Government think that people realise that it is for all of us and not just for the Muslim community. It is for all of us.

I will finish the point about the review by saying that I spoke recently to the headmaster of a pupil referral unit in one of the toughest parts of Lancashire. He had a 15-year-old boy who was referred for neo-Nazi, far-right extremism. The Prevent team came in and the boy is now in mainstream further education college, with a multi-ethnic group of friends, doing his higher-level qualifications. If hon. Members know anything about pupil referral units, they will know that very rarely do 15-year-olds move out of them. The headmaster said to me, “Give me Prevent every time; I wish I had it for the broader spectrum of troubled people.”

I am afraid I cannot agree with the Opposition that we need a review. I am happy to engage, to sell the policy more and to correct the perceptions, but I think a statutory review in the primary legislation is unnecessary.

Counter-Terrorism and Border Security Bill (First sitting)

Afzal Khan Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 26th June 2018 Public Bill Committees

[Matt Warman]

Q Is there anything you would add, Mr McGill?

Gregor McGill: I adopt everything my colleague has said. I would say, in respect of the Australian experience, is that although it is on the statute book, it is not often used. It is something that, like most offences, has to be—in accordance with the law—it has to be necessary in democratic society but it also has to be proportionate. It is an offence that would be a useful addition to a prosecutor’s armoury, but we would have to be careful how we exercised it because there are ECHR implications, and prosecutors would be alert to that. The Australians are looking at their first case at the moment for dealing with such an individual.

[Afzal Khan (Manchester, Gorton) (Lab)]

Q This question is to Mr McGill. We have heard a number of questions on the three viewings. With the viewing itself, does that mean whole or part? What proportion would have been viewed to be counted as one, two, three?

Gregor McGill: That would depend on the particular circumstances of the case and the particular evidence put before the prosecutor. If you went straight to a very criminal—if I can use that word—part of the streaming, that could constitute one. Just a very brief look could constitute one click.

[Dr Rupa Huq (Ealing Central and Acton) (Lab)]

Q I just wanted to ask about support for proscribed organisations versus the lone wolf situation. To what extent do you think the Bill defines the expression of an opinion or belief in terms of a terrorist offence, without the actual action that goes with it to prepare for an act of terror? I am thinking of a case that was quite celebrated about a decade ago: the lyrical terrorist. Do you remember this? It was a 24-year-old shop worker from the Heathrow Airport branch of WHSmith, who was writing dodgy things on the back of till receipts about beheading people. She initially was sentenced, but it was quashed afterwards. Would that case be different under all this? It is just the risk that, potentially, satirical activity could be criminalised. She claimed she was writing poetry. I think she also had some dodgy stuff in the house that could have aided terrorists. In the end, it was seen as too weak and was all overturned. Would that be different under this legislation?

Gregor McGill: That is a very difficult question to answer without seeing the precise evidence. The section 12 support offence is there to deal—sorry to come back to it—with the threat of radicalisation, and the charismatic speakers who stop just short of inviting people to become involved in terrorism but make it clear that they support that activity. That is what this clause is there to deal with.

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[Mr Wallace]

Q Does it oppose the lack of reasonable grounds, the no suspicion?

Richard Atkinson: No.

[Afzal Khan]

Q I would like to ask about the confidentiality between the solicitor and the client. It has been long-established that that is a privileged sort of advice. You also said you understand where the legislation is trying to go and why the Government are trying to pass it. Is an alternative available where both could be achieved without compromising and losing one?

Richard Atkinson: I do not think the two prevent one another. Obtaining legal advice, bearing in mind that the individual has to answer questions, is not going to stop the objectives of the legislation or investigation. As I have already indicated, if there are specific concerns about the individual adviser, they can be met in the way that the codes of practice attached to the Police and Criminal Evidence Act currently address the matter. So, no, I do not think there is any problem in maintaining legal professional privilege and achieving the objectives that are sought.

[Gavin Newlands]

Q In addition to access to justice and legal professional privilege, or lack of provisions in the Bill, are there any other aspects of the Bill that concern you? Do you think any of the provisions, such as three clicks, could result in aspects of the Bill being successfully challenged in court under human rights laws?

Richard Atkinson: I will take a moment to gather my thoughts around that. As far as other matters go, specifically going back to—although we did not quite touch on it—legal professional privilege, there is the issue of seizure of material and its examination. Again, it concerns me that, where legally privileged material is seized, it can be both examined and seized, even though it is legally professionally privileged material. I understand that the concern is that there will be those who falsely make the claim that the material is privileged—either that they themselves are lawyers and are privileged, or that the documentation and material they are carrying is in some form privileged and therefore should not be viewed by investigators.

In order to maintain privilege, which I think is so important, there are safeguards that can be imposed, which would mean that privilege is maintained but that the objectives are met. It has to be borne in mind that legal professional privilege does not extend to agreements to carry out illegal acts. If someone comes to me and wants to plan some illegal activity, it is not a privileged conversation and material. If there is material that is claimed to be privileged at the time of the seizure—bearing in mind that when he gave evidence to the Joint Human Rights Committee, Max Hill said that he saw this being a handful of cases, so we are not talking of hundreds of cases here—it would be perfectly legitimate to seize that material, bag it immediately and then put it in front of an independent counsel—lawyer—who would then be able to assess whether or not that material is privileged. If it is privileged that is the end. If it is not privileged, that material goes to investigators to be dealt with. It can be dealt with in a very short time, because lawyers are very adept at making themselves available to deal with urgent situations. When we are talking about a small number of cases to protect the fundamental right of legal privilege, that would be, in my view, an adequate and proportionate safeguard for dealing with that situation.

To your wider question—whether there were any other concerns—I suppose I could say three clicks et al. We have some concerns that the three clicks provision could potentially be restrictive or undermining of those with legitimate cause, such as journalists or academics making research into areas where they may find themselves falling foul of the legislation. I understand the statutory defence of reasonable excuse, but that is none the less relatively vague. The timings—you spoke about this in the earlier session and about having no time limit on this—are also vague.

To leave the law in the hands of prosecutorial decision as to whether or not it meets the public interest is a step too far. I think there is a need for greater definition around what is being sought to be prohibited. I understand the rationale for it and the need to prevent radicalisation, but we also need to ensure that we do not inadvertently criminalise those who are undertaking legitimate tasks. Although I was unaware of the specific example that one of your colleagues raised, of the worker in WHSmith, that shows the risk of simply relying on prosecutorial discretion as to whether matters should be prosecuted. In that case, clearly, a discretion was exercised to prosecute, and from what you have said—I do not know the case, so I am relying on the information given here—that was later found to be wrong.

Counter-Terrorism and Border Security Bill (Second sitting)

Afzal Khan Excerpts

Committee Debate: 2nd sitting: House of Commons
Tuesday 26th June 2018 Public Bill Committees

[The Chair]

Mr Khan will ask a quick, succinct question, and then, Mr Hill, you have three minutes or so to answer.

[Afzal Khan (Manchester, Gorton) (Lab)]

Q You have talked about lowering the threshold in the Bill and about no preparation for an act being necessary, yet we see that sentencing is up to 15 years. How fair and safe are these changes?

Max Hill: The way I would look at it is there are tiers of terrorist offending. At the top tier, there is a clear need, on a discretionary basis, for the imposition of indeterminate sentences. The life imprisonment provision is important, and that is why, under section 5 of the 2006 Act—the preparatory offence—individuals can be sentenced to life imprisonment, and a number of recent cases have found that necessary.

What the Government are looking at here, it seems to me, is second tier—we might argue as to whether the sentencing provisions are second and third tier or just second tier. There is a legitimate argument that, at the second tier, the time may have come to increase the discretionary maximum—I emphasise discretionary only. I would not have supported mandatory minimum sentences, which we see in other general crime statutes here and there. I am glad that we do not see that in this area, where the most experienced and, frankly, hand-picked judges try these cases. They are in the best position to judge the criminality and the balance between offence and offender. We have the Sentencing Council’s guidelines for terrorism. There is no evidence of a call for higher discretionary maximums, so when debating the sentence provisions, I would encourage some thought as to how necessary that is.

So I give principled support to some increases for second-tier offences, but the one area in which I would definitely have supported an increase in a discretionary maximum sentence is the one area the Government have not included: section 38B of the Terrorism Act 2000, which is the knowledge or belief that an individual—a principal offender—is about to commit a terrorist offence or has committed one, in circumstances where there is no call to the authorities.

The Court of Appeal has looked at that offence—the case is Girma, some eight or nine years ago now—and the statutory maximum is five years. I can see an argument—if I may take an example from last year—where there was an individual who was aware of the planning for either the Manchester Arena attack or the London Bridge attack and did nothing about it, for that individual perhaps to be at risk of a discretionary sentence of five years or above. However, that is not a provision that has been included in the Bill.

It is a delicate area, and it should be evidence-led. I would say there is some evidence for extending the discretionary maximum for section 38. I am concerned, however, about extending the maximum under section 58 —particularly in the new variant, clause 3—as high as 15 years. I beg to ask whether somebody should be at risk of a sentence of that magnitude if and when convicted only of the clause 3 offence.

[The Chair]

I call Dr Rupa Huq, but I think you have only a second to ask your question.

EU Settlement Scheme

Afzal Khan Excerpts

Thursday 21st June 2018 Commons Chamber

[Afzal Khan (Manchester, Gorton) (Lab)]

I thank the Minister for advance sight of her statement. We, too, value the contribution of EU citizens as our friends, neighbours and colleagues. Their rights must be protected after Brexit. They have already waited two years from the Brexit vote to be given some assurance and guidance on their status in the UK. From speaking to EU citizens, I know that the stress and anxiety of not knowing if they will be allowed to remain and of not being able to start the process have been significant. There has been uncertainty for UK citizens in Europe as well. The Home Secretary criticised the EU27, but we were previously told this matter is for the future relationship. Which is it?

I have a number of questions for the Minister. First, may we have more details on the criteria for settled status? How will the rights of other EEA and Swiss citizens be enforced? On the criminal checks, what exactly will be the threshold, and how far back will offences be considered relevant? As we have seen with highly skilled migrants, the Government have been picking up on very minor tax errors to refuse applications. Will she confirm that this practice will stop, and that it will not apply to EU citizens? Which court will adjudicate when, inevitably, incorrect decisions are made in the processing of applications or when legal challenges are made to those decisions, and is that acceptable to the EU? For Irish citizens, the mixed messaging is concerning. They do not “have” to apply, but they could. Will the Minister clarify that?

My second point concerns how vulnerable people will be reached and protected. The Migration Observatory has identified a number of groups who may fall through the cracks of a settled status system, especially people who are older or disabled, and those with language barriers. What plans does the Minister have to identify and protect victims of domestic abuse who rely on their partner for status? We heard at the last Home Office questions that the UK Government had made contact with only two libraries in Scotland. Does the Minister have any advance on that number?

The Minister said that the scheme will be accessible by computer, tablet or smartphone, yet we heard this morning that it is still not working on iPhones. Will that be fixed, and will the system work on all tablets and computers? She said that locations will be established for people to use the app or be helped to do so. How many locations will there be, and what will be their geographical spread?

Thirdly, can the Department handle the demands of registering 3 million people? The Home Office has a 10% error rate in immigration status checks. Is the Minister confident that the system being introduced will be robust and efficient enough to deal with those applications, without it crashing or large numbers of incorrect decisions being made in the process? The Home Affairs Committee has outlined serious concerns that Brexit will drain resources from an already failing system. Are new staff being recruited from outside the Department or are they being reassigned? How long will they take to train, and how much experience will they have to deal with complex cases?

The Minister said that a dedicated customer contact centre will help people through the process. Has that centre been set up, and will it be staffed by Home Office or outsourced staff? Will information be passed to immigration enforcement if somebody discloses that they do not have the right to be in the UK legally? After Windrush and the 100 letters sent in error to EU citizens last year, many people are understandably nervous about coming forward, especially if they are vulnerable and/or afraid that they will not meet the criteria. Telling them that Home Office staff can exercise discretion will be of little comfort.

Fourthly, will the Minister commit to rolling back the hostile environment, so that another 3 million people are not subject to such unjustified and punitive policies? In the practical application of an ID scheme for upwards of 3 million residents of this country, how is it possible for authorities to insist on the production of ID by a minority of the population? Surely that will lead inevitably to a requirement for all citizens to carry ID. Finally, the Minister said that she will publish the draft immigration rules for the scheme. Should we still expect an immigration White Paper before the summer, and if so, what will be its scope? When will we get the Government’s proposals on the future of migration post-Brexit?

[Caroline Nokes]

The hon. Gentleman has raised a large number of points, and alongside him I recognise that post referendum there have been anxieties for EU citizens living in the UK. That is why we are bringing forward details of the settled status scheme. We want to continue our work with—among others—the3million group, to allay those fears. It is crucial to me and the entire Government that we send the clear message that EU citizens living here are welcome. We recognise the contribution that they make to our communities, and we want them to stay. That is why we have brought forward details of the scheme, and I commend to the hon. Gentleman the statement of intent that contains many of those details.

The hon. Gentleman raised specific points about vulnerable people, and he was right to do so. We all have anxieties about the most vulnerable in our society, who may well need assistance. UK Visas and Immigration already has assisted digital schemes, and we want to roll those out to community groups and organisations that already work in local areas, so that support is there for people who may find a digital process difficult. He mentioned iPhones and the chip-checker. The digital application will be available on any computer, tablet or smartphone, but the chip-checker is currently available only on Android. I reassure the hon. Gentleman that the Home Secretary has recently raised that matter with Apple, because of course we would like the chip-checker to work on everything. There will, however, be facilities for those who wish to carry out the process on their smartphone—that process can be saved at every point, and people can then verify their documents in a contact centre or through many of the partner organisations with which we are currently working.

The hon. Gentleman rightly mentioned that 3.3 million EU citizens live in the UK. That is why we are moving to a private beta testing mode—we need assurance that the system will work, and then to have a phased roll-out. That is very important. We must also reflect that EU citizens have every right to be here, and they will continue to have those rights until the end of December 2020. For two and half years people will be able to register, and we will encourage them to do so. Importantly, this is the first publication of the scheme, and it gives the statement of intent. We then have a long period before the scheme launches next spring, so that we can be confident we have it right. I do not pretend that this is not a learning process; this is the largest exercise on this scale, and we are determined to listen to our partner organisations, and to citizens groups, to ensure that we make this a success for those EU citizens, who are so important to us.

Refugee Family Reunion

Afzal Khan Excerpts

Thursday 21st June 2018 Commons Chamber

[Afzal Khan (Manchester, Gorton) (Lab)]

I congratulate the hon. Member for Na h-Eileanan an Iar (Angus Brendan MacNeil) on securing the debate and on the work he has been doing in this area. Many Members have made contributions to the debate this afternoon, and they have been thought-provoking and positive.

This is Refugee Week and it is appropriate that we acknowledge the work done by many British charities both in this country and abroad. I have seen the work that goes on day in, day out in my own city of Manchester. Only a few weeks ago, I went to Bangladesh with the Rafay Mussarat Foundation. In two days during the month of Ramadan, it delivered over 300,000 meals. We should be proud of the work that charities do, and how the British people contribute and help refugees both here and in the rest of the world. In Refugee Week, it has been wonderful to celebrate all the ways that refugees have enriched our lives and our society. Yesterday, I too was at Speaker’s House with the UNHCR to hear inspiring stories of refugees.

The celebrations have been somewhat overshadowed, however, by the tragic and shocking images from the US of children being forcibly separated from their families and caged like animals. We have all been disturbed by the recordings of crying children and images from inside these centres. It is estimated that nearly 2,000 children have been separated from their parents since the zero-tolerance policy began in April. More than 100 were under the age of four.

The scenes from the US are a stark reminder of the consequences of the worst excesses of a hostile and criminalising approach to migrants and refugees. While the Prime Minister has correctly criticised Trump’s approach to family break-up, this Government’s policies have the same effect. Our immigration system breaks up families, too. Currently, adult refugees can apply only for their spouse and dependent children under 18 to join them in the UK. This leaves grandparents, siblings and children over 18 stranded in peril.

We also have the perverse situation where unaccompanied children are not allowed to sponsor family members to join them. Tesfa fled Eritrea when he was still a child. After a terrible year-long journey, when he was crammed on a boat crossing the Mediterranean with 400 other people, he arrived in the UK and claimed asylum. He is now living and studying here but finds it very hard to be without his family—the people he feels most safe and secure with. He has no right to sponsor them to join him in the UK.

When we grant refugee status to someone, we need to provide them with a realistic chance of integrating in the UK. That means English language training and not cutting off asylum support after 28 days, which is shorter than the minimum five weeks that it takes to apply for universal credit, and it means allowing them to reunite with their families.

The private Member’s Bill from the hon. Member for Na h-Eileanan an Iar will rectify some anomalies and allow refugee families to be reunited in the UK. Will the Minister confirm whether the Government will support the Bill at its next stage? If not, will she confirm that the Government will not block it in the way they are blocking my private Member’s Bill on boundaries? This is a matter of morality, and it is vital that the will of the House be heard and respected.

There has been some troubling rhetoric from the Government in our previous debates about family reunion. They have argued that we do not want to create pull factors to attract refugees to come to the UK, as if there were not enough push factors to force people to flee their homes. I assure the Minister that that is never done lightly. Donald Trump’s rhetoric over the past few days has shown the chilling extreme that this kind of thinking can lead to. I hope that the Minister will unequivocally condemn Trump’s remarks about allowing the US to be a “migrant camp” or “refugee holding facility”.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

My hon. Friend is making an excellent point—refugees are indeed to be valued. While they are fleeing injustices from other parts of the world, we should not be following the example of President Trump in the United States. If anything, we should be showing compassion in our policy towards refugees.

[Afzal Khan]

I thank my hon. Friend for his contribution and wholeheartedly agree—[Interruption.]

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

Order. There seems to be a bit of concern—every Member who is here was here when I came into the Chair. [Interruption.] Let us leave it to the Chair to decide whether interventions can be made.

[Afzal Khan]

Will the Minister halt the Government’s current approach, which seems to be to make the lives of refugees and asylum seekers in the UK so awful that nobody would ever want to come? I will mention two ways in which this has emerged particularly acutely.

First, the conditions in some private asylum accommodation are abhorrent. My attention was recently drawn to private asylum accommodation in my constituency that was infested with cockroaches, rodents and bedbugs. Nobody, let alone families with children, should be forced to live in these conditions. This accommodation passed safety and standards tests, so will the Minister review these standards? Unfortunately, we know that this is not an isolated case. Our asylum accommodation system is not fit for purpose. I fear that, on a certain level, the Government accept these conditions for a reason connected with their pull factor argument. They want the asylum process in the UK to be so awful that no one will risk it.

The renewal of the asylum accommodation contracts is coming up. Can the Minister tell us which private bodies, separate from local authorities, have been contracted to provide housing for refugees? Can she also tell us something about the involvement of private firms in the rehousing of refugees, temporary or otherwise? What assessment has been made of their performance delivery, and are any new contracts likely to be awarded this year?

Indefinite immigration detention continues to be a blight on our country’s moral record. Refugees and asylum seekers are frequently detained hundreds of miles from where they were living, and they are moved around constantly, often during the night. That makes it very difficult for them to maintain contact with family and friends, especially when phones are routinely confiscated. The current system to prevent vulnerable people from being detained is not working. We know that torture survivors and other vulnerable people are not identified before their detention and that it is extremely difficult for them to be released once they are there, although there has been a significant reduction in the number of pregnant women in detention.

I look forward to reading the Shaw review and the Government’s response when they are published. I hope that they will propose the far-reaching reforms that are so desperately needed.

The Labour party is clear about this issue. We would uphold the right to a family life. We would allow the carers or parents of child refugees to come here. We would also end the practice of deporting children who are not entitled to be here once they turn 18, even when their parents are entitled to be here. We would end indefinite detention and the outsourcing of detention, and we would ensure that families fleeing war and persecution were housed in safe and sanitary conditions.

Immigration Detention (Victims of Torture)

Afzal Khan Excerpts

Thursday 14th June 2018 Westminster Hall

[Afzal Khan (Manchester, Gorton) (Lab)]

It is an honour to serve under your chairmanship, Mr Sharma. I thank my right hon. Friend the Member for Enfield North (Joan Ryan) for securing the debate, for her powerful speech and for her pertinent questions. I am sure that we would all agree that although there are not many hon. Members present, the speeches we have heard have been of a very high quality and very passionate. Some important questions have been asked of the Minister; as we have enough time, I hope she will answer them.

Victims of torture and other vulnerable people should not be in immigration detention, but current safeguards are not working and vulnerable people are still being detained for long periods. The Shaw review made a number of recommendations, but the Government’s response to that review—addressing adults at risk—has in some places made matters worse. Last week, the Minister confirmed that she already had Shaw’s follow-up review. I look forward to that being published this month, so that we can fully scrutinise and debate his findings. Today I will discuss issues that happen before people are detained, the experience of people in detention and the difficulties that vulnerable people have when they are released.

First, the Home Office should identify whether someone is vulnerable before they are detained; a number of Members emphasised that point. Currently, there is no effective pre-detention screening process. The detention gatekeeper works only with the limited information that is already on a person’s file; often, that information is not enough to identify vulnerability.

Secondly, the experience of being in detention can often increase someone’s vulnerability; again, this point has been emphasised before. Many studies have shown that the lack of a time limit on detention causes significant distress. As Sabiti from Uganda put it:

“It’s horrible not knowing when it will end. You are just there sitting, waking up and eating, and there’s nothing; it’s like your whole life has just stopped.”

We need a 28-day time limit on immigration detention. The detention estate is enormously expensive and it is not effective, even when measured by the Home Office’s own standards. The majority of people in detention are released back into the community and not deported.

It is common for people to be moved around between detention centres. I have been told that moves often happen at night because the contractors doing the outsourcing do not have enough vans and drivers to organise moves during the day. This causes a number of problems, especially for vulnerable people: people with health difficulties cannot receive the continuity of care that they need, and people are housed away from their families and often do not have any visitors for the whole period that they are detained, especially as detainees’ phones are routinely confiscated. They cannot contact family, friends or anyone else they rely on outside.

Thirdly, it is difficult for vulnerable people to be released from detention, even when the Home Office has recognised them as being vulnerable. Vivian experienced female genital mutilation, or FGM, as a child. Later, she married an abusive and violent man, who forced her into prostitution. She eventually fled to the UK. Vivian told the Home Office what had happened in her main asylum interview. She remained in detention for two months before she obtained a rule 35 report. However, even after that report, the Home Office refused to release her for four months, when a new legal aid solicitor threatened to take the Home Office to court. Vivian’s story highlights a number of problems with the rule 35 process. Many detainees do not know about it. Women at Yarl’s Wood detention centre are not told about rule 35 reports by Home Office or detention centre staff as a matter of course.

Some detainees also have to wait for long periods to see a doctor—sometimes two weeks or more. Even if a vulnerable person receives a rule 35 report, fewer vulnerable people are being released now than before the adults at risk policy was introduced. Before that policy was introduced, 39% of those with a rule 35 report were released. After its introduction, that fell to 12.5%. Why was there this fall?

The adults at risk policy raised the threshold as to a decision to detain. Before, victims of torture would be detained only in “very exceptional circumstances”; now the harm of detention is balanced against a vague set of “immigration factors”, such as the risk of absconding. And the vulnerable person must present specific evidence that detention is likely to cause harm. This is very hard to do before someone has actually been detained.

Most people with rule 35 reports are victims of torture. The Government have made changes to the definition of torture in the adults at risk policy that will come into effect on 2 July. I have already set out in detail our objections to these changes, but I will reiterate them briefly here.

First, the new definition is unworkable. It is too complex to be applied by either doctors or Home Office staff.

Secondly, the new definition is unnecessary. If implemented in its current form, and even if it is applied perfectly, this definition of torture will exclude victims of severe ill treatment.

The Secretary of State has the power to create an inclusive category of people who will be protected by the adults at risk policy. Rather than narrowing the definition of torture, the Government should incorporate the High Court ruling into their wider review of the detention centre rules, and the adults at risk guidance. This should take into account the findings of the second Shaw review and a proper consultation.

During consideration in Committee of the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2018 last week, the Minister told us that she is rolling out an extensive training programme for caseworkers and healthcare professionals in detention centres. Would it not make more sense to conduct a review of the entire detention centre rules and guidance, and train staff on everything at once, rather than bringing this change in now and possibly altering it later this year?

Finally, I turn to what happens when people are released; put simply, the problems do not go away. Often, people are released into destitution. Some very vulnerable people in detention will have been receiving medical treatment. Typically, people are given only four hours’ notice of release and then given a ticket back to wherever they were living before being detained. That creates serious problems regarding continuity of care. The trauma of detention stays with people. Without a resolution to their case, they are released from one limbo into another. Many people were originally detained when they went to report to authorities. On release, they go back to reporting regularly and each time they worry that they could be detained again.

Our immigration detention system is not adequately protecting vulnerable people. We have the Shaw review, and the review of the detention centre guidelines is coming up. I encourage the Minister to halt the changes to the definition of torture that are due to come in soon, and to undertake a proper consultation on the wide reforms that are needed. Our detention system desperately needs a culture change: we need a 28-day time limit; we need a true presumption against detention, so that it is used only as a last resort; and we need to end the outsourcing of detention to private companies.

--- Later in debate ---

[Caroline Nokes]

As I would expect, the hon. Lady makes an important and concerning point about churn. We all share that concern, because we want to have effective immigration policies, not churn. As I said, it is right that when vulnerabilities are demonstrated people are released, and that their immigration bail can be considered on request at any time. I will certainly write to her with the information she seeks.

The Shaw review became available to me at the end of April, which was later than I had anticipated, albeit not by much. We are working very hard on our response. We will publish that as soon as possible, but I want it to be thorough. It is important that the Government’s response is as full as possible, taking on board, understanding and showing action on the recommendations that Shaw has made.

[Afzal Khan]

Listening to the Minister, I am struggling. The simple point is that she has said, even today, that detention is a last resort. We know from the facts that the majority of people are released back into the community. Does that not prove that the system is not fit and that something needs to be done?

[Caroline Nokes]

The hon. Gentleman needs to reflect on the fact that 95% of those who have no right to be here are in the community. A small proportion are in detention, but it is absolutely right that when those who have gone into detention provide us with additional information towards their potential asylum claim, we reflect on that, and that we enable people to be released from detention when they should not be there. I do not accept his premise that the system does not work, and I hope that he might accept that there is a place for immigration detention.

[Afzal Khan]

Will the Minister give way?

[Caroline Nokes]

I am sorry; I wish to conclude my remarks very shortly.

I reassure hon. Members that we are absolutely committed to the welfare of detainees, and specifically to protecting victims of torture and other vulnerable people in immigration detention. I am clear that those aims are important to us and not incompatible. It is to those complementary ends that we are now implementing the judgment that the court set down clearly in October, and we shall seek to do so within a reasonable timescale.

Immigration Rules: Paragraph 322(5)

Afzal Khan Excerpts

Wednesday 13th June 2018 Westminster Hall

[Afzal Khan (Manchester, Gorton) (Lab)]

It is an honour to serve under you, Ms McDonagh. I thank the hon. Member for Glasgow Central (Alison Thewliss) for securing the debate and all Members for their contributions.

The Government’s treatment of highly skilled migrants has been shocking and unfair. Such migrants who have made legitimate and lawful changes to their tax returns are being put in the same category as serious criminals and terrorists. This is not just about the treatment of highly skilled migrants; it is about a hostile environment created by this Government, who treat all migrants like criminals and cannot distinguish between legal and illegal migrants. It is also about an ineffective Department that makes absurd mistakes, refuses appeals and cannot pick up on casework trends without media outrage.

First, I would like to discuss paragraph 322(5) and the way it is being used. According to Home Office policy guidance, it should be used for cases of criminality, threat to national security, war crimes or travel bans, yet a large number of refusals are on the basis of minor tax errors, many of which individuals picked up on and corrected themselves, as is their right. The Government’s overbearing hostile environment treats all migrants like criminals. Does the Minister recognise that many people are being penalised on the basis of 322(5) because of mistakes by the Home Office?

According to Home Office guidance, UK Visas and Immigration caseworkers are instructed to refer potential refusal decisions under paragraph 322(5) to a senior caseworker. Given the mistakes that I and other hon. Members have mentioned, does the Minister think that the system is working? How can such basic errors get past senior caseworkers and be allowed to play havoc with people’s lives?

Those are the actions of an overbearing Home Office driven by the Tory target of reducing net migration and failing to treat applicants in a fair and reasonable way. At least 1,000 highly skilled migrants seeking indefinite leave to remain are wrongly facing deportation owing to this paragraph. Our country desperately needs thousands of these people as NHS doctors, lawyers, teachers and engineers, and the effect of a refusal in such cases is devastating and lasting. People become ineligible for another visa and they are banned from returning to the UK for 10 years.

Often, people are either given only 14 days to leave the country or, if they stay, refused the right to work, to rent or to access NHS services. That is all without mentioning the mental and emotional effect of the process. During Home Office questions last week, I raised the issue of highly skilled migrants with the Minister, who said that,

“there have been several instances where those minor discrepancies have run into tens of thousands of pounds.”

She went on to say:

“We want to make sure that we collect the amount of tax that is owing.”—[Official Report, 4 June 2018; Vol. 642, c. 7.]

Of course nobody here would disagree that we want to collect tax that is owed. However, it is in HMRC’s interests for people to correct their taxes, and HMRC is explicit that that is entirely permissible and encouraged, if done within the 12-month timeframe. Is the Minister comfortable with the role the Home Office is taking on, second-guessing HMRC decisions and reassessing cases that it has said are settled and will not be penalised?

In conclusion, many cases of highly skilled migrants are heartbreaking, not to mention nonsensical from the perspective of the UK’s interests. Our NHS is facing a staffing crisis, and our businesses need skills. Yet the Home Office is denying visas to NHS doctors, lawyers, teachers and engineers, condemning them to be labelled as terrorists, criminals and a threat to national security when they have committed only minor tax errors. Will the Minister commit to apply paragraph 322(5) properly—to target serious criminals, not bad accountants? Will she tell her officials not to automatically deny visas when they spot minor mistakes? Will she recognise that minor mistakes in tax returns are not evidence of fraud? This reckless and hostile environment is targeting the wrong people.

--- Later in debate ---

[Caroline Nokes]

It is important that we reflect that I cannot comment on correspondence received by my predecessors back in November. What is important is that we are looking at the review now and at the individual cases, of which there are many. I will come to the specific points about numbers in due course.

As hon. Members will know, the Government are committed to building an immigration system that is fair to British citizens and legitimate migrants, while being tough on those who abuse the system or flout the law. We welcome those who wish to come here, stay here and take up highly skilled work, but people must play by the rules. Reports have suggested, and we have heard it repeated today, that the Home Office has been telling people who made a minor mistake on their tax records that we are deporting them because they are a threat to national security. I want to be very clear: that is not what is happening. We are not refusing people for making minor tax errors. We are certainly not saying they are terrorists.

The refusals we are discussing all relate to the tier 1 (general) route, which allowed individuals to come to the UK to look for work without needing a sponsoring employer. The hope was that they would make a significant economic contribution to the UK through taking up highly skilled jobs. The Government closed the route in 2011, as it had not worked as intended and, indeed, there were levels of abuse. Many applicants ended up in relatively low-paid work; an operational assessment of the route in 2010 found that 29% of tier 1 migrants were in low-skilled jobs and the employment of a further 46% was unclear. When they applied to extend their stay, many had PAYE earnings that were below what they needed to score enough points to remain in the route, but they also claimed for self-employed earnings. In some cases, the evidence showed that the claimed self-employment did not happen, and in other cases the evidence was less clear.

We were unable at the time to carry out the same level of checks with HMRC that we can today, and applicants in those cases where the evidence was not clear were given the benefit of the doubt. Now that those same individuals are applying for settlement, we are able to make more rigorous checks with HMRC on what applicants have told us in the past about their self-employment, and compare it with what they have told us for HMRC purposes.

Again, I want to be really clear: we do not have a policy of refusing people for making minor tax errors. We all know that many people have to make corrections to their tax records. However, there is a clear pattern that does not reflect that sort of minor correction. In many cases, more often than not, the self-employed earnings used to claim points in the tier 1 application have been £10,000 or more higher than the self-employed earnings reported to HMRC. That is not minor.

There are numerous examples where applicants have either not amended their tax records, or have amended them several years later, only shortly before applying for settlement, so that the records match. We have even seen cases where applicants have subsequently amended their tax records back down again after applying for settlement.

We give applicants the opportunity to explain, and we take their explanation and all available evidence into account. Any such cases must be signed off by a manager before they are refused. The review that I am carrying out is checking those safeguards to make sure that they have been followed correctly. We refuse cases only where applicants have been unable to provide a satisfactory explanation of what their self-employed activities are or why their earnings reported to the Home Office and to HMRC are so different. We will refuse cases where the evidence leads us to conclude that an applicant provided misleading information to one branch of Government or other.

[Afzal Khan]

Will the Minister give way?

Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2018 Detention Centre (Amendment) Rules 2018

Afzal Khan Excerpts

Wednesday 6th June 2018 General Committees

[Afzal Khan (Manchester, Gorton) (Lab)]

I move the motion. We can all agree that vulnerable people, including torture survivors, should not be in detention.

[The Chair]

Order. May I stop you, Mr Khan? You need to move the motion that the Committee has considered the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2018. Can you start with that, please?

[Afzal Khan]

I beg to move,

That the Committee has considered the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2018 (S.I. 2018, No. 410).

[The Chair]

With this it will be convenient to consider the Detention Centre (Amendment) Rules 2018 (S.I. 2018, No. 411).

[Afzal Khan]

As I said, we can all agree that vulnerable people, including torture survivors, should not be in detention. The Government have recognised that in their adults at risk policy, but current protections are not working and the proposed definition of torture will make the situation worse, so we will vote against these statutory instruments today. More than a torture definition, the subject before us may seem specific and technical, but it speaks—

[Paul Maynard (Blackpool North and Cleveleys) (Con)]

On a point of order, Mrs Moon. Has the shadow Minister actually moved the motion yet?

[The Chair]

Yes, we are happy that the shadow Minister has done so.

[Afzal Khan]

The subject before us may seem specific and technical, but it speaks to something much wider—the punitive hostile environment targeting the wrong people. The Windrush scandal brought to light shocking examples of vulnerable people getting swept up in the Government’s attempts to meet their immigration target. The public were outraged and rightly worry that the Home Office has gone too far. The former and current Home Secretaries recognised that the Home Office has lost sight of the individual and needs to be more humane and fair.

The continued detention of vulnerable people is one of the most extreme instances of Home Office inhumanity and unfairness. The Government now have the chance to get ahead of another Windrush scandal. We know that, with Windrush, warnings were not heeded. I say to the Minister today: “On this issue, you have been warned.” With Windrush, the Government removed legislative protections without scrutiny or debate. When the impact of those changes came to light, there was, rightly, outrage and condemnation of that approach. The current definition of torture was brought in in 2016 without proper consultation or debate. The result was the Home Office losing a legal battle with Medical Justice and detainees.

The Government have now carried out last-minute and very limited consultation. Those they did consult strongly urged the Government not to go ahead with these statutory instruments but to wait until the Shaw review has been published. However, those pleas have been ignored. I say to the Minister today that the Government must wait until the Shaw review has been published and consult on the full range of protections for vulnerable people in detention. Listen to us now and get ahead of the problem.

We object to the torture definition that is being considered today on two grounds. First, it is unworkable. It is too complex to be applied by Home Office staff or doctors. Concepts such as powerlessness are highly complex and nebulous. They require caseworkers to make a subjective judgment, and to go beyond the expertise of doctors being asked to decide these cases. Determining whether someone fits the definition would require doctors to interrogate detainees in a way that far exceeded the purpose of the safeguard. The problem with the previous definition that was being used, and the reason why the Home Office lost in court, was that caseworkers could not correctly apply the policy. They will have the same problem with these changes.

Secondly, it is unnecessary. The Government are attempting to construct a narrow definition of torture. It is not proposed that the definition will define a criminal offence; it is supposed to be an indicator of vulnerability to harm in detention, for use as part of the rule 35 process. As all colleagues will know, rule 35 is the mechanism by which vulnerable detainees can be brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention. If it is implemented in its current form, even if it is applied perfectly, the definition of torture will exclude victims of severe ill treatment from the rule 35 process, subject to harm in detention. The Secretary of State has the power to create an inclusive category of people to be protected by the adults at risk policy. They should do that as part of a review of detention centre rules and adults at risk guidance.

Despite how the Government would like to spin it, this is not a narrow debate. This is not just about the definition of torture. Rule 35 and the torture definition it uses is just a small part of the wider adults at risk policy—the policy introduced after the Shaw review, which was commissioned by the Prime Minister when she was Home Secretary after serious and repeated scandals over the treatment of people in detention. It was supposed to provide better protection for vulnerable people in detention, but since its introduction we have seen the release rate of rule 35 go down dramatically.

In 2016, before the policy was introduced, 39% of those with a rule 35 report were released. In the first quarter of this year, that had fallen to 12.5%. The bar for proving torture has risen, and the burden of proof has been shifted on to the vulnerable individual. Under the old policy, victims of torture only had to show independent evidence of their history of torture to be considered unsuitable for detention. Now they must prove that detention is likely to cause harm. It is, of course, very difficult to prove that detention will cause harm unless someone has been detained, so preventive action is almost impossible.

On top of that, under the previous policy, victims of torture could be detained only under very exceptional circumstances—that is, if they were likely to offend or cause a public safety risk. Now, however, the risk of harm in detention has to outweigh a wide range of immigration factors, such as the risk of absconding, which is widely defined and requires a person effectively to prove a negative. How can someone prove that they will not abscond?

[Simon Hoare (North Dorset) (Con)]

I am listening with considerable care to what the hon. Gentleman is saying. He is deploying his arguments in his usual thoughtful way. Could he just clarify, if for nobody’s reference other than my own, his party’s position on the use of detention centres per se, as part of the arsenal of immigration control and management? What role does he see detention centres playing? Different Labour spokespeople, at different times, seem to have suggested both that such centres should exist and that they should not.

[The Chair]

Order. We are not here to discuss the nature of detention centres. We are here to debate the immigration guidance on the detention of vulnerable persons. I am ruling that question out of order.

[Afzal Khan]

Thank you, Mrs Moon. Clearly, something has gone wrong with the adults at risk policy. It may make it possible to identify vulnerable people, but that is of no value if it is harder for them then to be released. The Shaw review will re-examine the detention of vulnerable people. I urge the Government to wait until that has been published, and to consult on changes to the whole framework.

While we are in this Committee Room, the Home Secretary is in front of the Joint Committee on Human Rights inquiry on the detention of the Windrush generation. On Windrush, the Home Office failed to pick up on what was clearly a systematic and unjust situation that wrecked the lives of innocent people.

The Home Office is in court today over the right to rent scheme, which is a key tenet of the hostile environment. The Government did not properly consult on right to rent before it was rolled out. There is no evidence that it works to reduce illegal immigration. They are failing to monitor it, despite the fact that internal and independent reports have found that it results in racial and other discrimination. There is a very clear pattern here: the Government fail to consult on a policy; they ignore warnings that it will cause harm to the wrong people; they roll it out anyway; and public outrage and significant media pressure cause high-profile roll-backs, U-turns and damage limitation.

On Sunday, the Home Secretary indicated that the Government would move away from the hostile environment approach and refused to endorse the figure of 100,000. He also said that he was considering opening the tier 2 visa route. The detention of vulnerable people is one of the sharpest parts of the Home Office’s inhumane and unfair approach. I hope the Minister will listen to the arguments that my colleagues and I make today and get out in front of this problem.

--- Later in debate ---

[Afzal Khan]

I will be brief. The Opposition believe that these measures are not an appropriate way forward. We know that the current protections are not working and that the proposed definition of torture will make the situation worse. The Minister made an issue about the court order, but that did not demand that the Home Office responds before the Shaw report is published. She has the Shaw report. A better way forward would be for her to publish it and consult on the full range of protections for vulnerable people. In view of that, we will vote against the measures.

Question put.