Immigration (Persons Designated under Sanctions Regulations) (EU Exit) (Amendment) Regulations 2022

Baroness Northover Excerpts

Monday 5th December 2022 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, I am pleased to present these draft regulations to the Committee. This instrument amends existing regulations that relate to the immigration consequences for someone who is designated or sanctioned under the Sanctions and Anti-Money Laundering Act 2018, which I shall call the sanctions Act. If noble Lords will indulge me, I will first set out some background to sanctions, in particular the immigration sanctions, also known as travel bans, with which these regulations are concerned.

The UK is bound by travel bans imposed by a resolution of the United Nations Security Council and can impose its own travel bans under the sanctions Act. In the vast majority of cases, travel bans are imposed on individuals who are outside the UK and have no connection with it. A travel ban has an effect on a person’s immigration status; subject to the UK’s obligations under the European Convention on Human Rights and the refugee convention of 1951, they cannot enter or remain here.

The 2020 regulations provide a mechanism for a person who is lawfully in the UK to make a human rights or protection claim before a travel ban made under the sanctions Act impacts their immigration status. They are then exempt from the effect of the travel ban while the claim is considered and refusal of such a claim gives rise to an in-country right of appeal before the immigration and asylum chamber of the First-tier Tribunal.

Where a person is not subject to a travel ban but is making a human rights or protection claim under the Immigration Rules, they benefit from a similar protection. However, in contrast to the exemption provided to sanctioned persons, they cannot leave the UK or the common travel area and return simply on the basis of a claim lodged before their departure. We are therefore now in the perverse situation where someone subject to a travel ban benefits from more generous protections than someone who is not.

I turn to the purpose of these regulations, which is to align the approach and correct this anomaly. The Government have considered how to address this and concluded that it is right that, when a travel ban is imposed under the sanctions Act, people lawfully in the UK are exempt from its effect while their human rights or protection claim is considered.

However, when a sanctioned person leaves the UK, that exemption should end. Any action taken in respect of the person’s immigration status will be in accordance with our international obligations. These regulations therefore ensure consistency across the immigration system and that the effectiveness of our domestic sanctions regime is not compromised. I commend this instrument to the Committee. I beg to move.

[Baroness Northover (LD)]

My Lords, I thank the Minister for that explanation and for the Explanatory Memorandum. It is clearly important that the two processes—whether or not someone is eligible to have their immigration status accepted and whether or not they are subject to a sanction—should be kept separate. Can the Minister tell us whether there have already been any cases where these have become entangled? Why was this not picked up when the sanctions legislation went through the House? I recall our debates on that and do not remember this being flagged, although I remember that we had to sort out quite a number of inadvertent challenges in that legislation.

The Home Office states that this draft SI would “address a discrepancy” whereby provisions designed to ensure compliance with the UK’s international obligations, which the noble Lord has laid out, put people subject to an immigration sanction “in a better position” than people making human rights or protection claims under existing immigration rules. Once more, as with the other SIs this afternoon, that is a very interesting use of language: a discrepancy being in effect a mistake.

Again, I express my sympathy with officials, because of course these things happen. When departments have to shift away from their main aims at the same time as unscrambling legislation from our EU membership over 40 years, it is not surprising that this happens. I express sympathy with the officials who have had to deal with it, as I and the noble Lord, Lord Benyon, did in debates on the previous SIs.

I note that we have four officials here, who otherwise could be working on more substantial matters. I ask again, as I did in the previous debate: if we need such an SI to be processed with the manpower that we have here, how many more would we have to deal with if we removed the amount of secondary legislation that the Government propose and then had to sort out all the discrepancies that might creep in as a result? Given that 40 years would have to be unscrambled in the space of about a year, does he not think that that is rather unwise? There is nothing about leaving the EU which necessitates that, regardless of what his colleague implied. The Minister may have in his notes that same line as the rebuttal.

Leaving the EU is one thing but chucking out babies with bathwater when you do not intend to is clearly another. It happens so easily, as we can see from all these SIs this afternoon—all these discrepancies. I hope the Minister will reflect on that. This particular SI seems straightforward and we support it, but I look forward to his wider response.

[Lord Coaker (Lab)]

Again, I thank the noble Lord, Lord Murray, for introducing the SI, and I thank the noble Baroness, Lady Northover, for her remarks and comments. I will spend a couple of minutes setting out some background, because this is an important SI that puts right a discrepancy. Some background and some reflection on this order will be important for those who read our proceedings.

The Sanctions and Anti-Money Laundering Act 2018 provided for an autonomous UK sanctions regime following our departure from the EU. Part of that sanctions regime included travel bans, which exclude a person from entering or remaining in the UK. The vast majority of travel bans are imposed on individuals who are outside the UK and who have no connection with the UK.

In a small number of cases where a travel ban is served on a person already in the UK, it impacts their immigration status; it cancels their permission to be in the UK and makes them liable for removal. A person can appeal that decision by submitting a human rights or protection claim, in line with our obligations under the ECHR and the refugee convention—again, the Minister pointed that out.

The original SI, which this one amends, made it clear how those appeal procedures would work by clarifying which court or tribunal would hear them. We supported that original SI; the use of sanctions against people who have committed some truly appalling crimes is absolutely vital but must rightly be reflected in line with our obligations under the ECHR and our commitment to the refugee convention. The previous SI provided clarity on how those cases—which were likely to be very rare—would be heard, and the SI was welcomed across the parties.

As the Minister pointed out, the Government have now noticed a discrepancy, which this amending SI addresses. If a person is subject to an immigration sanction—a travel ban—the effects of the sanction do not kick in until any human rights or protection claim has been concluded. This means that a person under the sanction keeps their immigration status and can travel in and out of the UK during that time.

Conversely, if a person who is not subject to an immigration sanction—a travel ban—is appealing an immigration decision on human rights or protection grounds, that appeal can be treated as withdrawn if that person leaves the UK. The Explanatory Memorandum explains that this means that a person subject to an immigration sanction is therefore in a better position than those who are not subject to a sanction and are appealing a decision under the Immigration Rules. The order would provide that the effects of an immigration sanction come into effect if a sanctioned person leaves the UK to bring them into line with existing provisions for those not subject to a sanction.

Whenever we have discussed this set of circumstances where a person who is already in the UK is made subject to a travel ban, we have noted that these cases are likely to be very low in number, as most immigration sanctions are imposed on individuals who are outside of the UK and do not have UK connections. Is the Minister able to give an indication of how often a travel ban has been made against a person who is already in the UK since the introduction of our own UK sanctions regime following the passage of the Bill in 2018?

Today’s SI seeks to amend a discrepancy, where someone subject to a sanction may be in a more advantageous position than someone who is not subject to a sanction but is appealing an immigration decision on human rights grounds under the Immigration Rules. The noble Baroness, Lady Northover, alluded to this and asked various questions. I would like to ask when this discrepancy was first noticed and how it came to light. Is it currently—I assume the answer is yes—made clear to a person appealing a decision on human rights or protection grounds that their appeal may be withdrawn if they leave the UK?