Foreign National Offenders (Exclusion from the UK) Bill

Craig Whittaker Excerpts

Friday 11th March 2016 Commons Chamber

[Mr Hollobone]

Thank you, Mr Speaker. I share your sentiments, but at least it is reassuring that the Minister will turn up to the debate. Let us hope that we can ask questions of her later on. Before I take the interventions that I promised, let me say that part of the problem is that foreign national offenders and their deportation, removal, transfer, repatriation, or whatever we want to call it, is a major policy issue that falls between two stools. There are two major Departments of State that are basically responsible for this area, and all too often one blames the other for why the situation is not being tackled. That is why it is the Prime Minister himself who needs to take on board this issue. Indeed, he promised the House that he would, yet six years into his premiership, the problem is not going away. If anything, it is getting worse.

[Craig Whittaker (Calder Valley) (Con)]

rose—

[Mr Hollobone]

I give way with a great deal of delight to my hon. Friend.

[Craig Whittaker]

I thank my hon. Friend for giving way. He has obviously done a great deal of research, as he has some impressive figures. I think that he said there are 10,442 foreign national prisoners from more than 160 different nationalities. Can he enlighten the House on the mix between EU and non-EU foreign nationals who are in our prisons?

[Mr Hollobone]

The forensic analysis of my hon. Friend’s brain is illustrated to us all, because that is exactly the question that needs to be addressed. According to the figures that I was sent in response to my parliamentary question at the end of January, the breakdown, continent by continent, is as follows: 20% of foreign national offenders in our country come from Africa; 18% from Asia; 1.5% from Central and South America; a whopping 47% from Europe; 7% from the West Indies; and a negligible percentage from Oceania.

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[Mr Hollobone]

I am grateful to my hon. Friend for that intervention, and I bow to his huge knowledge and experience of the Council of Europe and its various pronouncements. He is right to highlight the EU prisoner transfer agreement, introduced some years ago, which was meant to be the great panacea for the number of EU citizens in our jails. We were apparently going to be able to send EU prisoners in our jails back to their EU countries.

[Craig Whittaker]

I want to apply a different principle. My hon. Friend has noted that there are 10,442 foreign nationals in our prisoners. Can he tell us how many British nationals there are in prisons around the world? If we applied the same principle to them, how much would it cost us to have them back in our prisons?

[Mr Hollobone]

My hon. Friend makes a very helpful intervention; his lateral thinking on the issue demonstrates that he is an assiduous Member of the House. In answer to his question, I believe that each year about 4,000 people with British nationality are imprisoned overseas. I got that figure from Prisoners Abroad, which seems a very worthwhile human rights and welfare charity; it provides those people with humanitarian aid, expert advice and emotional support.

I hope that we will get the official figure from the Home Office or the Foreign Office when the relevant person arrives. Some of those British nationals will be in prison not because they have been convicted of any crime, but because they have been detained by the authorities of whatever country they might be in—and most of those countries will have criminal justice systems that are far less rigorous than our own.

It seems to me that, were we to sort this system out, 4,000 British nationals could be repatriated to serve their time here. I am not suggesting for one moment that all 4,000 would return immediately, but my hon. Friend asked for a figure and that is the one I have. In practice, the number of returnees would be a lot lower. Of course, that number is still a lot lower than the number of foreign nationals convicted and imprisoned in this country.

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[Mr Hollobone]

As ever, my hon. Friend sums it up really rather well. He makes the case that his constituents would make, which is that our membership of these international organisations should work both ways. We are spending a great deal of British taxpayers’ money in defending Lithuanians from the Russian threat, and the very least they could do is to take back their 471 nationals from this country to prisons in their own country. After all, we are supposed to have an EU prisoner transfer agreement, from which Lithuania does not have a derogation, so I do not understand why there is a problem.

I am anxious, as I am sure you are, Madam Deputy Speaker, to complete my list so that I can move on to other aspects of the Bill. There are some important countries at the bottom of the top 10. India, with 458, is No. 8, and I am looking for No. 9 on my list—

[Craig Whittaker]

Will my hon. Friend give way?

[Mr Hollobone]

Yes. I am grateful to my hon. Friend because while he intervenes, I shall try to find No. 9.

[Craig Whittaker]

Clause 1(1) will exclude

“any foreign national convicted in any court of law of a qualifying offence”.

Will my hon. Friend clarify what would be a qualifying offence? We have trivialised things such as shoplifting as minor offences, but, having been a retailer for 30 years, I can assure him that some of us feel that it should be a qualifying offence. I also point out that a former Minister for Crime Prevention said at the Dispatch Box not too long ago:

“Someone might start with shoplifting, but who knows where they will end up?”—[Official Report, 5 January 2015; Vol. 590, c. 10.]

[Mr Hollobone]

My hon. Friend makes a very helpful intervention. He speaks from personal experience and with great knowledge of these matters.

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[Philip Davies]

It is a significant figure. All these things add up; there are many different elements. I want to come on to the cost, which has been one of the issues raised in the debate.

[Craig Whittaker]

On that same point, will my hon. Friend elaborate on what he thinks are the reasons that those awaiting deportation are sent to open prison rather than a closed prison?

[Philip Davies]

It is not for me to answer for the Ministry of Justice, but it seems that the policy it adopts is that foreign national offenders are treated just like any other prisoner and, even if they are subject to a deportation order, will be sent to an open prison if they meet the criteria. One can understand that logic, but clearly there is a flaw in the procedure when somebody has an easy way of avoiding deportation.

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[Philip Davies]

That might well be the case: as I say, I cannot speak for the Ministry of Justice. Perhaps the Minister will be able to clarify.

One of the main reasons the Bill is so necessary is the cost. Interestingly, in its 2015 report the Public Accounts Committee said:

“The Home Office admitted that it did not know the cost of managing foreign national offenders and accepted that its cost data were not robust enough to enable it to make a judgment as to which of its interventions or processes were more cost-effective than others”.

The National Audit Office estimated the costs; I suspect that the Home Office probably could make a very good estimate of them but just does not want to do so, because it would be rather embarrassing for it if it did.

The NAO gave a lower estimate, a higher estimate and a most likely estimate of the cost, and broke it down into the costs before conviction and those after conviction. The lowest estimate was that the costs were £266 million up to conviction and £503 million after conviction, with a total cost of £769 million a year. The high estimate was £536 million up to conviction and £504 million after conviction, giving a total of more than £1 billion a year. The most likely estimate was £346.8 million up to conviction and £503.7 million after conviction, giving a total of £850 million. The interesting part of that information is that the costs after conviction are the same for the lowest, highest and most likely estimates—they are within £1 million of each other. So the costs after conviction are pretty clear. They are the cost of keeping people in prison, the cost of the deportation orders and so on.

[Craig Whittaker]

I asked my hon. Friend the Member for Kettering how many British nationals abroad were sent to prison and the answer was 4,000 per year. That does not tell us how many UK nationals are physically in foreign jails. Does my hon. Friend have a figure for that?

[Philip Davies]

I can do no better than my hon. Friend the Member for Kettering (Mr Hollobone) did earlier with his answer. I suspect that that is about as robust as we are going to get. If the Minister has a better answer, we will accept those figures.

The costs up to conviction included police costs, which are shown as £148 million a year for dealing with foreign national offenders, CPS costs of £119 million a year and legal aid costs of £81 million a year. When we are spending £850 million to £1 billion a year on dealing with foreign national offenders, it is clear why the Bill is so important.

One of the complications for the Bill and for the whole subject is the free movement of people. As I have pointed out on many occasions, free movement of people within the EU also means free movement of criminals within the EU. My hon. Friend made a point about how many EU citizens made up the prison population. EU citizens account for about 40% of foreign inmates in England and Wales. The figures are 60% in Northern Ireland and 55% in Scotland. There is a far higher proportion of EU nationals in prisons in those two countries, which is interesting.

My hon. Friend listed by country the number of EU nationals in our prisons today, but he did not give the figures that show the scale of the problem and the fact that it is growing, which means that the Bill is probably more urgent than people give it credit for. He did not point out how many prisoners from those countries were in our prisons 10 years ago. He said that top of the list of countries whose nationals are in our prisons was Poland, and I have no information to contradict that. His figures were more up to date; mine go up to 2014.

In 2014 there were 867 Polish nationals in our prisons. In 2002 there were just 45. If we look down the list of EU countries, the figures are very similar. In 2014 there were 614 Romanian nationals in our prisons, but only 49 in 2002. There were 115 Slovakian nationals in 2014, and just four in 2002. The list goes on. I will not go through the figures for every country. The point is that since we have had the free movement of people, the growth in number of foreign national offenders from other parts of the EU has gone through the roof. That is a direct consequence of being in the European Union and having free movement of people.

Whether people want to argue for staying in or leaving the European Union is a matter for them. There are sincerely held views on both sides, but people must at least be honest about the consequences of our EU membership, and one of those is that the free movement of people has seen a massive growth in the number of foreign criminals coming to the UK.

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[Craig Whittaker (Calder Valley) (Con)]

I am pleased to be able to contribute to this important debate, which is of course just as important to my constituents as many other debates in this Chamber. I thank my hon. Friend the Member for Wellingborough (Mr Bone) for bringing the Bill forward and my hon. Friend the Member for Kettering (Mr Hollobone) for his excellent presentation today.

The Bill’s purpose is straightforward: if someone came to this country, committed an offence and was given a term of imprisonment, they would be deported to the country from which they came. Furthermore, that person would not be permitted to enter the UK again. Of course, the Government already use a range of measures and powers to remove foreign national offenders from the UK, a point to which I will return shortly. As such, the Bill’s real emphasis relates to countries within the European Union, as made clear in the first line of clause 1. Indeed, my hon. Friend the Member for Kettering said that 40% of the 10,442 foreign nationals in our prison system are actually from the EU.

[Mr Hollobone]

It was some time ago now, but I think I said 47%.

[Craig Whittaker]

I thank my hon. Friend for that intervention. I stand corrected if I misheard the figure that was given to the House.

Under the Bill’s provisions, foreign criminals would not have the right to return to the UK once they had been sent back to the European Union. Thus, they would be removed without any reference to human rights legislation, the stipulations of the European Communities Act 1972 or any other enactments.

Britain is a tolerant, welcoming country for those who come here to work hard and to create a better life for themselves. Those who abide by our rules and contribute towards society will always be welcome. However, I appreciate the concerns of my constituents in relation to those foreign nationals who come to this country legally, in receipt of our hospitality, and then go on to commit serious offences.

[Philip Davies]

My hon. Friend says that this matter is of concern to him and to his constituents; it is also of concern to my constituents. Is he not shocked therefore that the Scottish National party and the Green party think that this is not an important issue for debate? They do not care about foreign national offenders who cannot be kicked out of the country.

[Craig Whittaker]

I thank my hon. Friend for his intervention. Like many other Members, I receive letters, emails and phone calls from my constituents on many matters. This issue is as important to my constituents as any, so, yes, he is right to make his point.

Such behaviour can undermine the trust that exists in our communities and create tensions that others can exploit. Although I have considerable sympathy with the broad intentions of the Bill, we need to consider what measures are already in place to deal effectively with this matter.

The Government are already able automatically to deport non-European economic area nationals who are convicted in the UK and given a single custodial sentence of 12 months or more for one conviction. I think that that has already been pointed out by several Members in the Chamber today. In circumstances where automatic deportation cannot be applied, the power already exists to seek to deport a foreign national offender on the grounds that it would be in the public interest to do so. When somebody has been removed, they are then prohibited from re-entering the UK while the deportation order against them remains in force. As a deportation order has no expiry date, it remains in force indefinitely unless a decision is taken to revoke it. Those individuals who have been handed a deportation order will be subject to the relevant Border Force checks, which means that, under the existing system, the Government are able to keep out those who have previously been deported.

Members will be aware that the Immigration Act 2014 contains a public interest consideration in relation to deporting foreign nationals. Section 19 clearly states that the law should be on the side of the public and that the starting point is to accept that foreign criminals will be deported. Indeed, it says:

“The more serious the offence…the greater is the public interest in deportation of the criminal.”

In addition, the Government have previously made it clear that article 8 of the European convention on human rights should not be used to allow the private and family life rights of criminals to supersede the rights of ordinary members of the public to be protected from serious criminals.

Section 17 of the Immigration Act also provides for a revised deportation process so that, in cases where there is no real risk of serious irreversible harm to the individual, a foreign national offender can exercise their right of appeal only from outside the UK, thereby allowing for a more timely deportation. That section is particularly relevant when one considers that most foreign national criminals do not appeal once they have returned to their home country. By the end of 2015, more than 2,600 people had been removed under these new “deport first, appeal later” powers since they were introduced in July 2014.

In October 2014, the Government reduced, from 17 to four, the number of criteria on which foreign criminals could appeal against their deportation. That was a welcome reform that was necessary to stop criminals exploiting the system and lodging one appeal after another to avoid deportation. Finally, in situations where the level of the crime committed does not meet the threshold for deportation, the Government can take administrative action to remove offenders who have no legal right to be in the United Kingdom. Subject to certain expectations, foreign national offenders who have received a custodial sentence can be administratively removed from the UK and will face a mandatory refusal under immigration rules of entry clearance or leave to enter the United Kingdom.

The measures that the Government have introduced over the past few years have undoubtedly strengthened our ability to adopt a firm and vigorous approach in protecting the general public, although the management and removal of foreign national offenders will continue to present many challenges, as has been mentioned today. The number of foreign criminals removed from the UK increased last year to 5,277, representing a significant improvement on the 2011-12 numbers.

Of course, when it comes to deportation, there is a distinction between EU and non-EU nationals, as my hon. Friend the Member for Kettering has made very clear. It is important to remember that the free movement of people is not unqualified, and the existing requirements pertaining to free movement are that a person has to exercise their right to work, study or set up a business. In the event that they fail to exercise any one of those rights and, furthermore, that they abuse our hospitality by committing an offence, they should be removed and kept out of the country. Our existing power of imposing a re-entry ban of one year helps to facilitate that too.

Furthermore, the UK has implemented the free movement directive—that is, the 2006 EEA regulations on immigration. Under the regulations, EEA nationals can be removed from the United Kingdom on the grounds of public policy, public security or public health. All EEA nationals who receive a custodial sentence are considered for deportation or administrative removal. However, it is important to bear in mind that a decision to remove somebody from a country cannot be made solely on the basis of a criminal conviction, as other factors must be taken into account. As it stands, the Bill stipulates that an EEA national who has been convicted of an offence should be deported solely on the basis of that conviction without due consideration being given to a wider range of factors and, indeed, to the individual’s circumstances as required under the regulations.

For that reason, the Bill is incompatible with the freedom of movement directive. In relation to that point, I am sure that my hon. Friend the Member for Kettering will draw my attention to clause 1(1) and argue that it reinstates our national sovereignty and removes the UK from some of our previous obligations under EU migration law. However, I am not convinced that the issue is quite that simple and would in fact suggest that it is far more complex than the Bill acknowledges. As a nation, we are bound by a plethora of European and international obligations, directives and treaties that all require careful consideration as part of the Bill. Indeed, the European immigration regulations to which I referred a few moments ago are only a small part of the wider legislative and regulatory landscape that must be taken into account.

There is also the small matter of a referendum to consider and, depending on the result, many of the issues discussed as part of this debate might need to be approached in a different light. I wonder whether we are being slightly premature in considering these issues now.

[Mr Hollobone]

I am listening closely to my hon. Friend’s interesting remarks, but he seems to imply that the incompatibility of the Bill with the EU freedom of movement directive is a bad thing. I think many of us would say that it is a good thing.

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[Craig Whittaker]

I thank my hon. Friend for his always considered interventions. On this point we may have a slight disagreement. In the Calder Valley we have 1.8% unemployment and I can assure my hon. Friend that without freedom of movement and the labour that that brings to the factories in the Calder Valley, many of the factories would not be there. Perhaps we could have a further discussion about that.

[Mr Hollobone]

I am grateful to my hon. Friend for giving way a second time. He began his remarks by saying that we have freedom of movement in the EU, but that is not without qualification. Would it not seem sensible to those like him who want to stay in the European Union for the EU states to negotiate and agree that freedom of movement does not apply to convicted criminals? I cannot see why there should not be an EU-wide agreement whereby someone convicted of a qualifying offence would not be allowed to cross any of the boundaries within the European Union. If staying in the European Union really does make us safer, which is what my hon. Friend believes and I do not, surely that would be a sensible measure to take.

[Craig Whittaker]

My hon. Friend has a point, but what are qualifying convictions? Many of us and many of our children committed silly crimes in our youth. Would we exclude people from freedom of movement around the EU because of a previous misdemeanour? There would have to be tight and clear criteria for qualifying convictions.

Even if we leave the European Union, we may well find ourselves bound by other international treaties and obligations which restrict our ability to exclude foreign nationals, in much the same way as this Bill suggests the European Union does at present.

The Government already employ a range of powers to remove foreign national offenders from the UK and have legislated over the past few years to strengthen their approach. I know that my hon. Friend the Member for Kettering supports the measures that this Government have taken, and was somewhat reassured by the response of the Immigration Minister when my hon. Friend the Member for Wellingborough presented this Bill only last year.

However, I appreciate that my hon. Friend has genuine concerns about our existing ability to deport foreign prisoners to EU countries, and that those concerns are shared by many people throughout this country. I thank my hon. Friend the Member for Kettering for highlighting the challenges that we continue to face in protecting the public from those who come to this country and abuse our hospitality by committing serious offences.

Although I have considerable sympathy with the aim of the Bill, I believe it must be considered alongside an evaluation of our existing international and European obligations and responsibilities. Whether we agree with them or not, the fact remains that those currently exist, and debating these issues in isolation from our pre-existing legal commitments is not the most conducive approach and fails properly to acknowledge the inherent complexity of the subject. It is worthy of detailed discussion and debate in the House and, although I cannot support the Bill in its current form, I hope that Members can explore some of the wider issues at stake in greater detail on other occasions.