Immigration Bill (Third sitting)

Craig Whittaker Excerpts

Thursday 22nd October 2015 Public Bill Committees

[The Chair]

Before we move on, I think that Craig Whittaker wants to come in on that point.

[Craig Whittaker (Calder Valley) (Con)]

Q 195 What percentage of those who apply actually go to appeal?

Colin Yeo: I do not think anybody has the statistics for that. There could be reasons why people do not appeal. Sometimes they are simply not realistically able to pursue it, because they do not have legal aid—

[Craig Whittaker]

Q 196 I understand that, but what I am trying to establish is that if it is 40% of those who apply, but the appeal process involves only 5% of all applicants, it is actually a relatively small number. I was just trying to put it into some perspective.

Colin Yeo: I do not have the statistics for that. I have never seen those statistics, either, so I cannot help the Committee. I am sorry.

[Keir Starmer]

Q 197 Let us move on to the question of appeal and the extension of the “remove first, appeal later” provisions, which is in the Immigration Bill. Will you give the Committee an indication of the practical differences between what is involved in appealing in country here and appealing once you have been removed, just in relation to the nuts and bolts of it? Some of us around the room are lawyers. Some of us have been involved in cases, but not everybody has, so will you give us a practical example of what actually happens if you are here, and what is envisaged, or what does happen, if you are removed, so that people get a sense of the difference between the two?

Manjit Gill: May I say something briefly on that? First, insofar as contact with your own lawyer is concerned, here, with or without the difficulties of funding—and there are enormous difficulties, as you have just heard—at least you can go and see your lawyer, and your lawyer can come and see you. You can get the witness statements sorted and give the instructions face to face. If you are having to give all those instructions from abroad, just imagine the practical difficulties and impediments to instructing your lawyer in the first place in order to prepare the case.

In children’s cases, how do you go about the process of getting an independent expert’s report? How is the child expert going to be able to assess the damage that will be caused by the separation—even a short-term separation—if the separation has already occurred? They are simply not going to be able to do it. Instead of having to prepare their reports from the point of view of prevention of harm to the child, they are going to have to do it from a removed location from the point of view of remedial action to remedy the harm that has already been done to the child by taking the father away and making him appeal from abroad.

Even if you manage all that and get to the appeal hearing itself, how are you going to give the oral evidence? A lot depends on how you come across to a court or tribunal. A lot depends on what happens in the courtroom. Here, we can all see each other and what is happening on people’s faces—who is a little bit upset, who is happy and so on. These things just do not come across when you have to do it through a video link.

Moreover, the tribunal does not allow a system of video links unless they have approved the actual source. They do not allow you to walk into an internet café or to use Skype. British embassies and high commissions simply do not provide the service. The Home Office does not pay for that service, nor does the tribunal; you yourself are going to have to pay to put in place a system whereby you can give oral evidence. There are a lot more things that I could say, but I am trying to keep it brief.

--- Later in debate ---

[James Brokenshire]

Q 205 If I can take you back to my original question on the legal principles of the operation of the Immigration Act that you were challenging just then, the Court upheld the soundness of the principles in the context of human rights legislation.

Manjit Gill: I accepted, as did my co-counsel, Mr Richard Drabble QC, that you do not need an in-country right of appeal in every case. The Court of Appeal has noted that. There is no dispute about that, and I will tell you why it is accepted. The Strasbourg Court says that it is not imperative that in every case you need an in-country human rights appeal. You will certainly need it in article 2 and article 3 cases, which the Home Office accepts. There is no dispute about that; the issue is about article 8 cases. When the European Court uses the phrase “not imperative”, what it means is that you may well need it in a lot of cases but in some cases you may not.

That gets us back to which types of cases there are in which you can avoid giving people an in-country human rights appeal, and the question that was asked there. Supposing you have someone who is going to be a real danger to people on the streets—not just a low risk of reoffending but an Abu Qatada or someone who is going to immediately threaten to go around committing atrocities and so on. We cannot have that sort of person in the country pending appeal. I entirely accept that. Such a person should have to go abroad to appeal. It would depend on the individual case, of course, but I can see powerful arguments for saying such a person should.

We are not talking about such a person. We are talking about people such as the person Mr Yeo mentioned. To give a practical example, we mean someone who has been here since the age of six or seven, breaks up with his girlfriend, goes back to the flat and breaks the door down, frightens the girl but does not harm her, takes his belongings and goes. Quite properly, he gets locked up for a couple of years. That is a foreign criminal under the legislation. Should such a person, who may have been here for 25 years, and who may have a child from that relationship, then be forced to appeal from abroad? That is not an Abu Qatada-type character.

What is now being proposed is that the out-of-country appeal rights, which in principle can be had in a limited category of cases, should not be limited to that category but should be applied for everybody. That is contrary to a principle.

[Craig Whittaker]

Q 206 Just to clarify something you said, Mr Gill: this character broke down the door, scared his girlfriend a little bit but did not harm her, and got two years for that. Is that what you are saying?

Manjit Gill: I am giving you a practical example.

[Craig Whittaker]

Q 207 That does not sound practical to me. That is why I am asking the question. Which court in this country would give someone two years in prison for breaking down a door and scaring his girlfriend?

Manjit Gill: Mr Whittaker, I made up the example just now. I do not have a particular case relating to it.

[Craig Whittaker]

Q 208 So it is not true?

Manjit Gill: No. I am giving you an example, which I am sure you can add in, Mr Whittaker.

[Craig Whittaker]

Q 209 Well, it is a poor example in my opinion, Mr Gill, because actually that is not a relevant case. We are here to take evidence from you. Making stories up along the way is not evidence.

Manjit Gill: With respect, that is completely unfair.

[The Chair]

Order. I know that this goes right to the heart of the issue, but we have four other panel members and we have been speaking for quite a long time on this particular point. Going back to you, Mr Starmer, do you want to move on a bit?

--- Later in debate ---

[Gavin Newlands]

Q 224 My second question is about enforcement. What concerns do you have about the new enforcement powers that immigration officers will be given, particularly in relation to their lack of training compared with police officers, and the lack of judicial oversight?

Colin Yeo: Very concerned. The best evidence base on this is the work of the chief inspector of borders and immigration, formerly John Vine and now David Bolt. In the reports that the chief inspector has put together, he has been very critical of the exercise of enforcement powers by immigration officers. In a couple of reports from March 2014, for example, he found that immigration officers were granted the power to enter business premises without a warrant in two thirds of cases, without justification; he also found unlawful use of power, ineffective management oversight, major variations in local practice and inadequate staff training across all grades—really serious concerns are being raised. Reports on removals and emergency travel documents are, again, very critical of Home Office management of the process and training. The idea that more powers should be given to people who are already exercising them in a very questionable way is somewhat dubious, in my view.

[Craig Whittaker]

Q 225 I want to clarify a couple of things that were said a little earlier. Mr Flynn and Mr Berry, you were talking about migrants in general, and I presume you were not talking about the vast majority of migrants who come to this country in a legal position. I just want to clarify that you were talking about potentially illegal immigrants, rather than the vast majority of immigrants, who are legal.

Don Flynn: I was talking about the general effect of migrants in the labour force, which is often cited as having a role in making conditions worse for UK workers. That has been particularly accentuated by what are called illegal migrant workers—there is an added emphasis there that it is causing wages to be forced down and exploitation to flourish.

[Craig Whittaker]

Q 226 So we are talking about illegal immigrants, then. I am a little bit confused about what you were talking about. I do not think that anybody questions for one minute that migrants play an incredible role in our country. Just for clarity, I wanted to make sure we knew whether you were talking about illegal immigrants—or potentially illegal immigrants.

Don Flynn: I thought I was addressing the position of people who seem to be vulnerable as far as the Bill is concerned, who will find themselves subject to additional powers of scrutiny and who are at risk of enforcement action being taken against them.

[Craig Whittaker]

Q 227 So potentially illegal immigrants, then.

Don Flynn: Yes. I would make the point that any of us who have day-to-day practical experience of this—I am continually coming into contact with people whose designation as illegal immigrants has come about not because of any action on their part, but because of a third party who has been involved in their case, typically a sponsoring employer who has not complied with some aspect of their responsibility to the Home Office.

[Craig Whittaker]

Q 228 The point I was trying to make is that it is still a very small part of the overall migration to this country, but that is not my real question. For my real question, I just want to take you back— I think it was you, Mr Yeo, who mentioned abuse within the system when we were talking about detention. I apologise if it was not you, but it was a while ago now. Is there any evidence that there is abuse within the detention centre? I am struggling to find any.

Colin Yeo: I do not think it was me who mentioned that.

[Craig Whittaker]

Do any of you have any evidence that there is any abuse in the detention centre?

Jerome Phelps: The most apposite evidence would be the series of finding by the UK courts of breaches of article 3 in relation to highly vulnerable mentally ill migrants in detention, who should not be detained anywhere except for under exceptional circumstances. Article 3, on inhuman and degrading treatment, is a very high threshold. Until recently there had never been a case of this, but in the past four years there have been six cases of desperately vulnerable people who have had complete psychiatric collapse in detention, to the article 3 breach level.

[Craig Whittaker]

Q 229 I do not want to undermine or belittle the six cases by any stretch of the imagination, but from the thousands who have been through the system in the past four years, which is what you mentioned, it is an incredibly small part. It would therefore be very difficult to say that the system is broken. Is that right?

Jerome Phelps: I do not think any of us have suggested that everyone in detention is abused. It is a small part but we have functioning safeguards, such as the bail system. What is concerning about the Bill is that it is removing some of those safeguards.

[Paul Blomfield (Sheffield Central) (Lab)]

Q 230 Could I follow up on Mr Newlands’ question about enforcement powers to which Mr Yeo gave a fairly powerful response? The provisions of the Bill give immigration officers what might be described as police-like powers. Could you reflect on the different way in which immigration officers are subject to challenge, scrutiny and oversight in the exercise of their powers in contrast with the police and the exercise of theirs currently?

Adrian Berry: My role in looking at enforcement is largely concerned with policy innovation rather than practice, because a lot of these things are not litigated in court. Immigration officers’ powers have grown piecemeal over the years through a series of legislative innovations, to the point where they now look like a parallel police force in respect of migration issues. In that context, there is not the same culture of scrutiny and oversight that one sees under the Police and Criminal Evidence Act 1984, and with the Independent Police Complaints Commission and various other bodies. It is a developing situation.

Our concerns—whatever one thinks of the situation of the use of police powers by the police—is that this is a piecemeal accrual of powers without, if you like, a moment where it is recognised that you are dealing with a secondary form of police force. You need to develop not just the legislative framework, but the culture of scrutiny and good behaviour within an institution if you are going to have a police force. This sort of innovation—for example, the ability to enter private homes and search without warrant—can affect all of us. It is not just a situation of powers relating to migrants. Any investigation could come to anybody’s front door. The proper control and scrutiny of those sorts of powers is vital.