Immigration Bill

Dominic Raab Excerpts

Tuesday 22nd October 2013 Commons Chamber

[Yvette Cooper]

We have said that we should have had transitional controls for eastern Europe. Government Members need to consider how they can defend the fact that since the election deportations have dropped by 7% and deportations of foreign criminals are down by 14%, and how they can explain why the number of illegal migrants absconding at Heathrow has trebled since the election and why the number caught afterwards has halved since the election.

[Mr Dominic Raab (Esher and Walton) (Con)]

Will the shadow Home Secretary give way?

[Yvette Cooper]

I ask the hon. Gentleman to explain that point if the Home Secretary will not.

[Mr Raab]

The right hon. Lady is in a rich vein of contrition. Will she add to her list of apologies an apology from the last Government for signing up to EU rules that made it much harder to tackle benefit tourism and, on the point that she has just raised, human rights laws that made it much harder to deport foreign national criminals?

[Yvette Cooper]

There is nothing in the Bill about the matters that so concern the hon. Gentleman. Where is his apology for the fact that the number of businesses that are fined for employing illegal migrants has halved since the election? Again and again, action on illegal migration has got worse and enforcement has deteriorated since the election.

--- Later in debate ---

[Mr Dominic Raab (Esher and Walton) (Con)]

I congratulate the Home Secretary and the Minister for Immigration and fully support the objectives of this important Bill. Britain must of course remain an outward-looking nation in the 21st century, but the British people do not want to become a soft touch for those arriving who are not capable of contributing and who are dependent on the state rather than self-reliant. We should enforce the law to prevent and deter illegal immigration and discourage benefit tourism, and we most certainly should remove those who commit serious crimes and abuse their right to be here.

Public confidence in the ability of the political class to grapple with the concerns over immigration is itself a major issue. I listened carefully to many Members who spoke this afternoon, including the hon. Member for Hayes and Harlington (John McDonnell), who is no longer in the Chamber. He drew a moral equivalence between the Bill and apartheid. I want to put on the record how offensive I find that, and I say that as the son of someone who fled the Nazi invasion of Czechoslovakia. To draw that kind of moral equivalence is utterly offensive and repugnant and shows how out of touch, albeit with legitimate intentions and objectives, he and some other Opposition Members have become.

Failing to address immigration is the irresponsible thing to do. Having worked on war crimes and as a diplomat in Europe, and having seen the rise of Geert Wilders in the Netherlands, Jean-Marie Le Pen in France and Jörg Haider in Austria, I know that that is what happens when the political elite bury their heads in the sand. That is the real fertile ground for extremist politics. Of course, the weaknesses in the current system make life harder for those we want to welcome, of whom there are many. So let us ensure that this Bill does what it says on the tin; otherwise we risk exacerbating the public concern that is the real fertile ground for extremist politics.

For all the outrage among Labour Members, I recall the speech by the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown) in 2007 at the Labour party conference, where he bellowed:

“let me be clear any newcomer to Britain who is caught selling drugs or using guns will be thrown out.”

With support from Labour Members, he passed the UK Borders Act 2007, which made deportation mandatory for foreign criminals jailed for at least a year—or at least that was the theory. But he paralysed his own legislation and broke his promise by inserting a catch-all human rights clause that led to the perverse results in the system that we see today. I know that the Home Secretary will be mindful of making sure that this time those of us on the Government Benches deliver on what we promise.

With that in mind, I want to focus on part 2, particularly the non-suspensive appeals procedure and the provisions on article 8 appeals. This is not some technical, legalistic issue; it affects real lives. In my constituency, a local waiter called Bishal Gurung was killed in a vicious attack, and the perpetrator, Rocky Gurung—no relation—was convicted of manslaughter. He evaded deportation to Nepal by claiming his right to family life, even though he is a single adult with no dependants. We are not talking about returning people who might face torture or real threat to life or limb on their return home—I certainly would not support that—but about serious criminals convicted and jailed here who evade removal on the basis of family and social ties that are often loose, if not outright artificial. Such cases, which are happening on some scale, warp the moral balance of the British justice system, endanger the public, and make “human rights” dirty words for many people, and that is a shame.

Cases such as the one in my constituency are not isolated. When I submitted a freedom of information request in 2010, it was disclosed that successful article 8 challenges by foreign national criminals were running at a rate of just under 400 per year—61% of all successful challenges. When I re-submitted the request in 2012, I found that the rate was 188 per year, but that that was 89% of all successful challenges. This is not about a few minor episodes or a few cases here and there reported by the tabloid media; it is a major issue.

The problem of violent, sexual and other offenders pleading article 8 to scupper deportation arises because of the rights inflation that has taken place in Strasbourg and here in the UK under the Human Rights Act 1998. In recent years, the European Court in Strasbourg has inflated the grounds for challenging deportation orders, adding tier upon tier of legal excuses which hamstring the effective operation of our border controls. Encouraged by the Human Rights Act, the UK courts have gone further still in stretching the application of article 8, so we cannot just blame Europe. It is not wholly a European issue, but it is at least partly a home-grown problem.

In June 2012, the Home Secretary sought to address the problem by changing the immigration rules, but because it was only a rule change under section 4 of the Human Rights Act, it has not been upheld by our courts. In the Izuazu case, Mr Justice Blake rather pointedly stated:

“Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these decisions are binding...and will be followed”.

I am afraid to say that I warned that, because of the way in which Human Rights Act works, the rule change alone would not be enough to stop these spurious challenges. The Act requires UK courts to read down regulations inconsistent with the Strasbourg case law or the UK’s own interpretation of the convention.

We are where we are, but we should now strain every sinew to make sure we deliver on the rebalancing of the law that we so sorely need. My fear this time around is that simply spelling out the public interest considerations in favour of deportation in article 8 cases will not achieve that aim. It leaves a very wide margin of discretion for the courts to consider, decide and balance the various competing factors for and against deportation. Under section 3 of the Human Rights Act, the provisions have to be interpreted and the balancing exercise conducted in way that is compatible with the convention, which will itself be based on the existing case law stretched by the UK courts.

The risk is that little will change in practice. In my view, it would have been better to cut out all the article 8 challenges by foreign criminals sentenced to 12 months or more—the very serious offenders. That would fit the original intention of paragraph 2 of article 8 of the European convention, and such a mandatory clause could not be trumped by article 8 because of the way in which section 3(1) of the HRA works. It states that primary legislation has an overriding effect, but only when it is impossible to read it down in a way that makes it compatible with human rights law. We will have to look at that in Committee.

The second key issue in part 2 is raised by appeal clauses 11 to 13, which aim to reduce the number of appeal decisions in order to avoid the process being strung out at great expense to the taxpayer. They also seek to allow appeals to be lodged without suspending the deportation process, so they will be heard when the appellant has already been returned, unless—this is an important caveat—removal would cause serious and irreversible harm.

I wholeheartedly support that common-sense principle, but I would be interested to hear the Minister explain how it will work in practice. What is to stop an appeal direct to Strasbourg—over the UK courts—that may result in a rule 39 indication calling on the Home Office to suspend deportation pending appeal to Europe?

For these clauses to be effective, we would need the Government to be willing to reject those rule 39 indications, which used to be treated as recommendations only, rather than as binding orders. However, as became clear during the Abu Qatada case and our debate on the Crime and Courts Bill earlier this year, the Government treat rule 39 indications from Strasbourg as binding. Will that change? If not, what is to stop these clauses being thwarted by Strasbourg?

I have taken advice from counsel on both of my points—on article 8 and on non-suspensive appeals—and it has tended to reinforce my fear that the Government’s laudable attempts to rebalance the deportation regime risk being unpicked. I would be interested to hear the Minister’s response to that.

Will this Bill really do what it says? Subject to the Minister’s reply, I will consider—my hon. Friend the Member for Rochester and Strood (Mark Reckless) has mentioned this—re-tabling my amendment to the deportation regime, which would solve the problem and which carried broad cross-party support during the passage of the Crime and Courts Bill, although we were timed out by the Leveson debate.

It is critical that we give proper effect to the laudable aims of the Bill. I praise Ministers to the hilt for diagnosing and focusing on the right issues, but we have to make sure we deliver, both to rebalance our deportation regime in favour of the public interest in removing serious criminals, and to ensure that public trust is not yet again frayed by another promise of reform that is not in fact delivered.