Foreign National Offenders (Exclusion from the United Kingdom) Bill

James Brokenshire Excerpts

Friday 6th March 2015 Commons Chamber

[The Minister for Security and Immigration (James Brokenshire)]

I congratulate my hon. Friend the Member for Wellingborough (Mr Bone) on moving the Second Reading of his Bill today. I understand and share his desire to be firm in respect of foreign nationals who come to this country and commit crime, abuse our hospitality and create risk in our communities.

This Government have been firm in several ways in making changes to the law and to the process—the manner in which we go about dealing with these issues. We have other initiatives in policing and within the Home Office. We are also working cross-Government in doing our utmost, with other countries, to deal with documentation issues to make sure that identity is established and that foreign national offenders are returned having served their sentences. I entirely understand the points that my hon. Friend makes. In dealing with his Bill, I intend to set in context the changes that have been undertaken, their ongoing impact, and the focus that remains absolutely at the forefront of our minds in Government in seeing that more foreign national offenders are removed from this country.

I must firmly rebut a number of the accusations made by the hon. Member for Birmingham, Erdington (Jack Dromey). Labour in government created a system mired in bureaucracy where foreign national offenders were not considered appropriately, with systems established under the legacy UK Border Agency that were not fit for purpose. It therefore ill behoves him to suggest that there is any lack of rigour, focus or determination on the part of this Government to assure our borders and to ensure that we have the appropriate checks in place to deal with the very serious issue of foreign national offenders.

[Mr Christopher Chope (Christchurch) (Con)]

My hon. Friend will have seen page 25 of yesterday’s Daily Mail, which had a full-page article headed “Europe’s most wanted”, saying that they are here in the United Kingdom. It has pictures of 16 foreign criminals, mainly from eastern Europe, many of whom have been convicted in their own countries, who are on the run in this country. What is being done about this? It seems as though nothing much is being done about it.

[James Brokenshire]

A significant amount is being done. We are preventing a number of foreign national offenders from getting into this country in the first place by strengthening the data that we have at our borders through our warnings index and making sure that our Border Force officers have that information. There is the impact of the Schengen information system—the new means by which we are able to gain advantage from information from Europe such that people are unable to get into this country in the first place. There are also dedicated teams available to respond to those who abscond.

As my hon. Friend suggests, there is a further initiative to make the public aware. We have used that overseas to identify British citizens on the run in other European countries. I pay tribute to the work of the National Crime Agency in working with our counterparts in Spain and with Crimestoppers to ensure that those who are fleeing justice in this country are apprehended and brought to justice in this country. A significant amount of work is being done in-country on identifying those who would do us harm and on preventing people from coming in at the border—not forgetting those who are fleeing justice from our shores and who need to be brought to book here in this country. That is why this work is being undertaken.

[Jack Dromey]

I totally agree with the point about strengthening our borders. No doubt the Minister will welcome our proposal for an additional 1,000 border guards. He says that the Government have dealt with what he claims were past problems in relation to Labour’s track record. They have been in power for five years. Can he explain why more criminals have absconded under this Government—a 6% increase since 2010?

--- Later in debate ---

[James Brokenshire]

I welcome the fact that the Opposition now apparently want to ensure that we have the appropriate checks at the border. That was not the experience when they were in government. Once this Government came to power, we were able to have the 100% checks at the border that were not there before. We scrapped the old UK Border Agency and created Border Force, with the focus, the culture and the agenda to have tough and rigorous checks at the border while making sure that that is done efficiently and effectively to allow people to pass through, using technology to advance that process.

The hon. Gentleman referred to Labour’s promise of 1,000 extra border guards. That is virtually the only promise or pledge that we have heard from Labour on the important issue of immigration and tightening and securing our borders. Even so, surprisingly enough, the sums do not add up. The cost is apparently to be met by additional charges for those in electronic visa waiver schemes. On our calculations, that would generate perhaps an extra 20 or 30 border guards. There are also questions about whether the scheme would cost more to administer than it would deliver in revenue. I look forward to hearing some further details from the Opposition as to how their numbers add up and how their proposal would work.

I want to highlight this Government’s record in having removed just under 5,100 foreign national offenders from the UK in the past year. That is against a backdrop of an increase of nearly 30% in litigation by those seeking to game the system to delay their removal from the UK. Partly because of the delays that we inherited due to the legal system that we had, sometimes the courts have allowed people to be discharged from custody in those circumstances. That is why we introduced the Immigration Act 2014 to speed up the process in terms of those rights, whereby if someone’s life is not at risk or in danger, they can make these legal challenges, but do so outside the UK. These important measures, to a large degree, deal with the underlying concerns that my hon. Friend the Member for Wellingborough has expressed in his Bill. The fact that we have, as I said, removed just under 5,100 foreign national offenders from the UK in the past five years is due to a great deal of attention and careful joint working among a number of Government Departments—the Home Office and colleagues in the Ministry of Justice and the Foreign and Commonwealth Office.

My hon. Friend’s Bill, as I read it, is intended to deal with the issue of exclusion—in other words, ensuring that once someone has been removed, they stay removed. I will explain how the existing regulations and practice, both on EU and non-EU citizens, are intended to operate. There are a number of different aspects. To have a robust and rigorous system, we need a joined-up system.

I will touch on the issue of preventing those who should not be here from coming to this country in the first place and the excellent work the police and others are doing to identify foreign national offenders. Confirming a person’s identity can be challenging. When we want someone to be removed, we need to obtain a passport or other evidence in order to prove their identity; to get travel documents to ensure that they can be deported; and to make sure that the receiving country does not simply return them to our shores. There has been some important and excellent cross-governmental work to deal with those barriers to removal.

A range of measures and powers are used to remove foreign national offenders from the UK. The primary power is automatic deportation for 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; or, where automatic deportation cannot be applied, we can seek to deport on conducive grounds, including looking at the cumulative effect of offending and whether it is in the public interest to seek to deport.

Once a person has been deported they are prohibited from entering the UK while the deportation order against them remains in force. A deportation order has no expiry date: it remains in force indefinitely unless a decision is taken to revoke it. That demonstrates the strength and purpose behind our existing deportation system, and it is important to recognise that we have strengthened it further through the Immigration Act. Border Force checks against the warnings index to identify whether anyone coming through our border is subject to those outstanding deportation orders. Perhaps that will reassure my hon. Friend that, under the existing system, we are able to keep out people who have been deported from this country.

[Mr Bone]

I am grateful to the Minister for going into this matter in such depth. I am reassured by what he says, but—he can correct me if I am wrong—I do not think that that system applies to the European Union.

[James Brokenshire]

I was planning to address that specific point. My hon. Friend is right about the distinction between EU and non-EU and how it applies to deportation. However, I hope he will recognise the steps the Government have taken to put in place re-entry bans. The right of free movement is part of a broader and bigger debate than that related to the Bill and I certainly do not want to stray beyond it, Madam Deputy Speaker, but my hon. Friend’s intervention referred to our ability to keep out those who have been removed to other European countries. We have the right to impose a re-entry ban, because free movement is not unqualified. Under the existing requirement of free movement, a person has to exercise their right to work, to study or to set up a business. If they do not exercise any of those rights and abuse that power and our hospitality and freedoms by committing a crime, they should be removed and kept out, and our re-entry ban of one year helps us facilitate that. We may well wish to return to the issue in the fullness of time.

The Government’s approach was set out clearly by the Prime Minister in a speech just before Christmas, when he addressed those measures he wants to change in order to ensure that rights of free movement work in the best interests of this country. That is a broader debate than that on the specific issue of foreign national offenders.

Last July, new powers came into force to stop criminals using weak family life arguments to delay their deportation. The Government had already made it clear that article 8 of the European convention on human rights should not be used to place the family and private life rights of criminals above the rights of the British public to be protected from serious criminals.

Section 19 of the 2014 Act put into statute the principle that the law should be on the side of the public and that the starting point is to expect that foreign criminals will be deported. The more serious the offence, the greater the public interest in the criminal’s deportation. Section 19 ensures that the courts can be in no doubt about when the public interest requires the deportation of foreign criminals.

We also changed the law so that when there is no risk of serious irreversible harm, foreign criminals can be deported first and have their appeal heard later. Those who have an appeal right will be able to appeal only once. Last October, the number of grounds on which foreign criminals could appeal against their deportation was cut from 17 to four. It is important to recognise that the system that we inherited allowed appeal after appeal after appeal to delay removal and frustrate the justice system. My hon. Friend the Member for Wellingborough understands the frustration that that built up and has recognised it in the Bill.

We have changed the law and changed the rights of appeal. We have also removed a significant number of foreign national offenders year on year, despite having to deal with the legal system we inherited and despite seeing a near 30% increase in the number of legal challenges. Our changes are not about denying people a right of appeal, but about streamlining an appeals system that offered too many bites of the cherry, took too long to conclude and, inevitably, led to foreign criminals remaining in the UK for longer than should have been the case.

We will always seek to deport serious foreign criminals. When the level of offending does not meet the threshold for deportation, we will take administrative action to remove offenders who have no right to be in the UK. Administrative removal is an effective outcome. Subject to certain exceptions, foreign national offenders who have received a custodial sentence can be administratively removed from the UK and will face a mandatory refusal under the immigration rules on entry clearance or leave to enter the UK.

The other power that is used to keep foreign national offenders out of the UK is exclusion, although I suspect it is not the exclusion envisaged in the title of my hon. Friend’s Bill. To avoid any misunderstanding, exclusion is a decision taken personally by the Secretary of State that is used to prevent a foreign national who is outside the UK from entering the country. Exclusion decisions are taken on the basis that the person’s exclusion from the UK is not conducive to the public good. As with a deportation order, an exclusion decision prohibits the person from entering the UK while it remains in force. It is similarly not time limited.

I think that my hon. Friend will recognise some of the ways in which we have used that power. Aside from cases of foreign criminals, we have used it to keep hate preachers out of the country. This Government have used exclusion to keep about 80 hate preachers out of this country, which is more than under any previous Government. I hope that that gives him some assurance on the firm and rigorous approach that the Government take in seeking to assure the security and safety of the citizens of this country from foreign national offenders and others who would seek to foment tension in our communities and the criminality that may arise from that.

My hon. Friend sought to draw a distinction between EU and non-EU citizens or, to use the technical terms, European economic area citizens and non-EEA citizens. It is important to understand that distinction. The free movement directive, by which all EU member states are bound, provides that EEA nationals and their family members have certain rights to live and work in other EU countries.

The UK has implemented the directive by way of the Immigration (European Economic Area) Regulations 2006, which provide the power to deport, exclude or administratively remove EEA nationals and their family members from the UK. EEA nationals can be deported from the UK on grounds of public policy, public security or public health. All EEA nationals who receive a custodial sentence are considered for deportation or administrative removal, including individuals who engage in persistent low-level offending. We take a robust approach when considering and pursuing the deportation of EEA national offenders, working within the terms of the directive.

A decision to deport cannot be made solely on the basis of a person’s previous criminal convictions and we must balance other factors. Therefore if the Bill intends that an EEA national convicted of an offence in the UK should be deported solely on the basis of that conviction, regardless of the nature of the offending and without the assessment of the case’s individual circumstances or the proportionality of deportation action, it would not be consistent with the freedom of movement directive.

My hon. Friend sets out his desire for a general approach, but other issues are at play. This is a complex picture, and I have highlighted one element in the freedom of movement directive. There is also the refugee convention, in which I know he has taken a long-standing interest, and other provisions are contained in that. We must therefore understand when legislating in this House the number of different international obligations, conventions, treaties—not to mention the European convention on human rights, which we can return to later—that we would need to consider. Perhaps the issue is a little wider and more complex than the Bill understands or recognises.

[Mr Bone]

I am grateful to the Minister for going into that point as it goes to the heart of the Bill. That is why it states:

“Notwithstanding any provision of the European Communities Act 1972,”

The basis of the Bill is to have a common approach so that someone from outside the EU is not treated one way while those from within the EU are treated differently. I am not sure that the Government are supportive of that view.

[James Brokenshire]

Clearly, a distinction is drawn in existing law between EU and non-EU, or EEA and non-EEA—my hon. Friend understands that—and we must therefore consider our current obligations. He will have a different view about the overarching relationship with the EU, and that is a broader and bigger debate of which this Bill is part. I know the clear views he has expounded and will continue to expound, and I appreciate and recognise that.

Over the past year the Government have focused on increasing the volume and pace of deportation of EU national offenders, in some ways recognising some of my hon. Friend’s points. For example, in July 2014, to coincide with changes introduced through the Immigration Act 2014 for non-EEA nationals, we amended EEA regulations so that for the first time an appeal against a deportation decision no longer automatically suspends the removal of an EEA offender. The Government recognise the distinctions drawn in international obligation and existing law, and we are making changes that respect and recognise that. Yes, those changes are also obligations, but where we have made changes on one side, we have sought to do so on the other side as well, and I would point to that example. As a result of those changes, EEA national offenders can be removed back to their national member state where there is no risk of serious irreversible harm before the conclusion of the appeal process. That concept of being able to remove someone and not have to wait for an appeal has been reflected on the EEA side as well as the non-EEA side.

[Mr Bone]

The Minister is being generous, but why is there a provision to stop someone going back to a European Union or EEA country? Surely all those countries must be regarded as safe places to return people to.

[James Brokenshire]

My hon. Friend will know that, from time to time, judgments in our courts in relation to prison conditions or other ancillary issues can be used, and argued in courts, to seek to prevent removal. It is important to restate in our regulations that the measure should have parity, in essence to provide certainty and assurance if legal issues are raised by someone seeking to delay, defer or frustrate their removal on the grounds that, in some way, the conditions on the ground in another EEA member state should prevent them from being removed.

I come back to the issues I touched on at the outset of my contribution on ensuring that we have a system that joins up, so that we have that sense that it deals with all the matters at hand in preventing people who have a criminal record from coming to this country in the first place. I have highlighted the introduction of the second generation Schengen information system, which will give us access to 35,000 alerts for people wanted for crimes within the EU. We will stop and arrest people at the border before they enter the UK and commit further crimes. That is the ability that the new Schengen information system gives us.

I should remind the hon. Member for Birmingham, Erdington (Jack Dromey), who speaks for the Opposition, of the Government’s commitment and focus. We introduced the second generation Schengen information system. It is not about a delay or deferral on the basis of political aspirations or focus, as he suggested. We have had to invest in and work through significant technical and other system issues with the relevant agencies at EU level. We have shown that focus for many years. We have ensured that investment to ensure that we can join the second generation Schengen information system from April and have the benefits of it. That is why we have focused on seeing that that happens.

Our ability to access information on overseas convictions is also significantly improving. Under this Government, checks on foreign nationals going through the criminal justice system have increased by more than 700%, including more than 72,000 since April 2014 by the Association of Chief Police Officers criminal records office. The figure in January alone was 11,745. With the increasing use of the European criminal records information system, those figures will continue to rise. In the last financial year, checks were made on around 30% of foreign nationals arrested. We aim to double that to 60% by the end of this financial year. From November 2014, the Metropolitan Police Service has mandated 100% checks. By the end of January, the, ACPO criminal records office estimates that it was checking around 67% of foreign nationals arrested nationally.

[Sir Alan Duncan (Rutland and Melton) (Con)]

The House will be grateful to the Minister for his very thorough response, but I am sure he appreciates that he would not like to offend the will of the House by denying it the opportunity to debate the Bill that follows. May I invite him to consider the clock and allow a debate on Second Reading of the Fixed-Term Parliaments (Repeal) Bill, given that his reply has been both thorough and brilliant?

[James Brokenshire]

I recognise my right hon. Friend’s interest in further business of the House, should this debate allow it to be possible. I hope he understands that my hon. Friend the Member for Wellingborough has brought a significant issue before the House. For that reason, it is right that the Government give appropriate scrutiny and consideration on Second Reading, to determine whether the Bill should pass. Because of the complexities and issues at hand—and the steps that the Government have taken and the further steps that I would like us to take as a majority Conservative Government with a focus on dealing further with issues that arise from the European convention on human rights—I know that my hon. Friend the Member for Wellingborough would highlight and identify this point as a relevant issue in terms of the legal challenges that can be brought to try to prevent people from being removed. That is why we specifically dealt with the issue of article 8 in the Immigration Act 2014.

[Mr Bone]

The Minister has convinced me not to proceed with the Bill, so he does not need to continue to speak indefinitely.

[James Brokenshire]

I am grateful to my hon. Friend for indicating that he supports the Government’s approach to this important issue. I welcome the opportunity that we have had this afternoon to debate the issue. It is an issue of concern to the public and one on which the Government have rightly focused in our work to date. We wish to do more through a British Bill of Rights under a Conservative Government after the general election because we think that is necessary. I welcome the support that my hon. Friend has given the Government and I hope that he understands that, although the Government are unable to support the Bill, we recognise the issues that he highlights and why we have taken the steps that we have. The issue will continue to have the focus that I have outlined this afternoon.

[Mr Bone]

The Minister has given such a great explanation that I wish to withdraw the Bill.

Motion and Bill, by leave, withdrawn.