Foreign National Offenders (Exclusion from the UK) Bill

Michael Tomlinson Excerpts

Friday 11th March 2016 Commons Chamber

[Julian Knight]

rose—

[Michael Tomlinson (Mid Dorset and North Poole) (Con)]

rose—

[Mr Hollobone]

I will happily give way, but I just want to finish this particular point. The other crucial aspect of the Bill, which might not now be as explicitly mentioned in it as it might be after we have had a go at it in Committee, is that in my view and that of my constituents, if foreign national offenders are sent back to their country of origin they should be banned from returning to this country. Their personal details—their name, date of birth, fingerprints and all the rest of it—should be with our Border Force so that if they ever attempt to gain re-entry into this country they are stopped from doing so.

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[Mr Hollobone]

I am most grateful to my hon. Friend for giving us a specific and individual example of how rotten the system has become. How has it come to pass that in Britain in 2016 we are unable to deport a Congolese rapist? It should be one of the first duties of Government to keep our country and our citizens safe, and we need to send back to their country of origin people who believe they can get away with such horrendous crimes in our country. My hon. Friend has given us an individual and specific example of why we need to change the system.

[Michael Tomlinson]

I do not apologise for coming back to the issue of cost, as it is first and foremost in the minds of my constituents. We have heard a variety of different figures cited today, so perhaps we can explore the issue a little further. Has my hon. Friend considered that with 10,000 fewer prisoners we could have fewer prisons, so the costs that we have heard cited could in fact be higher still?

[Mr Hollobone]

That is a very intelligent observation from my hon. Friend, and I congratulate him on being in the Chamber to listen to today’s proceedings. I know that he represents his constituents with great assiduity. Obviously the Minister will correct me if I am wrong, but I think we now have two prisons devoted wholly and specifically to housing foreign national offenders. Clearly, if we did not have any foreign national offenders in our prisons that would be two prisons we could either not have or free up to imprison our own offenders. That would be a cost saving—we are talking about a potential sum of £1 billion—but some of us in the Chamber today would see the saving of that cost as an opportunity to implement a proper penal policy for our domestic offenders. We believe that if an offender is caught, convicted and sentenced to a term of four or five years, or whatever it is, they should then serve that amount of time in prison. We are constantly told that we cannot afford to do that, but here we are presenting the Government with £1 billion of savings that would enable us to implement a far more realistic and effective criminal justice policy.

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[Mr Hollobone]

Interventions of such quality will, I hope, earn my hon. Friend a place on the Bill Committee. We could put a robust clause in the Bill specifically to deal with burglars and burglaries. He is right—for some reason, the seriousness of burglary has gone down the Home Office’s agenda.

The same is true of the breaking of shop windows in our high streets. I remember 20 years ago speaking to my local police commander, who said, “Philip, it’s an absolute rule of mine that we will not accept shop windows being broken in high streets, and we are going to clamp down on this really hard.” I think most hon. Members would say that shop windows are broken regularly in their high streets, perhaps even monthly. That shows that when we do not keep pursuing such problems vigorously, the seriousness with which they are taken declines.

That is a concern for our constituents, who are frightened about burglaries. Even if nobody is injured in a burglary, somebody’s home is tainted permanently by the intrusion and the theft of articles. Particularly for elderly people, that can often lead to a deterioration in health, and ultimately, in some cases, the old person sadly dies, not directly at the hands of the burglar but as result of the trauma of having been a victim of burglary. My hon. Friend speaks for his constituents and the country in highlighting that issue.

[Michael Tomlinson]

I am grateful to my hon. Friend for giving way again. I want to correct a potential misapprehension. My direction of travel for reducing the prison population of foreign national offenders holds true for the prison population as a whole. There may be a divergence of views here. I believe we should have a vigorous justice system, and I believe that the Bill is right about foreign national offenders, but I also believe that this should be the direction of travel for our entire prison population. I may have caused a misapprehension about that earlier. We can have both a vigorous justice system and a smaller prisoner population overall. This point of view may get me off the Bill Committee, but it is one that I hold firmly.

[Mr Hollobone]

rose—

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[Mr Hollobone]

My hon. Friend may well be absolutely right.

[Michael Tomlinson]

I may be pre-empting my hon. Friend, but could I encourage him to look in due course at the term “qualifying offence”, because there are some important provisions relating to whether that involves a term of imprisonment, as in the Bill, or whether a foreign offender would have to be in prison to qualify? Perhaps there are some interesting points there to develop. Will my hon. Friend come back to that in due course?

[Mr Hollobone]

It is okay: my hon. Friend is back on the Committee. He has made an extremely good point, which I hope he can repeat in Committee. My hon. Friend is quite right: we need to define what a qualifying offence is.

Clause 1(1) says that

“the Secretary of State must make provision in regulations for any foreign national convicted in any court of law of a qualifying offence to be excluded from the United Kingdom.”

Subsection (4) of the clause—there are, of course, only two clauses—then defines a qualifying offence as meaning

“any offence for which a term of imprisonment may be imposed by a court of law.”

That is important.

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[Mr Hollobone]

In fairness, Mr Speaker, it is not actually my Bill. The Bill is in the name of my hon. Friend the Member for Wellingborough. However, I do have the privilege of being one of the sponsors, and I am pleased to be one of them.

[Michael Tomlinson]

Perhaps my hon. Friend could tease out a little more the meaning of “qualifying offence”. As drafted, the definition is very wide and would cover even the most minor offences. For example, small, petty shoplifting has a maximum term of imprisonment of seven years and would, therefore, be caught by subsection (1). [Interruption.] I hear a “Hear, hear”, but, on the other hand, this is a very petty offence. Is it really the intention of the Bill to cover such an offence?

[Mr Hollobone]

I can see that the Bill Committee will be extremely interesting. I appreciate my hon. Friend’s point. I would take the view—I think other members of the Committee, although perhaps not all, would too—that a foreign national in this country who shoplifts should be removed forthwith and never be allowed to darken our shores again.

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[Mr Hollobone]

Yes, I support that. A stronger legal system in these countries would help to facilitate the return of their nationals imprisoned in this country.

[Michael Tomlinson]

Clause 1(1) in fact refers to

“any foreign national convicted in any court of law”.

I fear that my hon. Friend the Member for Christchurch (Mr Chope) may need to introduce a new Bill if we are to seek savings in translation services, because costs will inevitably be racked up in court proceedings to ensure that a foreign national is convicted so that they qualify under clause 1(1).

[Mr Hollobone]

My hon. Friend is right in part, but my hon. Friend the Member for Christchurch is of course talking about translation services as a whole. The longer a foreign national offender stays in this country, the greater the demand for translation services they will inevitably trigger during their incarceration. They may learn English while they are in prison, but it might not be the sort of English we want to encourage them to learn.

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[Mr Hollobone]

He has personal experience of being shoplifted, not being a shoplifter. The point that he makes is absolutely right, and it is an issue that the Committee could explore. Opinions will differ in Committee, but I share his view that shoplifting should be taken seriously. Unless criminal behaviour is nipped in the bud, it tends to get worse. If a foreign national thinks it is acceptable to shoplift in this country, I think most of my constituents would say, “That is not acceptable. Go and do it in your own country.”

[Michael Tomlinson]

My point was not that shoplifting is trivial, but that it is trivial in comparison to other aspects of theft. It is a question of scale. I want to clarify that, because I would hate people to think that my personal view was that shoplifting is trivial. It is not: all crimes are serious, but there is a scale and it is well known that, among thefts, shoplifting is towards the bottom end of the scale.

[Mr Hollobone]

I suspect that my hon. Friend brings some legal experience to his advice to this House, for which we are all very grateful. That is why he will be such a valuable member of the Committee.

I just want to reach the end of my list before ending my speech and encouraging others to take part. There are two important countries at the bottom of the top 10 list of shame: Somalia has 430 and Nigeria is at No. 10 with 385. I know that my hon. Friend the Member for Stafford takes a lot of interest in Nigeria. If he wants to say some nice things about Nigerians, I am happy to give way.

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[Sir Edward Leigh]

That is what we are talking about—10%—so this is a matter of enormous importance.

As I have said, it is vital to avoid lengthy delays in custody, which is what the Bill would do, as I understand it. Deportation proceedings should commence on the very first day of the sentence. That is the key point.

[Michael Tomlinson]

Does my hon. Friend or Migration Watch have a practical solution on where to send the 400-odd prisoners my hon. Friend the Member for Kettering (Mr Hollobone) mentioned, who have not declared where they come from?

[Sir Edward Leigh]

That is an interesting question, and I confess that I do not have an instant response. My hon. Friend the Minister has heard that intervention, and I am sure she can deal with it. That just shows, does it not, how people are deliberately laughing at our system and abusing it? People should be aware of that.

[Sir Edward Leigh]

If, having been convicted, they are not prepared to tell the authorities where they are from, there should be a presumption that they will remain in prison until they do so. That might actually concentrate a few minds. Again, that is something for the Minister deal with.

As long as the United Kingdom remains a signatory of the 1951 refugee convention, criminals cannot be denied the option of claiming asylum, even after conviction. I believe that any such applicants should remain in detention and be put through the fast-track procedure I am talking about.

A serious weakness of the present system is that there is nothing to prevent criminals from returning to Britain under a false identity. Given that they are criminals, they would presumably have no compunction about changing their identity. To help tackle that weakness in the system, all those convicted should have their biometric information recorded and held centrally. As biometric visas are introduced overseas, visa applicants should be checked against the database. The records would detect those reoffending under a different identity. Perhaps the Minister will deal with the serious point raised today about the return to this country of criminals who change their identity. At the moment, we can apparently do nothing about it. We should keep biometric information so that we can identify them and stop them coming back.

Central records should, at the very least, include the immigration status of all those convicted, the number of recommendations for deportation and the number of deportations carried out. The courts should be informed of the outcome of the recommendations—I understand that at present they are not. I may be wrong about that, but the Minister can correct me if she wishes. There should also be a presumption that deportation is recommended for certain classes of offences, including drug offences, such as importation and supply but not necessarily possession; manufacture of class A drugs; people-smuggling offences; forgery of travel documents; serious violent and sexual offences; firearms offences; fraud; all offences involving the handling of the international proceeds of crime; and all defined immigration offences.

On day one, when someone is convicted under the proposals set out in the Bill, and under my suggestions to toughen it up if necessary, deportation proceedings should start immediately. They would be triggered by a certain length of sentence or a sentence for particularly serious types of crime. That is clear and simple, and it should be done. There should also be an automatic recommendation of deportation for offenders who are illegal immigrants and a presumption of deportation for offenders who are in Britain on a temporary basis, for example for work or study, which was dealt with in the Bill that we discussed last week.

As we know, the whole question of article 8 is a mess. We know why it was originally created, and I talked about how lawyers devised the arrangements in the early 1950s, but they are in urgent need of reform. Actually, article 8 specifically states exceptions to the right to family life. So far as those exceptions are in accordance with the law, they include public safety, the economic wellbeing of the country, the prevention of disorder or crime, and the protection of the rights and freedoms of others, for instance of law-abiding citizens.

It is difficult to know how many deportations from the United Kingdom are stopped on appeal due to article 8 arguments, as official figures vary depending on who we ask. Again, I hope the Minister deals with this point. The Courts Service says that in 2010—I am sure there are more up-to-date figures, but maybe these give a good example; I have just got them from the Library—223 people won their appeal against deportation. Of those, 102 were successful on the grounds of article 8. The independent chief inspector of the UK Border Agency said that in the same year 425 foreign national prisoners won their appeal against deportation, primarily on the grounds of article 8. If this debate achieves nothing else, perhaps we can get more up-to-date information on the exact effect of article 8.

[Michael Tomlinson]

Does my hon. Friend consider that the Bill, as drafted, would be strong enough to stop lawyers engaging in article 8-type arguments?

[Sir Edward Leigh]

We need to consider in Committee whether the Bill is strong enough to override article 8, if we are lucky enough to get the Bill to that stage.

[Sir Edward Leigh]

Exactly. This is an absolute minefield, and because of that it is prone to manipulation by clever lawyers—I can put it no other way. Frankly, the law needs to be cleared up. I suspect we cannot clear it up unless we repeal the Human Rights Act 1998 and repatriate this whole part of our law into a British Bill of Rights. Lawyers would still argue about the provisions of a British Bill of Rights, but at least we would have created the law in this House and tried to bring some clarity to these matters. Above all, we could try to recreate public confidence. We can become enmeshed in the details, and I am sorry if I have had to go into some of them, but let us focus, laser-like, on what the public are talking about. The public cannot understand that there are 10,000 people convicted of offences sitting in our jails who we are not sending home. Worse, many of them are coming out of our jails and staying in this country. That is what the public want the Government to deal with.

[Michael Tomlinson]

I mentioned lawyers a few moments ago. I declare an interest as a lawyer. Lawyers can find arguments, but the law needs to be clear. The clearer the law is, the less room there is for argument in courts by lawyers and the less reason for judges to make mistakes.

[Sir Edward Leigh]

Like my hon. Friend, I, too, am a lawyer. We are only doing our jobs. Give us unclear law and a client to represent, and we will put forward our best case. It is up to the Government to give us clear law. Judges have been known to reconsider deportation on appeal if they feel that it is a punishment disproportionate to the crime committed. That even happened in the case of a crime that resulted in death, in Gurung v. the Secretary of State for the Home Department. If the law is unclear, we open up all sorts of possibilities for lawyers to drive a coach and horses through what we are trying to achieve.

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[Philip Davies]

My hon. Friend is absolutely right. Someone could argue that it is no good deporting foreign nationals if border control has no way of knowing whether people have got a criminal conviction; they will simply re-enter the country in no time at all. If deportation is to be meaningful, it seems to me that we have to do something different at the border control to make sure that these people cannot come straight back into the country again.

[Michael Tomlinson]

The 10,000 figure relates to prisoner numbers, but according to clause 1(4), far more than that would be caught by these provisions. It is not those who are sentenced that counts on the face of it, but those for whom a term of imprisonment for an offence “may be imposed” by a court, which means far more than 10,000.

[Philip Davies]

Yes, indeed—and that is good news, as far as I am concerned. I am not sure that my hon. Friend would agree, but it is good news for me. I shall come back to the detail of that provision later because it raises an important point.

Interestingly, when it comes to this Bill, my hon. Friends have removed the provisions that make it applicable to someone sentenced only for 12 months or more, which was the intention of the 2007 Act. There had to be that trigger point, and the issue was raised in interventions earlier. I believe it important that the Bill removes the 12-month criterion. There are many reasons, but basically, I do not think we want any foreign criminals in the UK—whatever the length of prison sentence, which should be irrelevant.

This issue has led in some cases to what I would call dishonest sentencing. Sentences have been deliberately manipulated in order to avoid the deportation trigger. In the case of the Crown v. Hakimzadeh in 2009, the Court of Appeal approved an adjustment in the structure of the sentence in order to avoid the automatic deportation criterion, imposing instead two consecutive sentences of nine months and three months. This not only promotes dishonesty in sentencing, but undermines the basic principle of abiding by the law. In another case, a drug dealer was sentenced in the Inner London Crown Court in 2011. In sentencing him, the judge said:

“The sentence I have had in mind was 12 months, but it seems to me that it isn’t necessary for me to pass a sentence of 12 months, because a sentence of 11 months will have the same effect, and it would take away the automatic triggering of deportation. I have taken into account that if you were to be deported it is bound to have a devastating effect on your three children, who I’m told are lawfully here in the UK.”

So we have judges who are not giving the sentences they think should be given, on their admission, in order to avoid the 12-month trigger. That cannot be right.

[Michael Tomlinson]

My hon. Friend has highlighted two important and interesting cases where judges have explicitly stated their reasoning for giving a sentence lower than they might otherwise have done. Again, however, we are in danger of criticising lawyers and judges—a very popular thing to do—when it is in fact the law that must be clear. If this Bill is to pass, it must be absolutely clear, and it should be this place that determines the policy, not our judges.

[Philip Davies]

I have some sympathy with what my hon. Friend says, but he is being kind to judges, which is typical of the legal profession. On the same principle, MPs are always kind to the Speaker because they feel that something bad will happen to them if they start criticising. It seems to me that the law is clear. If someone is sentenced to prison for 12 months, they get deported. There is no problem with the clarity of the law. The problem is the judges manipulating the sentence to show a wilful disregard for the law.

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[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.

[Michael Tomlinson]

Before my hon. Friend moves on to the issue of cost, I want return to his point about lawyers. I am not trying to be kind or nice to lawyers or judges, but simply make the point that the cases he cites emphasise the need for us in this place to pass laws that are as clear and simple as possible so that the will of Parliament can be effected.

[Philip Davies]

Yes. I agree with and endorse my hon. Friend’s point.

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[Michael Tomlinson (Mid Dorset and North Poole) (Con)]

It is great pleasure to follow my hon. Friend and constituency neighbour the Member for Christchurch (Mr Chope). I agree with his sentiments and I, too, rise to speak in favour of the Bill. Having sat in the Chamber throughout this debate, it would be remiss of me not to add one or two words, but I note your earlier stricture, Madam Deputy Speaker, and I will keep my comments brief.

I used to practise at the bar, and came across at first hand the experience of attempting, at sentence, to deport foreign offenders, so I have seen the difficulty for the courts and the contortions they have to go through under the current regime. I want to praise the simplicity of the Bill. Many comments and criticisms have been levelled at lawyers and judges—not just during this debate, but elsewhere—but I fear that many of those criticisms are unfounded. This place has a duty to ensure that the Bills and laws we pass are as clear and simple as possible to remove any risk of lawyers being able to make such arguments in court. I therefore praise the simplicity of the Bill and how the provisions are set out. I also praise my hon. Friend the Member for Kettering (Mr Hollobone) for setting out the principles behind the Bill so clearly.

I want to pick up on one or two points, the first of which is the question of what is a qualifying offence. My hon. Friend the Member for Shipley (Philip Davies) suggested that he would be satisfied if there were no such definition and the Bill covered all offences for which foreign offenders are convicted. As it stands, clause 1(4) states that it is an offence for which

“a term of imprisonment may be imposed by a court of law.”

We have heard an exchange on what precisely that means and what it covers. My view is that it is clear and that it covers any offence for which a term of imprisonment may be imposed.

[Philip Davies]

Will my hon. Friend address my point about the sentencing guidelines? Is there not a doubt about whether the Bill would apply to cases in which somebody commits an offence for which prison is not an option within the sentencing guidelines?

[Michael Tomlinson]

My view is that there is not. My hon. Friend raises an interesting point, but my firm view is that it is clear: on a plain reading of the Bill, any offence where a term of imprisonment may be imposed would be caught. We discussed theft and the example of shoplifting a few moments ago. My view is that, because there is a maximum sentence of seven years’ imprisonment, the offence is clearly covered by the Bill, even though shoplifting is towards the lower end of the scale and one would not expect there to be a sentence of imprisonment in any event.

[Philip Davies]

But in a case of shoplifting, particularly if it is a first offence, the judge may not impose a custodial sentence, because that would be outside any kind of sentencing guideline, so surely in such a case, the Bill may not apply.

[Michael Tomlinson]

I do not believe that to be the case. My firm view is that, on a plain reading of the Bill, even shoplifting would be covered.

I want to make the slightly different point that perhaps that is going a bit too far for shoplifting. Indeed, my hon. Friend the Member for Gainsborough (Sir Edward Leigh) said that it was his view and that of Migration Watch that a sentence of imprisonment for 12 months was about the right level. There could be a debate about what precisely is the right level, but as drafted the definition is very wide indeed.

My hon. Friend the Member for Kettering spoke about the number of prisoners for whom no nationality has been recorded. I believe the figure was 434 or thereabouts. I would like the Minister to address that point, because if the Bill is to have effect, we cannot have foreign national offenders or, indeed, any offender flouting our laws by refusing to give up their nationality.

I also ask the Minister to address the point that has been raised with regard to article 8 of the European convention on human rights. As drafted, the Bill is very simple. The intention behind clause 1(1) is very clear when it says:

“Notwithstanding…the European Communities Act 1972”.

My fear is that the Bill may still be caught by article 8. Perhaps the solution is around the corner with the British Bill of Rights. This place will have the opportunity to address each and every one of the articles and determine whether it is right or not for them to be included in our British Bill of Rights.

I must touch on the issue of cost, which has been impressed upon me by constituents. I am staggered by the figures that have been given in this debate—up to £1 billion. I am not sure whether that includes the costs that would be saved by shutting prisons. I know that my hon. Friend the Member for Shipley and I are on slightly different sides of the argument on this point, but I firmly believe that if 10,000 foreign national offenders were deported, it would give us an opportunity to make even more savings by closing prisons down.

The hon. Member for East Kilbride, Strathaven and Lesmahagow (Dr Cameron) raised the issue of risk assessments. I fear that bringing in that sort of test would undermine the purpose of the Bill, which is very clear and simple. If someone comes to this country, they are very welcome if they want to work hard—they can come to Mid Dorset and North Poole, work hard and add to our economy. If someone commits an offence, especially one so serious that it can lead to a term of imprisonment, the principles behind the Bill are that it is right for them to be deported. No risk assessment, no delay, no quibble—those are the rules, pure and simple, and I praise the simplicity of this Bill, which aims and intends to do just that. Given the time and your earlier strictures, Madam Deputy Speaker, I will leave it there, but I entirely support the purpose and thrust of this Bill.

[Christina Rees (Neath) (Lab)]

I will keep my comments brief. Members throughout the House agree that foreign criminals who are guilty of serious crimes have no place in this country. British hospitality should extend only so far, and those who pose a risk to public safety should have their requests to remain here refused.

We are therefore in agreement with the Bill in principle, and I welcome the opportunity to debate this crucial issue. The question, however, is how we tackle the problem in practical terms, and I suggest that the introduction of new laws, extra court time, and added strains on our overburdened criminal justice system, is not the solution. The solution is for the Government properly to enforce existing laws—something that they are failing to do on a grand scale.

Just yesterday it was revealed that the Home Office is releasing five foreign criminals a day on to Britain’s streets, instead of deporting them. The Home Affairs Committee said in a shocking report that in the three months to December last year, 429 foreign national offenders were freed into the community when they should have been deported. Those are people who, according to our existing laws, should no longer be allowed to remain in this country. It is unacceptable that the Committee found that a total of 5,267 overseas criminals are living in Britain and due for deportation, including those convicted of the most serious crimes. That is the highest number since 2012.

It is little wonder that the Home Office has been accused of a “complete failure” to get a grip on the system for deporting overseas convicts. The Chair of the Home Affairs Committee, my right hon. Friend the Member for Leicester East (Keith Vaz), said of his Committee’s findings:

“The Prime Minister promised to make the speedy removal of foreign national offenders a priority but these figures show the Home Office has failed to do so. The public will be alarmed that 1,800 offenders are still here after five years. This demonstrates either incompetence, inefficiency or both.”

[Michael Tomlinson]

Does the hon. Lady accept that not just this Government but Governments throughout history have failed to get to grips with this issue? That is why this important and clearly presented Bill should be supported.

[Christina Rees]

I take the hon. Gentleman’s point, and I will come on to that in due course.

The Committee’s findings add to a long list of damning reports on the Government’s failure to crack down on foreign criminals. The Public Accounts Committee released a scathing report in 2014, which found that more than a third of failed removals were the result of factors within Home Office control, including poor co-operation between relevant bodies on detention, release and deportation, poor use of IT, failure to use the powers available, cumbersome and slow referral processes, and inefficiency in processing. Crucially, it found that only 30% of foreign nationals were being checked against international databases. Two years on from that report, the Government have not learned from their mistakes. By contrast, the last Labour Government made this issue a priority and increased the number of foreign prisoners who were removed.

In conclusion, as I have made clear, we support the principle behind the Bill that more foreign criminals should be deported, especially given how poor the Government’s track record has been. However, the Bill’s proposals are not the way to tackle the problem. As a shadow Justice Minister, I know all too well how strained our criminal justice system already is, as indeed are our police, prisons and probation service. Wasting extra court time is not the remedy, and we need the Government to honour their promise to deal with the dangerous criminals who Parliament, the public, and the authorities have already agreed have lost their right to remain in the UK. Labour Members welcome this timely debate, and call on Ministers to stop dragging their feet and deal as a matter of urgency with this issue that is so crucial to public safety.