Foreign National Offenders (Exclusion from the United Kingdom) Bill

Peter Bone Excerpts

Friday 6th March 2015 Commons Chamber

[Mr Peter Bone (Wellingborough) (Con)]

I beg to move, That the Bill be now read a Second time.

As I said in the debate on my previous Bill, I will try to be brief, because there are many other Bills that we want to deal with today. I am grateful to the excellent Minister for Security and Immigration for being here.

This is only a two-clause Bill, but it is perhaps slightly more controversial than the one on getting rid of wind farm subsidies. The idea is straightforward: if someone comes to this country, commits an offence and is given a term of imprisonment, at the end of that term of imprisonment they should be deported to the country that they came from. That should be done quickly, and they should not be allowed back. People in my constituency and up and down the country are furious when people who come to this country legally, and receive our hospitality, commit an offence and then remain here. It seems wrong that they should do so.

The Government have been very good—I am sure the Minister will speak about this—at taking certain foreign prisoners back to where they came from. My Bill extends the rules to include countries to which foreign prisoners cannot at the moment be returned. I particularly refer to countries in the European Union. Under my Bill, once foreign prisoners were sent back to the European Union, they would not have the right to come back. They would be removed without reference to any human rights legislation. It is rather important that I read part of clause 1(1), so that the House understands this:

“Notwithstanding any provision of the European Communities Act 1972, or any other enactment”.

This is a very simple Bill. It will say that this Government are sovereign, and absolutely have the right to return home foreign prisoners who have committed an offence and are jailed. When they are sent back, they will be banned from coming back to this country. That is in clause 1(2), which refers to

“measures to prevent an individual excluded under subsection (1) from entering the United Kingdom.”

Where the law permits the removal of foreign prisoners, the Government are keen to do that, and they have done a lot of work on it; but when the Minister speaks, I think that we will find that, for various reasons, their desire to return foreign prisoners to where they came from is thwarted. Much of that is to do with human rights legislation. All the Bill does is remove that hurdle and deal with migration from the European Union. If someone who committed an offence in this country was sent back to the European Union, they would not be allowed back in.

Those are simple measures that are understood out in the country. I hope that this is the sort of thing that will be dealt with when, after the 2015 election, a Conservative majority Government renegotiate the European Union superstate. I hope that the idea that we can decide to send people back and not let them back in will be a red line.

[Sir Greg Knight (East Yorkshire) (Con)]

Does my hon. Friend not consider, on reflection, that his definition of “qualifying offence” is perhaps a little too wide? It could include a serious motoring offence.

[Mr Bone]

I am grateful for my right hon. Friend’s intervention, but no. A person who has been jailed for up to five years for careless driving should be sent back. We are considering situations where someone has received a term of imprisonment. It is quite difficult to get a term of imprisonment without doing something pretty seriously wrong. I am very clear on this point: if someone comes to this country, accepts our hospitality and then abuses it by committing a criminal offence that leads to imprisonment, they should be excluded from this country, either at the end of the term of imprisonment or earlier, if the Government so wish.

[Sir Greg Knight]

As I read my hon. Friend’s Bill, the person concerned does not have to have been sent to prison; they just have to have committed an offence that “may” be punishable with imprisonment.

[Mr Bone]

My right hon. Friend raises an interesting point. He is referring to clause 1(4):

“‘qualifying offence’ shall mean any offence for which a term of imprisonment may be imposed by a court of law.”

I think the intention is for that to apply to someone who would go to prison, having gone through the judicial system. The Government could at that stage say, “I’m sending you home, rather than you going to prison.” I understand the argument that my right hon. Friend makes—that that may be imposed by a court of law. I sincerely hope he will consider serving on the Bill Committee so that we can look at that in some detail. Now that we have been granted an extra Friday—I am not sure whether everyone in the House realises that we are sitting on 20 March—and as there has been no real explanation of why we are sitting on that day, I assume—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Perhaps I can help the hon. Gentleman. The sitting on 20 March will be for the debate on the Budget, not for private Members’ Bills.

[Mr Bone]

I understand that, Mr Deputy Speaker, but this is a wonderful place—a mystic place—and sometimes things change. The Opposition might see the Budget as such a great thing that there was nothing they could oppose.

[Mr Deputy Speaker]

I want to hear a discussion of the hon. Gentleman’s Bill, not of that Friday.

[Mr Bone]

You are right, Mr Deputy Speaker. I am usually misled by—egged on—no, I am not going there. I do not want to take up a lot of time because there is another very important Bill to be reached later.

I am pretty sure that the sentiments represented by the Bill are what the Government would like to do, but the Minister might find that there are obstacles that he thinks derive from the European Communities Act 1972 or other enactments, but the Bill sweeps those away at a stroke. It would allow the Government to do what the British people want—for this place to be sovereign in making the laws of this country.

What annoys people is that someone who has come from abroad, committed a serious offence and been sentenced to a significant number of years in prison can claim, on the basis of his human rights, the right to remain in this country. People think that foreign criminals who do that should be deported and not allowed back in. I know that the Minister will have figures on how many we would like to send back, but that is a very small proportion of the number of foreign prisoners who could be sent home. I want to see all foreign prisoners sent home.

With reference to what my right hon. Friend said, if offenders have been convicted in a court, I am happy to save money by having them deported rather than sent to prison or for them to be deported during their time in prison. We cannot allow them to claim that they have some right to stay here, having come into this country and abused our laws. It is such a simple Bill that I hope there is not much opposition in the House and we can quite quickly give it a Second Reading.

[Jack Dromey (Birmingham, Erdington) (Lab)]

When people come to Britain, they should abide by the law. The hon. Member for Wellingborough (Mr Bone) is right that those who abuse our hospitality and commit serious crimes have no place in this country. Indeed, in my own constituency, if I am approached by someone seeking leave to remain in the country who, for example, has committed a serious crime and in particular has gone to prison, it is my practice to refuse to take the case up with the Home Office. It is true to say, I think, that the whole House wants to see foreign criminals deported.

The Prime Minister said that this would be a priority for his Government, but as with so many promises he has made, he is not keeping to his word. Last year more than 500 fewer foreign criminals were removed than in Labour’s last year in office in 2009. On top of that, the National Audit Office released a scathing report in October 2014 on the Home Office’s management of foreign national offenders. It found that more than a third of failed removals were the result of factors within Home Office control. The factors included poor use of IT, a lack of communication, failure to use the powers available, cumbersome and slow referral processes and inefficiency in processing—the list goes on. A third of failed removals could otherwise have been dealt with quickly and properly.

Worse still, more criminals have absconded under this Government—a 6% increase since 2010. In its very interesting report, the NAO stated that we have worse systems in our country than other European countries for preventing foreign criminals from entering in the first place, due in part to the delay in joining the second-generation Schengen information system, which we finally joined only a month ago. Our joining was delayed because of the Home Secretary’s decision to exercise the opt-out on co-operation with Europe—a fact that put border security at risk and has longer-term consequences for the safety and security of our country.

The hon. Gentleman is absolutely right, therefore, to make the argument that he makes today, and we agree that there need to be more stringent controls on foreign offenders, but we do not agree with the proposals in the Bill, even if we agree with the intentions. It would put Britain in contravention of the European convention on human rights at the very time we are arguing in foreign policy terms that countries such as Russia and Ukraine should respect the European convention, and that countries such as Belarus should sign up to the convention. The Government’s legal advice on the matter has been clear. We agree with that advice and consequently cannot vote for something that is illegal.

A similar proposal was debated in the course of the Immigration Bill. The Home Secretary stated that it was incompatible with the European convention on human rights, and that she was concerned about the practical application of the new clause, arguing that it would

“effectively hinder our ability to deport people for a period of time because there would be considerable legal wrangling about the issue.”—[Official Report, 30 January 2014; Vol. 574, c. 1051.]

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, but if the Bill were passed it might well have the unintended consequence of creating legal barriers to deportation as foreign criminals tied up the courts with challenges to their deportation.

[Mr Bone]

I welcome the hon. Gentleman’s support for the principle, but he says that we cannot implement it, basically because of the Human Rights Act. I guess he is saying that he would rather foreign prisoners stayed here because of the Human Rights Act than agree with the principle of getting them sent home. Is that the position of the Opposition?

[Jack Dromey]

We are absolutely in favour of a rigorous approach to dealing with a problem that has rightly caused public outrage. There have been some very serious cases of foreign criminals who have come to our country, having committed appalling crimes in their own country, and then committed appalling crimes in this country. On the issue of principle, we are with the hon. Gentleman 101%. The question is what we do about it in practical terms. I gave the examples from the National Audit Office report, which stated that a third or more of the problems that had been identified were a consequence of Home Office practices. So we are in favour of a sensible debate about a much more rigorous approach. We agree with what the Government have said, but our concern is that we should not inadvertently create endless wrangling in the courts; rather, we should try to improve the system to ensure that those who commit serious crimes are sent back to their country of origin.

--- 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.

[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.