Immigration Bill (Eleventh sitting)

Sarah Champion Excerpts

Thursday 5th November 2015 Public Bill Committees

The clause is a balanced and measured development on a line of statute that has found the approval of the House and been supported by both the main parties. It strikes a balance between ensuring that our deportation system has the British people’s confidence and maintaining the essential aspect of fairness that guarantees that due process takes place in a way that is appropriate and consistent with our convention duties for out-of-country appeals. w

[Sarah Champion (Rotherham) (Lab)]

Thank you, Mr Owen. I appreciate being given the opportunity to speak.

I think it has become abundantly clear in the Committee that I am not a lawyer. What I am is someone who wants justice and the law to be robust. To that point, I will describe a real case that will be directly affected by the clause. The legal difficulties caused by denying in-country right of appeal of Home Office decisions were outlined both in submissions to the Committee and in the evidence sessions. I want to give a real, human, ongoing example.

I represent an urban constituency, and a significant amount of my casework is immigration based. When I read the clause, one case in particular was immediately brought to my mind. During a surgery, I met a constituent who was in the midst of an asylum claim. He had been a very senior lawyer in Brazil. He represented a client in a case involving corruption in the local police force, as a result of which a police officer was arrested. Following the arrest, my constituent began to receive death threats and his client was later murdered. My constituent was forced to enter the state witness protection programme, but it soon became clear that he remained easily locatable, whereupon he fled to Britain and claimed asylum, together with his wife and two young children, to escape the ongoing threats.

Previous comments have carried the implication that some people come here for lifestyle choices and that they are irresponsible parents for doing that—how could they bring their children into this situation? For my client—[Interruption.] Sorry, my constituent—I watch “The Good Wife” too much; it is starting to seep into my vocabulary. For my constituent, this was not a lifestyle choice. He was not coming for a better life. He had a fantastic life. He came here to save the lives of his wife and his children.

The facts of my constituent’s case were not in any doubt. He was able to provide information from Government agencies that verified his story and that the Brazilian authorities were unable to protect him. However, his claim was rejected, and because Brazil is on the Government’s white list of countries deemed to be safe, he was prevented from pursuing an appeal from within the UK. I had every reason to believe that to remove my constituent’s family from the UK would place them at serious risk, yet he was unable to challenge the Home Office’s decision. I have no doubt that, on his return, he will be murdered, as will his wife and children.

My constituent’s case illustrates the dangers of presumption of safety. The principle that a country should be deemed safe regardless of whether or not it is represents a grievous risk to extremely vulnerable people. The Bill seems to drafted on the presumption that a majority of appeals are without merit and that those forced to leave the UK who would later successfully appeal their refusal would be relatively few in number. On the contrary, however, the reality is that the proportion of successful appeals is extremely high. Statistics for April to June 2015 show that some 39% of appeals were allowed by the first-tier tribunal, and that is before even considering appeals that are denied at first tier but later allowed by the upper tribunal. Of course, concerns have been raised for many years about the quality of Home Office decisions. In light of these reservations, it is difficult to conclude that the Home Office certifications would be robust and accurate. Given the serious consequences of inaccurate certification and the practical obstacles to mounting a challenge, it is deeply wrong to continue to extend such provisions.

Furthermore, by denying an in-country right of appeal, the Bill fails to take account of the realities of the appeal process. As my hon. and learned Friend the Member for Holborn and St Pancras has said, most appeals take between six and 12 months to receive a hearing. That means that those people who are pursuing an application on the basis of article 8 are likely to be separated from their families for many months, or even years. A report commissioned by the Office of the Children’s Commissioner makes abundantly clear the serious, long-term impact on a child of separation from a parent, which will result from these changes. Separation has been shown to undermine the developmental, behavioural and emotional wellbeing of children, and even in some cases their physical health; some of those effects will probably never be reversed.

The withdrawal of in-country appeals also raises serious questions about access to justice. Removing an individual from the UK before they have the chance for a fair hearing in front of a judge is likely, in practice, to bar many people from exercising their rights and pursuing an appeal. Poor electronic communication, a lack of contacts in the UK to undertake work on an appeal and a lack of legal representation mean that, in practice, exercising appeal rights will be simply impossible. Effectively barring many people from pursuing their legal rights undermines the integrity of our immigration system.

The extension of the principle of limited in-country appeals must be seen as an attack on the legal rights of migrants. It represents a serious risk to vulnerable individuals, will divide families, potentially harms children and imposes serious barriers to justice. This process should be stopped and these provisions should be removed from the Bill.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

It is alarming that we are, yet again, debating provisions that make it harder to access the appeals process when the ink is barely dry on the last Immigration Act. As in previous debates, I must raise the concern that we are now in the position of accelerating through further changes to the appeal process without properly evaluating the impact that the last set of changes have had on the individuals affected by them. In my view, that just serves to highlight that we are developing policy without the appropriate and sufficient evidence base.

Before I discuss clause 31, it is only right that I speak to the changes that were made to the appeal process under the previous Act, as that will provide some insight into what the impact of the clause, if it is accepted, will be. The previous Act drastically reduced the number of appeals available, but this Bill removes them entirely for some people. Following a question that I submitted to the Minister on 9 October, I received a very helpful answer, indicating that from July 2014 to August 2015, 1,700 individuals had been removed under the deport first, appeal later power. In my speech on Second Reading of this Bill, I made the point that we should remember that appeal routes exist for a reason—to correct a wrongful decision—and it would be reasonable to suggest that the Home Office does not currently have a good record in decision making.

In addition, appeal routes can also help to improve governance, as they highlight areas of the Executive that are not operating as effectively as we might hope. However, the deport first, appeal later policy, introduced in the last Immigration Act and accelerated in this Bill, effectively removes—for the majority of applicants—the ability to appeal a decision that has been made on their application to continue to live and work here. Indeed, the answer that I received from the Minister points to the fact that only 23% of those forcibly removed from the UK later appealed that decision. I accept that there might be a number of reasons why someone might not appeal, but we cannot ignore the salient point that it is harder—in some cases, almost impossible—for someone to appeal the decision that led to their removal from the UK.

Were we to investigate further, I would expect us to find that the most vulnerable people who have been deported have less chance or opportunity than other people to appeal the decision that has gone against them. Justice quite helpfully expands on this point and suggests that the policy removes people from appropriate justice. Justice expands on some of the factors that may prevent or discourage people from appealing after being removed from the UK. They include: the difficulty of obtaining, translating and submitting evidence, including submitting medical evidence to the courts, particularly in countries without the same quality of infrastructure or services as we have in the UK; difficulties in arranging to give evidence; and the demoralising effect of being removed from the UK. In turn, all these factors make it unpleasant, harder and, in some cases, impossible for someone to access the justice to which they should be entitled. Those are serious points.

It is only right that we should try to gain a greater understanding of the policy before we accept the clause. Yesterday, I submitted a series of questions on the policy’s impact, ranging from appeals to cost and so on. Those questions are a good start to reviewing the policy. I request that the impact of deport first, appeal later be researched before going ahead with implementation.

--- Later in debate ---

[Paul Blomfield]

The debate focuses on an important principle, which we need to consider fully. The main drift of the Bill is aimed at illegal migrants, but legal migrants will be the group mainly affected by the removal of appeal rights. We received a lot of evidence on the issue. The Law Society said that it felt that it would be

“an unjustifiable incursion into Article 8 rights.”

Although the Immigration Act 2014 introduced the principle of deport now, appeal later, that was on deportation cases where people had appealed serious crimes. The Court of Appeal has determined that that regime was lawful. There are some caveats in the case of Kiarie, cited by the Solicitor General, including the caveat on the principle of real risk of serious irreversible harm. The Court of Appeal said

“the real risk of serious irreversible harm is not the overarching test”.

Nevertheless, that regime was determined as lawful under the 2014 Act, but this provision extends that regime to all migrants making human rights appeals, regardless of any illegality or criminality and whether it has been established or even suspected. That is a fairly fundamental step for this Parliament to take. The Law Society made the point, very strongly, in its evidence:

“Restrictions on Article 8 rights which may be deemed justifiable in one context (for example, national security) cannot be extended to other contexts without further justification.”

We have not really received that justification. The Government have not made the case for the additional rights.

Using the test of serious irreversible harm or a breach of human rights as the only exception to an out-of-country appeal sets an extraordinarily high bar for vulnerable appellants seeking to contest removal from the UK. I come back to the point about the 42% success rate, which we discussed. We can debate where the responsibility lies. My hon. and learned Friend the Member for Holborn and St Pancras made it clear that we are not suggesting that this is all the fault of the Home Office. It may be the result of incomplete documentation or down to lawyers, as the Solicitor General suggested. Nevertheless, a substantial number of people are successful. The effect of this provision is that people who have committed no offence, who would in fact be granted the right to stay in the UK, will be forced to leave for an indeterminate period. In some cases, that would expose them to significant risks and would mean separation from their families. We are not talking about short periods. I represent the multicultural heart of Sheffield, where we have people who owe their origins to 120 countries and speak 160 different languages, so I have a fair amount of casework in this area.

We know that immigration appeals are currently taking about six months; a year or more is not unusual. There is no significant indication that that will improve. With such delays, out-of-country appeals would cause real disruption to family life, with potential longer-term consequences, for people who will, in significant numbers, ultimately be given the right to remain. Apart from anything else, as the Law Society pointed out, if the current appeal success rate is maintained, this could be a very expensive measure for the Government, and the taxpayer, because successful appellants could seek compensation over the enforced separation from their families.

In addition, the provisions could have a perverse impact on UK nationals. The Law Society again pointed out that, ironically, the spouse of a national of an EEA member, except the UK, would retain a full in-country right of appeal, whereas the spouse of a UK national would have to leave the country. The Daily Mail has clearly not picked up on that one. There are some perverse impacts, which I am sure the Solicitor General will want to comment on.

I also want to touch on the specific area of trafficking in relation to labour exploitation, which we debated earlier. We received powerful evidence from the charity, the Anti-trafficking and Labour Exploitation Unit. It made the point of how difficult it would be for many of the clients it supports to challenge a negative human rights decision if the client was overseas. It said in written evidence:

“Our client group would be unlikely to have the resources or familiarity with modern technology to allow us to take instructions by skype or keep in regular contact with them. As many clients who fall into exploitation have little or no education they could not be expected to maintain any written communication with us or to draft any documents needed for an appeal themselves. Victims of trafficking are often submissive, frightened of authority figures and find it hard to establish relationships of trust.”

It goes on to say:

“Face to face relationships are essential when working with individuals who have been subject to abuse and exploitation.”

Across the House, Members are concerned about those individuals. That was the background to the Modern Slavery Act 2015 in which Members of the House across party were involved. That is a serious consideration we should take into account.

I draw attention to the point made by my hon. and learned Friend the Member for Holborn and St Pancras about the position of children. We again received powerful evidence from the Children’s Society, which made the point that even for those who are able to bring an appeal from abroad, notwithstanding all the difficulties and challenges, children will be subject to damaging and unnecessary disruption in their lives during the process. I am sure the Solicitor General will come back on how this will work in practice.

The Children’s Society expressed real concern that the Government have not protected unaccompanied children in this provision. In relation to unaccompanied children, we talked earlier about the age range. The Children’s Society made the point that

“This provision could see more cases involving unaccompanied children or young people over 18 who claimed asylum alone as children, being certified for an out-of-country appeal.”

Its next point relates to the age twilight zone that the Solicitor General referred to:

“According to Home Office statistics, of the young people who applied for asylum as unaccompanied asylum-seeking children and received an initial decision in 2014, 85 young people were refused and their claim was certified. 67 of those were over 18 at the time of the decision while 18 were minors at the time of the decision.”

[Sarah Champion]

We know from the extensive debate about age that we had in the Modern Slavery Bill Committee that some of those young people do not know how old they are, so there are all manner of loopholes that they can fall through.