Immigration Bill

Yasmin Qureshi Excerpts

Thursday 30th January 2014 Commons Chamber

[Mrs May]

If the right hon. Gentleman will have a little patience, I will explain exactly what the new clause does. It extends the Secretary of State’s powers to deprive someone of citizenship. It is in response to a particular case—not the one that he has quoted—which I will describe in order to set the background in a way that I hope will be helpful for the whole House. The right hon. Gentleman has a knowledge and understanding of these issues, but it would be helpful to set out the whole background.

[Yasmin Qureshi (Bolton South East) (Lab)]

I apologise for not being here for the start of the debate. The Home Secretary referred to her powers where someone has obtained citizenship by fraudulent means. There may have been strong mitigating circumstances when someone made such an application. For example, we know that some years ago many people came to the country on false documents because they had been persecuted. They may have applied on a false basis, but there were strong mitigating circumstances—

[Madam Deputy Speaker (Dawn Primarolo)]

Order. I know that this is complicated and many Members want to speak. May I clearly ask for your assistance. Will any Member making an intervention try to make it brief?

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[Mrs May]

I have indeed taken a strong line on trafficking, but the exclusion of certain other articles of the convention in the new clause is one of the aspects that makes it incompatible with that convention and raises the issue of how it would operate. I have already indicated that I think the new clause is incompatible with the European convention, and I am raising some of the other practical issues that I think would be its impact. I think we will find it harder to deport people because of some aspects of the new clause, and that more cases will go to the European Court as that would become the first decision maker in a number of cases. There would be considerable litigation in the domestic courts if we found ourselves seeking to remove someone contrary to a rule 39 indication. Those are practical issues about whether we can deport individuals.

I recognise the concern of my hon. Friend the Member for Esher and Walton, and others, about our ability to deport foreign criminals, and in relation to the European convention on human rights. I have said on many occasions that it is necessary for the Government to determine and sort out our relationship with the European Court of Human Rights and the European convention on human rights, and as far as I am concerned, nothing should be off the table in doing that. Today we are considering a Bill that will deal with the deportation of foreign criminals.

[Yasmin Qureshi]

Again, will the Secretary of State’s party support new clause 11, tabled by the hon. Member for Esher and Walton (Mr Raab)?

[Mrs May]

I am sorry, but I answered that question earlier. I said that I will respond to the comments that my hon. Friend the Member for Esher and Walton makes, and see whether he moves the new clause. I will make the Government’s position clear to the House. [Interruption.] I am sure the hon. Lady believes that debate in the House is important. I am therefore sure she agrees that listening to hon. Members is also important.

As I have said, the Bill puts in place stronger practical arrangements that will enable us to deport more foreign criminals, which all hon. Members want.

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[Jacob Rees-Mogg]

I am grateful to my hon. Friend for his helpful clarification. The problem is that deportation is part of the punishment. The logic of the argument of the Member for Brent Central is that if someone’s punishment had an effect on their children that led not to “manifest and overwhelming harm” but to either manifest harm or overwhelming harm, it would be fundamentally and in principle unfair on the children, so that part of the punishment should not be carried out. Surely, however, it might equally be said that someone’s imprisonment would have an effect of manifest but not “manifest and overwhelming” harm on the children. If such an argument was accepted, the whole criminal justice concept of punishing people who have committed offences would become extremely difficult. Deportation is therefore simply a reasonable part of the overall punishment for someone who commits a serious offence.

I listened with great interest to the debate about the status of new clause 15 in European and UK law. A principle that we should always state and restate in this House is that, by its very nature, Parliament cannot pass a law that is illegal. We can pass laws that contravene international obligations or that we may decide our diplomatic relations require us to remove or repeal, but Parliament cannot pass an illegal law.

That point is important to remember, because there is a tyranny of lawyers. They give people advice stating that they think x or y, but until it has been judged by a court, that is no more than advice, which may be right or wrong. If my right hon. Friend the Home Secretary has been advised by the Home Office lawyer that the new clause does not meet the requirements of the European convention on human rights, that does not question the right of this House to pass it into law: it is our right to do so, and then to consider the judgment that may or may not be made by the European Court of Human Rights. That of course leaves open the question of whether the Home Secretary can sign the declaration that the Bill is compatible with the European convention on human rights. I am delighted that she is returning to her place as I say that.

My right hon. Friend has the right to go to another lawyer. When given legal advice that they do not like, many people see whether they can find one who gives different advice. Amazingly enough, when they pay a better lawyer, they sometimes get better advice. I hope that even in an era of austerity Her Majesty’s Government may seek out some better lawyers who can give improved advice that is more in line with what my hon. Friend the Member for Esher and Walton said.

The question is therefore only one of incompatibility, not of legality. I hope that the Opposition Front Bench team will also think about that. Whether the new clause is accepted and passed into law is not fundamentally a legal decision, because the legal position is as yet unproved—it has not been tested in the courts—so it is a political decision or a political statement about what hon. Members on both sides of the House think is the right way to treat people from foreign countries who have committed serious crimes. I would take the political decision that it is right to expel them from this country, and that it would be wrong to do so only if extraordinary factors meant that they ought to have the right to stay.

[Yasmin Qureshi]

It is on exactly that point that some Opposition Members have concerns about new clause 15. As the hon. Gentleman says, there may be exceptional circumstances that mean a decision should be made not to deport somebody, but the new clause tabled by the hon. Member for Esher and Walton (Mr Raab) would take away exactly such discretion, because it says, “If you get one year’s imprisonment, you’re out.”

[Jacob Rees-Mogg]

As always, the hon. Lady makes an excellent point, but it is a question about which bit of discretion would be taken away. The courts would retain discretion if there was a threat of harm or a threat to life and limb, as my hon. Friend the Member for Esher and Walton pointed out. Discretion would be circumscribed only in very specific cases relating to article 8, and that would be done because the courts appear to have made some quite eccentric decisions. What has really brought this to the attention of the British public is the huge backlog of deportations—4,000 people are apparently waiting to be deported—and the fact that a very high number of challenges are brought purely on the basis of article 8 rights, which cannot therefore involve people in fear of torture or of harm to life and limb. I do not think that anybody in the House wants to deport people at risk to life and limb. As a nation, we believe in offering refugee status to people genuinely at threat, but we are not in favour of the exaggeration of spurious rights.

As I have said, the decision is a political decision, not a legal one. It is for this House to make a political choice about how our criminal justice system works, what rights belong to people who have committed very serious crimes and how far such rights should go. If it became a legal decision—if it were taken to the courts—we would find out at a later stage whether the European Court of Human Rights thought it was compatible with the convention. The House would then make a second choice, which would be whether to maintain today’s political decision or reverse it to be compatible with the convention. That is not the choice before us today. This is a routine exercise of parliamentary sovereignty in adding to a Bill a provision that may become law and be justiciable at a later stage.

I know that a lot of other Members want to speak, so I will be brief on new clause 18. I have some concerns about it. I am perhaps rather romantic in my view of what it means to be a British subject. I always thought that Palmerston got it right on the Don Pacifico affair—the “Civis Romanus sum” principle. Once any one of us has a passport that says we are British, we are as British as anybody else, whether they were born here or got their passport five minutes ago. It is incredibly important that there is equality before the law for all Her Majesty’s subjects who are living in this country and have right of residence here.

I worry that if we give the Government the ability to take passports away from a certain category of British subject but not from others, it will create a potential unfairness and a second category of citizen. There are Members of the House who were born abroad and have been naturalised and, on occasion, they may vote against the Government, which I hope the Whips will not consider serious enough reason to remove their passport. The fundamental underlying principle of equality of all Her Majesty’s subjects is important. I am always nervous about giving the Executive relatively arbitrary powers, because they are the ones that can be most misused. Once a passport is in somebody’s hands, they ought to be no different from anybody else in any legal respect.

Crucially, there may well already be laws that could deal with the problem in another way. If people have committed an offence so serious, important and threatening to the life of the nation that their passport should be confiscated, surely they have committed some other crime for which they could be charged, dragged through the courts, perhaps found guilty by a jury and then sentenced accordingly, with the penalty handed down in the right and proper way and their rights and liberties as subjects being maintained. They may have committed treason if they have done something so serious that they are to have their passport removed from them.

I will not oppose the new clause, but I wished to raise those concerns. I understand that the approach has been agreed because it will not affect many people. That is fine—I am glad it will not have widespread application—but what message does it send to the nation at large?

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[Chris Bryant]

I do not know whether my hon. Friend is angling for a visit to St Helena.

My point to the Home Secretary is this: hon. Members know that there is an issue to be addressed and a legitimate question to ask, but this is not the way to advance legislation. The Government are introducing a significant change to the law on British citizenship at this late stage—on Report—and tabled the measure the day before the debate. If anybody wants to amend it, they must table manuscript amendments. If we are going down this route, it is important at least to have the safeguards the Opposition have tabled, but I wish we were doing this in a different way.

[Yasmin Qureshi]

On sending people away, if we take someone’s citizenship away and they are taken to the airport, where do we send them? They need travel documents. If they do not have them, no country will take them. The Government’s measures are completely impractical.

[Chris Bryant]

That is my problem. Sometimes legislation seems like a good idea but ends up being completely and utterly impracticable and making little difference. I suspect that that is the problem we will face with the Bill.

I know the Government are not seeking to do this, but my memory of countries that regularly took people’s citizenship off them in the 20th century is not a good one. It is a list of fascist countries. That is why I get very nervous about such moves. I am not saying that the Home Secretary is engaging in that, but when we give an arbitrary power and significant discretion to a Home Secretary to exercise it, there is a danger.

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This debate goes to the heart of two theoretical questions, one of which we have spent quite a bit of time on, the other of which we have not touched on at all. The first concerns the relationship between this House and the British courts—all the way up previously to the House of Lords, but now to the Supreme Court—and the European Court of Human Rights. The second concerns judicial activism.

[Yasmin Qureshi]

On the point about removing people’s citizenship, my hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott) was born in England, but I was born in Pakistan. We are both British nationals, but if she was to commit murder, which I am sure she is not going to, she could not be deported, whereas if I did, I could be. Is that fair?

[Mr Brazier]

That question runs across several different issues. I was making the same point that the right hon. Member for Leicester East (Keith Vaz), the Chairman of the Home Affairs Select Committee, made, which was about people who take up arms abroad. Whether they were born in this country or not, there is a long tradition of stripping citizenship from people who commit such offences. On the issue of murder, if somebody holds British citizenship, I would not allow the Executive a specific power in that area. I hope that answers the hon. Lady’s question.

I strongly support new clause 15. We have heard about the various cases, including one from the right hon. Member for Blackburn, and we have gone around the buoy of these three centres of power—the British Parliament, the British courts and the ECHR. I strongly support the view of Lord Judge, the outstanding retiring Lord Chief Justice, that Parliament needs to make it clear which, ultimately, is the supreme court for British law. Is it the UK Supreme Court, as he suggests it should be, or are we going to concede that the final word lies in Strasbourg? I firmly believe that the final word should stay in this country.

The point that my hon. Friend the Member for Esher and Walton made, which was repeated by a number of other people—including my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg)—is that while his proposal is almost certainly incompatible with recent rulings of the European Court of Human Rights, that cannot mean that it is illegal. This is a sovereign Parliament. We can pass the measure and the courts can try cases under it. If we make it clear, as I believe we should, that the Supreme Court in this country should be the supreme court, we do not have a problem. It is by pursuing cases such as this that we can finally sort out whether or not, as some Members on both sides claim, it is possible to sort out these issues and still accept the ultimate sovereignty of Strasbourg. We believe that we have to sort it out by, as Lord Judge argued, stating that Parliament is ultimately a sovereign body and that the Supreme Court in this country is indeed the British supreme court. Only by having a measure like this can we sort that out.