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Clause 119, page 91, line 12, leave out from must to end of line 14 and insert , when exercising functions under, or in connection with, section 118, have regard to any guidance published by the appropriate national authority under this section.
The noble Lord said: My Lords, we come to the special immigration status which is dealt with in Part 10 of the Bill. If I may, I will first get it on the record that the amendments that were moved in Committee and on Report were not for the exclusive benefit of the Afghans but for everybody who is to be consigned indefinitely to the special immigration status defined in this part of the Bill. We were concentrating mainly on the Afghans because they were the people on whom we had detailed information. Of the other 38 people who are likely to be designated under the special immigration status, their cases were not in the public domain. The Minister raised the curtain briefly to allow us to glimpse the particular case of Mr A of the Justice and Equality Movement in Darfur who may, or may not, come under Article 1F. But neither he nor Mr B, a former member of the AWB in South Africa, had been tried. In the case of Mr A, the serious reasons for believing that he had done any of the specified acts in the exclusions appeared to rest on his standing in the JEM, which had committed war crimes in Darfur. It is an extension of Article 1F to say that it is going to apply to every single individual who is taking part in an organisation that has been labelled as having committed war crimes.
My approach today is not to cross swords with the Minister on the interpretation of the convention of one Act in particular, but to try to see if we can reach an accommodation by looking at this status from a common-sense point of view. A person who is designated will be denied the right to work and access to mainstream benefitsto the end of his life in many cases, because the situation in his country of origin will make it impossible for him ever to be returned for ECHR reasons. That may continue not just for a few years but, as we see from looking at the examplesparticularly for the Afghansmore or less into the indefinite future.
These amendments say that in passing this indeterminate sentence, the Secretary of State will have to consider whether the person constitutes a danger to the community in this country. If not, he is ableas we have discussed already on two occasionsto grant six months leave to remain. That can be renewed from time to time, until a final decision can be made. But after a number of years, when it becomes clear that there is no prospect whatever of returning the person, and even more that he has become settled in the UK with a wife and children who would also be exempted from designation by these amendments, it would be reasonable to grant him indefinite leave to remain.
The Minister said that, in the case of the Afghans, although the wives were to be treated in line with the principal applicant, it was open to them to apply for asylum separately. As he knows, they have done so without getting responses for several years. Meanwhile, children have been born here and, in many cases, have acquired British citizenship. The longer the families are here, the closer their ties with the UK and the more intolerable it would be to pack them off to Afghanistan, or wherever, in the improbable event that circumstances there would make it possible for them to be returned without ECHR risk. I beg to move.
The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): My Lords, I am grateful to the noble Lord, Lord Avebury, for bringing the Houses attention back to the provisions relating to the special immigration status. The first of these amendments would introduce an additional condition which would have to be satisfied in order for someone to be treated as a foreign criminal for the purposes of Clause 128. In addition to being someone who has been sentenced to imprisonment for two years or more, or who has been given a custodial sentence of any length for one of the offences listed in the order made under Section 72 of the Nationality, Immigration and Asylum Act 2002, or who is excluded from refugee status by virtue of Article 1F of the Refugee Convention, a person would be a foreign criminal, and hence liable to designation, only if, in addition, the Secretary of State certifies that he or she constitutes a danger to the community. I do not consider that additional restriction appropriate, and I am therefore unable to accept this amendment.
Why? I remind noble Lords that the new special immigration status is intended to apply primarily to foreign criminals as defined in this clause who are liable to deportation, but who cannot currently be removed for human rights reasons. They are people who we would want to remove from the United Kingdom if we possibly could. We would seek to remove the person concerned whether or not he or she represented a continuing danger to the community. Special immigration status, as the phrase suggests, is an immigration measure. It is not about public protection.
The test for deportation in Section 3(5)(a) of the 1971 Immigration Act is that the Secretary of State deems the persons deportation to be conducive to the public good. That test can be met on the basis of the persons past conduct alone, irrespective of whether or not they represent a continuing danger to the community.
Let us take the hypothetical example of someone who has committed a serious offence and has served a lengthy custodial sentence well in excess of the two-year threshold. It may be that on their release they are no longer a danger to the community. Indeed, if the person concerned has been given a life sentence, the Parole Board will not recommend the persons release if they consider that he or she is still a danger to the community. We might nevertheless wish to deport that person, and, if we are unable to do so for human rights reasons, we would wish to be able to designate them under this part of the Bill. In the case of someone who is excluded from refugee status by virtue of Article 1F, the point may be even more starkly defined.
Where a person is guilty of a crime against peace, a war crime or a crime against humanity, their ability to commit the crime is quite often linked to their status or position in the country where the crime occurred. Once they are in the United Kingdom, they will normally have lost that status or position, and, even if they have not, they are very unlikely to constitute a danger to the community of the United Kingdom. For example, Mr Amentioned by the noble Lordthe founder member of the Sudanese Justice and Equality Movement whose case I mentioned on Report, posed no danger to the community of the United Kingdom. Again, it is
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The Governments position is that it should be possible to deny foreign criminals as defined by this clause immigration leave, and prevent them establishing ties which may make their removal at a later date, when things change, more difficult, whether or not they constitute a current danger to the community. Their past actions alone would be sufficient grounds for taking deportation action. However, since they cannot be deported at the present time, we say that the same testthat is, the individuals past actions, without any attempt to assess whether or not they continue to pose a danger to the communityshould apply to designation for the purposes of special immigration status.
I am aware that the provisions of Section 72 of the Nationality, Immigration and Asylum Act 2002 require there to be consideration of whether the person constitutes a danger to the community. While we have drawn on the provisions of that section to set the threshold for some of the conditions which may result in a person being designated under Part 10, the two are not an exact parallel. It is important to note that their position is very different from those who would be liable for designation for special immigration status.
Section 72 applies for the purpose of the construction of Article 33(2) of the Refugee Convention, and it is Article 33(2) which requires this assessment to be made. The reason for that is that Article 33(2) permits signatory states to return a refugee to a country where he fears persecution. That is obviously a serious step to take, which is why Article 33(2) requires that the refugee must not only have been convicted of a particularly serious crime but must constitute a danger to the community in the country of refuge in order for removal to take place.
In the case of special immigration status, we would not be removing an individual to face possible persecution. The status is designed for those who we accept can not be removed for human rights reasons and does not apply to recognised refugees. That is fundamentally different from the application of Article 33(2).
I turn to Amendment No. 46 relating to the introduction of an appeal mechanism. I have technical concerns about the operation of the proposed appeal arrangements, which I will cover briefly before turning to issue of principle.
First, any appeal against certification would be to the Asylum and Immigration Tribunal. There is no provision for an appeal to be transferred to the Special Immigration Appeals Commission, as might happen in the case of an appeal against an immigration decision.
Secondly, as drafted, the amendment provides for an appeal against certification and for an appeal against a refusal to revoke the certificate. There would be nothing to prevent someone who had been designated appealing against certification, losing that appeal, and applying immediately for the certificate to be revoked with a further right of appeal if that is refused. If that
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It has been the Governments position throughout the passage of the Bill that a free-standing right of appeal is unnecessary and that judicial review provides an appropriate vehicle for challenging any decision to designate. Under the provisions as currently drafted, once the Bill comes into force a person who has been designated will be able to bring a judicial review on the grounds that the decision to designate is unlawful, unreasonable, procedurally unfair or incompatible with their ECHR rights. In our view, this provides an adequate safeguard and is preferable to introducing a new appeal mechanism with multiple layers of litigation.
My principal objection is not to the deficiencies of the proposed appeal mechanism. The Government have made their position clear: we believe it should be possible to designate people with the new status simply on the grounds of what they have done in the past, and that it is unhelpful and unnecessary to introduce the additional requirement to assess whether or not they currently represent a danger to the community. On that basis, I ask the noble Lord to withdraw his amendments.
Lord Avebury: My Lords, the Minister addressed the question of appeals as if Amendment No. 46 referred to appeals against designation whereas it is, of course, related to Amendment No. 45, which provides for certification. The appeal in Amendment No. 46 deals with the appeals on the Secretary of States certification in Amendment No. 45. I hope that the Minister will recognise that his argument did not apply pari passu to what we are proposing under these two amendments.
All that is not really the point because we are talking about whether there should be that procedure for certification in addition to any other conditions that are imposed. I must say that we have not been successful in trying to compromise, as I had hoped.
The Minister did not address what I had said about families, particularly wives and children, who are left in a state of limbo indefinitely under the proposals in the Bill. The Minister knows that we have had reason to complain several times because his assurances that they had power to appeal, and that they would be considered in the normal way, have not been satisfied in practice. The four wives and children whose applications were treated in line with those of the Afghan hijackerswe are using them as examples and not as exclusive cases that we mean the decision to rest onhave not been considered properly as individual applicants but are still waiting after eight years for several cases to be considered.
The noble Lord said: My Lords, we come to what can best be described as the Earl Onslow amendment. The noble Earl has enlivened and instructed our proceedings on the Bill, and I am glad to be able to table this amendment. At rather a late hour on Report, we accepted in principle the amendment tabled by the noble Earl to alter the definition of industrial action in Clause 136. As, alas, the Government found some technical matters that were not to our taste, I undertook to bring forward a revised version for Third Reading.
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