Criminal Justice and Immigration Bill

The attempt by the Government to create a special immigration status for certain categories of people is a glaring example of the old adage that hard cases make bad law. These clauses are here because of an Afghan airliner that was hijacked to Britain eight years ago by people belonging to a political organisation whose members had been arrested and tortured in Afghanistan. The Court of Appeal set aside the convictions of nine men who were involved in the hijack, and the adjudicators who then considered their applications for asylum decided that they were excluded from the protection of the refugee convention by Article 1F, which applies to a person who has committed a serious non-political offence outside the country of origin. Nevertheless, they could not be sent back to Afghanistan because they face a material risk of torture in the receiving country and are therefore protected from refoulement by Section 6 of the Human Rights Act 1998. The special immigration status that the Government are proposing here covers the Afghans and a handful of other people who come into the same category. Clause 182 designates these people as ““foreign criminals””, even though their convictions have been quashed in the Court of Appeal. It also includes a person who is a ““serious criminal”” defined by Section 72 of the NIA Act and who is therefore excluded from protection from refoulement by Article 33.2 of the convention. That person must have been convicted of a particularly serious crime for which he was sentenced to at least two years’ imprisonment outside the UK, or of any one of a large number of minor offences and have been sentenced to any period of imprisonment, however short. As the Minister is no doubt aware, the UNHCR has expressed serious concern over Section 54 of the IAN Act 2006, Section 72 of the NIA Act 2002 and the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004, which prescribes what is called a ““low threshold”” for excluding a person from being considered as a refugee. Those concerns are shared by, among others, the Refugee Council, the Immigration Law Practitioners’ Association, the Immigration Advisory Service and the Joint Council for the Welfare of Immigrants. If the SIS designation is under Condition 3 in Section 182(4), it is not clear whether the person would be able to challenge the statutory interpretation of Article 1F of the convention as being inconsistent with our obligations under the convention. That is what the UNHCR suggests. It says, for instance, that to class acts of preparation or instigation of terrorism, whether actual or inchoate, as coming within Article 1FC, and therefore being contrary to the principles and purposes of the United Nations, as in the definition in Section 54 of the NIA Act 2006, results in too broad an application of the principle of exclusion in the absence of any universally accepted legal definition of terrorism. If the designation is under condition 1 or 2, relying on the provisions of Section 72 of the NIA Act 2002, the UNHCR says that a serious crime means a very grave crime, punishable by a long term of imprisonment. It means something like murder, rape, arson or armed robbery. Therefore, the particularly serious crime referred to in Article 33(2) must be only one of the most heinous offences in those particular categories. The order, by contrast, specifies among the crimes leading to exclusion such comparatively trivial offences as shoplifting. Whereas under Section 72 the applicant was given the chance to rebut the presumption that he was a danger to the community, and if successful could still be granted asylum, under Clause 182(5), that right is taken away from a person to whom special immigration status is applied by the Secretary of State. No matter how conclusive the arguments for deciding that the person has a well-founded fear of persecution, and no matter that her presence here is totally harmless to the community, she is barred forever from becoming a refugee. We have just received a note from the Anti-Trafficking Legal Project, to which I drew the attention of the Minister who is to reply to this debate. It is a network of legal practitioners who deal with victims of trafficking and other vulnerable people. I will understand if the Minister has not had a chance to give its note full consideration since this morning. The paper it submitted says that where a trafficking victim has been convicted of a document offence, she can still succeed with her asylum claim, but under Part 12 she will be labelled a foreign criminal and will be unable to access the services that are available to promote recovery and rehabilitation of trafficking victims. My attention was drawn to the particular case of a Nigerian client of the Hammersmith and Fulham Community Law Centre who was a victim of domestic violence in Nigeria, and was deceived into going with her trafficker to work abroad as a domestic worker. She thought this a means of escaping domestic violence. The trafficker got her a passport and a visa, both of which were false. When she was abandoned by the trafficker in the UK after two years of being exploited and abused, she was so terrified that she could not approach the UK authorities. She tried to obtain a job, but when employers asked her to produce identity documents, they detected that these were false. She was arrested, pleaded guilty to charges of using false documents and served a nine-month sentence. As I understand it, if the document was criminal property, within the meaning of Section 340 of the Proceeds of Crime Act, this would be one of the offences dealt with in this particular section. Even though guidance has been issued to the effect that trafficking victims should not be prosecuted for document offences, cases like this arise constantly. Traumatised victims plead guilty without realising that they may have a good defence. Having committed ourselves to signing the Council of Europe Convention on Human Trafficking by the end of this year, we cannot allow these women to be caught by Section 181. Generally, it is disgraceful that the UK should act contrary to the advice given by UNHCR, which ought to be binding on all signatory states, let alone one that is a member of the executive committee. Narrowing the discretion which ought to be exercised by officers in determining asylum applications, when they ought to consider all the circumstances, sets an extremely bad example to all other convention signatories and runs the risk of setting off an auction among them to expand even further the areas of conduct that their domestic laws say are covered by Articles 1F and 33(2). We now have the benefit of advice from the JCHR. I am glad to see the noble Lord, Lord Judd, in his place because he is a distinguished member of that committee. It welcomes the Government’s agreement that the Secretary of State could not lawfully designate a person if a court decides that the effect of doing so would be to breach the UK’s obligations under the convention. I ask the noble Lord how that is to be tested. Presumably a person could challenge the statutory interpretation of Article 1F, which the JCHR now demands should be repealed. If he is said to be a foreign criminal under condition 2 of Section 182(3), would he be able to get to a court by claiming that the Secretary of State had wrongfully certified that the offence he had committed outside the United Kingdom was similar to one on the specified list? Since no right of appeal is provided against Section 181 designation anywhere else in Part 12, a claim that the UK’s obligations were likely to be breached would have to be by way of judicial review, there being no ordinary right of appeal against designation in these clauses. The Minister wrote to me after Second Reading with some comments on the designation of spouses and children, which he said was a matter of convenience, so that contact is maintained with the family. I am glad to accept his assurance that both designated persons and their dependants will have access to the full range of health services and that children, as designated persons, will have the same right to education as natives. However, the Minister confirms that these people are not going to be entitled to local authority housing or social security, and that their support will be the responsibility of the Border and Immigration Agency, presumably through NASS. They will not be allowed to work, so the family will have to rely on the taxpayer to support them indefinitely. In the case of the Afghans, that has been for eight years so far, entirely at subsistence level. The Minister says that there is nothing to stop spouses applying for asylum in their own right and, presumably, adding the children to those applications. The experience of the wives of the Afghan hijackers tells a completely different story. Mrs X—whose Home Office reference, if the Minister wants to look it up, is S1040623—arrived on the Afghan-hijacked plane with her husband and lodged a separate claim for asylum shortly afterwards. After eight years of waiting for a decision, she has applied for a judicial review of the delay and that application has been granted by the High Court. There is no date for the hearing because there is a backlog in dealing with judicial review applications generally. Mrs X also made an application for indefinite leave to remain, a concession that is normally granted to families who have been in the UK for more than three years. That was refused on the grounds that she is family member of someone who is excluded from the refugee convention, although her husband is not and has never been a dependant on her asylum claim. Mrs X had four children, three of whom are UK born. Mrs Y also came on the hijacked plane, but married Mr Y, one of the nine hijackers, in 2002, after arrival. A hearing of her application for judicial review of the Home Office refusal to grant her indefinite leave to remain was scheduled for 17 March, but the Home Office is now attempting to settle this claim. Mrs Y won her asylum appeal in June 2005, more than five years after her arrival. The Home Office case notes, which have now been disclosed to her solicitors, the Hammersmith law centre, show that the Home Office recognised that she had a right to ILR, but the solicitors had to apply for judicial review after her application had been with the BIA for over a year. By then, the policy had changed and refugees were to be granted only five years’ leave to remain. However, the JR application was continued and the Secretary of State now wants to grant Mrs X ILR outside the rules. Her solicitor’s argument is that she must get ILR as a refugee, as that was her entitlement at the time of the application. The case notes show that all the BIA thinking had been wrongfully related to her husband’s case—so much for the Minister’s assertion that anyone who is not the principal designated person can apply separately for the right to asylum or ILR. Those examples show that, although there may be nothing to stop family members applying in their own right, their treatment will be grossly inferior to that of ordinary applicants, over half of whom receive an initial decision on their claim within two months. On the Minister’s assertion in his letter of 30 January that it would be anomalous for dependants who apply for leave in line to emerge from the process with a more favourable status than the applicant, because in other cases they are granted the same leave to enter or remain under paragraph 349 of the Immigration Rules, that provision refers to an applicant who has been given leave to enter or remain, whereas here we are dealing with the families of people who are explicitly denied leave to enter or remain under Section 183(1). I see no reason why blameless wives and children should be consigned permanently to the edge of destitution, with onerous reporting conditions, whatever the faults of the main applicant may have been. Part 12 is unnecessary, as the Law Society has said, because there are perfectly good provisions in the existing law to grant a person who is not removable for human rights reasons a renewable six-months’ discretionary leave to remain. It is an additional complication which runs contrary to the promises of simplifying immigration law and practice but, far worse, these clauses are based on misinterpretations of the UN Convention on Refugees, to which the Government’s attention has been drawn by the UNHCR—the guardian of the convention. They exclude a small number of persons, most of whom are wives and children, from protection, sentencing them indefinitely to a life of penury with no hope of betterment or of ever being able to support themselves for as long as they remain in the United Kingdom. All this to fulfil the threats made by the former Home Secretary, Jack Straw, against people who had been driven to desperation by the Taliban. I beg to move.