My Lords, I am obliged for the comments that have been made with regard to Clause 34 and Amendment 227. I shall begin by clarifying one point. Clause 34 applies in respect of migrants who have been found to have no lawful right to be in the United Kingdom. It does not apply to asylum cases.
Noble Lords will be aware that there is a long-established principle that persons can be removed or deported before an appeal is brought or heard. Indeed, in 2002, the previous Labour Government introduced powers to certify “clearly unfounded” claims so that the appellants could be removed from the United
Kingdom prior to marking and pursuing an appeal. In 2014, the coalition Government used the Immigration Act to provide that arguable claims from foreign national offenders could be certified where deportation pending appeal would not cause serious irreversible harm or otherwise breach the person’s convention rights.
I emphasise that last point because of the observation made at the outset by the noble Lord, Lord Rosser, about it being a case of serious irreversible harm. That is but part of the test. The test under Clause 34, as under the existing provisions of the Immigration Act and as it was under the 2002 Act, is whether it would give rise to serious irreversible harm or a breach of the person’s convention rights. In this context, it is acknowledged, as it is acknowledged in respect of existing legislation, that this will not apply in cases that fall under Article 2 or Article 3 of the convention. It would generally apply in respect of cases that fall under Article 8 of the convention, which concerns the right to family life. That will give rise to questions about children, which I will come on to address in a moment.
The power introduced in 2014 has yielded significant results because more than 230 foreign national offenders have been deported before appeal in the first year since it came into force, and more than 1,200 European national offenders have been deported under equivalent regulations.
In our manifesto, the Government committed to extend this power to apply to all human rights claims. That is what Clause 34 does. We suggest that it is in the public interest that we maintain immigration control across the board. That means and includes prompt removal in cases where it is safe to do so. It is simply counterproductive to allow people whose human rights claims have been refused—again, it has to be underlined that these are people whose human rights claims have been refused or rejected—to build up their private or family life while they wait for their appeal to be determined.
This power will never apply, and does not apply in its existing form under Section 94 of the Immigration Act, in cases based on Article 2 or Article 3 of the convention. Where it does apply, each case will be assessed on its own facts. We will always ask whether there are reasons why an effective appeal could not be brought from outside the United Kingdom, and any reasons given will be fully considered when deciding whether to certify such a case.
I am conscious of the observations that have been made about whether an appeal from overseas can be a fair or effective remedy. Bringing an appeal from overseas does not mean it is less likely to succeed. Internal Home Office statistics for the five years to July 2015 show that some 38% of out-of-country entry clearance appeals succeeded.
A number of noble Lords have already mentioned a decision in the Court of Appeal, the unanimous judgment in October 2015 in the case of Kiarie & Byndloss, where it was held that Article 8 of the convention does not require an appeal to offer the “most advantageous procedure available”. Rather, an appeal must offer, and this is what is offered in Clause 34,
“a procedure that meets the essential requirements of effectiveness and fairness”.
The Court of Appeal was satisfied that out-of-country appeals met the essential requirements of effectiveness and fairness. In that context, the Court of Appeal confirmed that the Secretary of State for the Home Department was entitled to rely on the independent specialist judiciary of the Immigration Tribunal to ensure that an appeal from overseas was fair and that the process was in line with legal obligations that arose under the convention. We will also take account the impact of certification on family members, including children. It is important to note that it will always be possible to challenge decisions to certify by reference to judicial review.
I turn specifically to the impact on children and to Amendment 227, which would require that before a decision was taken to certify a claim under the power in this clause, the Secretary of State must obtain a multiagency best-interests assessment of any child whose human rights may be breached by the decision to certify. The amendment has been tabled to ensure that the best interests of any affected child are considered before a claim is certified so that an appeal must be exercised from overseas. One can quite understand what lies behind the desire for such an amendment but, however well intentioned, I suggest that it is unnecessary. It is unnecessary in law because Section 55 of the Borders, Citizenship and Immigration Act 2009, which the noble Baroness, Lady Hamwee, referred to, already imposes a clear statutory duty to consider the best interests of any child affected by a decision to certify. It is unnecessary in practice because whenever a person concerned makes the Secretary of State aware that a child may be affected by her decision, the best interests of that child are a primary consideration in deciding whether to certify. That approach is underpinned by published guidance. I note the observations of my noble friend Lord Horam that in his experience of such cases, which appears to be quite extensive, he noticed that the interests of the child were taken into consideration and regarded as a primary concern.
Today the Secretary of State takes careful and proportionate views regarding the interests of children. Whether it is necessary to engage external agencies with regard to the interests of the child in a particular case will depend on the facts of that case. For example, if the Secretary of State is made aware that a social services engagement exists with a child, she will make further inquiries of the social services. However, I suggest that it would be disproportionate to require extensive inquiries in every case by means of a multiagency assessment even where there was no indication that these were relevant. I am concerned that such unnecessary inquiries could be potentially intrusive and, in some instances, unwelcome to the families themselves. It is the family of the affected child that is best placed to identify the potential impact of certification in their particular circumstances. There are no restrictions on the evidence that a family can submit about the impact on a child, and that will always be fully considered by the qualified judiciary of the relevant tribunal.
Noble Lords asked whether in some cases we could see the separation of families. The answer is yes, in some cases. The effect on the family will always be considered on a case-by-case basis. The best interests of children in the United Kingdom are a primary
consideration in any immigration decision, including the decision whether to certify under the new power. Where an individual has made a claim or seeks to appeal against a determination that they should not remain in the United Kingdom, the family dependent on that individual will of course be affected by that decision; therefore, there are two obvious options. One is that the children remain in the United Kingdom with a parent or carer, or that they depart with the parent or carer in question. Again, there is no question of children having to face serious, irreversible harm in such circumstances. The right reverend Prelate alluded to a case in which a young child might face the dangers of genital mutilation or other risk of sexual violence. In such a case, there would be no grounds for certification; therefore, there would be no basis for saying that the appeal should proceed out of country. Therefore these safeguards are already in place.
As I mentioned before, in some of his observations the noble Lord, Lord Rosser, alluded to serious, irreversible harm, which is but one part of the test. It is about serious, irreversible harm or a breach of someone’s rights under the European Convention on Human Rights—both aspects have to be addressed. As to the idea that they would be unable to appeal, there is clear evidence in the context of entry appeal processes that out-of-country appeals succeed and are effective. Indeed, in the context of an appeal from out of country before a specialist tribunal, it is necessary to bear in mind that the proportion of the evidence that will be material, particularly to a claim based on Article 8, is that relating to family connection within the United Kingdom. Those who can speak to that might be best qualified to give oral evidence rather than simply the appellant him or herself. In addition, there is of course scope for video evidence to be given, and by other means. Indeed, the specialist tribunal reserves the right to call for evidence in various forms if it considers that necessary to dispose of a particular appeal.
The noble Lord, Lord Rosser, also raised the question of compensation. We do not consider that in circumstances where an appeal was successful there would be any relevant legal basis for a claim of compensation. I notice that that point was also raised by the noble Lord, Lord Ramsbotham. The point was also made that under existing legislation, and in particular in the case of Kiarie and Byndloss, one is dealing with foreign national offenders. However, with great respect, it does not appear that there is any material distinction to be made between the prospects of appeal for a foreign national offender and other migrants who have no right to be within the United Kingdom. Surely they are all entitled to a fair and reasonable appeal process, which is what the Court of Appeal said they would have in the context of an out-of-country appeal. I acknowledge the point made by the noble Baroness, Lady Hamwee, that it would be better, easier and more attractive to have an in-country appeal, but that is not the relevant test. The Court of Appeal made that absolutely plain only a few months ago.
The noble Lord, Lord Alton, alluded to issues pertaining to the disappearance of children or minors coming into Europe, which is a tragic and dreadful state of affairs. One means of seeking to meet part of
the problem is insistence upon the Dublin regulation and its imposition, which would involve fingerprints and biometrics being taken from these children upon their arrival in Europe. I am sure that more needs to be done in that respect to meet that problem.
The noble Lord also referred to his recent visit to one of the immigration centres, of which I am aware and which he mentioned that he intended to make when we spoke a few days ago upon earlier parts of the Bill. With regard to the Somali case he mentioned, I understand that the lady in question has quite a long record of criminal offending in the United Kingdom. Be that as it may, because she is a foreign national offender, she will not be subject to any out-of-country appeal under Clause 34; she is already subject to an out-of-country appeal procedure on the basis of existing legislation. Indeed, one questions whether she even has an appeal because, if she had no stateable basis of appeal, it would be rejected pursuant to Section 94. There are difficult cases and I hesitate to go into the details of one case at this stage, but I notice that, even in outline, it appears that this is the sort of case that falls under existing legislation.
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