UK Borders Bill

moved Amendment No. 33: 33: Clause 36, leave out Clause 36 The noble Lord said: My Lords, before coming to the amendment, I shall briefly and I hope not too irregularly put to the Minister a question of which I have given him prior notice relating to one of the amendments that we dealt with last week on the points-based appeal system. The concern was that a person such as a student or work permit holder who was advised to make a fresh application when there had been an error on the form submitted in the first instance would be out of time and therefore ineligible for lodging the appeal. I am informed by the Minister’s department since our debate that there is an extra-statutory concession under which such a person may continue to submit an application for renewal of leave within 28 days. I would be most grateful if the Minister would put that on the record because those that we have consulted were unaware of it. It would be very useful to practitioners to know that their clients can do that and will not be prevented from continuing their studies or work in the United Kingdom. As for Amendment No. 33, we discussed the clause on 23 July and, because we had some further doubts on consideration of the Minister’s reply on that occasion we seek this further opportunity for clarification. The clause gives the Secretary of State power to detain a person while she considers whether the automatic deportation provisions in Clause 32 apply. It may add to the concerns that the noble Lord, Lord Judd, has just expressed that we are giving the Secretary of State additional powers, contrary to the advice that we were given just now by the noble Lord, Lord Plant, which will increase the size of the detention estate, with all the consequences that that implies. First, we seek confirmation that subsections (4) and (5) allow for electronic monitoring as an alternative to detention, by virtue of Section 36 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The Minister said so in the letter that he wrote to us after the fifth sitting on 26 July, but again it would be helpful to have that in the Official Report, where it would be accessible to immigration practitioners. If the decision to apply electronic monitoring is nominally that of the Secretary of State, who will make the decision on her behalf and will there be published guidance on how the decision is to be made? The Minister quite properly observed, in col. 150, that a deportation order should not be made before an assessment of the safety of return could be made, but it does not follow that consideration of automatic deportation needs to be deferred until right at the end of the sentence. The BIA should identify as soon as possible—that is, when the person is charged—whether the offence is covered by the second condition in Clause 31 or would potentially attract a sentence of 12 months or more so that the offender can be put on notice to get legal advice on whether he qualifies under one or other of the exceptions before the case is heard. As soon as the person is convicted, he becomes a ‘foreign criminal’, and is liable to automatic deportation, although an order cannot be made at least until after any appeal is heard or the person has notified the Secretary of State that he does not intend to appeal under Clause 34(2) and (3). In cases where an appeal is to be heard, or the time available for an appeal to be lodged has not been exhausted, existing powers have to be used to continue the detention. Meanwhile, the Secretary of State could reconsider whether it is safe to return him and prepare the deportation order, which could be served on the offender in court immediately if he loses the appeal, or in custody if he signs a Clause 34(3)(b) statement. The Minister gave as an example where it was likely to be impossible to consider the safety of automatic deportation, the person who is given a long sentence during which his circumstances or the political situation in his country of origin would have changed. The answer to that is that the person is a ““foreign criminal”” within the meaning of Clause 32 immediately he is convicted, and the Secretary of State should make arrangements to remind himself—say, three months before the end of the sentence—whether any of the exceptions in Clause 33 apply. Since there are now personal case-holders keeping track of offenders all the way through the criminal justice system, they should be responsible for keeping up-to-date records of any changes in the situations of offenders to whom the exceptions may apply, and could be instructed to give the current entries to the Secretary of State, as I say, three months before the release date, and to inform her of any changes which may occur in the last three months. The Secretary of State could issue a ““minded to decide”” notice at that point. If the sentence is a long one it is extremely unlikely that there would be unexpected last-minute changes in the offender’s personal circumstances under one of the exceptions, and it would be rare for the situation in the country of origin to change so radically in those last few weeks as to justify reversing the decision by the Secretary of State on the safety of return. But during the few weeks that remain she still has power to revoke a deportation order if, out of the blue, a Clause 33 exception arises, or if there is a technical error in the decision to make the order, or the decision that Clause 32(5) applies. If no such change occurs, the notice of automatic deportation could be issued immediately the appeal rights have been exhausted. Where the offender’s nationality or country of origin are in doubt, nothing in the exceptions or elsewhere in the Bill prevents the Secretary of State making the deportation order, although obviously implementation would have to be delayed, as it is now, and as now, detention would be under existing powers, pending deportation, and not in consequence of the provisions of this Bill. In the case of a last minute asylum application, in the unlikely event that it is accepted, the consequence would be that the Secretary of State finds it unsafe to return the person and, by virtue of Clause 33(2), she refrains from making an order. But where the application is considered to be unfounded, as it generally would be, again there is nothing in the Bill to stop the deportation order being made, though obviously it would be held in abeyance until any appeal was disposed of. Therefore, having considered the scenarios presented by the Minister in Grand Committee, we are still not convinced that Clause 36 is necessary. We are concerned, moreover, that it may not be compliant with Article 5(1) ECHR, which allows for detention, "““of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition””," whereas detention under Clause 36 is for the purpose of deciding whether the person is liable to be deported—a matter which has to be settled before the actual decision to deport can be taken. I beg to move.