The advice I have received is that it is incompatible with the European convention on human rights. I am concerned with other aspects of the new clause because I believe that in a number of areas it weakens the Government’s proposals in relation to article 8. I am also concerned about the practical application of the new clause, because in reality I think we would effectively hinder our ability to deport people for a period of time because there would be considerable legal wrangling about the issue.
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Let me expand on a few of those points. I say to my hon. Friend the Member for Esher and Walton, we all want to ensure that we make the Bill as strong as possible when dealing with the deportation of foreign criminals. The Bill makes it clear that the deportation of a foreign criminal is in the public interest, even for those with prison sentences of less than 12 months if that offending is persistent or causes serious harm. New clause 15 relates only to automatic deportation, and therefore to offenders who are sentenced to 12 months of more. It would be for the courts to decide on the proportionality of deporting persistent offenders or those whose offences cause serious harm but who are sentenced to less than 12 months, and no guidance from Parliament is provided on the tests that should apply. The new clause weakens the Bill in relation to those offenders, and the Government’s proposal has a stronger ability to deal with that.
The new clause also distinguishes between those sentenced to between one and four years imprisonment and those sentenced to more than four years. It provides that those sentenced to more than four years should be deported unless there are compelling circumstances, and that those circumstances must be over and above the unduly harsh consequences of deportation on the criminal’s family.
There is an issue about the sort of wording used. I think the Bill goes further than the new clause. The new clause allows “manifest and overwhelming harm” to a child to override deportation, even for the most serious criminals, but the test of whether there would be manifest and overwhelming harm to a child is unclear. We can argue about whether that is a weaker test than requiring “very compelling circumstances”, but I think such issues raise concerns about my hon. Friend’s new clause.