My Lords, I again thank my noble friend Lady Hamwee for moving her amendment and raising the issues which arise under Clause 12.
At present, all appeals where there is a human rights claim suspend deportation unless the claim can be certified as clearly unfounded. The powers introduced
by Clause 12(3) mean that those facing deportation, including foreign criminals, may be deported, and their appeal heard while they are out of the country, if the Secretary of State certifies that that would not breach the UK’s obligations under the European Convention on Human Rights—a point well made by my noble friend Lord Bourne of Aberystwyth. This is intended to build on the Crime and Courts Act 2013, where the Government made similar provisions for out-of-country appeals in national security deportations. The serious irreversible harm test is one used by the European Court of Human Rights when it decides whether an individual deportation must be suspended, and also in its rulings on what types of claim must be granted an in-country appeal. Amendment 31 would limit the scope of the power to those who are being deported who do not have a child in the United Kingdom, while Amendment 31A would remove the power entirely from what would become Section 94B of the Nationality, Immigration and Asylum Act 2002.
I reassure the Committee that the clause will impact only on a very small cohort of cases—those whose actions and behaviour is non-conducive to the public good—and that in limiting the power to deportation cases, the Government are acting in a proportionate way, and not going as far as European Court of Human Rights cases allow. I assure the Committee that by framing the provision in this way, an arguable asylum claim would never qualify for certification under the power. The Secretary of State cannot use the new power where there is an arguable risk of a breach of Article 2 or Article 3 of the European convention.
Equally, the drafting of the Bill means that this power will not be available for those whom the Government are seeking administratively to remove for the purposes of immigration control—such as illegal entry or overstaying a visa, although ECHR case law would in fact have allowed such an approach.
A deliberate decision has been taken to make the power available only for a small cohort of cases where the individual’s actions—the action of the person for whom certification for deportation is relevant—the vast majority of whom will be convicted criminals. I will come on to the point raised by the noble Baroness about others. This applies if the individual’s actions mean that the Secretary of State considers that their presence in the United Kingdom is not conducive to the public good. Perhaps I may illustrate the size of the issue for the Committee. According to Ministry of Justice figures, in 2012-13 the Asylum and Immigration Tribunal received 1,800 appeals against deportation, which included a number of miscellaneous appeals. This change would have impacted on less than 2% of the appeals that the tribunal received that year.
The Government would not seek to remove family members of those whom we are seeking to deport if they have immigration status in the UK in their own right; for example, if they are an EEA national exercising treaty rights or individuals with indefinite leave to remain, or have valid leave as a student. Even in the rare cases where the Government seek to deport family members along with the principal, for example because their status in the UK is based solely on their relationship
with the deportee, this clause does not allow the appeals of dependants to be certified: they will be suspensive. The power is also a permissive one in that the Secretary of State may certify appeals but is not required to. This will allow cases to be considered on their individual facts and ensure that the Government complies with their duty to consider the best interests of the child as a primary consideration in immigration decisions.
The noble Baroness asked what would happen if a person wins their appeal. If an individual wins an appeal from abroad, the UK Government will facilitate their re-entry into the United Kingdom.
In summary, the power will be used only where an individual’s own conduct, such as criminality, leads the Secretary of State to consider that their presence is not conducive to the public good. The clause is limited and tightly defined to ensure that only those who have caused or are trying to cause harm are deported from the country quickly.