I am grateful to the noble and learned Lord. Clearly, there will be an opportunity to challenge the decision to certify taken before the deportation took place. We do not believe that there would be a liability to pay compensation if an appeal were successful. I think that I have a fuller answer somewhere on that particular point; I know that I have read it. If I do not get it in my hand before I sit down, I will certainly write to the noble and learned Lord. And here it is. If an individual wins at appeal, they will be entitled to return to the United Kingdom and the United Kingdom Government may pay for their airfare, which will be considerably less than the cost of detaining them while waiting for their appeal. I am grateful to the noble and learned Lord for his forbearance on that.
I was trying to get to the point at which the Baroness, Lady Smith, asked about the original Bill being amended in the House of Commons. The provision as it originally stood stated “criminals”, but that was extended because the Government realised on reflection that this definition would leave out a cohort of harmful individuals who should not have a suspensive right of appeal. That could include individuals who are being deported from the United Kingdom on the grounds that their presence is not conducive to the public good, a broader judgment than automatic deportation on the grounds of a single offence. For example, they could be gang members where witness intimidation and a culture of silence means that there has not been a successful prosecution but there is compelling evidence about their conduct that can be used in an immigration decision. The Home Secretary would consider the intelligence against a person and on the basis of that intelligence deport him as his presence in the UK would not be conducive to the public good.
A case is certified for the Special Immigration Appeals Commission on the basis that it has been taken considering secret intelligence, so it does go wider. My right honourable
friend Mark Harper gave examples in the other place of where there may be good information and intelligence but, for reasons possibly to do with witness intimidation, it has not been possible to bring a prosecution. Obviously, this can be tested in any appeal which takes place.
I turn to Amendment 31, which was moved by my noble friend. The amendment would mean that this group of cases, of people whose presence in the UK is deemed harmful, would be able to use a child—who may have been in the UK for only a matter of days or weeks, because there is no definition of what a qualifying child would be—to avoid certification of their appeal and their early departure from the UK. They would be able to use the presence of that child even if they were not in fact responsible for caring for the child—who might live somewhere else or with other family members.
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It is of course right that the best interests of the child should be a primary consideration; there will be groups of amendments later where we look again at the importance of children in immigration decisions. There will no doubt be cases where deportation appeals are not certified because of the risk that serious irreversible harm might be caused to a child. I reiterate that the power here in the hands of the Secretary of State is a discretionary one, but having a child in the UK at the time of certification should not in itself be a trump card. Each case should be considered on its individual merits.
As the noble Lord, Lord Pannick, indicated, the effect of passing Amendment 31A would be to remove the subsection from the Bill, thus retaining in-country appeal rights for convicted criminals and others whose presence in the UK was not conducive to the public good. I have set out the background as to why the Government believe that it is important that the Secretary of State should have this power.
The noble Lord and the noble Baroness, Lady Lister, raised the issue, as reflected in the report of the Joint Committee on Human Rights, of where the Bill’s provisions on non-suspensive appeals and government reforms to legal aid allegedly collide. I shall set out some of the background, the purpose and the effect of the Government’s reforms to legal aid. I have some déjà vu from our debates during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act. The scope of the legal aid scheme has recently been settled, and the Government have no plans to further extend its scope beyond the high-priority matters that Parliament has extensively debated and agreed. The matters on which an individual is entitled to claim civil legal aid are set out in the 2012 Act, which came into force on 1 April last year.
Under the existing legislation, legal aid is restricted to the highest-priority cases—for example, where people’s life or liberty are at stake; where they are at serious risk of serious physical harm or immediate loss of their home; or where their children may be taken into care. The Government consider that limited legal aid resources should be targeted at those cases where they are needed most if the legal aid system is to command public confidence. Without unlimited funding—if we had unlimited funding it might be a different debate—the
Government must target legal aid where it is needed most. Providing legal aid for asylum seekers, for example, or victims of trafficking in domestic violence are where legal aid resources have been targeted. Proposals for further legal aid reform, including the new residence tests, support the provisions in the Bill to make it harder for those unlawfully in the UK to prolong their stay here. The British taxpayer should not be expected to fund litigation brought by those who are in the UK unlawfully or indeed who are not in the country.
Lastly, and importantly, any individual who is excluded from civil legal aid as a result of the test will still be able to apply under the exceptional funding scheme, which ensures that legal aid will continue to be provided where a failure to do so would breach the applicant’s rights to legal aid under the European Convention on Human Rights or EU law. In immigration appeals, there is no legal aid available for appeals brought on the grounds that deportation from the UK would be a breach of Article 8. This is the case whether the appeal is brought in the UK or outside it. If a person is deported from the UK using the new certification power in the Bill, they may appeal from overseas and legal aid remains unavailable. If a person deported does not have the means to instruct lawyers to present their appeal, they may have family or friends in the UK who can make representations on their behalf. This is particularly so in the context of this certification power, which will be applied principally to Article 8 cases where the appellant claims to have family or private life in the UK. An appeal can also be considered on papers without a hearing. Indeed, the immigration tribunal has years of experience of determining cases in this way, and does so with thousands of cases every year. It would certainly be the case that a person deported would have an opportunity to make their case in that way.
Ultimately, I repeat, the power is a discretionary one. It will be applied only where there is not a risk of serious irreversible harm. It will therefore not be applied in all Article 8 cases. If there were exceptional circumstances, the power would not be applied. Each case will be carefully considered, with a full account of the specific circumstances of the person deported being considered by the Home Secretary.
The noble Lord, Lord Pannick, referred to the Criminal Justice and Courts Bill in the other place. We are getting to an interesting situation. We are contemplating the impact of the consequences of two pieces of legislation, neither of which has been passed, and one of which has not even come to your Lordships’ House. I think the Criminal Justice and Courts Bill has had only a Second Reading in the other place. Clearly, I will look at what the noble Lord, Lord Pannick, said, but it would be presumptuous to presume—and would cause trouble for me and my colleagues in future—that your Lordships would nod through the Bill as it currently stands. I cannot think for a moment that the noble Lord, Lord Pannick, and several other noble Lords will not be addressing it. I will look at what the noble Lord said in that regard.
My noble friend Lady Hamwee mentioned that Amendment 32 is a probing amendment. It would make serious and irreversible harm the definitive test
for the non-suspensive certification decision. I am grateful to my noble friend for this amendment. I hope I can reassure her that there is no difference of principle between us. The wording proposed by the Government would mean that the serious irreversible harm test is an example of when an appeal could be certified on the basis that removal pending the outcome of the appeal would not contravene an appellant’s human rights. The amendment before us now would mean that this test would be the only possible test.
I urge the House to retain the flexibility of the current wording. The test of serious irreversible harm is the test currently used by the European Court of Human Rights, but there is always the possibility that the European court will adjust its approach. If it does, the Government would want to be able to keep pace with the jurisprudence of the European court rather than lose the ability to invoke this power. The fact that there is no exhaustive description of the possible tests merely reflects what is intended to be a pragmatic point in the drafting. The amendment would set the certification test as serious irreversible harm for all time, and therefore if case law were to evolve, changes to primary legislation would be required, and until that happened and could be passed, the power might prove unworkable. With these explanations, I urge my noble friend to withdraw her amendment.