Crime and Courts Bill House of Lords Third Reading: Proposed amendments from the Immigration Law Practitioners Association 18 December 2012

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1 Crime and Courts Bill House of Lords Third Reading: Proposed amendments from the Immigration Law Practitioners Association 18 December 2012 After clause 20*, insert the following new clause Immigration appeals: asylum and humanitarian protection (1) The Nationality, Immigration and Asylum Act 2002 is amended as follows. (2) In section 83(1)(b) delete from Kingdomǁ to end and replace with and (i) (ii) (iii) the leave has been granted for a period exceeding one year (or periods exceeding one year in aggregate; or the person is under 18 years of age at the time of the grant of leave; and/or there are reasonable grounds to believe that the person is a victim of human trafficking. Purpose To remove the restriction whereby an appeal against a refusal of asylum can only be brought where the person has been granted leave to enter or remain for more than 12 months for children and trafficked persons. Briefing note At Report, an amendment was considered that would have removed the restriction in all cases. The Minister, the Lord Taylor of Holbeach, complained that this was too wide because it would have afforded a right of appeal to more than children and trafficked persons (10 December 2012, col 898). This more restrictive version of the amendment is an attempt to prise at least something from the Minister. Children and trafficked persons who are refugees are entitled to recognition as such, to the enjoyment of the rights and entitlements of refugees (including, for example, higher education at home student rates, a travel document and family reunion) and to the sense of security that recognition brings. They should not be brought to the brink of removal before they can assert their right to recognition. Many of us are familiar with the indignation of adolescents who have been wrongly accused of not telling the truth and have no means to secure recognition that they were telling the truth. Many of us are familiar with young people who have been ILPA Lindsey House, 40/42 Charterhouse Street London EC1M 6JN Tel: Fax: info@ilpa.org.uk website: THE IMMIGRATION LAW PRACTITIONERS ASSOCIATION LTD IS A COMPANY LIMITED BY GUARANTEE, REGISTERED IN ENGLAND AND WALES REG NO REG OFFICE ACRE HOUSE, 11/15 WILLIAM ROAD, LONDON NW1 3ER

2 unable to pursue their education, including for lack of grades. It is less common to see children denied identify documents on which they can travel: unable to approach the embassy of the country of origin through fear, but unable to secure a refugee travel document because they have not been recognised. It is less common to see children separated from their families. But it is not so very difficult to extrapolate from everyday experiences to identify that in these cases the delay in doing justice is a denial of justice. The Lord Taylor suggested that the delay for children was not unreasonable since the children concerned are close to adulthood. But the courts have emphasised that adulthood is not some quantum leap: being an adolescent and risks to which young refugees are exposed do not suddenly disappear on a person s 18 th birthday. Lord Justice Maurice Kay summarised the authorities in KA (Afghanistan) et ors v SSHD [2012] EWCA Civ 1014 it does not matter that the appellants are now over 18 because "there is no temporal bright line across which the risks to and the needs of the child suddenly disappear". The line of authority which is said to support this analysis includes R (Rashid) v Secretary of State for the Home Department [2005] INLR 550; AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 12; R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546; and SL (Vietnam) v Secretary of State for the Home Department [2010] EWCA Civ 225. In his letter to the Lord Avebury of 20 November 2012, copied to ILPA, the Lord Henley said that the amendment would lead to costly multiple appeals. This is not correct. Were section 83 removed, those who appeal and are recognised as refugees would not have a further appeal. The current situation is that once leave is extended to more than one year, there is a right to an upgrade appeal, so anyone who is given further leave will have the same appeal rights, whether section 83 remains in place or not. The only persons who will have more than one appeal are those who appeal against refusal to recognise them as a refugee, lose, whom the Home Office then decides to remove. They will have an appeal against removal, as does anyone else facing removal. That appeal will no doubt build on the findings from the earlier appeal about whether they should be recognized as refugees. The costs can thus be exaggerated. The talk of multiple fruitless appeals (Lord Taylor of Holbeach 10 December 2012, col 898) and any suggestion that the taxpayer might feel the benefit of not passing this amendment thus looks like scaremongering. The limited costs to be incurred must be set against the failure to respect the rights of refugees denied recognition for a year. When the UK ratified the Council of Europe Convention on Action against Trafficking in human beings, ILPA pleaded with officials to grant trafficked persons one year and one day, or one year and five minutes leave, to avoid this problem. It is that simple to rectify this problem. The Home Office did not accede to these pleas. If the Home Office is concerned that to grant a year and a day would mean some persons who are aged 16 years and nine months getting three extra months leave than they should otherwise have done, then this amendment offers an alternative: the Home Office grants the period of leave it chooses, but the appeal can take place. 2

3 *This amendment may be tabled to be inserted in the Administration of Justice section or in the Border Control section. The position does not affect is meaning. Clause 34 Restriction on Right of appeal from within the United Kingdom Clause 34 page 34 line 7 at end insert (4) This section does not apply if- (a) The person concerned is stateless; (b) The person concerned has previously made an asylum claim or human rights claim and been granted leave on that basis, or (c) The person concerned asserts in his or her grounds of appeal an asylum claim or a human rights claim The debate on Clause 34 (then clause 27) at Report proceeded on the basis of a number of misunderstandings. The House should be given the opportunity to consider clause 27 in the light of an accurate description of the circumstances in which it is intended to be used. The Lord Taylor of Holbeach speculated at 12 December 2012 col 1103 it may be that the conduct that leads to the Home Secretary making this decision takes place while this individual is abroad. I think the notion that this is a premeditated trap is false. It is more to do with the possibility that the individual, while abroad, makes contact with someone, or evidence comes to light as to their true intent, or what they might do when they return to this country becomes apparent, and the Home Secretary wishes to deal with the problem. 1 This was phrased as speculation but what it describes is contrary to stated Home Office policy. It is stated Home Office policy to wait until a person is outside the country to deprive them of leave. This has been repeatedly confirmed, including in meetings with ILPA and indeed before over 100 members of ILPA at ILPA s AGM on 27 November 2010 by Mr Tony Dalton MBE, then Assistant Director, Chief Caseworker, Nationality and European Casework UK Border Agency. ILPA is not aware of any case in which it has been some intervening act that has prompted the deprivation. That is not to say that this has never happened, but it is certainly not the norm. In many cases the deprivation notice is served immediately after the person has left the country: there is simply no time for new evidence to come to light or for the person to do anything. ILPA dealt in detail with this in its evidence to the Joint Committee on Human Rights enquiry into extradition policy in January Subsequent to that we have the decision of Mr Justice Mitting sitting in the Special Immigration Appeals Commission in the case of L1 where the matter at stake was deprivation of citizenship: ILPA submission to the Joint Committee on Human Rights Enquiry into extradition policy, 21 January 2011, available at 3

4 "The Secretary of State s decision to deprive the Appellant of his citizenship was one which had clearly been contemplated before it was taken. The natural inference, which we draw, from the events described, is that she waited until he had left the United Kingdom before setting the process in train." (paragraph 12(i)) We also suggest that it is misleading to say, as was said to in reply to the Lord Woolf (also col 1103), that exclusion while a person is out of the country is done repeatedly.. It was indeed done repeatedly, until it was declared unlawful as a matter of statutory construction in MK v SSHD [2010] EWHC 2363 Admin discussed in ILPA s evidence to the Joint Committee on Human Rights in extradition. If it is done repeatedly at the moment, then the law is being broken. The Lord Taylor made reference to high harm individuals (12 December 2012, col 1109). But whether or not such persons are high harm or not is the very matter that will be considered in the proceedings. Those who have been tried and convicted of a serious criminal offence are likely to be in prison. The others, according to the tenets of our law, are innocent until proven guilty. In the MK case it was at the point at which the courts in Italy, to which Mr MK had been extradited under a European had released him had acquitted of all charges save for one, which related to a procurement of a false travel document., when he was facing return to Tunisia, a country in which at the time of his extradition the UK courts handling the extradition had agreed was one in which he would be at risk of torture, 3 that the UK moved to deprive him of his citizenship. 4 Lord Taylor s suggestion is that it is not reasonable to allow persons to return to the UK to challenge the decision to take away their leave. This assumes that the decision is correct. It also assumes that it is possible to pursue a challenge from overseas. As was pointed out in the debate, this is very far from straightforward. The Lord Maclennan described the very grave disadvantage to an appellant (12 December 2012 col 1100). A person may, as the Baroness Butler Sloss pointed out, be stateless (col 1101). Her question as to how on earth such a person appeals from overseas is well put. In a case such as the MK case, Mr MK found himself in a third country, Italy, facing extradition to a country, Tunisia, where, in the opinion of the UK courts, he was at risk of torture. He had no lawful basis of stay in Italy: he had been transferred there under a European Arrest Warrant. A person may be at risk in their country of nationality, the only other country whose passport they carry and to whom they look for consular protection. Baroness Smith of Basildon asked (12 December 2012, col 1098) what are the criteria for cancelling a person s leave when they are out of the country. As far as ILPA is aware there are no criteria additional to the criteria for cancelling any person s leave. The length of time the person has been out of country, the reason they are out of the country, and their conduct while out of the country are not, as far as ILPA is aware, the subject of specific criteria or scrutiny. It is indeed the case, 3 Mohamed Salah Ben Hamadi Khemiri, Habib Ignaoua, Ali Ben Zidane Chehidi v. The Court of Milan Italy [2008] EWHC 1988 (Admin) Judgment 28 July R(Khemiri) v SSHD [2010] EWHC 2363 Admin. 4

5 as Baroness Smith phrased it (col 1098) that the Home Office will lie in wait for a person to leave the country. As described by the Lord Pannick and the Lord Lester in the debate, it is arbitrary and irrational that whether a person has an in-country right of appeal depends upon whether they are in the UK at the time when the case is certified. In response, the Lord Taylor said it would be nonsensical (12 December 2012, col 1101) to allow a person back into the UK. That, in summary, is to say that the rule of law is nonsensical. For further information please get in touch with Alison Harvey, General Secretary, Alison.harvey@ilpa.org.uk, or Sarah Myerscough, Sarah.Myerscough@ilpa.org.uk,