The high-profile deportation of a suspected, but unconvicted, serial rapist opens the door to the risk of serious injustice.
It was a shrewd move on the part of the Metropolitan police and Home Office to use the case of Lincoln Farquharson, a man charged with rape on five separate occasions between 2006 and 2011, tried twice but never convicted, as a pilot for their new partnership which promises to deliver deportation on suspicion. In the Home Office press statements and media reports celebrating Farquharson’s deportation, the man’s predatory attacks on women, including multiple rapes and the use of firearms, were emphasised in a way that made it difficult to disagree with the man’s removal from the country. But what we need to be concerned about is that his case heralds the widespread use of ‘intelligence-based’ deportation, supplementing the deportation of foreign offenders with deportation of foreign suspects.
Theoretically, anyone who is not British can be deported on ‘conducive’ grounds (ie, that the person’s removal from the country would be ‘conducive to the public good’). But until the Farquharson case, there were few exceptions to the policy that only those with fairly serious criminal convictions would face deportation on these grounds, and published Home Office policy on deportation for criminal conduct refers only to deportation ‘following conviction’. This means that criminal conduct has had to be proved in the criminal courts, on evidence which could be tested by cross-examination, before it could be relied on in deporting someone from the country. The big exception has always been national security, where the home secretary (in practice, the security services) could always rely on ‘intelligence’ to support the case that a proposed deportee represented a threat to national security.
Now, the exception is apparently to become the rule. The Met has announced that it plans to use Operation Nexus, its joint operation with the Home Office which has led to immigration officials being embedded in seventy-two police custody suites across the capital, to deport an extra 2,400 ‘foreign criminals’ each year. But the Home Office will not apparently await the outcome of criminal trials, but will initiate deportation proceedings straight away, and Met police intelligence files will be used to persuade the immigration tribunal that deportation is justified.
There are a number of problems with deciding whether someone’s behaviour merits deportation. Intelligence, unlike evidence, is very difficult to challenge. It is generally fragmentary, scraps of gossip and rumour from unknown sources, which by its very nature is extremely difficult to challenge. But at the same time, those hearing it often act on a ‘no smoke without fire’ principle. In a criminal court, a jury is warned not to convict unless they are sure the accused is guilty, so the evidence of guilt needs to be strong. In a deportation appeal, the test is merely whether the Home Office can justify the decision – the judges do not need to be sure of someone’s guilt provided there are grounds to believe he or she is undesirable.
Obstacles to justice
The injustice of being ‘tried’ on scraps of untestable ‘intelligence’ will in all probability be compounded by procedures which prevent proposed deportees even seeing the material on which the decision to deport them is based. We can be fairly sure that, if police intelligence is used in ordinary deportation cases, the secret procedures currently used in the Special Immigration Appeals Commission (SIAC) for national security deportations, which deprive proposed deportees of the evidence and even the detailed reasons for their deportation, will be extended to deportations based on suspicion of criminal conduct. The extension of closed material procedures to ordinary deportation cases has been made possible by the passage of the Justice and Security Act, which was pushed through parliament despite the grave concerns of many leading lawyers and judges about the damage such procedures will do to the rule of law. We are likely to hear the same arguments as are currently used in SIAC about the vulnerability of informants and the dangers of letting ‘criminals’ know intelligence-gathering methods, to justify deportees being kept in the dark about the allegations justifying their deportation.
As if that were not injustice enough, those facing deportation will not even have the benefit of legal advice and assistance to fight their deportation, unless they have money. Since April 2013, there has been no legal aid for deportation cases (unless they are fought on asylum grounds or because of a fear of torture or the death sentence in the destination country). Proposed deportees will be at the mercy of the Home Office and the immigration tribunal, unless they can find lawyers to represent them for free. Effectively, they are to face decisions to deport them blindfolded and with both hands tied behind their back.
Lawyers representing foreign national offenders on deportation appeals say this is the worst time they can remember for those seeking a fair hearing of their claim to remain in the UK for family reasons. Tribunals cowed by the unrelenting attack on judges who allow deportation appeals on Article 8 (family life) grounds are now refusing appeals even by those who have lived in the UK since infancy. Now, they will be deporting unconvicted suspects on allegations which cannot be properly tested.
Criminal justice or immigration control?
Deportation is the desired end product of Operation Nexus. But the use of intelligence in deportation cases is not the only one of its methods which is causing concern. For Rita Chadha, chief executive of Refugee and Migrant Forum of East London (RAMFEL), the operation’s aggressive targeting of foreign nationals – whether homeless people, suspected offenders or victims of crime, has frightening implications for the relationship between the police and the community. The Met/ Home Office co-operation now goes way beyond placing immigration officials in custody suites, according to RAMFEL. A Nexus officer was part of a recent ‘beds in sheds’ operation, and immigration officials are increasingly involved in stop and search street checks. RAMFEL noticed, a month or so ago, that the sleeping bags of migrant rough sleepers (EU and non-EU) were being ‘confiscated’ by police, who were also questioning homeless people about their receipt of benefits.
Rita Chadha is concerned that the operation is blurring the lines between the criminal justice system and immigration control, is deterring vulnerable people and victims of hate crime from going to the police to report attacks and is destroying the trust of BME and migrant communities in the police. ‘It is ironic’, she says, ‘that the Met seems to be champing at the bit to ask for positive discrimination in terms of recruitment, but can’t see how that it is the fundamental rule of law and police powers that are causing such concern amongst migrant communities. The fact that the initial reference group that met to look at Nexus, two days before it started had virtually no migrant representation, says that in London the police still have a long way to go to really understanding local communities, they have just got their head around understanding black and minority ethnic, (and even that not too well) it may take several more decades to understand migrant communities, but perhaps that is part of the plan.’ She points out that there was no equality impact assessment prior to the introduction of Nexus, and that consultation was extremely limited. Organisations such as BID and Detention Action, which deal with migrants in detention, are seeing more and more people detained through Nexus, and she believes that grass-roots community groups need to understand that the nature of policing is changing dramatically and that police accountability is being lost. Migrant communities cannot be short-changed when it comes to justice, without the whole system of legal protection of rights being irretrievably damaged.