The Criminal Justice and Immigration Bill, currently going through the Commons, creates a new immigration status for undeportable ‘foreign nationals’.
The Home Office’s failure to trace the whereabouts of a small number of non-British criminal offenders post-sentence back, in July 2006, led to a rule change in the same month, introducing a presumption in favour of deportation of foreign nationals convicted of criminal offences, save where their deportation would breach the UK’s obligations to protect human rights. This change was evidently not draconian enough for the Home Office, which introduced a provision in the 2007 UK Borders Act for mandatory deportation of any foreign criminal sentenced to 12 months’ immediate imprisonment for any offence, or convicted of any offence specified by regulations as ‘particularly serious’. This might be kicking a phone box, swearing at a policeman or stealing a pint of milk, since criminal damage, public order offences and theft are all designated as ‘particularly serious’.
The Stansted hijackers’ case
However, there are some ‘foreign criminals’ who cannot be deported, because of a real risk of torture or other serious ill-treatment back home, for example. The home secretary decided that he did not want to give such ‘undesirables’ as the Stansted hijackers leave to remain in the country, even though the Asylum and Immigration Tribunal had allowed their appeals against the decision to remove them because of the likelihood that they would be targeted for killing in Afghanistan. He decided he could deal with them simply by not removing them but not granting them any leave to remain in the UK. However, they were very seriously affected by this lack of any status, being unable to work or to receive any support save the sub-subsistence ‘hard cases’ support under the Immigration and Asylum Act 1999 s4 (designed for minimal hostel support for those unable to leave the UK).
In their May 2006 judgment on the Stansted hijackers’ legal challenge to the Home Office refusal to regularise their status in line with the Tribunal’s decision, the High Court ordered the Home Office to grant them leave, saying that the Immigration Act 1971 did not allow for such ‘immigration limbo’. The Court of Appeal upheld the decision in August 2006. Now, Part 12 of the Criminal Justice and Immigration Bill, which is currently going through the House of Commons, seeks to reverse these decisions by creating a new immigration status for such undeportable ‘foreign criminals’.
Provisions of the new bill
The Bill allows the Secretary of State to designate as a ‘foreign criminal’ anyone who cannot be deported for human rights reasons but who has had a two-year prison sentence (whether in the UK or abroad), or who has been sentenced to any term of imprisonment for a ‘specified’ offence (including criminal damage, public order offences and theft as well as terrorism, drug trafficking and hijacking), or who is excluded from refugee status under Article 1F of the Convention. These ‘foreign criminals’ and their families are not to be granted leave to remain but are to have a special ‘limbo’ status. They may be tagged, required to live in specified places and to report to police or immigration officers, may be prevented from working and required to live on NASS support (accommodation and basic subsistence worth about £35-40 per week), which must not be paid in cash.
These conditions are almost as restrictive as control orders, used against undeportable terrorist suspects, which are known to have profoundly damaging long-term effects on those subjected to them without time limit. The European Court of Human Rights has condemned long-term immigration limbo in a number of cases because of the adverse effects on private life, including rights to work, to move freely, to have access to ordinary social and welfare entitlements and to marry and build a home.
Human rights implications
The government’s restrictions on the rights of immigrants to marry in the UK is already the subject of a Court of Appeal declaration of incompatibility with the Human Rights Act (since 2005, only Anglican non-EU migrants and those with fiancé visas or indefinite leave to remain have been able to marry without Home Office approval). But human right lawyers believe that the provisions of the Criminal Justice and Immigration Bill show that the government has not learned anything from that judicial rebuke. Someone fleeing from torture or civil war who commits one of the specified offences and is sent to prison – whatever the motivation, the gravity or the circumstances – may lose all the security and the rights flowing from a grant of leave to remain, no matter how long they have lived here. For them, not only the punishment of imprisonment, but also the possibility of losing a job, a home and a whole life painstakingly rebuilt, to institutionalised insecurity.
For recognised refugees, this treatment is illegal and contravenes the 1951 Geneva Convention, say refugee law experts. The Convention guarantees refugees rights in the host country which are violated by these provisions. They contain presumptions, which someone is not permitted to rebut, that a designated person has committed a particularly serious crime and is a danger to the community.