When anonymous hearsay can get you deported

Operation Nexus allows for deportation on the basis of fundamentally unreliable and untestable material.

Foreign nationals convicted of serious crime can reasonably expect to be deported. But what of those acquitted of crime, or never charged? Or victims of crime? Human rights lawyers are becoming increasingly concerned about the extensive use of police intelligence in deportation appeals, and the potential it brings for miscarriages of justice.

The use of intelligence material, rather than criminal convictions, to justify deportation has become routine in cases involving national security. A frequent justification is the inability of the security services to present intercept evidence (on which they rely) to the criminal courts. Until a couple of years ago, though, deportation on grounds of (non-terrorist-related) criminality invariably depended on conviction by a jury following a criminal trial.[1] Two years ago, the first high-profile case of ‘deportation on suspicion’ saw an alleged but unconvicted multiple rapist deported on the basis of police files. We warned then of the consequences of widespread adoption of this approach – and as the practice of using police intelligence in deportation cases has become increasingly routine, concerns have grown.

The aim of Operation Nexus, the police-Home Office partnership targeting foreign offenders, was to ‘maximise intelligence, information and world wide links to improve how we deal with and respond to foreign nationals breaking the law’. According to the Home Office, since its 2012 launch with the Met police, Nexus-type collaboration between police and immigration enforcement has been extended to the West Midlands, Greater Manchester, Scotland, Merseyside, Cleveland, Kent, West Yorkshire, Cheshire, Wales (with Avon and Somerset, East Midlands and Lancashire to follow in spring 2015). Immigration enforcement staff stationed in police custody suites and in remote ‘command and control units’ (CCUs) check the nationality and immigration status of all those arrested, and the two agencies increasingly work together. Police refer to the Home Office any foreign suspect meeting their definition of ‘high harm’ (although, as the Independent Chief Inspector of Borders and Immigration complained in a 2014 report, there is no common definition of the phrase),[2] and increasingly, the agencies bypass prosecution and go straight for deportation, relying on police intelligence – saving the time and the expense of criminal trials.

Anonymous hearsay rules

According to the Met, police files include ‘details of relevant arrests despite no charges being brought, where they have been accused of breaking the law, cases where they have been victims or witnesses to violent crimes but refused to cooperate with police and an important list of gang or violent offenders associations’. What this means is that in Nexus appeals, someone facing deportation may be confronted with several lever-arch files full of bits of gossip, irrelevant scraps of information and unsubstantiated allegations. The material often includes records of stop and searches, even where nothing was found. It may include records of arrests where no further action was taken, or of charges brought and subsequently withdrawn, or of trials resulting in acquittals. Or it might be ‘I saw X standing with Y, known to be a member of Z gang’, or ‘X was in a group of young men congregating, making noise and intimidating residents of the flats’. In some cases, it is the fact that the person was the victim of violence which provokes an allegation of gang membership.

Reliance on such material could be said to license police racism. In the 1970s, large numbers of black youths were hauled before magistrates, and found themselves with a criminal conviction, on the word of two police officers that they were ‘loitering with intent to commit an arrestable offence’ (sus), The sus law was abolished in 1981 following a long community campaign, but police racism has not gone away – evidenced by the continuing tally of deaths resulting from stereotyped beliefs in BME violence and criminality,[3] and the continuing disproportion in stop and search figures. The use of stop and search, arrest and withdrawn charges as indicators of criminality is an egregious example of self-fulfilling discriminatory police action. In this situation, the ability of the Home Office to use these indicators to bypass the machinery, and the safeguards, of the criminal courts altogether, with potentially far more serious consequences, is a matter of acute concern.

Safeguards bypassed

A briefing paper by solicitors Luqmani Thompson on deportation hearings relying on Nexus intelligence, published in September 2014, sets out the safeguards of a criminal trial, including the jury, who must be satisfied of guilt ‘beyond reasonable doubt’, the right to cross-examine witnesses, the right to publicly-funded representation and strict rules governing the use of hearsay evidence.

As the briefing paper points out, none of these safeguards exists in deportation appeals based on Nexus material. There is no jury – just immigration judges, familiar with and often sympathetic to Home Office priorities and prejudices. The police need only prove that it is ‘more likely than not’ that the person did what is alleged in the file. The evidence is usually anonymous, making it virtually impossible to challenge; officers refuse to identify the sources of allegations of criminal activity, on the ground that it is necessary to protect those sources. It is always hearsay. Hearsay evidence, strictly controlled in other judicial arenas, has always been admitted in immigration and asylum cases, as a practical necessity, enabling asylum seekers (for example) to speak about threats or information passed on by others. But the use of anonymous hearsay allegations of involvement in criminal activity is of a different order. Finally, there is generally no legal aid for deportation appeals, despite the obvious forensic difficulties for non-lawyers. It is not surprising, then, that according to the Home Office only ten appeals have succeeded in total.[4]

The lack of safeguards in deportation appeals is compounded by the fact that since July 2014, many appellants have been deported before their appeal, and so have been unable to attend. From that date, deportation appeals only suspend deportation if the appellant can demonstrate a real risk of serious irreversible harm. In practice, for those without the means to instruct solicitors, this provision of the Immigration Act 2014 denies them access to the tribunal.

The situation has got even worse since then. From October 2014 someone being deported has no deportation appeal at all, either inside or outside the UK, unless there is an asylum or human rights claim (ie, a claimed risk of persecution, torture or other serious human rights violation). Although appellants in these cases ought to get access to legal aid for representation. In cases where there is no such claim, there is simply no recourse against deportation on the basis of Nexus intelligence.

Courts uphold Nexus approach

One of the first cases in which the use of Nexus police files was challenged involved a 25-year-old Sierra Leonean who had been in the UK since he was 7-years-old.[5] He had a number of minor criminal convictions, but police intelligence provided in evidence on his appeal persuaded the tribunal that his degree of criminality was far higher – that he was a part of a violent gang whose members were engaged in serious crime including murder, robberies and the sale of Class A drugs, making him a ‘clear and present danger’ to the community. Dismissing his appeal, the Upper Tribunal ruled that criminal convictions were not a prerequisite for deportation to be ‘conducive to the public good’, and deportation could be precautionary or preventative. Information about someone’s actual or potential activities, and activities falling short of criminal activities, was relevant and should be admitted, the judges said, and the fact that it might be difficult to challenge because of its nature was not a reason to exclude it. Deportation decisions could be based on a reasonable likelihood that the person would be a future danger to the community, although past conduct should be proved on the balance of probabilities. And crucially, the Tribunal ruled (in relation to reliance on anonymous hearsay) that appeals against deportation do not have to be fair – or at least, they don’t attract the safeguards of criminal or civil trials – because of the European Human Rights Court ruling, decades ago, excluding immigration cases from the ambit of fair trial guarantees.

In that case, and the 2013 case involving Lincoln Farquarhson, the Tribunal offered some crumbs of due process: immigration judges should not act on speculation, police must serve their evidence in time to allow appellants to prepare, and legal aid should be granted in the interests of justice. But these do not begin to remedy the essential flaw of Nexus – deportation from the country, perhaps after virtually a lifetime’s lawful residence, perhaps entailing long-term or permanent separation from UK-based family, perhaps to serious risks – on the basis of fundamentally unreliable, untestable material.

Foreign national offenders have a bad press, and it is comparatively easy to remove or dilute their rights to basic legal safeguards without public outcry. But as we have seen in the national security context, once basic rules of due process and justice are eroded for one unpopular or demonised minority, the creeping erosion of fundamental rights is virtually impossible to stop.

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