A number of coalition measures will have potentially disastrous consequences for migrants and asylum seekers.

First, there is pressure to get foreign offenders to leave. When a Romanian shoplifter was banished from the UK for a year, as part of his community sentence, the High Court quashed the order in December 2012, saying that exclusion orders were never intended as orders of banishment from the country, only exclusion from a particular area. But by the time of the ruling, the informal practice whereby offenders agreed to leave the country to avoid custody had been put on a statutory basis.

A little-known provision of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 added a new condition to the conditional cautions scheme. Foreign offenders who have no leave to be in the UK will not be prosecuted (in appropriate cases) if they admit guilt and agree to leave the United Kingdom and not return for a specified period.

What can be wrong with such a provision? It sounds eminently sensible, offering offenders who have no right to be in the country anyway the chance to avoid a criminal record by leaving.  The concern, according to campaigners, is with asylum seekers who commit an offence such as using false documents to get in to the country. In 1999, the High Court ruled that prosecution of bona fide asylum seekers using illegal means to enter the country is banned under the Refugee Convention, but fourteen years later, thanks to the ignorance of police, prosecutors, defence lawyers and magistrates, prosecutions continue all too often – and asylum seekers themselves, unaware of their legal immunity, are willing to admit guilt.[1] Getting them quietly to leave the country would hide the fact that they should not have been arrested in the first place – but the concern is that, faced with the alternative of potentially unlimited immigration detention and a criminal record, some may agree to go back, even to a risk of persecution.

At the same time, the immigration rules have been changed to provide that a person leaving under a conditional caution should not be re-admitted for at least five years. Another rule change means that anyone committing an offence within six months of arrival may have his or her leave to remain in the country curtailed. Apply these provisions to someone with a British partner and children, who admits a minor motoring offence, and the potential for injustice is obvious.

Fast-track deportation

Offending migrants are under attack from another direction too. Prime minister David Cameron’s latest idea, revealed in an interview with the Sunday Telegraph in January, is ‘deportation first, appeal later’ for suspected terrorists, unless they face ‘a real risk of serious, irreversible harm’. Up to the present, it has been a central rule that no one is deported until he or she has exhausted appeal rights against the proposed deportation. Cameron said he was ‘fed up with seeing suspected terrorists play the system with numerous appeals’.[2] Abu Qatada’s ‘vexatious’ use of the European Court of Human Rights is said to have prompted the proposal (Qatada won his case on the basis that he faced a real risk of an unlawful trial on torture evidence in Jordan, leading to lengthy imprisonment),[3] although it is hard to see how Qatada would have been denied a pre-deportation appeal, if the prime minister’s proposed change had been in place, since a real risk of torture, or of lengthy imprisonment following a travesty of a trial, would both qualify as ‘serious, irreversible harm’. The proposal is designed to catch those who seek to remain in the UK to enjoy family life with British partners and children.

Are foreign national offenders the real target?

But there is a mismatch here. In reality, those facing deportation on national security grounds know they can only succeed on appeal if they can show that they face a real risk of serious and irreversible harm; nothing less, according to the courts, outweighs the detriment caused by their continued presence. Cameron’s proposal will have no effect at all on them; all will necessarily continue to enjoy full pre-deportation appeal rights. So is Cameron’s proposal mere populist sound and fury, or is there a hidden agenda?

It is more than likely that if (when) the proposal is formalised in legislation or new immigration rules, it will apply not just to suspected terrorism supporters but also to foreign national offenders who seek to appeal against deportation on human rights grounds to enjoy family life with British partners or children, and that this group is the real target. The charity BID (Bail for Immigration Detainees) estimates that a quarter of its cases of long-term detainees facing deportation came to the UK as children, and another quarter have lived in the UK for over ten years. The removal of legal aid from immigration cases in April 2013[4] will gravely affect their ability to challenge deportation in any event – but the extension of Cameron’s proposals to this group would mean the deportation of the vast majority before appeal. The European Court of Human Rights would be unlikely to want to interfere, having shown signs of being cowed into submission by the unrelenting British campaign against it over the past few years.[5] And once they are out of the country, the prospects of a successful appeal would diminish to vanishing point.