Deportation of Foreign National Offenders

Simon Clarke Excerpts

Tuesday 2nd February 2021 Commons Chamber

[Madam Deputy Speaker (Dame Eleanor Laing)]

Before I call the hon. Member for Middlesbrough South and East Cleveland (Mr Clarke), it is obvious that the debate that is about to take place is a delicate matter. I am sure that the hon. Gentleman is well aware of the sub judice rule, and that anyone else who seeks to take part in this debate will bear in mind that there must be no reference to any person or case that is currently sub judice.

[Mr Simon Clarke (Middlesbrough South and East Cleveland) (Con)]

I would like to start by briefly placing on record my deep admiration for Captain Sir Tom Moore, after the sad news of his passing today. Like so many of his generation, he was an ordinary man who had extraordinary qualities, and our whole country is the worse for his being no longer with us. He was a remarkable figure; may he rest in peace.

Tonight I had hoped to raise a particular case concerning a constituent, but following the advice I received about the sub judice rules, I will allude to the issue in question in broad terms. I want to discuss the challenges concerning the deportation of foreign national offenders. As we know, under the terms of the UK Borders Act 2007, if someone is sentenced to 12 months or more, they are liable for automatic deportation. If they are sentenced to a term of imprisonment of four years or more, there is a very strong public interest in that deportation going ahead, other than in the most extraordinary circumstances. Clearly that is not happening in a number of cases. I can think of one instance that is very close to my own heart in which this has not been the case.

This leads to wider questions that concern the provisions of the Human Rights Act, and whether it is striking the right balance between the interests of the general public and the rights of defendants. Clearly this issue is going to become increasingly topical, because Home Office statistics show that in 2018—a typical recent year—455 appeals against deportation by foreign national offenders were successful. That was 25% of all such appeals lodged by those convicted criminals. Of the successful appeals, 172 relied on human rights grounds. Each and every week in 2018, therefore, three serious foreign national offenders were sidestepping the UK Borders Act 2007 based on human rights claims. I am afraid it stretches credulity to believe that all these claims were well founded. There must be a concern that instead, immigration lawyers are advising their clients precisely what the right buzzwords are to initiate a successful appeal against being removed from the United Kingdom. There is a pervasive sense that our own high legal standards are being deployed against us to the detriment of the public.

The provisions of the European convention on human rights should be there to protect the innocent against grave and exceptional threats.

[Jim Shannon (Strangford) (DUP)]

I congratulate the hon. Gentleman on introducing the debate, and he has raised an important issue. Does he agree that for far too long the system has been used and abused, but with the end of our membership of Europe must also come the end to the abuse of the decent people of this country? Further, will he join me in asking the Minister to make it clear that the United Kingdom of Great Britain and Northern Ireland is a zero-tolerance nation for foreign criminals?

[Mr Clarke]

I will indeed join the hon. Gentleman in saying just that to the Minister. I know that the hon. Gentleman cares deeply about this issue; he is an assiduous attender at these debates, indeed the most assiduous attender in the whole House. It is fantastic to have his support in making these points this evening.

As I was saying, the European convention on human rights should be a bulwark against tyranny. It was designed against the backdrop of the crimes of Nazi Germany against millions of people across our continent. Genocide, torture, rape, mass displacement and theft were their hallmark, and our continent rightly came together to create a legal framework to outlaw them for all time. However, over the decades since, and with increasing voracity, rights creep in both the Strasbourg court and our domestic courts has distorted those noble goals beyond all recognition.

To quote the former Law Lord, Lord Hoffmann:

“The devil is in the detail: in the interpretation by the courts of the high-minded generalities of the written instrument. It is these interpretations, which often appear to people to bear little relation to the values that they think really important in the way our country is governed…Since the Convention rights were incorporated into UK law by the Human Rights Act 1998, the UK courts have followed in the wake of Strasbourg, loyally giving effect to its rulings and the principles (where discernible) laid down in its jurisprudence.”

The result is that the UK courts

“have reached decisions, sometimes with regret and sometimes with enthusiasm, which would have astonished those who agreed to our accession to the Convention in 1950.”

That is very relevant to article 3, which lies at the heart of many of these cases.

Article 3 has been progressively expanded by the Strasbourg court to encompass people’s living standards should they be returned. The 2011 case of M.S.S. v. Belgium and Greece was a turning point, with an Afghan asylum seeker able successfully to overturn being returned from Belgium to Greece, through which he had transited, on the basis of the poor living conditions he would face should he be returned there. To say that Greece is an unacceptable place to which to be returned goes so far beyond what the convention authors would have imagined as inhuman or degrading treatment or punishment as to be almost unbelievable, but it has established a principle and opened the doors still wider for those seeking to overturn deportation orders across the continent, including in this country.

The upshot of such decisions is that we have a human rights settlement that often seems to protect perpetrators far more effectively than victims and that repeatedly allows serious offenders to cite their rights to escape the consequences of their actions. I do not blame my hon. Friend the Minister for the impasse in a number of such cases, as he is exceptionally helpful and courteous and I know he and his colleagues always operate within the law as it stands. However, this whole issue leaves a bitter taste.

We know in many ways that it is only the tip of the iceberg. Last December, the Henry Jackson Society published an excellent report by Dr Rakib Ehsan looking at the issue from the perspective of foreign national terrorist offenders. It identified 45 convicted Islamist terrorists whom we have been unable to deport on human rights grounds since 1998, largely driven by article 3 and article 8, the latter being the right to a family life. Our inability to deport in the way we would like leaves us unable to rid ourselves of people who are a genuine threat to our society, and I have a number of questions for my hon. Friend the Minister that I hope he can address in his reply.

The first question is whether the Minister has considered extending the principle of deportation with assurances to all cases involving foreign national offenders, as opposed to simply those concerning individuals suspected of terrorism. It seems to me that this is a concept well worth exploring. If we can secure appropriate guarantees from other Governments that they will not mistreat criminals we deport back to them, that ought to suffice.

Secondly, as part of the fair borders legislation being delivered by my right hon. Friend the Home Secretary, which I warmly welcome, will the Government act to tighten relevant legal definitions, such as “inhuman” and “degrading”, to strengthen the Home Office’s defence against judicial activism? As I have set out, the steady extension through case law of what those definitions can encompass is clearly interfering with the deportation of foreign national offenders, particularly on the grounds of article 3 of the ECHR, which is of great relevance to a number of cases.

Thirdly, what wider work is ongoing within Government to assess how we can reform our human rights settlement, so as to ensure that we have effective deportation options at our disposal, and that our citizens are protected properly from those who ought to be removed under the provisions of the UK Borders Act? I believe we need a root-and-branch reconsideration of those issues. The case for a dedicated British Bill of Rights feels ever stronger, as it would allow us to incorporate core convention rights into our domestic law, define them sensibly in a way that mitigates the accumulated legacy of Strasbourg’s judicial activism, and make the whole settlement accountable to our Parliament and our courts.

As things stand, I do not believe that justice is served in a large number of cases. None of us can be confident that some of the perpetrators will not go on to cause further havoc and harm, and this issue requires our prompt attention. We may have settled a number of issues concerning our relationship with Europe through our recent decision to exit the European Union, but none of that bears on our ongoing challenges regarding our interaction with the European Court of Human Rights and the European convention on human rights. Its goals are noble, but its interpretation in a number of cases is flawed. It is time for action in the course of this Parliament.