Immigration Bill — House of Lords, 2016-02-03
Topic: Immigration
Richard Rosser (Labour, Centre-left): My Lords, Clause 34 and this amendment deal with rights of appeal relating to persons who claim to have a right to remain in the United Kingdom on asylum or human rights grounds, but whose claim has been refused. Under the terms of the Bill, the Secretary of State will have the power to certify the claim for someone appealing on human rights grounds against an immigration decision so that they can only appeal from outside of the United Kingdom unless to do so would be in breach of their human rights This extends to all individuals the provisions that are already enforced for the deportation cases of former foreign national offenders, and will affect all those bringing human rights appeals under Article 8 of the European Convention on Human Rights, on the right to respect for private and family life. In order to make an application under Article 8, it is necessary to gather extensive evidence demonstrating the extent to which a child, for example, has developed a personal life and connections within the United Kingdom, including evidence from the carer, teachers, therapists, medical professionals, mentors and friends. This is surely made far harder where those connections are severed by distance and time, enforced by deportation and delays in the tribunal system It is also vital not only to understand and obtain evidence, but to present it appropriately, which requires legal assistance, yet legal aid is not available for Article 8 appeals save on an exceptional basis. For those without the requisite leave there will also be no legal aid to challenge the certification of the case prior to removal. As a result, out-of-country appeals, for which the deadlines to lodge an appeal are often extremely tight, will not be pursued or will be pursued only inadequately, given the costs of taking forward an appeal as a privately paying individual from overseas. It may be that that is the deliberate intention of this measure. Under the Immigration Act 2014, the Secretary of State was given power to certify deportation appeals so that a foreign national offender subject to a deportation order can be removed before their appeal or during the appeal process if the Secretary of State decides that to do so would not cause serious irreversible harm—not just serious harm, but serious irreversible harm. Available data show that in the year since the provision came into force for foreign national offenders, the number of appeals against deportation brought out of country has dropped by 87% compared with the number brought in country in the year to April 2013. The rate of success on appeal is also lower than before, decreasing from 26% in the year to April 2013 to just 13%. That suggests that many individuals are unable to appeal effectively a decision following removal from the UK, and that appeals which would have been successful are not being brought The available data indicate that "deport first, appeal later" has had an adverse impact on the ability of foreign national offenders—whom I appreciate may not be the most popular of individuals—to challenge a deportation decision, which suggests that this handicap will affect thousands more individuals if the provisions are extended, including many who have British or settled family members in the UK, such as partners and children. We have in this group a stand part Motion relating to Clause 34. Amendment 227 is intended to ensure that before a decision is made to certify any claim for an out-of-country appeal, the best interests of any child affected must be considered in line with the terms of our amendment. As I have already said, Clause 34 is a wide extension of the existing powers relating to a limited class of individuals, and will now cover many people who are appealing their cases. It is not clear to what extent the Government have considered the impact, particularly on children, of separation in such circumstances. The Children’s Commissioner published a report last year about the impact of different rules, including the rules about the income requirement that has to be met before a spouse can join a family. It also addressed the adverse impact on a child of not having access to one parent for months or sometimes years. The Government’s figures indicate that around 40% of appeals succeed, which is a high success rate for appeals, and if a family is involved it could result in the distress referred to in the Children’s Commissioner’s report, because they cannot have any meaningful contact with one of their parents for a prolonged period. That is a real difficulty with the intention to extend the removal of individuals before an appeal can take place. Many appeals take a long time to deal with, and this Bill seems a bit thin in addressing that issue.