Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004

HL Deb 08 November 2004 vol 666 cc686-706

7.29 p.m.

Lord Lester of Herne Hill rose to move to resolve, That this House calls upon Her Majesty's Government to withdraw the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (S.I. 2004/1910), laid before the House on 22 July, and to lay a new order which is compatible with the obligations imposed upon the United Kingdom as a Contracting Party to the Convention relating to the Status of Refugees (1951).

The noble Lord said: My Lords, this order was laid on the last day before the Summer Recess. This is the first opportunity to debate its lack of compatibility with the UK's international obligations under the UN refugee convention. My colleague, Mark Oaten, MP, initiated a similar debate in the Commons earlier today. I do so both in a personal capacity and as a member of the Joint Committee on Human Rights.

Our committee published a report last Wednesday expressing our concern that the order as drafted is outside the lawful scope of the order-making power. The power to make the order was conferred by Section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002. Section 72 says that it applies, for the purpose of the construction and application of Article 33(2) of the Refugee Convention". To be lawful, any order made under this power must therefore be compatible with the refugee convention.

The relevant provisions of the refugee convention are Article 33(2) and Article 1F(b), the text of which is set out in paragraphs 17 and 19 of the JCHR report which is in the Printed Paper Office. Appendix 1 to the JCHR report contains a valuable memorandum from the Refugee Legal Centre. Appendix 2 sets out 10 questions contained in a letter from the chair, the right honourable Jean Corston MP, to Des Browne, MP, Minister of State at the Home Office. Mr Browne replied with commendable speed in a letter of 4 November. The Minister's letter is also available in the Printed Paper Office.

The UN High Commissioner for Refugees (UNHCR) has expressed its grave concern about this very important issue. Its views are of particular importance. UNHCR is responsible for supervising the application of the refugee convention, and the UK and other contracting states have undertaken to co-operate with the Office of the UNHCR in the exercise of its functions. States are therefore expected to pay due regard to the UNHCR's interpretation of the refugee convention. UNHCR guidance in relation to Articles 1F and 33(2) is set out in paragraphs 23 to 26 of our report.

A letter from UNHCR's representative in the UK, Anne Dawson-Shepherd, summarises UNHCR's concerns. It explains that the overriding objective of the refugee convention is to ensure that refugees are protected and are not returned to their countries of origin to face persecution. Exceptions to the convention's protections include individuals considered to be a danger to the security of the host countries or those who have committed a crime so serious as to pose a threat to the citizens of the host country.

The UNHCR is concerned that this order includes a list of some 500 acts said to be "particularly serious" and warranting the removal of refugees to their countries of origin, where they may face persecution. The JCHR report notes in paragraph 27 that the list includes, a number of crimes which cannot on any view he regarded as 'particularly serious crimes' as that phrase is to be interpreted in the context of the Refugee Convention. It includes, for example, theft, entering a building as a trespasser intending to steal, aggravated taking of a vehicle, criminal damage, and possession of controlled drugs. We doubt whether these offences, per se, would amount to 'serious crimes' even for the purpose of Article 1(F)(b) and are even more doubtful that they are capable of amounting to 'particularly serious crimes'". I have marked up, and have here, copies of the offences highlighted to show that many of them are not even offences triable only on indictment. Any noble Lord who wishes can have a copy of my marked up visual aid.

UNHCR points out: Both law and basic notions of fairness dictate that there must be proportionality between crime and consequences". But the order includes a sweepingly broad interpretation of what is considered to be a "particularly serious crime", as well as disproportionately serious consequences to a refugee.

UNHCR notes that the threshold for determining a particularly serious crime in the legislation of other countries is significantly higher than in the UK, and that in those countries, proportionality tests are maintained and decisions are made using appropriate checks and balances". The Minister, Des Browne, MP, has made it clear in answer to our questions one and two that the UNHCR guidance on the meaning of "serious crime" in Article 1F has been disregarded by the Home Office, even though it is plainly relevant in construing what is meant by "particularly serious crime" in Article 33(2). I find that extraordinary.

The lowering of the high threshold for the applicability of Article 33(2) is made explicit in the Minister's answer to question nine where he states that offences have been included which do not show a direct physical threat to the community, but, pose a danger … by creating significant anxieties within communities and breaking down cohesion". Resort to "anxiety within communities" or community "cohesion" are not permissible under Article 33(2) because they fall far short of "danger to the community". That is the most explicit statement of what I can only describe as the Home Secretary's populist motives. It is in line with the response to the JCHR's concerns about asylum seekers being subjected to forced labour, where the Home Office referred in a letter to our committee to the need to be doing something to preserve "community cohesion"—see JCHR 17th report of Session 2003–04, 9 July, page 48. That illustrates how political populism is undermining the principle of non-refoulement in Article 33(1) by a deliberately over-expansive interpretation of what should be restrictively interpreted exceptions.

Another alarming element is the effective removal of case-by-case consideration, since individual circumstances should always be analysed. Indeed, Des Browne MP's letter confirms in answer to question five that, contrary to UNHCR guidance, no special circumstances relating to the offence will affect the presumption that a particularly serious crime has been committed for the purpose of Article 33(2). He also confirms in answer to question seven that no account will be taken of the gravity of the fear or risk of persecution the person may face if returned, which is also directly contrary to the UNHCR's interpretation of the convention. The Government simply state brazenly that they disagree without giving any reason.

The order shifts the burden of proof to the refugee to prove that he or she is not a danger to the community. UNHCR notes that this will be, a near impossible task, particularly for an individual with little or no command of English and limited financial means". The Home Office accepts in answer to question six that the burden of proof will, indeed, be on the individual. That is directly contrary to UNHCR's interpretation of the UK's convention obligations. Also of grave concern to UNHCR are recent guidelines issued by the Immigration and Nationality Directorate that extend the range of Home Office powers by denying access to protection to individuals seeking asylum". The JCHR report recognises in paragraph 30 that it is highly unlikely in practice that the order will lead to the return of refugees to persecution because they will continue to be able to rely on human rights grounds, and because Article 3 of the European Convention on Human Rights is probably at least as wide as Article 33 of the refugee convention. But even if that is so—and it is a question only of probability—as the JCHR notes in paragraph 31, there is the, deprivation of an opportunity to establish refugee status, and the various concomitant advantages which come from such status". For example, once convicted of a crime prescribed by the order—theft or breach of the peace—and labelled as a danger to the community, the individual will be limited to six months' discretionary leave, at the end of which a further six months may be applied for. No greater degree of settlement could be applied for until after 10 years. That will effectively preclude or impair family reunion, and interfere with the ability to work and study.

The Minister will need to explain to the House why this unsightly and unfair measure is thought to be necessary. It appears to be a squalid exercise in populism at the expense of one of the world's most vulnerable minorities. I beg to move.

Moved to resolve, That this House calls upon Her Majesty's Government to withdraw the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (S.I. 2004/1910), laid before the House on 22 July, and to lay a new order which is compatible with the obligations imposed upon the United Kingdom as a Contracting Party to the Convention relating to the Status of Refugees (1951).—(Lord Lester of Herne Hill.)

Lord Judd

My Lords, I should explain at the outset of my remarks that I too am a member of the Joint Committee on Human Rights. I can say with considerable emphasis that everything said by the noble Lord, Lord Lester, expresses very clearly the committee's anxiety. The Minister should be under no illusions. In a bipartisan committee—indeed, a representative committee in terms of its party and Cross-Bench representation—there was unanimity of anxiety about this proposal. The Minister always listens to debates of this kind with great care, and takes the thinking and evaluation of the Joint Committee on Human Rights very seriously. I therefore hope that he will weigh with great consideration the fact that the committee came to a firm conclusion, as a committee, about why the provision was unacceptable.

I cannot compete with the noble Lord, Lord Lester, in his legal expertise although, as a layman listening to him, I thought that he put the legal arguments as well as he always does. I want to emphasise several points. First, if it is true that the order could be negated by other provisions to which we are committed, the issue about still being denied the prospect of refugee or asylum status is a very serious consideration. I hope that the Minister will deal with that very fully in his reply.

Secondly, the issue about reversing the whole balance of responsibility in establishing the truth is, again, very grave. As a non-lawyer reading the advice put down by the United Nations High Commissioner for Refugees, I think it quite clear that it is the responsibility of government to demonstrate why there is a special circumstance. In the context of the order and its operation, of course, the balance moves in precisely the opposite direction. That is a serious matter.

The third issue that concerns me deeply is that the provisions involved in the operation of the order overlook the whole question of the reliability of the administration of justice in any particular country. I totally agree with the noble Lord in saying that the list has become quite extraordinary, in terms of the order. Even where we regarded something as a serious crime, if another country or government had on record that such a crime had been committed and the person responsible found guilty in that country, why should we automatically accept that the administration of justice there could be equated with our position in the United Kingdom? That seems very worrying, particularly when we surely all take very seriously, in our approach to the administration of law, the principle that justice should not only be done but be seen to be done. That question has wider implications. It is again one on which the Minister should dwell.

My final point is to pick up a more general issue on which I speak not for the committee, but for myself. I have great respect for the Minister, and I hope that he will take seriously the argument that I put forward. He carries responsibility in a department of state that is faced with incredible challenges at the moment, in the age of global terrorism. It carries the responsibility on behalf of us all of being a lead department in ensuring the security of our citizens.

Any study of terrorism demonstrates that what matters to its successful deployment is that there be a climate of ambiguity, to say the least, among a significant number of people about whether justice is done effectively—whether they enjoy their rights as they should. If they are not absolutely convinced of that, although the overwhelming majority of them would not contemplate participating in an act of terrorism, they do not necessarily get up every morning saying that their first job—their first responsibility as a citizen—is to expose the terrorists, because a deep sense of injustice inhibits them. They sometimes may even go so far as to ask themselves whether, however much they condemn the act of terrorism, the misguided people responsible for it may be on their side.

Of course, that brings us to the point at which, if we are to win the battle for minimising the deployment of terrorism, we have to win the battle for hearts and minds. We need people working with us on our side. I put it to my noble friend, as a Minister in the Home Office, that it is tremendously important to do some joined-up thinking in government on the issue. If we really are preoccupied with the threat of global terrorism and its deployment in our society—it would be irresponsible not to be so concerned—we must be rigorous and inexhaustible in our commitment to ensuring that people enjoy their rights in society and feel confident that they are doing so. Anything that can be exploited in the contrary context is dangerous; I use the word advisedly.

I am afraid that, in much of the way in which immigration policy is administered, there is a danger that it may be turning people sour in a way that indirectly, if not directly, will lend itself to a climate of ambiguity in which it is easier for the terrorist to operate. Quite apart from the principle—I do not need to spell out my concern for that principle—in terms of the practicality of policy in our whole campaign against global terrorism, issues such as the one that we are discussing have a central relevance that is sometimes not recognised as it should be.

7.45 p.m.

The Lord Bishop of Chelmsford

My Lords, I am hugely grateful to the noble Lord, Lord Lester, for raising the issue in the House, and to my friend, the noble Lord, Lord Judd, for his remarks. As is fairly typical in the life that my colleagues and I live, in two weeks time I shall meet representatives of quite a range of groups across my diocese who are working with refugees and asylum seekers. We constantly deal with people who feel extremely vulnerable in our community. I simply want to draw attention to and underline two points that have been made; I look forward to the Minister's response.

With regard to the list of crimes, it is very important in our practice on such issues that we do not break the principle of proportionality. It is one way in which the independent objectivity of our law in relation to justice is preserved. In the atmosphere of the world in which we live today—one of great insecurity and uncertainty, as the noble Lord, Lord Judd, said—it is very easy for departments such as the Home Office to shape their responses in the light of the anxieties of the general populace and forget that we have a fundamental duty to defend the rights and lives of those most vulnerable in our community.

Given the comments of the noble Lord, Lord Lester, regarding the issue of shifting the burden of proof, I wish to underline my second point, which relates to my first; the issue is deeply serious. When one meets with refugees one is hugely conscious of their feeling of weakness and vulnerability in the face of the state, its powers and the structures of the law. It is very important that those of us who speak for the state, for government and for the structures of the law are very careful and reticent about how we handle the situation. I very much hope that the Minister will provide us with some comfort when he answers these questions.

Baroness Carnegy of Lour

My Lords, I had not intended to join this discussion, but I have been interested over the years in these difficult problems regarding how we receive our asylum seekers and what the law should be. I have taken part in the debates on most of the legislation of the past few years.

I have listened with great interest to what has been said. Thank goodness we have a human rights committee in this House which can report to us and identify the problems in this matter. Thank goodness we have distinguished human rights lawyers in this country—and the noble Lord, Lord Lester, is one of those. But when the noble Lord, apparently slightly looking down his nose, uses his huge experience of the law and an intricate argument about how the different pieces of international and United Kingdom law interrelate in this matter, and he talks about the Government succumbing to political populism, we have to be careful.

People living in this country have their rights too. We know that this is a fragile subject. One has only to visit or even drive through parts of this great city of London to realise the pressures that there are for people living here. Many new citizens who have arrived from many countries have not yet come to terms with each other in their communities. We must be very careful. To use human rights arguments to justify accepting an asylum seeker into some of these areas who has been convicted as a burglar, perhaps several times, or convicted as a child abuser or some of the other 500 crimes listed in the order, is not easy.

I have not discussed this with my noble friend on the Front Bench and I do not know what she will say. I shall listen to what the Minister has to say with great interest. I see only too clearly the problem with which the Government are dealing. We should not use human rights arguments—that business is becoming almost an industry. That can be damaging. We should not use it to bring the wrong people into communities just as a result of the intricacies of the law. We must we careful. So I shall listen with interest to other speakers, particularly the Minister.

Lord Avebury

My Lords, it has certainly become an industry, and one which is backed by enormous multinationals, to attack human rights and to try to undermine them—as one sees almost daily in newspapers such as the Daily Express and the Daily Mail. But this is a matter not solely for lawyers but for the ordinary people of this country. I hope that the noble Baroness, Lady Carnegy, has had the opportunity of listening to my noble friend and of reading what the UNHCR representative said regarding this matter. Whether or not she recognises that, does she think that it is totally unprecedented for the UNHCR representative to write a memorandum in such critical terms about a matter that has come before your Lordships' House?

The UNHCR representative draws our attention to the enormous number of crimes that are treated as "particularly serious" and that also disturbs the JCHR. At one end of the scale are offences such as knowingly causing a nuclear weapon explosion or, as the noble Baroness would have it, the offences of paedophiles, which everyone would accept should be treated in the manner of this order. But, as Ms Dawson-Shepherd observes, the principle of proportionality makes it inappropriate to return a person to a country where he may face torture or death when he has been convicted of an offence as trivial as some of the 500 that are listed in the appendix, such as those that my noble friend has mentioned.

The appellate authorities are not required to consider that proportionality, which is an essential ingredient of the consideration of cases under the convention, as the right reverend Prelate the Bishop of Chelmsford reminded us. In proceedings where the offender is trying to prove that he is not a danger to the community, that matter does not come into the equation at all because, as the Minister said in the letter to Jean Corston, to which my noble friend referred, it would not be for consideration in the second leg of a decision that had to be made under the order.

All noble Lords have referred to the fact that the UN HCR points out that the order of proof in criminal trial would be reversed, even though the consequences of losing are potentially far more serious. The "rebuttal presumption" means that a person sentenced to two years or more on any of the range of offences in the schedules to the order is presumed to be "a danger to the community" unless he can prove otherwise. In the guidelines on Article 1(F), dealing with exclusion, that concept is permissible only in the circumstances given in paragraph 19: that the person remained a member of a government clearly engaged in activities such as crimes against peace, war crimes or crimes against humanity or membership of an organisation involved in violence. Under paragraph 34 of the guidelines, the burden of proof rests on the state in every single other case. But this order lifts the concept of the rebuttable presumption from the guidelines, where they are applied to a narrow set of Article 1(F)(a) cases, and applies it to all Article 33(2) expulsions.

As my noble friend has observed, the UK, in common with other signatories to the convention, has undertaken to co-operate with the UNHCR in the exercise of its functions; a duty which must include compliance with the guidelines in the absence of any formal reservation. I am not aware of any discussion between the Government and the UNHCR on the issue, or of any objections raised when the UNHCR published the latest edition of the guidelines on the interpretation of the exclusion clauses in September 2003. Although the guidelines go on to say that the exclusion clauses should not be confused with Article 33(2), which deals with the expulsion of a person who has been admitted to the host state, the underlying principles must be the same.

Paragraph 2 of the guidelines states that, given the serious consequences of exclusion, it is important to apply", the excluding clauses, with great caution and only after a full assessment of the individual circumstances of the case". Paragraph 38 of the background note, which should be read in conjunction with the guidelines, sets out the ingredients of such an assessment. But the order precludes any process of that kind. In sentencing a person for any of these offences, the court has no obligation to consider the seriousness of the crime for the purposes of Article 33 in relation to the five sets of criteria proposed by the UNHCR, nor has the Secretary of State to think about them in deciding whether to issue his certificate. The noble Lord, Lord Filkin, stated: He will not act without carefully considering the individual circumstances Of the case".—[Official Report. 31/10/02; col. 361.] That was when we were discussing the Nationality, Immigration and Asylum Bill. But the Minister is not obliged to do that before deciding whether to certify that the person is a danger to the community. In seeking to rebut that particular presumption, it is not easy to see how the question of whether he considered the factors in the background note could be introduced. As I said, in the letter to Miss Corston, the Minister specifically says that they would not be considered.

8 p.m.

The expression "particularly serious crime" in Article 33(2) must surely have a more restricted meaning than "serious non-political crime" in Article 1(F)(b) or the drafters would not have bothered to insert the word "particularly". It no doubt still includes offences such as murder, rape and armed robbery. Whereas crimes such as petty theft or the personal use of illegal drugs would not reach the Article 1(F)(b) threshold, there should at least have been some additional offences between those two extremes that would fall below the Article 33(2) threshold.

It is rare in the extreme for the JCHR to state baldly that a provision in either primary or secondary legislation is in breach of the UK's treaty obligations, but that is what has happened with this order. The committee states that it is incompatible with the refugee convention—a very serious matter which Parliament will have to examine in greater depth than is possible in one hour. But the committee goes further and suggests that Section 72 of the Nationality, Immigration and Asylum Act may itself be incompatible with the convention.

We criticised that provision at the time, as did the noble Lord, Lord Kingsland, from the Tory Front Bench. We received no answer to the question why, as the courts already have power to recommend the deportation of a person who is convicted of a particularly serious crime, the Secretary of State could not then consider in each individual case whether the requirements of Article 33(2) were satisfied. At that time, the noble Lord, Lord Filkin, was unable to say even how many individuals had been sent back to their countries of origin under that article.

If the JCHR is right, this is in any case a pointless exercise because the order does not affect the rights of a person under Article 3 of the ECHR. As an applicant now has to state all the grounds of an appeal at the same time, the issue of the Secretary of State's "danger to the community" certificate will cut off only the refugee convention leg of any appeal and not the human rights leg.

It is not clear what happens during the period taken up with the separate appeal against the rebuttable presumption of the certificate, but the order contains nothing that would prevent that appeal being heard, with the possibility of a second appeal if the rebuttal is successful. But, in fact, as the detainees in Belmarsh could testify, even persons who have committed extremely serious offences are not refouled if they would be at risk of torture or execution.

It is a great pity that this Government have got themselves into such a mess with this legislation. The best thing that they could do to avoid endless futile litigation on these matters would be to withdraw the order and think again about Section 72.

Baroness Carnegy of Lour

My Lords, before the noble Lord sits down, I think I am right in saying that he stated that such people might be returned to a country where they might be tortured or might even suffer death. Surely the Human Rights Select Committee report points out that the convention on human rights precludes that.

Lord Avebury

My Lords, the rights of a person under Article 3 of the ECHR are not extinguished by the order. That is why I asked what would happen to the person's ECHR leg of his appeal during the period that the rebuttal of presumption was being considered.

Baroness Anelay of St Johns

My Lords, I start by recognising the fact that the reason that this order is even before us today is that the Government agreed to a compromise during the ping-pong on the Nationality, Immigration and Asylum Act 2002 in response to proposals put forward by my noble friend Lord Kingsland in Committee and on Report. I am grateful to the Minister in another place, Mr Des Browne, who this afternoon, during the debates in another place on this statutory instrument, referred to my noble friend's work as "a helpful intervention". I can only say that I was there at the time and the Government did not seem to treat it like that then. However, they are obviously partly reformed characters now.

It is important that we reflect briefly on how we have reached the point of having this list before us today. It will explain the view of the Front Bench that I put forward today on the order. The Government agreed that, the Secretary of State should be in a position to specify in an order offences which, whatever the length of sentence imposed, by their very nature connote such a degree of seriousness that conviction of one of them would be appropriate to create a presumption that the offender is a danger to the community".—[Official Report, 6/11/02; col. 847.] That statement was made by the Minister.

The Government's first approach had been very different. It was to prescribe that a person is a serious criminal for the purposes of the refugee convention simply if he has been sentenced, either in the UK or abroad, to a period of two years' unsuspended imprisonment. As noble Lords then said, the presumption could be rebutted but the burden of proof would be reversed, and the shifting of the burden of proof remains.

We were concerned that at that stage the Government's approach differed from the text of the refugee convention in the following three respects. First, the presumption in the clause arose in relation to the punishment imposed rather than to the crime committed. Secondly, the inflexible criterion of two years' imprisonment would not cover a situation where someone was convicted of a particularly serious crime—or one that we considered to be particularly serious—such as dealing in child pornography or drugs, but was sentenced to perhaps only 14 or 18 months' imprisonment because of a substantial discount for an early guilty plea or for other mitigating circumstances. The third issue was that the proposal that related to the sentences imposed for crimes committed abroad took no account of the sentencing policies or the applicability of the rule of law in foreign countries. I know that that issue remains at the heart of some of the points raised by the noble Lord, Lord Lester, today.

We argued that the presumption should arise from the crime committed and not from the punishment imposed. Here, we have ended up with a mish-mash of the two and that is what we face. We accepted the Government's compromise at that stage, and we do not resile from that position today. As my noble friend Lady Carnegy of Lour said earlier, the Government are in a difficult position in trying to protect the public and in trying to ensure that, when people are given refuge here, they should be given refuge and are not people who pose a threat to the community. I do not think that the noble Lord, Lord Lester of Herne Hill, resiles from that either. The difficulty at issue here is how broad the list of offences that we face today should be.

I recognise the Government's difficulty. Some noble Lords have referred to this matter in terms of the fact that the country needs to face a threat of terrorism. We have always been aware of the fact, and have agreed, that the Government need to face far more difficulties due to applicants coming here who have committed other crimes that in no sense can be called terrorism, but who will form the mainstay of those who will be refused permission to be here under the order.

It is important that the Government respond to the points put today, not least because the Minister in another place did not have time to do so. That was not his fault. For once, I can say that of a Minister. Whether I would have liked what he had said if he had had time to give his answers I do not know, but he had a mere few minutes in which to respond and then the guillotine of 6.15 p.m. came down. I attended the other place earlier and listened. Much of the argument that has been put today so cogently by noble Lords simply did not receive a response from the Government earlier. Therefore it is important that we consider some of the practicalities of the issue.

First, the list raises a broad sweep of offences, not just in a list of 500, but particular offences in themselves can cover a very wide range of criminality. That is the argument used by the Joint Committee on Human Rights in its conclusion that the order is incompatible with Article 33(2) of the Refugee Convention.

I shall be interested to hear the Government's response. I do not actually object to the list, but my questions are probing. The list, as noble Lords have mentioned, includes Section 1(1) of the Theft Act 1968 which refers to dishonestly appropriating another person's property, intending permanently to deprive him of it. It also refers to Section 1(1) of the Criminal Damage Act 1971. I find that confusing, given that this is a Government who only recently introduced penalty fines for those offences and who, at the same time, say that in some circumstances those can be particularly serious crimes. So the Government are sending out a mixed message.

In one instance one can get a penalty fine and not have to go to court for theft or criminal damage and here it is said that they are such serious offences that one cannot have political refuge here. I think that is a confusion that needs to be resolved by the Government. Therefore, can the Minister explain how the Government intend to decide when offences are sufficiently serious in themselves for someone to be refused refugee status and, of course, perhaps returned to another country? I listened with interest to the right reverend Prelate. I entirely agree with him that it is important to retain a sense of proportionality. We need to know how that will underwrite what the Government will do in respect of the order.

My second question is: who is affected? I notice that the right reverend Prelate referred to refugees and asylum seekers. It is very tempting to do that, but we need to be clear who is subject to this order. Will those who have been given indefinite leave to remain here be covered and what will happen with regard to their families? I am sure that there are straightforward answers to those questions, but the Minister in another place did not have a chance to give them.

Can convictions ever be considered to be spent? My honourable friend in the other place, Humfrey Malins, raised the issue of someone who in his youth commits an offence that we would all perhaps accept to be very serious, but by the time he claims asylum here at my age, 57—I shall be 87, when I think back to the jibe made by the Minister about referendums—and applies for refuge, does his seriously misspent youth count against him still, or can we consider that he has reformed? We need to hear some proportionality from the Minister.

My third question refers to the duty of the courts in all these matters. In future, what will be the duty of a district judge when, having found someone guilty of one of these offences, he sentences him to prison for more than two or three years? Does he have to say to that person, "Mr or Mrs whatever, do you have pending any claim for asylum/refugee/immigration status in this country?", and if the person says, "Yes", does the judge have to report that? What is the flow of information back to the Home Office about who is being found guilty and who should come within the circumstances of this order?

My fourth question is a technical one on Northern Ireland. In the other place the position of Northern Ireland was raised by one of my honourable friends. Perhaps I may seek reassurance from the Minister. Will the level of criminality that someone has to reach before he is denied refuge be the same in England and in Wales as in Northern Ireland? I ask that because, as ever, there are in the schedules different lists for Northern Ireland. We would like reassurance that there will not be one way of calculating criminality in England and Wales and a different way of calculating it in Northern Ireland.

Finally, perhaps I may invite the Minister to confirm what I understand to be the case, that the vast majority of people who seek refuge here will not be caught by these provisions and will not be offenders at any stage in their lives. They may be refused refuge because they do not qualify for asylum as they are economic migrants and do not come within these particularly carefully drawn rules. But it is my understanding that the majority of people coming here would not be considered to be offenders within the rules of this order.

8.15 p.m.

Lord Rooker

My Lords, I shall do my best to answer as many of the detailed questions as I can before I sit down. I understand that this was a normal order in the other place. They had 90 minutes for debate. It is up to the people who are debating to choose whether the Minister has enough time to respond. I have been involved in silly game playing in the other place where you deliberately leave the Minister only two or three minutes so you can go around complaining that he did not answer all your questions. I hope that that was not the attitude of today's debate.

I shall not speak overlong, but I will certainly have to take slightly more than the 12 minutes Des Browne took in the other place. Perhaps I may say by way of introduction, because I suspect that most of what I say is not going to go down very well, do not commit the crime. Basically, that is the end of the line—do not commit the crime.

Only people who have committed crimes and been before the courts will be affected. That applies equally to British citizens as to visitors—asylum seekers or refugees. If you commit the crime, there are consequences. For certain classes of people the consequences could be quite severe; in other words, as identified in the order.

I will give some background first and then come to the individual points that have been raised as they are all valid questions that deserve answers. One point goes back to what my noble friend Lord Judd said. I was Home Office Minister in 2001–02 when we were planning what is now the Nationality, Immigration and Asylum Act 2002. I remember the early discussions about the issue. Obviously, during the course of ping-pong, we achieved a much more satisfactory solution due to the intervention of the noble Lord, Lord Kingsland. Quite rightly, tribute has been paid to him.

One of the things we wanted to get clear when planning the legislation was an asylum system—and it is true that lots of Bills had gone through—which was fair to everybody, but which was also robust and credible in the eyes of the public. Certainly, in many respects, our systems were not robust and credible in the eyes of the public. That meant that we had to consider every asylum claim individually—which is what happens now while being as tough as possible on the very small proportion of asylum seekers or refugees committing serious crimes. Indeed, to answer one of the noble Baroness's questions, the vast majority of people are not affected by this legislation.

Frankly, we do not want to accommodate in our country those who abuse our hospitality and sanctuary through criminal activity. No one in their right mind can stand up and defend that. The Section 72 order builds on and reinforces the progress we have made in dealing with the misuse of the asylum system in many different ways. There is no one quick fix on this.

I will just say a few words about the background to Section 72 of the Nationality, Immigration and Asylum Act 2002. The section provides an interpretation of Article 33(2) of the refugee convention and is applicable both to persons who are already refugees and to asylum seekers. That answers one of the questions asked by the noble Baroness. In a moment I shall come to the point she asked about those with indefinite leave to remain.

Section 72(2) provides a rebuttal presumption that for the purposes of Article 33(2) a person convicted of a crime and given a non-suspended custodial sentence of two years or more has been convicted of a particularly serious crime and is a danger to the community in the UK.

Unless the presumption is rebutted, a person will not then be able to rely on the refugee convention to prevent his removal. So the presumption is rebuttable—something of which the noble Lord, Lord Lester, forgot to remind the House.

What does the order actually achieve, because we are debating the order and not the legislation? Section 72(4) applies a similar presumption to those convicted of any offence specified in this order, irrespective of the length of sentence imposed. For serious crimes listed in the order, the normal expectation is that the courts would impose a sentence in excess of two years. I will give examples of why I think that that would be an expectation. We fully accept that there may be rare situations where a shorter sentence is imposed—that is up to the judge, looking at the circumstances of the case—or where, for example, the sentence imposed is three years, of which only 18 months is in prison and the rest is suspended.

The order ensures that there is no loophole in the application of Article 33(2) for those criminals who get shorter sentences when convicted of these offences. As has already been mentioned, during the debates on the Bill in 2002, the noble Lord, Lord Kingsland, rightly pointed out that loophole, raising the possibility of those committing serious crimes against children falling outside the scope of Section 72. The noble Lord was right to highlight the shortcoming, and the introduction of the order-making power to list specific offences arose from his helpful intervention—even though that was not how it appeared to the noble Baroness at the time. It really is good for governments to sleep on things. In this case, we have a better Act as a result of it.

I fully accept that there has been criticism in this debate and in the report of the Joint Committee on Human Rights that the list of offences in the order is too long. It has also been mentioned that our position is at odds with that taken by the United Nations High Commission for Refugees. We do not accept those criticisms. They are criticisms that need to be rebutted, but we do not accept them.

In considering what offences to include, we looked first at the seriousness of the offence, for which the maximum imposable sentence is a good guide. Of the offences listed in the order, 40 per cent have a maximum sentence of life. If one takes the order in its totality, 85 per cent of the offences have a maximum sentence of 10 years or more, including the 40 per cent which I have just mentioned.

The report of the Joint Committee on Human Rights mentions a few offences that it considers to be low level, but the description of the offences in the report is not always complete. For example, paragraph 27 of the report of the Joint Committee on Human Rights lists the offence of, entering a building as a trespasser intending to steal". That is followed by a comma. The report then lists the further offences of, aggravated taking of a vehicle, criminal damage, and possession of controlled drugs". That is not a full description of the offence in the order. I invite noble Lords to look at page 8 of the order, which lists offences under the Theft Act 1968. The third offence in the list, in Section 9(1)(a) of that Act, is described as, entering a building as a trespasser, intending to steal, inflict or attempt to inflict grievous bodily harm or rape". Perhaps the printers of the report did not have enough pages or print to describe the offence in full, but it does not do justice to the case to include less than a full description of the offence. The fuller description better reflects the potential seriousness of the offence and the dangerous nature of those who commit it.

We accept without qualification that our list of offences goes wider than the United Nations High Commission for Refugees recommends. The UNHCR is of course entitled to its view on what offences should be included, but the Joint Committee on Human Rights report is wrong in its implication that the United Nations High Commission for Refugees provides the proper interpretation of the refugee convention. It does not.

Interpretation of the convention is a matter for the courts and the legislatures of the sovereign states.

Lord Lester of Herne Hill

My Lords, I am grateful to the Minister for giving way. Does he agree that the supervisory nature of the UNHCR in the interpretation and enforcement of the refugee convention is an obligation that has to be recognised by all contracting states? Can he explain how, to take a couple of examples, a breach of the peace—not even a racially aggravated breach of the peace—or malicious damage to property can on any ordinary English meaning be characterised as a particularly serious offence?

Lord Rooker

My Lords, on the first part of the noble Lord's question, I accept what might have been the convention, but the fact is that the interpretation of the convention is a matter for the courts and the legislatures of the states. I pay tribute to the UNHCR. I am not in any way being critical of the work that it does; far from it. However, it is a matter for the courts and legislatures of states. This partly answers the second part of the noble Lord's question. The report of the Joint Committee on Human Rights does not mention that other contracting states have chosen to define Article 33(2) and that, in some respects, they have included a broader definition of "particularly serious crimes" than we have done. I had hoped that there would be several examples but I have only one. In Australia, violent drug or property crimes carrying a maximum sentence of three or more years meet that definition—they are shorter sentences. So Section 72 and this order are not out of step with practice elsewhere.

I agree that the order goes beyond what might be considered. The majority of offences on the list in the order fall into six broad categories: sexual crimes, violent crimes, drug-related crimes, racially motivated crimes, crimes against children and terrorist offences. In our view and that of the public those who have committed those offences are a danger to communities. It is up to them to make the case that they are not a danger to the communities. We do not think that that is impossible.

I want to make it absolutely clear that each case will be assessed individually. We are not moving away from that position. I shall quote from the Minister's letter before moving on. In the four schedules of the order, there are 228 offences of which 91 (40%) have a maximum sentence of life, a further 59 (26%) have a maximum sentence of 14 years and 45 have a maximum sentence of 10 years". Just a few have a maximum sentence of fewer than 10 years. Seven have a maximum sentence of two or three years. They are very much the minority of offences on the list.

Each case will be assessed individually. Where we are considering an application for asylum based on the refugee convenion and we think that a Section 72 presumption applies, the individual concerned will be given an opportunity, at a pre-decision stage, to rebut the presumption that he poses a danger to the community. The assessment of the danger that a wrongdoer might pose to the community is an assessment of the present or future danger. It is made on the basis of the evidence of their past conduct and the likelihood of their repeating such conduct in the future—for example, parole reports or prison reports, which provide an assessment of the person's character near the end of sentence. A successful rebuttal of that presumption, no matter how serious the offence committed, means that Section 72 will not apply. Remarks about the burden of proof are therefore misplaced.

As the report of the Joint Committee on Human Rights says, the burden will lie on an individual to rebut the presmption that they are a danger to the community. We consider it right that, where a person commits a crime of that magnitude, and by definition he has been convicted, the burden should rest on that individual to say that he is not a danger to the community. It is not an insurmountable hurdle, as the individual has the facts available to make out his case.

Furthermore, any decision we take in reliance on Section 72 will be subject to the oversight of the appellate authorities. In that respect, it is not the final decision; it can be appealed. They will consider whether our decision to issue a certificate under Section 72 was correct. Both we and the courts will also have to consider all relevant ECHR issues, since the existence of Section 72 and the order in no way alter our obligations under that treaty.

Suggestions that the order is unfair, that it will lead to unlawful removals or that it will prevent individual consideration of cases—by the appellate authorities as well as the Immigration and Nationality Directorate—are therefore misplaced.

I shall now briefly answer some of the points raised rather than use the rest of the notes. The noble Lord, Lord Lester, raised a point that the order provides no balancing test between the seriousness of the offence and the gravity of fear. He said that the order puts a burden on the individual to rebut the danger to the community. It is not the order but Section 72 which rules out the balancing test and puts the burden on the individual to rebut the danger to the community. Section 72 of the Act was approved by Parliament and that is not being debated today; we are debating just the order.

As regards the two issues he raised, first, Article 33(2) provides no balancing test. It is perfectly reasonable for our law to reflect that. Secondly, if a person commits an offence under this order it is perfectly reasonable to put the onus on the individual to rebut the presumption that they are a danger.

I have not noted which noble Lord raised the next point as regards offences overseas. It is an important point because it returns to what the noble Baroness, Lady Anelay, said about age. Section 72, and therefore the order, will apply very rarely to offences committed abroad. We would consider its use only where the person committed the offence abroad having already been recognised as a refugee here before committing that offence—they would have gone abroad and returned or an asylum seeker would have gone abroad. It is not unknown for asylum seekers to arrive in this country, file a claim for asylum and go abroad while the application is being dealt with.

Where we considered the use of Section 72 for offences committed overseas we would take account of any suggestions that the conviction was unreliable and whether the offence would be a crime in the United Kingdom. I hope that that will satisfy noble Lords. My noble friend Lord Judd raised the issue of depriving a refugee when a Section 72 order applies. Why deprive the refugee of asylum status? That allows us to keep the refugee's position under review. Obviously, the refugee would not be returned to a country if it were one to which we did not return them for all the reasons we understand and which I shall not go into. I call them human rights reasons.

However, if the situation changes in the country concerned we will return the refugee because refugee status here has been lost. It is as simple as that. The refugee should understand that before committing the crime. If return is not possible, it is right that the person committing the serious crime and posing a danger to the community should not benefit from all the benefits of asylum seekers such as family reunion rights. That is absolutely right: there will not be any family reunion rights because they will be lost as part of the cost of committing crime.

The noble Lord, Lord Avebury, asked me about the human rights element of an appeal where the order applies. There would be a single appeal, as in other immigration appeals. Section 72 requires the appellant authorities first to consider whether the Secretary of State was right to say that Section 72 applies. If the appeal body agrees with the Secretary of State that ends the asylum aspect of the appeal. The other grounds of appeal, including human rights, will lie to be considered and that is quite right. I hope that that answers the noble Lord. If the appeal body disagrees with the application of Section 72 then it will consider whether the person has a well founded fear of persecution unless that has already been accepted.

The noble Lord, Lord Avebury, also asked about the comments of the noble Lord, Lord Filkin, on individual consideration. There would be consideration of individual circumstances in applying Section 72 or the order. This individual consideration would be in assessing whether a person had rebutted the presumption that they were a danger to the community. As I said before, we do not believe that it is impossible for a person to have the facts to rebut that; for example, as regards the comments of the court when sentencing, the police reports, probation reports and court reports.

Lord Avebury

My Lords, paragraph 7 of the Minister's letter says that Section 72 makes it clear that in considering whether Article 33(2) applies, no account is to be taken of the gravity of the fear or the risk of persecution which a person may face if returned to their country. So the individual consideration which is being given by the Minister in deciding whether to issue a certificate bears no relation to the threat which a person might incur of persecution, torture or even death if he is returned to his own country.

Lord Rooker

My Lords, as I have already said, they may not be returned, but if the situation in that country changes, they will be returned. That is the point. It has to be the consideration at the time when we want to remove a person. We want to make it clear that a person cannot commit a crime in a country where it is known that he or she will not be returned by the UK and still claim refugee status later when that country has a brand new government, is democratic and has good human rights structures. Such a person cannot say, "No, no. I am staying in the UK. That is where they gave me refugee status. I may have committed these serious crimes, but my human rights are affected". The Government could reply, "Sorry sunshine—back home".

A person would not be removed until the situation in his country has changed, but he would lose the permanent right that he gains now, which allows him to remain in the UK. That is the difference. We are not in the business of sending people back who have a well founded fear of persecution, of being tortured, murdered or whatever. We are not in that business. I want to make that absolutely clear.

Of course, situations in countries change and we want to take account of that. No one knows, but that may serve as a deterrent to stop someone committing a crime. As I have said, "Don't commit the crime. Then you don't come up against these problems".

The noble Baroness, Lady Anelay, asked who was affected by the order. It applies to recognised refugees if, having been recognised, they commit a Section 72 offence subsequently. It also applies to asylum seekers whose claims have not been decided. It is part of the decision making process. The asylum seeker has the chance to rebut before the decision is made.

The order will not apply to recognised refugees who the Secretary of State knew had committed a crime specified in the order when he decided to recognise the refugee but chose not to rely on Article 33(2) at that time. That is fair enough. Otherwise, a person would be done twice for the same thing, which would be unfair.

The noble Baroness asked me about the position in Northern Ireland. We have tried as far as possible to ensure that there is comparability between the offences in the order as they apply in England and Wales, Northern Ireland, and Scotland. That is why the order is set out as it is. Unfortunately, it appears more complicated than it is, simply because of the judicial systems.

It is not possible to get a 100 per cent match in areas where the nature of the offences is different in those different areas; that is, England and Wales, Northern Ireland, and Scotland. The intention is to make things as fair and as even handed as we can.

Finally, the noble Baroness, Lady Anelay, asked me about offences committed a long time ago and what the courts will have to do. Offences committed a long time ago might be affected by the order if we have not previously assessed them. However, if the person is a reformed character, he or she can provide evidence of that in rebutting the presumption that they are a danger to the community. It is still open to the person concerned to have the chance to rebut.

The courts will not be obliged to inform the Immigration and Nationality Directorate of any convictions for offences under the order. Those offences would be relevant only for refugees or asylum seekers. So we do not consider it appropriate. The Immigration and Nationality Directorate has good links with the Prison Service, which will advise us whenever a non-UK national is being released. That will provide a source of information for those offences. That happened when I was at the Home Office. Sometimes it was quite distasteful when people were released from prison having committed very serious offences against, in some cases, young children. They could not be sent out of the country because they could not be returned to their country and they had to be let out of prison. So there are good links for knowing who has and who has not been released.

I shall get the transcript checked. If there are any points that I have not covered in detail, I shall write to all noble Lords participating in this debate. The intention is to change the structure—we do not want people to commit the crimes—and to set up a fair system that is clear for everyone to understand when they apply for refugee status in this country.

Lord Lester of Herne Hill

My Lords, I am grateful to all noble Lords who have participated in this important debate. I am glad that this debate has not been disfigured as it was in the other place where I am told that the Minister interrupted my honourable friend Mark Oaten MP four or five times. Therefore, the Minister took up time in doing that and was not able to reply to the debate. With respect to the other place, that is not the right way to proceed. It certainly has not happened here.

As the Minister has said, ultimately the question of the lawfulness or otherwise of the order and the compatibility or otherwise of Section 72 are questions of law for the courts and, in the event of a legal challenge, it will be for the courts to decide those questions. Unfortunately I shall not, as I would like, be able to appear pro bono in such a case because today I have behaved as a parliamentarian, but I hope and believe that an advocate who is sufficiently public-spirited and who is representing a client will challenge what we have been listening to today against the standards of law.

As the right reverend Prelate the Bishop of Chelmsford indicated, one of the principles that will have to be considered is that of proportionality: are the means employed proportionate to the Government's legitimate aims? But other principles—of legality and fairness—also arise.

I shall not test the opinion of the House on what are issues of law, but I hope and believe that this debate will prove to be influential. I hope too that the Minister has enough of a sense of humour to understand what I am about to say, because I mean it honestly. I believe that his reply is one of the best speeches I can think of to show the unlawfulness of what is being proposed. But that will have to be considered carefully if it comes to court.

I have great respect for the noble Lord, Lord Rooker, and for Des Browne, MP, who was an original member of the Joint Committee on Human Rights. I am genuinely sorry that they have to bear collective responsibility for a measure which I believe stains the reputation of this country and is an ultra vires abuse of power. But that is a matter for the courts to decide. On that basis, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.