Discriminatory attempt to use criminal justice provision to effect immigration control in Legal Aid, Sentencing & Punishment of Offenders Bill
The government’s proposed amendments to the Rehabilitation of Offenders Act are a welcome step in the right direction. The changes, which have been introduced through the current Legal Aid, Sentencing and Punishment of Offenders Bill, should mean that many of those who have committed criminal offences will face less daunting barriers to putting their pasts behind them and to making a positive contribution to society.
There is, however, a notable exception to the changes. For foreign nationals who have been convicted of criminal offences, the shortened rehabilitation periods and, indeed, the very concept of a ‘spent’ conviction, will not apply in some circumstances. Amongst this broadly progressive set of proposals, the government has included the provision that for “certain immigration and nationality purposes” – which will include applications for leave to enter or remain in the UK, British citizenship applications, and action to deport or remove someone from the UK – information on any conviction, whether spent or not, may be disclosed to and considered by the UK Border Agency.
Alongside this, the current Bill also provides for foreign nationals, who may be long term UK residents, and who commit one of a wide range of low level offences, to be invited to accept a caution in a police station and agree to their removal from the UK. This would take place without Crown Prosecution Service oversight and, furthermore, without the opportunity for proper examination of their right to remain in the UK. Research shows that a significant number of foreign nationals in contact with the justice system have been coerced or trafficked into offending. Each case should be assessed on its own merits and without the presumption of deportation.
These policies are misplaced attempts to use the criminal justice system to effect immigration control; they are also, quite simply, discriminatory. Today, as the Legal Aid, Sentencing and Punishment of Offenders Bill goes to Report Stage in the House of Lords, we urge the government to think again.
OUR KEY CONCERNS ABOUT THESE NEW PROVISIONS
- The inadequate provision of immigration legal advice in police stations, currently delivered as a 30 minute conversation via telephone with no sight of papers , carries a serious risk of bypass of due process.
- If this clause is enacted it will leave foreign nationals offenders who otherwise have a strong claim to remain in the UK (e.g. long term UK residents and taxpayers) particularly vulnerable in the light of the current inadequate immigration legal advice in police stations.
- The apparent removal of CPS oversight of the use of conditional cautions (see Clause 125 Conditional cautions: involvement of prosecutors).
- The difficulties inherent in assessing removability from the UK (in immigration law terms) for custody sergeants in police stations.
- This clause appears to be an attempt to provide the exclusionary provisions found under the Immigration Rules at 320 (7B) but by operating outside the Immigration Rules and outside the protections afforded by appeal provisions relating to deportation (whether court-ordered deportation under Immigration Act (1971) or so-called ‘automatic’ deportation (UK Borders Act 2007)).
- No indication is given of the timescales that will operate for exclusion from the UK of those foreign nationals so affected, a number of whom will be long term UK residents and taxpayers, with children in the UK.
- There is no obvious protection from these provisions for vulnerable individuals. Protection is currently required under PACE when considering cautions for individuals with mental illness or learning disability, but other vulnerable groups should include age-disputed foreign national minors, and foreign national victims of trafficking.
BID and Detention Advice Service have produced an amendment briefing on the provison for a new type of conditional caution for foreign national offenders contained in Clause 126 of the Legal Aid, Sentencing and Punishment of Offenders Bill which is available here.
Downloads
BID & DAS briefing to the House of Lords on LASPO: Conditional cautions
