If you cannot deport then don't think the answer is limbo

Part 11 of the Criminal Justice and Immigration Bill (clauses 115-122) creates a new immigration status for ‘foreign criminals’. These people, and their family members, are not to be granted leave to remain but are to have a special limbo status if they are ‘designated’ by the secretary of state. They may be designated if they cannot be deported for human rights reasons.

Anyone who is not a British citizen, and who has been convicted of a criminal offence and sentenced to an immediate prison term of two years (whether in the UK or abroad), is a ‘foreign criminal’ for these purposes and may be designated.

So is a person excluded from refugee status under Article 1f (war criminals, terrorists and those who may have committed serious non-political offences). And so is someone who has been sentenced to imprisonment for a ‘specified’ offence (including criminal damage, theft and public order offences as well as terrorism, hijacking and drug trafficking).

Thus a ‘designated foreign criminal’ may be a war criminal or someone who has gone to prison for kicking a phone box, stealing a pint of milk or swearing at a policeman.

Designated foreign criminals may be required to live in specified places, may be prevented from working and may have to report to the police or immigration service. They may be tagged. They commit another criminal offence if they fail to comply with any of these conditions. They will be eligible for NASS support (accommodation and basic subsistence of about £35-40 per week, not to be paid wholly or mainly in cash).

These provisions are a direct response to the Court of Appeal’s August 2006 rebuke to the Home Secretary for leaving the Stansted hijackers in immigration limbo after they had succeeded in their appeals to be allowed to remain in the United Kingdom on human rights grounds.

(They established, on appeal before a hardnosed and sceptical Tribunal, that they would be targeted for killing in Afghanistan and would not be able to escape, because of the high profile of the hijack, staged in 2000 to escape the Taliban, even though the latter were no longer in power.)

The court said that the Immigration Acts did not give the Home Secretary the power to refuse to grant leave to remain in this situation, and suggested legislation to plug the gap in executive powers.

The government was slow to take up the suggestion — the UK Borders Bill had its first reading in January 2007 —and could have included these provisions in its mandatory deportation clauses. Instead, they are shoved into this ragbag.

Part 11 follows the ghastly logic of ‘zero tolerance for foreign criminals’ which sees both ‘foreigners’ and ‘criminals’ as separate species of being, in the sort of paroxysm of racist self-righteousness with which we are all too familiar in the red-top press.

This particular paroxysm started in July 2006 with the admission by the Home Office that a number of foreign offenders had been released at the end of their criminal sentence without being considered for deportation.

This admission led to the replacement of the Home Secretary, a change in the rules to introduce a presumption in favour of deportation for non-EC nationals committing crime, and just months later, the UK Borders Bill with its mandatory deportation of foreign criminals who have served a 12-month sentence or been convicted of a specified offence. The latest provisions aim to plug the gap in the Borders Bill by ensuring that those who can’t be deported won’t be allowed to live normal lives in the UK.

But the European Court of Human Rights has said — see for example Smirnova v Russia (46133/99; 48183/99) 24 July 2003 — that people can’t be kept indefinitely in immigration limbo, with no clear status and no rights; there comes a point when the adverse effects of such a condition on the ability to lead a normal life, earn a livelihood, build a home, get married, move around and so on makes the measure a disproportionate interference with rights to private life and thus unlawful.

Frances Webber is a barrister at Garden Court Chambers specialising in immigration, asylum and human rights issues.