By Steve Valdez-Symonds
Refugee and Migrant Rights Programme Director, Amnesty International UK
Two clauses in the Bill of Rights Bill solely concern deportation – clauses 8 and 20. In a relatively short Bill concerning matters of wide and fundamental importance to human rights, it is striking that this narrow area of policy is given such disproportionate prominence. This article explains deportation and how clause 8 relates to it.
What is deportation?
There are various circumstances in which the Home Secretary is empowered to expel someone, who is not a British citizen, from the UK.
Those circumstances include the following:
- Someone has come to the UK without the permission (called leave to enter or remain) that they require.
- Someone is in the UK with permission but has breached a condition which was given to them (e.g. prohibition to work).
- Someone has stayed beyond the period for which they were permitted to remain and no longer has permission to be here.
Deportation is not the power for expelling someone in these circumstances.
Rather, deportation is the power given to the Home Secretary by the Immigration Act 1971 for expelling someone on the basis that it is “conducive to the public good” to do so. Exercising this power involves cancelling any permission to be in the UK that the person may have. It authorises their detention and forcible expulsion from the UK. It also permanently prohibits their return unless the Home Secretary revokes the order.
Although there are circumstances in which someone who has not been convicted of a criminal offence may be deported, the power is generally considered in the following circumstances. Someone has been sentenced to imprisonment for 12 months or longer. Someone has been convicted of an offence that it is said to have caused serious harm. Someone is regarded as a persistent offender.
Human rights and deportation
Long before the Human Rights Act 1998 and for several years after its enactment, deportation powers were constrained in UK law by the need to consider all relevant circumstances for or against a person’s deportation. The immigration rules required consideration of the following: the person’s age, length of residence in the UK, strength of connection with the UK, personal history including character, conduct and employment record, domestic circumstances, previous criminal record and the nature of any offending for which the person was convicted, any compassionate circumstances, and any representations made on the person’s behalf.
In 2006, this longstanding approach was changed to make the question of whether the Home Secretary should order a person’s deportation largely focused on human rights law. This was taken much further in August 2008, when deportation provisions in the UK Borders Act 2007 took effect. From that time, in most cases the question became solely one of whether a person’s deportation would breach human rights law – although the position was different for EU citizens until the UK left the EU.
In summary, rather than considering all the relevant circumstances as before, from 2008 the Home Secretary is simply required to deport someone if they are not a British citizen and have been sentenced to imprisonment for any period of 12 months or longer – unless that is prohibited by human rights law. The Home Secretary is also empowered to make a list of offences for which any period of imprisonment would be sufficient to require deportation.
In this context, relevant considerations of human rights law generally come down to two distinct questions:
- Is there a serious risk the person would be tortured or similarly harmed if expelled to the place it is proposed to deport them (contrary to Article 3 of the European Convention on Human Rights)?
- Would someone’s deportation disproportionately harm their private and family life in the UK (contrary to Article 8 of the European Convention on Human Rights)?
If the answer to either question is ‘yes’, a proper application of human rights law would prohibit deportation. These questions are significantly narrower than the approach up until 2006.
Clause 8 of the Bill of Rights
Clause 8 is intended to restrict what is considered when decisions are made about the second question set out above.
Importantly, what can be considered in these circumstances has already been restricted. This was done by the Immigration Act 2014. In summary, when the Home Secretary is only permitted to consider human rights, that Act excludes her or any court from concluding it would be disproportionate to deport someone save in two circumstances.
- The person facing deportation has been living in the UK for more than half their life – but only if they are socially and culturally integrated here and can show very significant obstacles to their integrating in the place to which they would be deported.
- The impact of deportation on family life – but only if the effect upon the person’s child or partner would be unduly harsh.
If the person has received a sentence of four years or more imprisonment, there must be very compelling additional circumstances.
If clause 8 were introduced, the Government would be enabled to legislate to restrict even further what could be considered when deciding whether deportation would disproportionately harm someone’s private and family life. Additionally, it would prohibit the courts from making any formal declaration that existing restrictions were incompatible with human rights law; and apply that prohibition to any further legislative restriction that did not require the Home Office (or some other public body) to treat someone facing deportation in a way that would do extreme harm to the person’s child or dependent adult relative.
That restriction could be set so narrowly that, among other things, the strength of connection to the UK of someone facing deportation could be made irrelevant to the decision to deport them – even someone whose entire life from early childhood has been spent in the UK, or even someone born here who has never lived anywhere else. The impact of separation from family upon someone facing deportation could be ignored no matter how overwhelming that could be for them.
The impact upon the person’s family could also be ignored – unless the family member was the person’s child or an adult dependent upon them and the deportation would cause that relative extreme harm that was exceptional, overwhelming and incapable of reversal or any significant mitigation. Even this level of harm could be ignored if the child was not a British citizen or had not lived continuously in the UK for 7 years. Any harm to an adult relative who was not a British citizen or a permanent resident of the UK could also be ignored.
The changes from 2006 made the Human Rights Act 1998 the sole check upon deportation powers in most cases where previously those powers could be more widely and effectively constrained without resort to specific human rights law.
The catalyst for this change came in 2006. The Home Office was exposed for failing to consider its deportation powers before the release from prison of hundreds of people who were not British citizens. Ministers blamed human rights law. The truth – as both the chief inspector of prisons and a parliamentary select committee made plain – was that this failure was entirely one of poor administration and was not caused by any law.
The irony of this has proved dismal. Human rights law was made the sole consideration in most deportation cases. When this narrower approach nonetheless protected some people against expulsion, the Human Rights Act 1998 was even more vocally criticised. In turn, that led ministers in 2014 to introduce legislation to restrict the application of human rights law. Clause 8 is to permit even further restriction.
There is another effect of the changes since 2008. They have tended to make the mere fact of someone’s conviction and imprisonment almost the sole consideration and of equal consequence – no matter how connected they are to the UK, how serious was their offence, whether they were sentenced to one year or twenty, or whatever the likelihood they may reoffend. It is now difficult to understand how deportation has any rational connection to immigration policy rather than being an arbitrary additional punishment of some people who have served the time that anyone else must serve for the same offence.
More than 150 years after the last British colony receiving people banished from the UK refused to accept any more convict ships, the UK is again transporting people into exile – albeit after people have completed a prison sentence here. While people subjected to this may not be British citizens, they include people who have rights to British citizenship and may know no other place but the UK. Black and brown people are disproportionately affected. It is a heavy and deeply disturbing irony that a so-called Bill of Rights Bill is proposed as a means to further enable this.