Immigration (Persons Designated under Sanctions Regulations) (EU Exit) Regulations 2020

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Immigration (Persons Designated under Sanctions Regulations) (EU Exit) Regulations 2020

My Lords, this instrument is a technical one; unusually it does not create any new powers, but simply relates to the immigration consequences for someone who is designated or sanctioned for immigration purposes under the Sanctions and Anti-Money Laundering Act 2018, which I will refer to as SAMLA from now on.

I will first set out some background to international sanctions, particularly travel bans, with which these regulations are concerned. Under current arrangements, travel bans can be imposed by a resolution of the UN Security Council or by a decision of the Council of the European Union. In the vast majority of cases, they are imposed on individuals who are outside the UK and who have no connection with the UK. However, in the unlikely event that a travel ban is imposed on a person who is in the UK, then this would, as a matter of domestic law, have consequences for their immigration status in the UK as they will lose the right to remain here and will be subject to removal.

A person who is affected in this way may argue that removal would be an interference with their rights under the European Convention on Human Rights, or that it would be contrary to our obligations under the refugee convention. As a result, they may make a human rights or humanitarian protection claim to prevent their removal. These claims can give rise to a right of appeal before the Immigration and Asylum Chamber of the First-tier Tribunal, where a well-developed machinery has grown up to ensure that it is both fair and effective and that it complies with our international obligations.

Now that the UK is leaving the European Union and we have the ability to create autonomous domestic sanctions regimes, a similar situation may arise. A human rights or protection claim may be made against the immigration consequences of a travel ban imposed under SAMLA. Again, this is most likely to arise where an individual is in the UK and would lose their right to remain here as a result of being sanctioned.

I turn to the purpose of the regulations. Noble Lords will recall the issue of interface between challenges to sanctions and challenges to the immigration effect of sanctions being raised during the passage of SAMLA through this House. SAMLA has established an administrative assessment process for sanctions and a court review process in the High Court, or, in Scotland, the Court of Session. This is new; no such mechanism has been needed until now because challenges to UN or EU sanctions are made to them directly.

Now that the UK is creating its own domestic sanctions regimes, we could have a situation where someone wishes to challenge their travel ban in the civil courts, but at the same time also lodges an appeal to the Immigration and Asylum Chamber against the immigration effect of the travel ban—that is to say, the refusal of their human rights or protection claim against removal from the UK. Cases of this kind are likely to be extremely limited in number, but the Government consider it important to ensure that such claims are handled appropriately.

Before I call the first speaker, all speakers should note that the speaking time for everybody is eight minutes, not six minutes, just so there is no confusion.

My Lords, I begin by saying that I do not think that I shall need eight minutes.

I congratulate my noble friend on the way she introduced this non-controversial statutory instrument, but I am concerned about the aftermath of leaving the European Union in one particular context. It is something I raised when I was a member of the Home Affairs Sub-Committee of the European Union Committee of your Lordships’ House and that I have raised on the Floor of the House as well.

I deeply regret the fact that, unless there has been some dramatic change in negotiations, we are not going to be able to take advantage of the European arrest warrant, nor are we going to be a member of Europol. As we are essentially dealing with potentially dangerous people who could, economically or in other ways, be a profound danger to our country, our society and our way of life, it is crucial that we maintain the closest possible co-operation with our friends and neighbours in the European Union as we leave Europol and move out of the European arrest warrant. I would be grateful if the Minister would reassure me on that point when she winds up. I know that it is an issue that troubles a number of people, and it is one that certainly troubles me.

My Lords, I wholly concur with the sentiment that the human rights of individuals should be no less at the end of transition than they were under the European Convention on Human Rights and the refugee convention. It is said that there are some 2,000 individuals and entities involved. Given the sad state of human rights in the world, the number itself is not surprising.

Do the regulations also include those involved in international cybercrime designed to thwart the democratic process? All cases should be speedily investigated and the right of residence of those clearly involved should be speedily terminated. Equally, the right of residence of those found to be without fault should be fully protected.

My main concern is about the effectiveness and morality of targeted sanctions; that is, sanctions against individuals and entities, rather than against countries that are sponsoring or supporting them in illegal activities that involve the abuse of human rights. The Magnitsky case, in which a Russian accountant exposed massive government fraud and died in a Moscow prison, illustrates my concern. Those who sent him to prison bear a greater share of the blame for his death than the prison authorities.

In the same way, those who order state-sponsored torture and murder are more guilty than those they hire to carry it out. We are told that those involved in the brutal murder and dismemberment of the Saudi journalist Khashoggi are subject to such restrictions. My question is: what about those who ordered his brutal murder? Will MBS—Mohammed bin Salman—be included in the sanctions?

Targeting hired assassins or a couple of generals from countries guilty of gross human rights abuses can easily become tokenism, giving a false impression of action and commitment simply designed to protect trade with rogue countries. My fears are underlined by the recent statement of a Conservative Minister, who said that when we talk trade with China, we should not mention human rights. I have never been a great fan of Brexit, but we can take it as an opportunity to give the world a new direction on human rights.

I call the next speaker, the noble Lord, Lord Randall of Uxbridge. Lord Randall?

Yes, I am here. I was not able to hear the Minister or my noble friend Lord Cormack very clearly, so if I repeat anything that they have asked or said, I apologise.

I have just a few questions about this. I echo a lot of what the noble Lord, Lord Singh, has just said. I would like to know whether, as a result of this instrument, the UK will have the power to sanction different persons or entities—or possibly states, although this may not be within this particular instrument—than those already on the UN or EU lists. Will we have to automatically sanction those that are on lists from the UN or the EU?

I also hope that this instrument will make sure that there is no possibility of loopholes and that those who are sanctioned elsewhere will not find succour and refuge in the United Kingdom. Those are the only comments that I have, and I look forward to hearing my noble friend’s answers.

I thank the Minister for her explanation of the instrument. I was able to hear her, though I regret I was not able to hear the noble Lord, Lord Cormack.

We on the Liberal Democrat Benches are certainly not opposing the regulations. Sanctions are an important tool to protect both security and human rights; the noble Lord, Lord Singh, in particular has focused on this. UN sanctions seem in the main to relate to security, though I would argue that human rights are both intrinsically important and very closely bound up with security issues. Liberal Democrats are far from alone in having called for more sanctions against those responsible for human rights abuses in Hong Kong—which we must not allow to go off the agenda—and abuses against the Uighurs, which take the meaning of the term “abuse” to an extreme.

Immigration sanctions are not the only sanctions which can be applied against individuals. Financial sanctions can be very telling, though in both cases the impact on people in this country, and on the families of those people, can be very considerable—something that we might come back to in the Counter-Terrorism and Sentencing Bill. Judicial oversight is a necessity, and I will come back to that this afternoon.

Can the Minister explain whether the travel bans under these regulations will have corresponding financial sanctions, or are the two entirely different but possibly parallel streams? One would be very keen to know that we can make more difficulty for some people, not only over shopping trips to Harrods but regarding the acquisition of residential properties whose vacancy is, at best, offensive.

These travel bans carry with them the right to large human rights law protection claims. I trust that the lawyers who undertake that work will not be attacked as “activist lawyers” by the Home Office, though I have to say for myself that I would be proud to be an activist lawyer. Indeed, I hope that all parliamentarians find it possible from time to time to be activists in the law-making process. Where would Parliament be, having made the laws, without lawyers enabling people to exercise rights under them?

My Lords, I thank the Minister for setting out clearly the purpose of the regulations. As other noble Lords have said, this matter is technical but important. I do not intend to speak for very long.

It is important that we recognise that the current process for considering a human rights or protection claim is retained for those new individuals who are subject to these travel bans, and that it is not conflated with the review and challenge mechanism for the sanctions. It is important that we delineate and set out the boundaries clearly so that we keep separate the routes for appeal, the immigration consequences of the sanction and the challenge to the sanction.

My only question concerns powers and how the Government intend to ensure that the system works as it is devised to work. I know that the idea is to keep the system as it is at present, but this would not be the first time that things have gone wrong, that there have been unintended consequences or that people have unintentionally been treated unfairly or unlawfully—or, on the other hand, are able to avail themselves of something incorrectly. I very much agree with the comments that the noble Lord, Lord Cormack, made in connection with our friends and colleagues in the European Union. We need to ensure that, although we are outside the European Union, we still work closely with it. Should we not keep people safe?

I see this as two sides of the same coin. It is about treating people fairly and justly while at the same time dealing effectively with those who are alleged to have committed serious offences in terms of their movements being restricted and action being taken against them. I am looking for assurance from the Minister that this has been thought about and will continue to be thought about as we move forward.

The noble Lord, Lord Randall, talked about loopholes. It is important that we focus on them. They are not the subject of these regulations but I am of course reminded of them; indeed, we are regularly reminded of them in the Chamber. One appeal mentioned property. We often talk about the fact that, allegedly, a lot of property in London and elsewhere in the UK is owned by questionable people or organisations with no problem whatever; there is no issue at all. It is almost as if illegal or dodgy money is put into a safe jurisdiction because the criminals want to keep their money safe—and they come here. That is bad. I know that they are not part of these regulations as such, but that issue is of concern. We are lucky to live in a safe jurisdiction but equally, it should not be safe for criminals and people who want to act badly. It would be useful if the Minister could address that point to ensure that, where people have done wrong, they are dealt with and restricted properly while at the same time ensuring that people who have not are treated fairly and properly.

I thank noble Lords for their contributions.

The noble Baroness, Lady Hamwee, asked about the different types of sanctions that might be imposed. First, they can be used to fulfil a range of purposes, including supporting foreign policy and national security objectives, maintaining international peace and security and preventing terrorism. They do not operate or succeed in a vacuum. The noble Lords, Lord Singh and Lord Randall, alluded to the fact that this is not just about people. It can be about states and how those who are sanctioned elsewhere—we can think of some very obvious cases—can find succour in the UK. That is absolutely right. Think about the extradition process: a judge will look into whether any extradition request has been made maliciously or whether there would be a threat to a person’s life if they were extradited to a country where they would certainly face torture and, in some cases, death.

I will go through some recent asset freezes and travel bans to illustrate the point. Some 25 Russian nationals involved in the mistreatment and subsequent death of Sergei Magnitsky were subject to them, as were 20 Saudi nationals involved in the murder of Jamal Khashoggi. So were two high-ranking Myanmar military generals involved in the systematic and brutal violence against the Rohingya population and other minorities by the Myanmar armed forces, and two organisations involved in forced labour, torture and murder in North Korea’s gulags. Those are just some examples of the types of organisations and people that we have imposed asset freezes and travels bans on.

Several noble Lords, including the noble Lord, Lord Kennedy, and, I think, the noble Lord, Lord Cormack —although I cannot be sure—talked about the almost hiding in plain sight of assets that sit in our capital city, which may or may not be the product of dirty money, for want of a better expression. Of course, they will also have shared the experience of taking through legislation the year before last on how we can get hold of assets that people have attempted to hide and how we ensure that proceeds of crime are uncovered.