New guidelines for judges which propose watering down punishments for illegal immigration offences risk ‘blowing a hole’ in Britain’s border controls, the Conservatives have warned.
The Sentencing Council – which is already embroiled in a political storm over its ‘two-tier justice’ measures – plans to slash the maximum jail terms for a range of immigration crimes.
Shadow Justice Secretary Robert Jenrick said the proposals will lead to hundreds of illegal immigrants a year being handed far weaker punishments than those approved by Parliament.
The guidelines could ultimately allow offenders to remain in Britain indefinitely because they will no longer meet a legal threshold to qualify for ‘automatic deportation’.
The Labour Government will be powerless to act because earlier this month it voted down Tory measures which would have granted ministers a veto over the Council’s work.
Mr Jenrick blasted the independent Sentencing Council for ‘disregarding Parliament’s will’ on how severely illegal migrants and other immigration offenders should be punished.
‘The guidelines the Sentencing Council have drafted will blow a hole in border enforcement,’ the Conservative frontbencher said.
‘Yet again they are acting in a way that disregards Parliament’s will.
‘That’s why I brought forward a Bill to restore ministerial oversight to the Council, but shamefully Labour opposed it.
‘The Justice Secretary has chosen to be powerless to stop madness like this and the two-tier sentencing rules.’
An analysis of the Council’s draft guidelines, carried out by the Conservatives, showed the offence of knowingly entering Britain without leave – which Parliament said should carry up to four years in jail, and can be used against small boat migrants – could receive as little as nine months’ imprisonment even in serious cases.
In cases of lower culpability it could even be dealt with by a community sentence, the guidelines suggest.
The offence of ‘deception’ to enter or remain in Britain can carry up to two years’ imprisonment under laws passed by Parliament.
But under the Council’s proposals high culpability cases would get as little as nine months and lower culpability ones would, again, escape with a community sentence.
Parliament set out how the offence of ‘possession of false identity documents with improper intention’ should carry up to 10 years in jail.
But the draft guidelines suggest an upper ceiling of eight years for the worst cases, with as little as six months’ imprisonment for high- and medium-ranking offences, or a community sentence for less serious examples.
The proposals would curtail the Home Office’s ability to deport hundreds of foreign criminals convicted of immigration offences, the Tories suggested.
Under laws passed by Tony Blair’s Labour government in 2007, the home secretary must pursue ‘automatic deportation’ of all foreign criminals jailed for a year or more.
In practice, many successfully overturn the bid to remove them, often using human rights laws.
Remarkably, the Sentencing Council’s new proposals suggest that an immigration offender should be given credit by the courts if they have ‘no previous convictions’ despite many of them having only just arrived in Britain for the first time.
In another example of how the new proposals undermine Parliament’s intentions, the Council said people smugglers found guilty of ‘assisting illegal entry’ should face a maximum of 16 years in jail, even though Parliament approved a maximum of life imprisonment.
A Tory spokesman said: ‘The draft guidelines will reignite concerns that the Sentencing Council is undermining parliamentary democracy and confidence in the criminal justice system by veering so radically from parliamentary statute.’
Earlier this month it emerged the Sentencing Council issued guidelines which say all ethnic minorities and transgender people convicted of a crime should be treated differently by judges and magistrates.
The ‘two-tier justice’ measures will come into force on Tuesday.
Justice Secretary Shabana Mahmood expressed her ‘displeasure’ at the moves and said they amounted to ‘differential treatment’.
She asked the Council to ‘reconsider the imposition of this guideline as soon as possible’ but was rebuffed, with Council chairman, Lord Justice William Davis, telling her: ‘I do not accept the premise of your objection.’
The new immigration guidelines were unveiled in March last year but have only been discussed by the Council since July’s General Election.
‘Shabana Mahmood’s personal representative was present at all meetings and no objections are minuted,’ a Conservative spokesman said.
The number of small boat migrants who have made it to Britain since the start of this year has topped 6,000, according to latest figures from the Home Office.
There were 129 arrivals on Tuesday, bringing this year’s running tally to 6,049 – a record level for this stage in a calendar year.
A Sentencing Council spokesman said: ‘These are draft guidelines which have not yet been published as definitive guidelines.
‘As with all our guidelines they must follow legislation set by Parliament.
‘When drafting guidelines, the Council sets sentencing levels having regard to current sentencing practice as required by statute and generally the Council’s aim when producing sentencing guidelines is to maintain current levels of sentencing.
‘This approach was taken when producing the draft immigration guidelines.
‘The guidelines as a whole are designed to cover the full range of offending from the least to the most serious, while leaving headroom for the very most extreme offences.
‘Judges and magistrates can sentence outside guidelines if they feel it is in the interests of justice to do so.’
A Ministry of Justice spokesman declined to comment.