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Home Office belatedly issues guidance on Operation Nexus

Home Office belatedly issues guidance on Operation Nexus

Operation Nexus was officially launched in November 2012, a law enforcement initiative aimed at deporting more ‘high harm’ foreign nationals. It has been criticised on many occasions for its opacity, and the lack of any publicly available policies which govern its implementation. See, for example, our previous post: Operation Nexus for dummies: happening now, in our time.

Last month, 4 ½ years into its operation, the Home Office finally issued some guidance.

What is Operation Nexus?

According to the note, there are broadly two strands to Operation Nexus:

Nexus Custody – Immigration Officers (IOs) deployed to designated police custody suites to examine all foreign nationals who are arrested. Cases identified as illegal entrants suitable for detention will be referred to Immigration Enforcement’s National Removal Command or to the Removals Casework Command for case-progression.

Nexus High Harm – Police forces refer High Harm cases to the Nexus High Harm team where the individual is deemed to be a threat to the public. The Nexus High Harm team assess every referral and establish whether the known offending justifies referral for immigration enforcement action. This action can include administrative removal, conviction-led deportation and intelligence-led deportation  

The guidance takes us through the team structures within Nexus, including responsibility for the controversial policy of ‘intelligence-led deportation’, as previously explored on Free Movement. It states as follows:

…the Nexus High Harm team has the capability to assess disclosable material provided by police partners to ascertain whether it demonstrates sufficient harm to the public in order to justify deportation (in the absence of significant convictions).

‘Intelligence-led deportation’

What this means in practice is that individuals who have not been convicted within the criminal justice system can be found responsible for criminal conduct in a deportation hearing. The accusations of poor behaviour or conduct that might be criminal – although not proven in a criminal court – are then used as a basis to suggest that an individual’s presence in the UK is ‘not conducive to the public good’.

If the impugned individual appeals against deportation then, as set out in this detailed briefing paper on the subject, the way that the tribunal operates means that they are effectively stripped

…of almost every tool available to their similarly accused British counterparts to challenge [the] allegations made against them … They must litigate without the power to cross examine witnesses giving evidence against them, who may remain anonymous and absent from the court, without publicly funded legal representation, without any restriction as to the material placed before the fact-finding court, and can be found responsible for conduct on a mere balance of probabilities

As decisions to deport under Operation Nexus will invariably rely upon allegations of conduct, rather than convictions alone, how the Home Office targets its subjects is of crucial importance. Before this guidance was issued, there was no published policy on what those criteria actually were.

The Nexus Criteria

According to this guidance, the criteria for cases upon which the Nexus team can work is as follows:

…foreign nationals may be referred to the Home Office Nexus High Harm team where the subject:

holds valid immigration leave or is a European Economic Area (EEA) national, is the subject of active police interest and there is evidence that their conduct meets the definition of ‘High Harm’ due to:

o the provision of disclosable police material evidencing a current and ongoing threat to the public

o persistent criminal activity that causes harm to the wider community- as a guide, this could be     evidenced by 5 or more convictions within the previous 3 years including non-custodial sentences

has no valid immigration leave and is subject to active police interest, which would make the subject a priority for immigration enforcement action to remove

And if you think that’s loose, the definition of ‘high harm’ is also provided:

Foreign National Offenders (FNOs) are considered as ‘High Harm’ cases where their conduct incurs significant adverse impact, whether physical, emotional or financial, upon individuals or the wider community.

Mission creep?

The original purpose of Operation Nexus was to target serious criminals. This is what ‘high harm’, in ordinary English, means.

The initiative, it was categorically stated by Assistant Metropolitan Police Commissioner Mark Rowley in 2013, did ‘not focus on lower level criminality’ but instead upon individuals ‘involved in serious violence (including sex offending), prolific gang members, or those offenders who carry firearms or other weapons.’

The definition which appears in this guidance, however, demonstrates that the scope of Operation Nexus is clearly much wider, and could conceivably include a very large range of different behaviours.

Following the deportation of several men to Jamaica in September last year, Shadow cabinet minister Dawn Butler asked the government how many individuals had been deported under Operation Nexus who did not have a criminal conviction. She was reportedly informed that this question ‘could only be answered through a disproportionately expensive manual case search to collate the data’, which they were not prepared to do.

Unopposed

According to a Metropolitan Police Freedom of Information Request, 86 high harm removals were effected in 2013-2014, with 211 the following year, and 375 recorded in the most recent year (2015-2016).

These statistics appear to refer to the ‘High-Harm Nexus’ deportations, as distinct from the ‘Nexus custody’ element of the initiative, which has reportedly seen Romanian sex workers targeted, as well as other EEA nationals, including the street homeless. In mid-2016, James Brokenshire appeared to think that over 3,000 people have been removed as a result of Operation Nexus.

Given the extent to which Nexus offends against basic legal norms, there has been remarkably little opposition to its continued operation. There are thirteen mentions of it in Hansard, with politicians mainly asking why it is not used more. The tribunal has considered the issue on three occasions, most recently in Farquharson (removal – proof of conduct) Jamaica [2013] UKUT 146 (IAC), and found in favour of the Secretary of State.

Since early 2015, the Upper Tribunal has heard just eight – mostly unreported – appeals against Operation Nexus deportation decisions. It is perhaps of some significance that the last sustained challenge to Nexus in the courts coincided with the end of the legal aid scheme in deportation cases.

However, following a crowd funding campaign coordinated by the AIRE centre, aspects of Nexus are being challenged by Judicial Review, with a hearing apparently fixed in July. Although this appears to be focused on the Secretary of State’s operation of Nexus without a published policy in respect of EEA nationals – and perhaps a reason for the belated publication of this guidance – at least it’s something.

In the meantime, Operation Nexus rolls on, legally settled and practically unopposed.

Nick Nason
Nick is a lawyer at Edgewater Legal, simplifying immigration law for individuals and businesses.

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