(8 years, 5 months ago)
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Lord Rosser
“Review of immigration detention
(1) Before the end of the period of three months beginning on the day on which subsection (1) of section 32 comes into force, the Secretary of State must commission a report on detention under the following powers—
(a) paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971,(b) paragraph 2(1), (2) or (3) of Schedule 3 to the 1971 Act,(c) section 62 of the Nationality, Immigration and Asylum Act 2002, or(d) section 36(1) of the UK Borders Act 2007.(2) The report under subsection (1) must consider—
(a) the process for, and detail of, introducing a statutory maximum limit on the length of time an individual can be detained under the relevant provision;(b) how to reduce the number of people detained under the relevant provision;(c) how to minimise the length of time an individual is detained under the relevant provision;(d) the effectiveness of detention in meeting the Secretary of State’s objectives; and(e) the effectiveness of procedures to review decisions to detain and to continue to detain.(3) The report under subsection (1) must be prepared and published by a panel appointed by the Secretary of State.
(4) The panel appointed under subsection (3) must be independently chaired.
(5) On completion of the report, the Chair of the panel must send it to the Secretary of State.
(6) The Secretary of State must lay the report before both Houses of Parliament within three months of receiving the review.”
Lord Rosser (Lab)
Our Amendment 216 in the form of a new clause provides for an independently chaired report on immigration detention, including, among a number of other issues, looking at introducing a statutory limit on time in detention.
Detention takes place in what are called immigration removal centres. They are, as the name implies, intended for short-term stays. That, though, is not how they are always used now. The use of detention has expanded rapidly over the last two decades. In 1993, 250 detention places were available in the United Kingdom. At the beginning of last year, the figure had reached just over 3,900. The number of people starting detention in the year to June 2015 was just over 32,000—up 10% on the previous year. Yet Home Office policy is that detention should be used sparingly.
In the last Parliament, an all-party group looked at immigration detention. We are unusual in this country in having no limit on administrative detention for immigration purposes. The recommendation of the all-party group calling for the introduction of limits on indefinite immigration detention was endorsed by the House of Commons last September. Included in the evidence heard by the all-party group, which had parliamentarians from both Houses, and in which opposition members were in a minority, was a case of a young man who had been raped, tortured and trafficked before arriving in this country. He had been detained for three years in an immigration removal centre. The inquiry also heard evidence which reflected reported incidents of deaths and of allegations of sexual assault in immigration removal centres.
Home Office-stated aims are that those who have been trafficked should not be detained, those who have been tortured should not be detained, and that detention should be for the shortest possible time. There is clear evidence that these aims are not always achieved. The all-party group inquiry into immigration detention heard evidence that detention was worse than being in prison, since people in prison do at least know when they will be getting out. People in prison have also been convicted of an offence, unless they are on remand awaiting trial. For people in immigration detention, the uncertainty can be hard to take. Their life is in limbo. They are not told a great deal—or, indeed, perhaps anything—about how long they will have to stay, and they do not know whether they will be deported.
There is, I agree, little sympathy for people in immigration detention, which is precisely why the present situation goes on and on. The view, expressed to me again in a conversation two days ago—last Saturday, is that those coming to this country are doing it only for the benefits they can obtain and for the use of our National Health Service. Unfortunately, too many of those in a position, and with the power, to influence public opinion on this issue choose to use their position and power to reinforce, rather than refute, that impression.
The all-party inquiry heard from medical people with knowledge in this field that the sense of being in limbo in immigration detention, and the hopelessness and despair it generates, leads to deteriorating mental health. One such witness said that those who are detained for more than 30 days have a significantly higher level of mental health problems. In the first three quarters of 2014, 37% of those detained were detained for longer than 28 days, even though 28 days reflects best practice in other countries. Home Office guidance provides for detention to be used only as a genuine last resort to effect removal.
The inquiry also heard from a person with knowledge as a team leader at the prisons inspectorate that lack of any time limit encourages poor casework and ineffective procedures. The evidence this person gave was that a quarter of the cases of prolonged detention that the prisons inspectorate had considered were the result of inefficient casework rather than because it was inappropriate for people to be released.
Despite these places being called immigration removal centres, most people who leave detention do so for reasons other than being removed from the United Kingdom. According to government statistics, more than half the detainees are released back into this country. The system would therefore appear not only potentially damaging for those involved but expensive and a poor use of resources, since detaining someone costs £36,000 a year, with the overall cost being, as I understand it, just over £164 million—or some 165 times the figure the Government used in this House the other week to justify the new offence of illegal working because of the greater opportunity it was considered it would provide to secure more money under the Proceeds of Crime Act—namely, just under £1 million.
Lord Ramsbotham (CB)
My Lords, before speaking to the amendments in my name and those of the noble Baronesses, Lady Hamwee and Lady Lister of Burtersett, perhaps I might put a more general question to the Minister, to which I do not expect a definitive answer—it may be above his pay grade to give one.
An enormous number of government amendments were tabled just before Report in the other place, none of which was discussed in Committee. Since the Bill has been before this House, the Government have tabled more than 150 amendments; they have received a 350-page report from Stephen Shaw, which they commissioned on the welfare of vulnerable persons in immigration detention, to which they have published a one-and-a-half-page response; they have received a report commissioned by SERCO on detention arrangements in the immigration removal centre at Yarl’s Wood; they have also received an internal report on immigration detention, announced by the Minister at Second Reading, about which no details have been disclosed or released.
This unprecedented volume of associated activity after a Bill has been formally introduced in the other place suggests that the Government do not know exactly what they want to achieve, and that the Bill as currently constructed is not fit for purpose. I speak from the point of view of someone who fervently hopes that the Bill, as ultimately approved, will improve the way in which immigration and asylum issues are conducted in this country, and I bear in mind the increasing strain under which the system is going to come as climate change pressures are added to those it is currently under. Given that, I put it to the Minister that further processing of something to which the Government have already made more than 200 amendments—which must be something of a record—seems a pretty pointless exercise until they have worked out exactly what they intend.
My question to the Minister is therefore in the form of a proposal; namely, that on common-sense grounds alone further processing should be suspended and the Bill temporarily withdrawn, as happened to the Health and Social Care Act 2012, until it has been adjusted to include the Government’s many changes of mind and the implications of any recommendations they accept from the reports they have commissioned. In addition, such a pause would enable them to think again about some of the unnecessary bureaucratic complexity that the Bill, as currently constructed, will add to the demands on already overstretched officials on the front line, when simplicity should be the name of the game.
In speaking to my amendments, I first acknowledge what the Minister said about detention being used only as a last resort. The Government’s short response to the Shaw report states:
“Where it is necessary for the purposes of removal”,
of those with no right to remain in this country,
“and taking into account any risk that an individual may abscond”,
the enforcement action that they take,
“will involve a period of detention (which of course can be avoided if the individual departs voluntarily)”.
As the noble Lord, Lord Rosser, said, immigration removal centres—the official title of places in which immigration detention is conducted—are presumably intended to be only short-term holding facilities. This explains their lack of suitable facilities for anyone held for more than a few days. However, the Government do not appear to have made up their mind about what rules govern detention in short-term holding facilities because, despite a promise made as long ago as 2002, these rules have yet to be published. True, draft versions appeared in 2006 and 2009 but nothing more. The situation appears to be that announced by the noble Lord, Lord Taylor of Holbeach, in answer to a Question of mine in October 2013, namely that:
“The … Short-Term Holding Facility Rules have yet to be finalised and … there is at present no fixed date for when they will be made”.—[Official Report, 30/10/13; col. WA 261.]
Can the Minister update the House on the current position?
Commenting on the Shaw report the Detention Forum, a network of 30 organisations working in the immigration arena which was mentioned by my noble friend Lord Hylton, has said that the damning conclusions of the wide-ranging recommendations demonstrate that fundamental reform is needed. I would have thought that 350 pages and 64 recommendations deserved more than a mere one-and-a-half pages of government response, particularly when everyone outside the Home Office who knows anything about the way that immigration detention is currently conducted knows that something so obviously flawed is in urgent need of fundamental reform. Report after report by successive chief inspectors of prisons and immigration are nothing more than catalogues of failure which successive Ministers, and senior Home Office officials, have done nothing to correct over too many years. Seen against what those currently responsible must know to be urgently needed, the Government’s three proposals in their miserable response amount to nothing more than a sticking-plaster exercise. I hope that taken overall, my amendments and Amendment 216, moved by the noble Lord, Lord Rosser, will give those responsible for reform a comprehensive list of subjects that any review should encompass.
The Government’s first proposal, to adopt a wider definition of those at risk, is covered by Amendment 216ZC. I declare an interest in their second proposal, as a vice-president of the Centre for Mental Health, which has been commissioned to carry out a detailed assessment of the mental health needs of those held in immigration detention and report next month. Following receipt of this report, the Government then allege that the Home Office and the Department of Health will publish a joint mental health action plan in April. I simply do not believe that a fully comprehensive mental health treatment action plan can be produced in this ridiculously short time. To suggest that it is possible discloses a lack of understanding of what will be required—no doubt spurred on by wanting to give the impression that, after years of masterly inactivity and refusals to listen, urgent action is about to be taken. As Chief Inspector of Prisons I reported on the inadequacy of mental health arrangements in what were then called immigration detention centres in 1998 and, 17 years later, nothing has happened. Is it really likely that they are now to be transformed in a matter of weeks?
The Government’s third proposal is also beyond the capability of the Home Office to deliver, bearing in mind how long we have been waiting for short-term holding facility rules. They say that they will,
“implement a new approach to the case management of those detained, replacing the existing detention review process with a clear removal plan for all those in detention … combined with a more rigorous assessment of who enters detention through a new gate-keeping function”.
Baroness Hamwee
My Lords, were my noble friend Lord Avebury able to be here, I think he, too, would have started with short-term holding facilities. I feel I am letting him down by not having a specific amendment on the point.
When the all-party group undertook its inquiry, to which much reference has been made, I was particularly struck by the paradox of detainees both fearing and hoping for sudden change—or that things would stay the same way. It was well expressed by Dr Melanie Griffiths, who is quoted in the report as saying:
“By being detained indefinitely, without knowing how long for and with the continual possibility of both imminent release and removal, detainees worry that detention will continue forever and also that it will end in unexpected deportation the next morning. They have the simultaneous concern both that there will be sudden change and never-ending stasis. It is the lack of temporal predictability that prevents deportable individuals not only from being able to plan for the future, but also from having the ‘stability’ of knowing that the present will remain uncertain for a protracted length of time”.
A number of these amendments are concerned with time limits and timescales. The inquiry made a number of recommendations and comments, one of which was about the link with mental health. As the report expresses it, there is,
“a considerable mental health cost to detainees”.
The report also said that,
“the lack of a time limit, far from aiding Home Office effectiveness, was itself an incentive to poor case-working”.
The Government say that an arbitrary time limit is unnecessary, because we should have whatever is reasonable—although of course what is reasonable is often in the eye of the beholder. They also say that an arbitrary time limit—“specific” would perhaps be a better word—would become the norm and an incentive for non-compliance. However, those of us advocating a time limit do not wish to overlook the individual characteristics or indeed the changes over time and the changes of combinations of factors which may apply to individuals. We do not like a tick-box approach to vulnerability.
There are a lot of amendments in this group. I have signed up to all of those in the name of the noble Lord, Lord Ramsbotham, and started by supporting Amendment 218, which is the straight 28-day amendment, rather than the proposal for a review, which is in the first of the amendments in the group. After the Shaw report was published, and after we had addressed the issue at Second Reading, I discussed with the noble Lord, the noble Baroness, Lady Lister, and other members of that inquiry whether we might look for an alteration—I was going to say slight relaxation, as it were, but that would be a very bad term for me to use in the context—to the 28 days in the event of something exceptional.
The first of the two approaches in Amendments 218A and 218B is that the Secretary of State would go to the tribunal on the basis that bail is not in the public interest. I hope that would answer the critical comments made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, at Second Reading that there must always be some exceptions. We have had a go at a reference to offences which are in Schedule 4 to the Modern Slavery Act. That was suggested by somebody who has been concerned with this subject for a long time. I am not sure that it would be my preferred approach, but the intention was to present some possibilities to the Government as to how they might achieve 28 days, or a specific time limit, but with any absolutely necessary exceptions.
The other amendments—particularly Amendments 216ZA, 216ZB, 216ZC and 216ZD—are drafted directly from the Shaw report in the hope that the Government will give a detailed response to each of them. As the noble Lord said, we had a short response in the Written Ministerial Statement. I hope that the Minister, whose task tonight is considerable, has been briefed to give a response to each point. We could have tabled 64 amendments but that might have tested the patience of the Committee a little too much. Of course, none of this actually needs legislation; the Government could just get on with it. The essential items that lend themselves to an amendment are ones to which I and, I know, others would like a detailed and specific response.
Baroness Lister of Burtersett (Lab)
My Lords, I rise to support the various amendments in this group, focused in particular on the case for a time limit and for the absolute exclusion from detention of pregnant women.
As has already been said, like the noble, Lord Ramsbotham, and the noble Baroness, Lady Hamwee, I was a member of the all-party parliamentary inquiry into detention. Unlike them, I knew very little about detention beforehand and so was perhaps the more shocked by what I heard from both professionals and people who had been detained. One message that hit me with particular force was the impact of detention on the mental health of detainees—we have heard a bit about that already. It is clear that this was true for Stephen Shaw, too. In his very fine report, he states at the outset that,
“the impact of detention upon detainees’ mental health, has been at the heart of this review. For that reason alone, it is not possible to distinguish the fact of detention from the consequences for welfare and vulnerability”.
He based this conclusion in part on a literature review by Professor Mary Bosworth, to which my noble friend Lord Rosser referred and which Shaw suggests was perhaps the “most important contribution” made by his report. He concludes that it,
“demonstrates incontrovertibly that detention in and of itself undermines welfare and contributes to vulnerability”.
Professor Bosworth’s review found a clear link between duration of detention and mental health outcomes. She also points to qualitative studies that indicate that the uncertainty arising from no time limit creates additional difficulties, and concludes that in the absence of clinical studies,
“it is clear at the very least that uncertainty makes detention more difficult”.
That resonates with what we heard in our inquiry. For instance, Dr Robjant of the Helen Bamber Foundation told us that its clients talk about it increasing their sense of hopelessness and despair.
Despite the restrictions placed on his remit, Stephen Shaw raised serious questions about numbers detained, the length of detention, the impact of the unknown length of detention on vulnerability, and the need for alternatives. He emphasises from the outset that his recommendations, in themselves, do not go far enough. We must take seriously what in my view is a clear steer that we need to go beyond recommendations designed to mitigate the “diswelfares” associated with detention, important as they are, and address the underlying question of the role of detention itself, and in particular the question of the absence of a set time limit on its duration.
Since the parliamentary inquiry’s report, the UN Human Rights Committee has recommended that the UK introduce a time limit. In oral evidence to the Public Bill Committee on this Bill, a representative of the UNHRC stated that his one wish would be the introduction of a time limit on detention—which, he underlined, was within the scope of the Bill. In addition to the unanimous vote in the other place in support of our inquiry which has already been mentioned, there was strong support for a time limit when the report was debated in your Lordships’ House in March, including from the former Home Secretary, the noble Lord, Lord Hurd of Westwell, who deemed it “deeply unsatisfactory” that detainees,
“have no certainty in their lives about when they might be removed from detention”.—[Official Report, 26/3/15; col. 1569.]
This point was echoed by the noble Lord, Lord Cormack, who said that,
“it is worse than that, because it deprives people of hope”.—[Official Report, 26/3/2015; col. 1578.]
We have heard other arguments in favour of a time limit, which I shall not go into. Let us now use the opportunity of this Bill to provide hope for migrants and asylum seekers deprived of their liberty by a detention system shown to be deeply unsatisfactory by legislating for a time limit and encouraging the Government to develop effective community alternatives.
Lord Roberts of Llandudno (LD)
My Lords, I thank the noble Baroness, Lady Lister, for using one word especially—the word “hope”. We have responsibility not only to our own people but to the whole world community. As we deny that responsibility and act in ways that make people very much inferior and in fear, they will grow up to be people without that hope. People might resort to extremism and terrorism. Our opportunity in this Bill is to restore hope to people. I heard from Calais just half an hour ago that both the mosque and the Christian church there have been bulldozed today, removing another element of hope for those people. It is an opportunity. We deal with clauses, amendments and all sorts of things, but we are basically dealing with people—people just like ourselves.
I must not take long, and I will not. The Universal Declaration of Human Rights states that everyone has the right to liberty and to protection from arbitrary detention. Are we in violation of that declaration? Article 31 of the United Nations Convention Relating to the Status of Refugees specifies that states shall not impose penalties or unnecessary restrictions on the movement of refugees entering their territory without authorisation. Are we also denying that here in the United Kingdom?
What if we compare ourselves with other countries in Europe? France has a limit of 32 days and Belgium of two months. Here, though, two years ago—the only figures that I could get were for 2013—400 immigrants were detained for more than six months. At the moment there are about 3,500 people detained in our removal centres—many more than there were a few years ago. Just think of the cost of this. It was revealed in an Answer in June 2011—and the figure will be higher now—that the cost of detaining an individual at an immigration centre was £102 a day. We are acting totally against what would be best for our own people.
So there is so much to be done. As the noble Baroness, Lady Lister, said, the psychological and physical effects of indefinite detention must be totally devastating. You have family and opportunities at home or elsewhere but you do not know when you are going to be released. I know that the Minister has a good heart; I have spoken to him many times on these issues, and I hold him in great respect. Can we in the House of Lords not move in such a way that the rest of Parliament will have to listen to us? We have the opportunity here to bring hope to many more people.
Lord Dubs (Lab)
My Lords, I support the thrust of these amendments. I shall refer to two or three specific points. Amendment 216 is very moderate and the Government ought to have no difficulty in accepting it. The sort of review envisaged would give us more information; I think it would help to make the arguments clearer and might well come out more in favour of the tougher amendments that are also part of the group. It is up to the Government to say why they do not want this information to come to light and why they are against such a moderate amendment.
I turn to the question of time limits. I agree very much with the points that have been made. To detain vulnerable people and to give no sense of how long they are to be detained is not something that we as a country should be proud of doing. In a debate today on earlier amendments, it was put to us by the Minister that if people were in detention, they had other ways of getting out and processes they could go through—I think one example was judicial review and another was habeas corpus. It would be very difficult to achieve these safeguards, costly without legal aid to pay for them and indeed costly for the Government to defend such cases if people had the power to bring them. I do not think that that is a positive way forward.
Apart from supporting time limits, I also support the point made so clearly by my noble friend Lady Lister: to detain pregnant women must be entirely unacceptable. They are not going to run away, they can be of no danger to society, and I cannot understand what benefit there is to the country or to anybody else in detaining people who are so vulnerable by definition of their pregnancy. That also goes for some of the other categories listed in Amendment 216ZC, such as victims of torture. How can we contemplate detaining victims of torture, who surely have already suffered enough? For some of these people Britain is a country of hope, with high standards, and when they find that the way they are treated does not meet those high standards, as the noble Lord said, hope is gone.
So I very much hope that the Government will come forward with some positive responses to these amendments. We cannot as a country allow our reputation to be blemished and besmirched by the practices we adopt in detaining some of these people, who surely have more rights than we give them at the moment.
Lord Hylton (CB)
My Lords, at Second Reading I said that indefinite detention without charge was completely repugnant to public opinion in this country. Therefore I welcome Amendment 216 and other amendments in this group. It is hard to imagine a subject which calls out more loudly for review than this one. My noble friend Lord Ramsbotham, with his long experience of inspecting official institutions, pointed out very strongly that for years now we have been subject to drift on this very subject. We have excuses, palliatives and promises, which have fairly seldom been fulfilled.
It may help if I give some figures on the length of time that people have been held. During the full year 2014, 857 people were held for longer than six months, and by the time that those people had been released, 26 had been detained for between for between two and four years and one person had been held for over four years. Of course, these figures do not include those held in prisons under immigration powers. Of the 161 people who were released after more than 12 months, only 70 were actually removed from this country, while 86 were granted temporary admission, temporary release or bail. That throws some light on the seriousness of how things have been running lately.
Lord Alton of Liverpool (CB)
My Lords, I will briefly intervene to support the speeches that have been made thus far in favour of these amendments. In doing so, I will return to something my noble friend Lord Ramsbotham said earlier on about the inappropriateness of our procedures. It seems that the cart and the horse have been confused here. Why did we bother asking Stephen Shaw to carry out his review and examine these procedures while we were steamrollering through legislation? Surely we should have waited for that review in the first place.
The terms of reference for the Shaw review were interesting in themselves. They were to “review the appropriateness” of the Government’s,
“policies and practices concerning the welfare of those who have been placed in detention, whether in an immigration removal centre or a short-term holding facility, and those being escorted in the UK”.
That goes to the very heart of this legislation. Surely it would have been wise to await the findings of that review before the other place considered this legislation, and before we in Committee were asked to look at 64 recommendations and consider which of those could be incorporated in amendments, as the noble Baroness, Lady Hamwee, said before.
Stephen Shaw called for a complete overhaul of the Rule 35 process, a supposed safeguard against the detention of victims of torture which—as the noble Lord, Lord Dubs, implied in his remarks earlier on—he said is not working. That something as serious as people who have been subject to torture is now being addressed in amendments to legislation at this stage shows again the inappropriateness of the procedures we are using.
Lord Stunell (LD)
My Lords, I support this run of amendments. I do so not with a lot of expertise but with real puzzlement. I hope that the Minister can deal with one or two of my puzzles relating to the cost, effectiveness and impact of the current policy and the possible risks there might be should it ever be changed. Does the Minister have a ready list of other policies that cost £160 million a year and produce no measurable benefits what ever to anybody? If he has, I recommend that he talks to the Chancellor about how that might be used effectively elsewhere by the Government.
The percentage of people who are detained and who subsequently return is not that high. Does the Minister have the figures for the returns percentage of those who are not detained? I strongly suspect that detaining people is no more successful in encouraging them not to return than not detaining them. However, the Minister may have some evidence that would contradict my impression, and I think we should hear it.
There are two impacts that I would like to hear some evidence from the Minister about. One of those is the impact on the United Kingdom’s reputation for the rule of the law—the noble Lord, Lord Dubs, made the point just a few minutes ago—our reputation for fairness and our reputation for pragmatic common sense. We rather pride ourselves on our pragmatism and common sense when it comes to public administration. Does the Minister have any evidence that those countries that have a set time limit find that that leads to them having fewer returners than we do? What evidence is there that our asylum seekers—those who reach our shores—are more dangerous than those who get to France, Spain or Italy? Are they more likely to abscond than the people who go to those countries? In terms of the importance of having this policy at all, are we more successful in getting returners by not having that time limit than those countries are by having one? If that is a central part of the justification for the current policy, I am sure that the Minister will have those figures at his fingertips.
Then there is the impact on detainees themselves. The mental health impact and the impact on pregnant women have been mentioned. Bearing in mind that two-thirds of these people will be let out into the community eventually, the mental health costs and the costs for the children will fall on the National Health Service. What assessment have the Government made of the additional National Health Service costs generated by the impact of returning detainees to the community, with all the problems so ably set out in the Shaw report? I notice from an earlier debate that when it came to reporting complaints about treatment by immigration officers, the Government pointed out that there were five different routes to register a complaint. Obviously, if you do not speak English and have no experience of democratic public institutions and how they might be able to help you, those are formidable barriers to taking advantage of that help. So far as I understood from the puzzled looks around this Chamber, none of us knew how the process worked, never mind someone detained in Yarl’s Wood. What information is put in the way of detainees about how they can claim the rights that the Minister sets out as being available?
My final question is the same as the one I started with. What purpose does it serve to have the current policy, which costs public money, is not effective and has such a negative impact on the UK’s reputation abroad and on detainees themselves? I hope that the various amendments in front of the Committee today will provide some opportunities for the Minister to take back to the ministerial team a clear view that something has to change—to save money, to save the reputation of the United Kingdom and to save detainees the indignities that we are inflicting on them.
Lord Green of Deddington (CB)
My Lords, I find myself once again in a minority of one in the Committee, but I am reassured that I am not in such a minority in the country as a whole.
The Bill and these amendments should be considered in a wider context. The removal of immigration offenders is central to the credibility of any immigration system. Furthermore, detention is an essential component of the removal process. Of course it is undesirable for people to spend long periods of time in detention, but in practice that is not the outcome of a majority of cases. The noble Lord, Lord Hylton, mentioned some statistics, but there are others from the same year, 2014. About 30,000 people were detained in that year, but 63% were detained for less than 28 days, of whom 37% were detained for less than seven days. Only 11% of those detained spent more than three months in detention and, of those, 62% were eventually removed from the UK, which suggests that those cases were among the more difficult ones and that detention was necessary to achieve removal.
Individual cases vary enormously. I do not think anyone would favour pregnant women being held in detention, but any specific time limit would be an invitation to those concerned and their lawyers to game the system. Let us not forget that 50% of all those who claim asylum in this country are in fact refused, and that includes those who have made an appeal and have lost it. That is the average over the past 10 years, so broadly speaking we are talking about a significant number of people who the immigration courts have decided no longer have the right to be in this country. Those are the people we are talking about here.
Those who attended the Second Reading debate will have heard the most eloquent intervention by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in which he stressed the complexities of the issues and the fact that detention is permitted only where there is a reasonable prospect of removal. That is the case law and he set it out clearly, and it seems to me a reasonable approach to this issue.
There are of course other entirely different approaches to reducing the time spent in detention. One example is to have effective returns agreements with third countries and to combine those with dedicated resources for enforcement so that the entire process speeds up. Meanwhile, any significant reduction in the use or indeed the prospect of detention could only encourage people to stay on illegally in the hope, and even the expectation, that they could dodge removal. Finally, we cannot be blind to the extraordinary events that are taking place in southern Europe. This is surely not the time to weaken our capability to return economic migrants to their countries of origin.
Lord Alton of Liverpool
My Lords, given that my noble friend has placed a great deal of reliance on public opinion and how he thinks public policy should be shaped, and given that he has cited figures from 2014, has he had a chance to reflect on the figures produced by the House of Commons Library about the cost of running detention centres in the way we are at the moment? The cost was £164 million in 2014, while the cost of keeping one person in a detention centre is £36,000 a year. In addition, £15 million was paid out in compensation for illegal and unlawful detention. Surely he would agree with those of us who have been putting an alternative point of view that it is an issue which needs to be tackled at a fundamental level.
Lord Green of Deddington
Yes, I certainly agree that detention is a very expensive business in all circumstances; that is true. The people I would be most concerned about are those who plan to come here as economic migrants and who would have no right of asylum. They are the people who need to be deterred. It is not so much public opinion; it is having an asylum system which is seen to be effective. By all means, people who have been tortured need to be dealt with, but it would surprise me if many were actually in detention. They would not be there if their cases had not been heard and refused by the immigration courts.
Baroness Lister of Burtersett
I am not sure whether the noble Lord has read the report of the inquiry to which a number of us contributed, but we did quote from the International Detention Coalition about the experience in countries that do not rely so much on detention. The noble Lord seems to be worried about what that might mean in terms of the effect on compliance. The coalition found that alternatives to detention,
“maintain high rates of compliance and appearance, on average 90% compliance. A study collating evidence from 13 programs found compliance rates ranged between 80% and 99.9%. For instance, Hong Kong achieves a 97% compliance rate with asylum seekers or torture claimants in the community, and in Belgium, a pilot working with families facing removal had an 82% compliance rate”.
Alternatives to detention have proved to be very effective and can address some of the concerns of the noble Lord.
Lord Green of Deddington
Yes indeed, but I would imagine that the conditions are very different in Hong Kong and to a certain extent in Belgium. You have to look at the circumstances that you find in a particular country. What we have here is a very large illegal population which people can quite easily join. I am not against looking at the kind of alternatives being suggested, but let us be pretty sure that they are going to be just as effective. Any move at this point to weaken, not so much the asylum system but our capability to remove those who have failed asylum, would be an extremely foolish step to take.
Baroness Hamwee
My Lords, this may be the last intervention, before the noble Lord sits down—again, using the language of this place. He has based his comments on immigration offenders. I wonder if he could explain what he means by that term. Certainly there are individuals who have committed offences within our criminal justice system and who are—not on the way to being deported; that being the problem—liable to deportation. There are people who have sought asylum but who are not offenders in the way that I would understand the term. Indeed, their claims have not been determined, which as we have heard in other debates, is a big problem. Could he just disaggregate that term?
Lord Green of Deddington
The noble Baroness’s point is rather similar to the point she made about bail earlier in the debate. The term “immigration offenders” is a broad term and applies to anyone who does not have, or no longer has, a legal right to be in the UK. It could be a whole range of people who do not have a right to be here; they have not taken opportunities for a voluntary return, or even an assisted voluntary return, both of which are available to them. Therefore, they might find themselves in detention for those reasons.
Baroness Hamwee
Does that include those who have sought asylum but whose claim has not been determined?
Lord Green of Deddington
Not when I use the term, and I do not think that it applies to those people. It applies to those whose cases have been rejected, and rejected on appeal, and they do not return home when they could do so.
The Advocate-General for Scotland (Lord Keen of Elie)
I wonder whether I might, as it were, intervene at this point. I was obliged for the contributions from all corners of the House about what is a difficult and demanding issue. Having regard to the observations of the noble Lord, Lord Stunell, I notice that the immigration system with which he is struggling is a product, at least to a material degree, of the Immigration Act 2014, which is in turn the product of a coalition Government, in which I believe he was a Minister. That said, clearly there is room for improvement. On that we can agree, and that is why the Bill is before the House.
Lord Stunell
I thank the Minister for giving way, and of course he is absolutely right. I am very proud of the fact that we secured some mitigation of the existing scheme in what was achieved on child detention, which I am sure he welcomes.
Lord Keen of Elie
One of the points that the noble Lord referred to, and which was referred to also by the noble Lord, Lord Alton, was the question of set time limits, and the limits that apply in the context of the EU returns directive. It is important to have a full understanding of the EU returns directive. It sets a limit on immigration detention of six months and is extendable to 18 months. Some EU countries have shorter limits—France, for example—but Germany allows for the full 18 months’ extension under the directive. So one has to have regard to the full terms of the EU directive.
The United Kingdom has not signed up to the EU returns directive; we prefer to maintain control of our own borders. There are other issues to be considered as well. The very legal system within each of these European countries is distinct, so for example, in some there is no concept of judicial review of executive action, as we understand it, and therefore no scope for review of executive action in the context of immigration control and the application of immigration policy. So one has to be a little careful when seeking to rely on comparative law and comparative data.
We are, of course, working towards the voluntary return of illegal migrants to this country, as well as implementing various schemes to deal with those who refuse to return. I notice that during the last two years there have been more than 50,000 voluntary returns by migrants to this country. Again, that is simply to put the matter in context.
The noble Lord, Lord Ramsbotham, raised issues about the Bill itself and whether, given the amendments that have been made, it should not at this stage simply be withdrawn for the Government to consider many of the changes that they might have in mind, or, indeed, have regard to the amendments that have already taken place. Again, at a general level, I note that the Bill deals with a whole series of issues: labour market reform, housing, driving and driving licences, illegal working, the appeals process, immigration and bail. Only one or two aspects of that are immediately impacted by the issue that we are addressing in the context of detention.
The noble Lord also alluded to the number of amendments—but again, to put that in context, amendments took place following the consultation on labour market enforcement. When one examines them, one sees that a great number of the amendments address only a few discrete issues. For example, a whole series of amendments were required because of the nature of the local rules that apply to taxis and taxi licensing. From Portsmouth to John O’Groats, there seem to be varying rules regarding that matter. In addition, as the noble Lord, Lord Kennedy, noted, there had to be extensive amendments with regard to warrants under the judicial system in Scotland. So one has to get this into context and have a sense of proportion about what the Bill is doing.
Reference was made to Stephen Shaw’s report, which we welcomed, considered and continue to consider. Stephen Shaw did not make any recommendations about legislation. Much of what he says, so far as it is to be implemented, will be implemented by guidance, not by primary legislation. Again, it is important to get these points into context so that we understand what we are dealing with.
I will come back to some of the individual points raised, but first I will deal with the individual amendments, beginning with Amendment 216. This would require the Secretary of State to commission an independent report into the use of immigration detention, which would need to consider: how effective current use of detention is; how effective current safeguards are; how to reduce the numbers in detention; and the practical steps needed to introduce a maximum time limit for detention of 28 days.
While I understand the intentions behind the proposed new clause, in our submission it is not necessary. Stephen Shaw has undertaken an independent review of our approach to the detention of vulnerable individuals. The Government have published his report and our initial response to it, through a Written Ministerial Statement published on 14 January. It is not the length of that response that is material; it is the quality of it that truly matters. In it, we have set out our ambition to see a reduction in the number of those detained, and the duration of detention before removal, which in turn would improve the welfare of those detained.
The Government have broadly accepted the recommendations that Stephen Shaw made, and in particular will introduce a strengthened presumption that adults at risk should not be detained unless there is clear evidence of immigration risk factors. I take this opportunity, which I am sure that the whole Committee will echo, to thank Stephen Shaw for his thoughtful and in-depth consideration of these very material issues and for his associated recommendations.
If Amendment 216 is agreed it will simply duplicate the work that Stephen Shaw has undertaken and delay the Government’s programme of implementation while the outcome of the new review is considered. Here we are addressing this Government’s manifesto commitments.
Amendment 216ZA would place a statutory requirement on the Secretary of State to review our policy on detention and bail conditions, and consult as part of that exercise. Again, Stephen Shaw has already done much of this. He has undertaken an in-depth review of our policy and made recommendations for improvements. We will take forward this work and, again, it will be implemented not by primary legislation but by consideration of guidance.
Amendment 216ZB requires a review of the rules and regulations about how individuals are treated while in immigration detention. I wish to make it clear to the Committee that the Secretary of State takes her duty of care to these individuals very seriously indeed. Healthcare is provided by the National Health Service and there are meaningful activities provided. Individuals also have access to legal advice—a point that was raised earlier—and to translation services.
Immigration removal centres are not prisons and do not have as strict a regime as prisons. Individuals are allowed to associate and move freely throughout the centres. However, the Government have accepted the broad thrust of Stephen Shaw’s report and will be taking further action to review our policies and procedures to ensure that detainee welfare is at the heart of immigration removal centres’ regimes.
Amendment 216ZC would mean that an individual who claims to be vulnerable could not be detained on the authority of the Secretary of State; a request would need to be made to the tribunal to authorise detention. It would also have the effect of preventing the detention of pregnant women in any circumstances. I understand the intention of this amendment, and the whole House will agree that vulnerable individuals should not normally be detained. That is our current published policy. In response to Stephen Shaw we will be further strengthening our approach, introducing a new “adult at risk” concept into decision-making on immigration detention. This means adopting a wider definition than at present of what constitutes an adult at risk, with a clear presumption that people who are at risk, including pregnant women, should not be detained.
Baroness Lister of Burtersett
I may be pre-empting what the noble and learned Lord is about to say. However, Stephen Shaw is very clear that presumptive exclusion should be replaced with an absolute exclusion. The noble and learned Lord talks about strengthening presumption. That is qualitatively different from absolute exclusion. Do the Government accept the recommendation of absolute exclusion and, if not, why not?
Lord Keen of Elie
The present published guidance means that we do not, and should not, detain pregnant women except in exceptional circumstances. There are, in fact, very few pregnant women in the estate. The Government are reflecting on how to implement Stephen Shaw’s policy in regard to adults at risk, and will address that in due course. However, as I say, it will be a matter of guidance.
Baroness Lister of Burtersett
I am sorry to press this. I accept that it is a matter of guidance. We put it in an amendment to have a debate on it. However, it seems to me that there is an attempt to slide out of answering the question of whether presumptive exclusion in the guidance will be replaced by absolute exclusion, because that is very clearly what Stephen Shaw recommended. I am not getting a clear answer on that.
Lord Keen of Elie
The clearest answer I can give is that it is a matter for consideration at present by Ministers. They will consider it because they have already said that. They noted the recommendations in Stephen Shaw’s report. They have not yet determined in a black and white way that they will implement all 64 recommendations and no one would expect them to have done so in this timescale, but they will address them.
Lord Alton of Liverpool
My Lords, the noble and learned Lord, Lord Keen, has probably exhausted that line of argument for the moment. However, he was also asked during the debate not whether there are few or many but how many pregnant women are in detention centres at present, what their length of stay has been and whether any babies have been born there. If he cannot give those figures this evening, rather than simply saying “very few”, which was the phrase he used a few minutes ago, perhaps he will agree to write to noble Lords and let us know exactly what the numbers are.
Lord Keen of Elie
I am perfectly happy to write to noble Lords to give the figures for the number of pregnant women at present in detention and perhaps over a period of six months to cover both before and after Stephen Shaw’s report, so that there are some meaningful figures they can work from. I cannot give exact figures. That may not surprise your Lordships. I am advised that there are very few pregnant women in the estate. However, more precise figures will be given.
The adults at risk policy will take a more holistic and dynamic approach to the assessment of vulnerability, based on the best available evidence. That is what Stephen Shaw has identified as the most ambitious approach to ensuring that adults at risk are safeguarded. However, the approach in the proposed new clause would not be workable in practice. It does not take into account the realities of how individuals are discovered. For example, how would we handle cases at the border who can be returned on the next flight? Following this amendment, an individual could not be lawfully detained without an order of the tribunal. That would be an administrative challenge to obtain and would require significant extra resources. The same would be true of an individual encountered jumping off the back of a lorry. And what would happen if someone was already detained and raised these issues? Would they be unlawfully detained until an order of the tribunal was given? It is simply not workable in practice.
Baroness Lister of Burtersett
I am sorry to intervene again, but “indefinite” does not mean that people are there for ever. It means that people do not know how long they will be there, and that is what has had the terrible psychological impact on people. From that perspective it is “indefinite”, because there is no clear time limit that gives people certainty and hope.
Lord Keen of Elie
With respect, it is not possible to say to somebody that they will be in detention for X period in this context. For example, if they choose not to co-operate by producing any documents, or they do not tell the truth about their point of origin or their journey—where they arrived in Europe, for example—it may be very difficult to investigate their circumstances, and they may yet during that period pose a risk, whether to the public or otherwise. Therefore, detention is not necessarily, and cannot be, dictated by reference to a fixed period. But of course, it is open to them to go to a tribunal and apply for bail—and that is the whole point. So it is not, in that sense, indefinite: they have the opportunity to canvass before the tribunal the issue of whether or not they should remain in detention.
At Second Reading, we heard a number of noble Lords speak on detention. As has been said, there was a contribution from the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He rightly identified that:
“There are two basically different circumstances in which people are detained under the legislation: first, on initial application for asylum and, secondly, when, much further down the line, it is sought to remove people whose rights of whatever sort have expired and it is proposed that they finally be deported”.—[Official Report, 22/12/15; col. 2473.]
The detained fast track generally related to the first category that the noble and learned Lord, Lord Brown, identified. Many noble Lords will be aware that the detained fast track has been suspended since July following my right honourable friend the Immigration Minister’s decision that he could not be certain of the level of risk of unfairness to certain vulnerable applicants who may enter the process. I can confirm to the noble Lord, Lord Rosser, that the detained fast track will remain suspended until my right honourable friend is sure that the right structures are in place to minimise any risk of unfairness and that effective safeguards can be put in place. A Statement will be made when that point is reached.
Lord Roberts of Llandudno
Can the Minister tell me in what circumstances that was suspended? Was it not because of a High Court action, which found that it was illegal?
Lord Keen of Elie
There was, among other things, a determination as to the legality of the process. I accept that—but that is why it was suspended and why it remains suspended at the present time.
Those who are detained for any length in the removal centre estate will normally be cases that fall into the second category mentioned by the noble and learned Lord, Lord Brown: those who have had their application to remain in the United Kingdom refused, whose rights have expired and who it is proposed should finally be removed. I ask the Committee to reflect on the fact that if all individuals complied with a notice that they should leave the United Kingdom, there would be little need for immigration detention, and certainly very limited need for detention beyond a very short period. However, some individuals choose not to comply with the law and do not leave the United Kingdom when they should. That is the position we are in.
Amendment 218A would require a bail hearing in every case of detention within 28 days. As I have explained previously, mandatory bail hearings by set deadlines are incredibly resource-intensive for the tribunal and have been rejected previously as being unworkable in practice. Amendment 218B would impose a requirement to release on immigration bail after 28 days of detention, unless an individual had been convicted of an offence under the Modern Slavery Act.
I can understand the noble Baroness’s reasoning for the amendment. The offences listed in Schedule 4 are very high-harm offences. But what justification could there be for detaining beyond 28 days anyone other than these high-harm criminals? Matters are not that simple. We seek to remove national security threats under deportation powers—individuals who do not have a conviction but where there is clear intelligence that they pose a risk to the public. This power would prevent detention of these individuals beyond 28 days. It would lead to the release, for example, of Abu Qatada, despite the clear threat that he and others like him pose.
The noble and learned Lord, Lord Brown, went on to say:
“Many participants in this debate have urged and will urge, benevolently, for fixed limits—sometimes as little as 28 days—to immigration detention. I say to those noble Lords: do not underestimate the ingenuity and persistence of many of those who seek to defeat immigration controls. Time and again, down the years, the system has been cleverly played, often by those who are least deserving of our sympathies. In the present edition of one of the standard textbooks on immigration law, the chapter on detention and bail extends to 96 dense pages and endless footnotes. A case on this topic in the Supreme Court in 2011 … stretched to 115 pages of judgments. This is a difficult area of the law and I respectfully suggest that we should not rush to impose some limit”.—[Official Report, 22/12/15; col. 2474.]
Again, the noble and learned Lord, Lord Brown, summarised the position well. I ask this House to heed his wise words and not to legislate in haste. It is for these reasons that I ask that the amendment be withdrawn.
Before I sit down, I notice that I have not responded fully to the points made by the noble Lord, Lord Ramsbotham. In particular, he raised the question of consultation on the short-term holding facility rules. It is regrettable that we have not yet consulted on those rules. However it has to be remembered that they operate not in a vacuum but under the statutory framework contained in Part 8 of the Immigration and Asylum Act 1999 and its associated schedules. They are also covered by the Home Office’s detention services orders. Now that the Shaw report has been published, we will take forward consultation on the draft rules.
Baroness Hamwee
My Lords, before the noble Lord, Lord Rosser, responds, the picture that has been painted of the situation, including those who are subject to detention, does not seem to accord with the observations which so many of us have heard, including those of Stephen Shaw. The noble Lord, Lord Rosser, quoted the last sentence of Mr Shaw’s conclusions, which is in paragraph 11.8. He said:
“Immigration detention has increased, is increasing, and—whether by better screening, more effective reviews, or formal time limit—it ought to be reduced”.
It seems unlikely to me that it has been increasing because the number of people who have been convicted of offences and are due for deportation, but for some reason or another are not being deported, would account for that increase in the way in which I heard the explanation.
I took seriously the comments of the noble and learned Lord, Lord Brown of Eaton under Heywood. I ask again whether there is not a way in which those of us who are concerned properly to get to a situation where there is not the lack of hope to which noble Lords have referred cannot together find, with some imagination, a way of dealing with this that will give a structure to detention immigration but allow for the very rare exceptions that it might be proper to make.
Lord Green of Deddington
May I give one example of how this arises? There are some countries that require an interview with their consul in London to re-document someone who is here as an illegal immigrant and in detention. That requires an interview to which the person in detention has to agree. If there is a time limit of a month, he will know perfectly well that all that he has to do is to refuse the interview for a few weeks and he will be out.
Baroness Hamwee
I am not quite sure how that fits in with what I was saying. I am certainly not arguing that there should not be a good returns process; in fact, I have tabled an amendment to that effect later in the Bill.
Lord Alton of Liverpool
If the noble Baroness will allow me, one thing that does not seem to have been referred to in the course of our debates is the exponential increase in the number of people detained. I think that there was an 11% increase last year, with around 31,000 people being detained in this country. Does that not underline the importance of what she is saying about looking for alternatives to this? I gave the figures earlier: the cost to the public purse is around £36,000 per person detained. Millions of pounds are being spent on something that does not give great credit to our nation. Surely we should look for an alternative to this. We know that such alternatives exist elsewhere, which is where Stephen Shaw seems to be pointing us. Is that not what we should be doing between now and Report?
Baroness Hamwee
Indeed, and the sentence before the one which I quoted referred to a system,
“both … more protective of the welfare of vulnerable people and”,
delivering,
“better value for the taxpayer”.
Lord Rosser
I am sure the Committee will be relieved to know that I do not intend to say a great deal but, first, I thank everybody who has contributed to this debate and for the views that have been expressed.
Lord Keen of Elie
I believe that I did observe that we accept the broad thrust of his recommendations. At this stage, we have not determined which of the 64 individual recommendations we will implement. I cannot see that as surprising in the time available.
Lord Rosser
That comes back to the point that the noble Lord, Lord Ramsbotham, made about this legislation in relation to an inquiry that has just taken place. In my opening contribution, I commented that a statement that we are accepting the broad thrust of the recommendations is as long as a piece of string. Perhaps I can test the Minister on that. Recommendation 62 states:
“I recommend the Home Office give further consideration to ways of strengthening the legal safeguards against excessive length of detention”.
Is that one that the Government intend to accept? I am only asking about one recommendation out of 64. The Minister shakes his head. That makes my point.
Lord Keen of Elie
With great respect, one could ask about one out of 64,000. It is not a question of which one but of addressing all of them in due course and in the context not necessarily of primary legislation but of the need for further guidance. The noble Lord has underlined the potential need for further guidance in this area.
Baroness Hamwee
I suspect that the noble Lord may be coming towards a halt, if not to the end of the issue. It occurs to me that I do not think that any of us asked about the Home Office’s internal review on this subject, which we heard about in previous debates.
Baroness Hamwee
Well, I do not think the question was answered. Has the Minister any news about that? I appreciate that we are taking a long time on this, but the size and substance of the issue justifies it.
Lord Rosser
The reason for asking about recommendation 62 was that the Minister sought to tell us there was not a problem because people could apply for bail. But recommendation 62 is based on Mr Shaw looking at the situation with regard to bail. It is in the light of having looked at it that he said:
“I recommend that the Home Office give further consideration to ways of strengthening the legal safeguards against excessive length of detention”.
So I would have thought that the Minister, having referred to the very issue that prompted recommendation 62, might have a view on what the Government’s response was to it. But clearly there is silence from the Government on that particular score.
I do not know whether the Minister intends to respond to the question about the Home Office internal review. As I understand it, the noble Lord, Lord Ramsbotham, has said that he raised the question and has not had a response to it. Is there an internal Home Office review going on? I am obviously not going to get an answer, so it looks like a secret review.
Lord Keen of Elie
There could well be a secret review, but in so far as there is an ongoing review, we will write to the noble Lord about its progress. However, I have mentioned the matter which the noble Lord, Lord Ramsbotham, raised, about the short-term holding facility rules and the review of those rules. I indicated that we were going to consult on those draft rules in the light of the Shaw report.
Lord Rosser
Is the purpose of the Home Office internal review to decide whether to accept any or all of the Shaw report recommendations, or is it on another issue?
Lord Keen of Elie
There is an internal review, and I have already indicated that we will set out the position in writing.
Lord Rosser
That is a very interesting reply; the Minister is not prepared to tell me what the purpose of the review is. That is a fair comment, because he could have stood up and told me. I asked him the question and he has not answered it. I will just leave it in this context. We detain people who are not criminals for an unknown period of time as an administrative or executive decision and not as a judicial one at any meaningful stage. The message that has come over from the debate so far, in the absence of anything very specific from the Government, is that the Government find that situation entirely satisfactory. A number of noble Lords in the Committee this evening do not find that situation satisfactory. None the less, I beg leave to withdraw my amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, this is a shorter group. Amendments 224A, 224B, 224C and 224D are in my name and that of my noble friend Lord Paddick.
Paragraph 7 of Schedule 7 gives powers to the Secretary of State to enable a person to meet bail conditions. Paragraph 7(1) provides for when a person is subject to a condition requiring him to reside at a particular address and he would not be able to support himself at that address without assistance. Sub-paragraph (2) allows the Secretary of State to,
“provide, or arrange for … facilities for the accommodation … at that address”.
My first amendment would again change this from permissive to mandatory. If the Secretary of State requires someone to live at a particular address, it seems to us that, in the circumstances spelled out of the person not being able to otherwise support himself, the Secretary of State should provide the facilities. Sub-paragraph (3) limits the power I just described,
“to the extent that the Secretary of State thinks that there are exceptional circumstances which justify the exercise of the power”.
We would take out the thinking element of that to make the limitation more objective.
Sub-paragraph (4) gives the power to make a payment for travelling expenses which the person incurs,
“for the purpose of complying with a bail condition”.
Similarly, it applies,
“to the extent that the Secretary of State thinks that there are exceptional circumstances”,
and we would make the same two amendments.
I rather wish now that we had also sought to delete the reference to “exceptional circumstances”, given that by definition the person who is the subject of this cannot support himself. I failed to do that, but I do not think it invalidates the amendments. I beg to move.
Lord Keen of Elie
I am obliged to the noble Baroness. As she observed, Amendments 224A and 224B would create a duty to pay, in exceptional circumstances, for accommodation to anyone released on bail if the individual were required to live at a bail address not of their choosing or if the person could not otherwise support themselves. In turn, Amendments 224C and 224D would require the Secretary of State to pay an individual for travel costs incurred while complying with conditions of immigration bail where there were exceptional circumstances, again limiting discretion.
We would submit that these amendments are unnecessary. As was noted by the noble Baroness, paragraph 7 of Schedule 7 provides a power for the Secretary of State to ensure a person can meet bail conditions by paying for the costs of their accommodation and travel expenses in appropriate circumstances. It is important to note that the Secretary of State is given a discretion on the matter of exceptional circumstances. Individuals released on bail will be able to be supported by the Home Office under the Bill if their individual circumstances warrant it, generally because they do not have the funds to obtain adequate accommodation, cannot obtain it from friends or relatives, and are unable to avoid the risk of destitution while they are here except by leaving the United Kingdom.
However, if a person is an asylum seeker, they will be able to apply for support under Section 95 of the Immigration and Asylum Act 1999, and the Bill makes no changes to the support available to asylum seekers who would otherwise be destitute. They will continue to be provided with accommodation and a cash allowance to cover their other essential living needs.
In our submission, it is right that the Secretary of State, who is accountable to Parliament, has the final discretion on whether to provide accommodation to, or to pay the travel expenses of, those released on bail. It is not a matter that she should be obliged to respond to. In those circumstances, I ask that these amendments be withdrawn.
Baroness Hamwee
My Lords, I thank the Minister for that reply. It seems that whether the amendments are necessary or not depends on whether you are the Secretary of State or the person subject to the bail condition. However, I heard what the Minister said. I do not think it would be appropriate to pursue the matter now. I beg leave to withdraw the amendment.
Lord Keen of Elie
“In section 11(1) (construction of references to entry)—
(a) omit “, or temporarily admitted or released while liable to detention,”, (b) omit “or by Part III of the Immigration and Asylum Act 1999”, and(c) for “or by section 68 of the Nationality, Immigration and Asylum Act 2002” substitute “or on immigration bail within the meaning of Schedule 7 to the Immigration Act 2016”.”
“Immigration and Asylum Act 1999 (c. 33)The Immigration and Asylum Act 1999 is amended as follows.
In section 10(9) (removal of persons unlawfully in the United Kingdom: application of Schedule 2 to the Immigration Act 1971) omit paragraphs (h) and (i).
In section 53 (applications for bail in immigration cases) omit subsection (4).
In section 95(9A) (support for asylum seekers etc: matters to which conditions may relate) in paragraph (b) for the words from “restriction” to the end of the paragraph substitute “condition imposed under Schedule 7 to the Immigration Act 2016 (immigration bail).”
(1) Section 141 (fingerprinting: persons temporarily admitted to the United Kingdom) is amended as follows.
(2) In subsection (7)(b) for “temporarily admitted under paragraph 21 of Schedule 2 to the 1971 Act” substitute “granted immigration bail under Schedule 7 to the Immigration Act 2016”.
(3) In subsection (8)(b) for “admit him temporarily” substitute “grant him bail”.
“(1) Section 23 (power for residence restriction to include requirement to reside at accommodation centre) is amended as follows.
(2) In subsection (1) for “restriction” substitute “condition”.
(3) For subsection (2) substitute—
“(2) In subsection (1) “residence condition” means a condition imposed under Schedule 7 to the Immigration Act 2016.”
(4) In subsection (4) for “restriction” substitute “condition”.”
In section 30 (conditions of residence at accommodation centres) in subsection (7) for the words from “restriction” to the end of the subsection substitute “condition imposed under Schedule 7 to the Immigration Act 2016.””
“(1) Section 70 (power for residence restriction to take account of induction programmes for asylum seekers) is amended as follows.
(2) In subsection (1) for “restriction” in both places substitute “condition”.
(3) For subsection (2) substitute—
“(2) In subsection (1) “residence condition” means a condition imposed under Schedule 7 to the Immigration Act 2016.”
(4) In subsection (5) for “restrictions” substitute “conditions”.
(1) Section 71 (asylum seeker: residence etc restriction) is amended as follows.
(2) In subsection (2)—
(a) for the words from “restriction” to “restrictions)” substitute “condition which may be imposed under Schedule 7 to the Immigration Act 2016”, and(b) for “that Schedule” substitute “Schedule 2 to the Immigration Act 1971”.(3) In subsection (3)—
(a) for “restriction” in each place substitute “condition”,(b) for “paragraph 21 of that Schedule” substitute “Schedule 7 to the Immigration Act 2016”, and(c) for “that Schedule” substitute “Schedule 2 to the Immigration Act 1971”.(4) In subsection (4) for “restriction” substitute “condition”.”
“( ) in the heading, for “Temporary admission, &c” substitute “Immigration bail”,”
“Criminal Justice and Immigration Act 2008 (c. 4)The Criminal Justice and Immigration Act 2008 is amended as follows.
In section 132(4) (special immigration status: effect of designation) in paragraph (b) for the words from “temporary admission” to the end of the paragraph substitute “immigration bail under Schedule 7 to the Immigration Act 2016.”
In section 133 (special immigration status: conditions) for subsections (3) and (4) substitute—
“(3) If a condition is imposed under this section on a designated person, the person imposing the condition may also impose an electronic monitoring condition within the meaning of Schedule 7 to the Immigration Act 2016 on the designated person.
(3A) Paragraph 4 (electronic monitoring conditions) of that Schedule applies in relation to a condition imposed under subsection (3) as it applies to an electronic monitoring condition imposed under that Schedule.
(4) Paragraph 7(4) and (5) (bail conditions: travelling expenses) of that Schedule applies in relation to conditions imposed under subsection (2)(c) as it applies to conditions imposed under that Schedule.””
Baroness Hamwee
Baroness Hamwee
In moving Amendment 225, I shall speak also to Amendment 226, which takes us on to the next clause, about cancelling leave to enter or remain where there is an extension of limited leave. Leave which is extended may be cancelled if the applicant has failed to comply with the condition attached to the leave. I suggest that in the first of the amendments, that should be a reference to a material condition, not to a trivial condition, although the Bill does not use that language. Leave may also be cancelled if the individual has used deception in seeking leave to remain. I suggest that if there is deception, it should be deception directly for the purpose of seeking leave.
Lord Keen of Elie
I am obliged to the noble Baroness. As she observes, Amendment 225 seeks to change the wording of Clause 33 so that leave extended by Section 3C of the Immigration Act 1971 may be cancelled only when the failure to comply with a condition of their leave relates to a “material” condition. That would leave us in the situation whereby the original grant is not subject to that condition, but the extension was. The Immigration Rules allow for leave to be curtailed when a person has failed to comply with any condition attached to their grant of leave. However, the Home Office has published guidance on when failure to comply with conditions of leave may lead to curtailment of leave. For example, if a student is granted leave with the condition that they work no more than 10 hours each week, the guidance states that curtailment is appropriate if the student is working full time. However, when the breach of leave is very minor—for example where a student worked for 10.5 hours for one week only and was compliant with their conditions of leave in all other respects, the guidance states that it would normally be disproportionate to curtail their leave. In considering whether to cancel leave extended by Section 3C, caseworkers will apply the same principles as they do when considering whether to curtail leave under the Immigration Rules. So there is here consistency between the original leave and the extension allowed for, which is why the wording is as it is. The same considerations of proportionality will apply as in terms of the guidance that I have just indicated.
The effect of Amendment 226 is to change the power to cancel leave extended by Section 3C so that a person has to “deliberately” use or have used deception in seeking leave to remain. The wording of Clause 33 is the same as that used in the offence of deception in Section 24A of the 1971 Immigration Act and the wording used in the Immigration Rules to curtail immigration leave. The courts have confirmed that “deception” means something that is knowingly done and so the addition of the word deliberate is, with respect, unnecessary.
Both Amendment 225 and Amendment 226 would mean that the power to cancel leave extended by Section 3C would differ in its wording from equivalent powers to curtail leave under the Immigration Rules. This creates the risk of perceived differences between the circumstances in which Section 3C extended leave and leave granted under the Immigration Rules can be cancelled. I fear that if either of these amendments were to pass, much time and cost would be spent in the courts considering whether these differences in wording have the effect of creating different powers in practice.
I understand the concerns about how the power to cancel leave extended by Section 3C is to be exercised. I reassure noble Lords that the power to cancel leave extended by Section 3C is discretionary. For example, it would not be right to cancel leave extended by Section 3C where a person was unaware of the deception. In deciding whether to cancel leave extended by Section 3C, the same principles will apply as when considering the curtailment of immigration leave. For the benefit of the noble Baroness, the relevant decision on deception is the case of AA (Nigeria) v Secretary of State for the Home Department in 2010. In these circumstances, I invite her to withdraw her amendment.
Baroness Hamwee
My Lords, I did not disbelieve the noble and learned Lord when he said that there was case law on this. I understand that the term “deliberately” is encompassed within deception. As I said, my concern was to probe how the power would be used and why it would be necessary. From what we have heard, it seems to have been something of a tidying-up exercise, rather than because there has been a bad experience—the Minister is nodding his head.
I suspect that I am not alone in, as always, feeling just a little uneasy when we are told that the answer is “in guidance” so it will all be okay. Having made that observation, though, I beg leave to withdraw the amendment.
Baroness Hamwee
“Return of asylum seekers: countries deemed safe
(1) Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (removal of asylum seeker to safe country) is amended as follows.
(2) In paragraph 8, omit sub-paragraph (2).
(3) In paragraph 12, omit sub-paragraph (2).”
Baroness Hamwee
My Lords, I apologise to the House; if any noble Lords have tried to follow my drafting, they may have thought either that I had completely lost it or that my drafting skills had gone out of the window. They might be right on both counts because what I have produced is the direct opposite to what I intended. I contacted the Bill team to explain that earlier today, and was very grateful to receive a sympathetic response from the Bill team manager. Having managed to communicate what I intended, it will take me about two or three minutes—perhaps five— to cover the principle of what I wanted to deal with: the use of a list of deemed safe countries of origin to which asylum seekers could be returned.
The Minister may be able to tell us whether there is any news about the common EU list that has been proposed and whether the UK is still not minded to opt into it. It is no secret that Liberal Democrats consider that there is a good deal to be said for an EU-wide approach to asylum and refugees.
It was not this that prompted my interest. I can see that it is administratively convenient to have a list of countries that are safe to return people to; I understand the rationale. However, this does not take account of the different characteristics and situations of different individuals. If there is a presumption that a country is safe, it becomes that much harder to counter the presumption by evidence, particularly if one is on the fast track, which is not being operated now, or any other equivalent of it.
There was a ruling in Canada in July that Canada’s safe-country-of-origin list is unconstitutional because it is discriminatory on its face and serves to marginalise, prejudice and stereotype asylum seekers coming from countries that the Government have designated as unsafe. I have no doubt that the Home Office is aware of this and will be able to counter that if it were to be challenged on it.
The article which I saw said that:
“While it might seem reasonable to weed out claims of people coming from stable countries that respect human rights, the fact that Ukraine remained on the United Kingdom’s SCO list throughout the crisis there—and still is today—is a warning how these lists can quickly become obsolete and not reflect changes in countries of origin”.
I therefore wonder whether the Minister can give us any news on the EU list—I suspect that I know what the answer will be—but in particular, deal with the point about keeping lists up to date and that a country which might be safe for you and me might not be safe for him and her. I beg to move.
Lord Keen of Elie
I am obliged to the noble Baroness. Just to be clear, if I were to take the black letter of her amendment, I, like many of your Lordships, would be a little confused. Indeed, one part of the amendment appeared to remove the affirmative procedure of Parliament in approving the addition or removal of names from the safe list. I have no doubt that that was never her intention. I will therefore respond in the spirit in which the amendment was addressed.
There are various lists, of course; one has to be careful about this, because there are lists of countries for the purposes of Section 94, but in addition there are potential lists of safe third-party countries—that is, where someone has left one country but arrived in a safe country within Europe and then moved on to the United Kingdom. I will therefore deal with this at a fairly high level of generality, because the various lists have various different aspects to them. Indeed, the Part 3 list does not have any countries in it at the moment.
The Government have already made an announcement that they will not opt into the common EU list—just to be clear about that. However, in so far as we maintain lists of safe countries, we are conscious of the issues that can arise with respect to them. Indeed, it has been the subject of litigation in case law in this country, which cited, for example, Jamaica and the issue of whether it was a safe country of return. The Home Office keeps these lists, whether they are under the Immigration Act or under Part 3, under constant review, and consider all aspects of the list when deciding whether or not to maintain a country on that list or to remove it. I apologise for addressing the matter at that level of generality, but I hope that the noble Baroness will forgive me for responding to her amendment in that form.
Lord Alton of Liverpool
I would be grateful if I could ask him something about these lists—whether the Government accept that the guidance the Home Office gives can sometimes have extraordinary consequences. He will know that his noble friend Lord Bates was good enough to meet me to discuss the situation of detainees held in detention centres in the Far East—people who had escaped from Pakistan. These included people from the Ahmadiyya community, Shia Muslims, Hindus, Christians—they came from many backgrounds but all had faced what seemed to be absolute examples of persecution. However, the Home Office guidance simply said that these were people who risked discrimination. As the noble Lord, Lord Bates, knows, that became like holy writ as far as the UNHCR—which I met during the same visit, in September last year—was concerned. I had the Home Office guidance quoted back at me as though this was a trump card they were able to use to show that these people were perfectly safe and no consequences would befall them. However, in reality, because of that guidance many of those cases will not even be considered until 2020, and those people will go on living beneath the radar between now and then, living illegally in the country where they are because their asylum claims have not been settled and they are not allowed to work. Therefore the implications of Home Office lists and guidance can often be more far-reaching than maybe we ever imagine.
Lord Keen of Elie
I notice what the noble Lord says and I do not take issue with it. I add only that, where an individual does identify particular circumstances pertaining to themselves, whether it be religion or whatever, those circumstances are taken into consideration. However, I appreciate the point that the noble Lord has made.
Baroness Hamwee
My Lords, I thank the Minister for his response. Jamaica is indeed an example, and maybe the Democratic Republic of Congo as well. In defence of my rubbish drafting, one of my then quite new colleagues told other colleagues that the most reassuring thing she had encountered in giving her confidence to speak in the Chamber was when I moved the wrong amendment and the sky did not fall. I may use this example in encouraging other new colleagues. I beg leave to withdraw the amendment.
Baroness Hamwee
“Registration with police: requirement for review
(1) The Secretary of State shall undertake a review of the requirement that immigrants register with the police in accordance with section 4(3) of the Immigration Act 1971 and shall, within one year of the passing of this Act, lay before each House of Parliament a report on that review.
(2) The report shall include an assessment of—
(a) the resources required to conduct the registration process;(b) the usefulness of registration;(c) the uses to which the information obtained through registration is put;(d) the necessity for the requirement; and(e) any recommended changes including efficiencies.”
Baroness Hamwee
My Lords, I beg to move Amendment 226C standing in my name and that of my noble friend Lord Wallace of Saltaire. This amendment deals with the requirement for certain immigrants to register with the police and calls for a review of the arrangements.
The matter was brought to our attention by Universities UK because of the experience of foreign students being required to register with the police within seven days. Failure to register in that time limit may lead to the curtailment of leave or may affect future applications. We heard of students having to queue through the night or round the block to register. The question that was asked of us, and which I now ask of the Minister, is: what is done with the information garnered through that registration process? That is why subsection (2) in the proposed new clause refers to an assessment of the resources that are required, how useful the registration is, the uses to which the information is put, the need for the requirement, and any recommended changes, including efficiencies. I have not used the term “cost-benefit analysis”, but that is essentially what it amounts to, together with a concern for the individuals.
I also wonder about the cost of the administration for this. There is a fee of £34: not only do you have to register but you have to pay £34 for the privilege of queuing through the night. The numbers arising at particular times make the administration really quite difficult to handle. There is also the issue of this country’s reputation internationally as a result of this procedure. I beg to move.
Lord Keen of Elie
Again, I am obliged to the noble Baroness for highlighting this point. The new clause would require the Secretary of State to review the requirement that non-visitor migrants of specified nationalities register with the police, and then lay before both Houses a report on that review. In our submission, such a review and report is not necessary.
The noble Baroness correctly identified that there is a police registration scheme. The provision is set out in Section 3(1)(c) of the Immigration Act 1971. The requirements to register with the police are specified in the Immigration Rules. The requirement to register with the police is normally placed on a migrant who is aged 16 or over, from a non-EU country and who is given leave for longer than six months. The requirement is to register within seven days of obtaining qualifying leave to enter or remain. There are a number of exceptions where the requirement will not usually apply, including ministers of religion, people exercising access rights to a child resident in the UK, and those granted refugee status.
The requirement to register with the police is not onerous. In the Metropolitan Police area, where there is the highest concentration of migrants required to register, there is a designated office in Borough. For all other police force areas, the individual should register at the nearest police registration office. As the noble Baroness noted, there is a registration fee, currently £34, which reflects the administration costs of the police registration certificate.
The noble Baroness mentioned an occasion when students were reported to have had to queue. In October 2012, some long queues of migrants, mainly students, were seeking to register at the London Overseas Visitors Records Office. OVRO made changes to its process following that incident, including providing pre-booked timeslots for migrants required to register, and I am advised that there has been no recurrence of those queues. Universities are also given the option of collating the relevant paperwork from their students who are required to register and delivering it to the OVRO in bulk. The police continue to work and engage with those involved to manage peak flows in registrations and to minimise any inconvenience from that. I accept that there was an occasion in 2012 when there were delays, but that has not repeated itself.
The information required for registration is all information that will be held by the individual, including personal details, a current photograph, passport details, address in the United Kingdom, their last place of residence outside the UK, and details of their employment and/or place of study. This information is then on record for the police and other law enforcement to access, as necessary, in order to maintain security.
The various requirements for those seeking to stay and live in the UK, as set out in the Immigration Rules, are periodically under review to ensure that they strike the right balance between immigration control and security in the UK. I believe that this current approach is proportionate, particularly in the current state of heightened security concerns, and it is unnecessary for there to be a statutory requirement for a formal review to be conducted and a report laid before both Houses. In light of these points, I invite the noble Baroness to withdraw the amendment.
Lord Rosser
How many people should have registered under this arrangement in 2014, or any other year that the Minister is aware of, and how many did register? What is the penalty for not registering and how many people have been penalised for not registering?
Lord Keen of Elie
I am obliged to the noble Lord for his three questions and I will write in response to provide the detail, which I do not have immediately to hand at this moment. I hope that was not a surprise to the noble Lord.
Lord Rosser
It was not, but I am grateful to the Minister for his response.
Baroness Hamwee
When the Minister writes, will he explain what he described to me to be functions of UK Visas and Immigration—if I have its current title correct? It sounded as though a degree of duplication is required on the part of the police. One would have thought that the visa implications of all the administration, particularly around students, would have been taken care of without having to go to a central point to register. I agree that the amendment is not necessary, because it does not require an amendment for the Government to undertake a review. However, on the Minister’s comment that the arrangements are not onerous, I wonder why it was so specifically raised with us by Universities UK, which will no doubt read the comments and give us its response. I beg leave to withdraw the amendment.