Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2024
(2 months, 1 week ago)
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Baroness Lister of Burtersett
That the Grand Committee takes note of the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2024, laid before the House on 30 April (SI 2024/573).
Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee, Session 2023-24 (special attention drawn to the instrument)
Baroness Lister of Burtersett (Lab)
My Lords, these regulations were introduced by the previous Government, so a take-note Motion seemed more appropriate than a regret Motion as there was no time to debate them before the election. I am very grateful to my noble friend the Minister for meeting me to discuss them when he had hardly had time to breathe in his new role. My understanding is that the Government will look at them again as part of a wider review of detention matters, but I thought it important that we debate them now to ensure that noble Lords’ concerns are adequately addressed in the review.
Before I turn to the regulations, we would all find it helpful, I am sure, if the Minister could say more about the review when he comes to respond. In particular, what will it cover, what will be the timescale, will expert organisations be consulted and will both Houses be able to debate the outcome? This would also be helpful to the organisations that provided a joint briefing on the regulations—in particular, Medical Justice, to which I am grateful for its help. Here I should also declare my interest as a RAMP associate.
In effect, the regulations reduce the protection provided by statutory guidance to adults at risk in detention, which could increase the risk of the kinds of human rights violations uncovered in the Brook House inquiry. There are two main concerns. The first is the deletion of the key principle, introduced in 2016, that underlines the intention that fewer people with a confirmed vulnerability will be detained in fewer instances and that, where detention becomes necessary, it will be for the shortest period necessary. Of course, this concerns the wider question of the role of detention, which I assume will inform the more general review.
The second concern is about the reinstatement of the Home Office’s power to seek a second opinion from a contracted doctor on detained individuals who have already received an independent medical assessment that documents the impact and risks to their health of their continued detention. The second-opinion policy was in place from June 2022 to January 2024, when it was deemed unlawful by the High Court following a judicial review brought by Medical Justice.
Three main criticisms have been made of the policy. First, it introduces an additional delay, which could result in an unnecessary prolongation of the period of detention. Secondly, it exposes an already vulnerable person to the risk of retraumatisation. This was emphasised in a witness statement to the High Court from a clinical adviser at Medical Justice. Citing the Royal College of Psychiatrists’ general concern about how detention might trigger reminders of an original trauma, she warned of the dangers to mental health of a reassessment requiring a detainee to relive their experiences yet again.
Thirdly, the policy could have a detrimental effect on the quality of decision-making. Indeed, the UN Istanbul protocol counsels against downgrading the findings from external clinical assessments. There are good reasons why a detained person might be more willing to open up to an independent medical assessor than to one contracted by the Home Office, who might not be trusted. How are Home Office caseworkers, who lack medical knowledge, supposed to decide between any differences that there may be between an external assessment and an internal one? Adopting the lowest common denominator, where both assessors agree, is no answer. If the Home Office has concerns about any particular clinician, should it not take them up with the appropriate regulatory body, as argued in the witness statement to the High Court?
The Secondary Legislation Scrutiny Committee concluded that the data provided by the Home Office
“does not provide compelling evidence either way on the need for the second opinion policy”.
It therefore simply recommended close monitoring of its operation and the publication of the results. Can the Minister confirm that such monitoring is taking place and, if so, can he share any results at this stage?
Before turning to the Home Office’s justification for the new guidance, it might be helpful to put it in the context of the original official review of the welfare of vulnerable people in detention, conducted by Stephen Shaw, and the more recent official Brook House inquiry, chaired by Kate Eves. The Shaw review identified a systemic overreliance on detention and, in particular, that too many vulnerable people were being detained for too long and were not being protected adequately by existing safeguards. This led to the introduction in 2016 of the adults at risk statutory guidance, which aimed to improve protection for this group.
In addition to the statutory guidance, further safeguards are supposed to be provided by rules 34 and 35 of the Detention Centre Rules 2001, but the Brook House inquiry concluded that these rules were not being properly applied, so that adults at risk continued—and evidence, including the recent report of the independent Gatwick removal centre monitoring board, and new research from Medical Justice, suggests continue—not to receive the protection promised after the Shaw review.
Extraordinarily, when questioned by the Home Affairs Committee, Ms Eves said that she found it difficult
“to decipher exactly which of the 31 recommendations to Government are being accepted or rejected”.
A year on from the report, she concluded in media interviews that only one recommendation had been categorically accepted.
The lack of clarity in the previous Government’s response means they did not even get to the starting point when it comes to the monitoring of accepted recommendations, as called for by the Statutory Inquiries Committee’s recent highly critical report. Ms Eves expressed her disappointment to the HAC
“that I do not have confidence that, actually, there has been a meaningful engagement with what was really found and what the recommendations really mean”.
I hope that the new Government will look at this again, including via their review of detention, and that they will now engage meaningfully with the inquiry’s recommendations. May I ask for an assurance that this will be the case?
The Brook House inquiry and numerous other reports, including one just last week from the Royal College of Psychiatrists, have detailed the injurious impact of detention, particularly on the physical and mental health of vulnerable groups. One aspect emphasised by many is the absence of any time limit. According to Ms Eves, it is a profound cause of distress, due to anxiety and uncertainty. I ask that the current review looks again at the previous Government’s rejection of her recommendation of a time limit, which echoed that of countless reviews and reports, including from the HAC when it was chaired by the current Home Secretary.
In her evidence to the HAC, Ms Eves made it clear that she considered the regulations that we are debating today constituted a move in the opposite direction from what she recommended, as they appear
“essentially to be moving towards weakening the protections for vulnerable detainee populations”.
The Home Office’s justification for the regulations, set out in the Explanatory Memorandum, is that the purpose is
“to reflect the current Government’s priorities and approach to immigration detention”,
in response to the challenge of what it dubbed illegal migration, in contrast to the context and priorities of 2016, when the focus was on reducing the use of immigration detention.
Of course, the reference to the “current” Government was to the then Government and was made in the context of the Rwanda policy, which involved an expansion of detention. Happily, the Rwanda policy is no more and I believe that it is officially accepted that the seeking of asylum does not constitute illegal migration, as my noble friend in effect confirmed in Oral Questions last week.
However, regrettably, the Government have nevertheless announced that they will go ahead with the reopening of two detention centres, which has provoked widespread concern. Despite this, I hope that the Minister will be able to confirm that the new Government’s priorities and approach to immigration detention are not the same as the former Government’s and that they will prioritise the human rights of asylum seekers. I hope he will confirm that they will therefore withdraw these regulations in due course, as part of the wider review of detention policy. This would be consistent with the statement about detention made by a Home Office spokesperson last week in response to the IMB’s call for the end of the detention of families with children in the Gatwick detention unit. It said:
“We are fully committed to … providing a service which prioritises people’s safety and wellbeing”.
In conclusion, I hope this debate will encourage such an outcome. In the meantime, the SLSC encouraged us to press for further details on the Home Office’s plans for monitoring, reviewing and reporting on the changes, so I look forward to hearing what monitoring is currently being undertaken.
I finish by quoting from someone who has experienced detention: Jonah, who wrote a foreword for a recent Jesuit Refugee Service report detailing continued abuses after Brook House. He wrote:
“When I arrived in detention, the first thing I observed is that everybody … is treated like a prisoner. … I was in immigration detention for 7 months. It still affects me even today. Detention is like a war camp. They really want to break you, in the hope that you’ll leave and go back to a terrible situation. You are more or less treated like an animal … you’re just a number. In detention, nobody even knew my name … The horrendous things that the Brook House Inquiry brought to light continue to happen … Detention is a terrible place”.
We can all learn from those with lived experience of detention, so I hope that the current review will do so. I beg to move.
Baroness Hamwee (LD)
My Lords, I warn the Minister that during the previous Session the noble Baroness, Lady Lister, gained a reputation as a terrier on these issues. Actually, a number of us were badged as terriers, and she was the leader of the pack. She was very energetic in her critiques, particularly and quite successfully on the detention of pregnant women.
It is depressing to have to have this debate. When the Brook House scandal surfaced, three of us, cross-party, met the relevant Home Office Minister. I asked why the Home Office had not terminated the contract with the provider and whether the contract gave the Home Office the right to terminate in the event of such egregious behaviour. The answer was that the same individuals would be rehired whoever the provider was. This was not a matter of TUPE; it was about who would apply. I continue to have anxiety about the terms of the contracts that the Home Office lets, but, of course, commercial confidentiality means that one cannot go further than that.
We have not got the running of detention right, if there is to be detention, especially for more than a minimum period, but that is not for today either. However, this compounds the importance of guidance. I have always thought that anyone seeking asylum or who is detained, is likely to be vulnerable—this is “and” not “or”. I had forgotten that the 2016 Act refers to people who are “particularly vulnerable”. The whole of this population is vulnerable, but not all of them are protected under the legislation and the guidance.
The Lord Bishop of Sheffield
My Lords, I am grateful to the Secondary Legislation Scrutiny Committee for its work in scrutinising the regulations and to the noble Baroness, Lady Lister, for tabling this debate. I have the privilege of being a patron of a charity in Sheffield called ASSIST, which works with people who are seeking sanctuary and who have been refused asylum; it provides accommodation, information, advocacy and other support.
Just last week, I met a man called Victor, a former client of ASSIST. I have his permission to tell his story. Victor is from Zimbabwe. In 1980, he was among those who greeted with joy the nation’s independence and the election of Robert Mugabe as the first democratically elected Prime Minister of that country. That year, Victor embarked on a career in banking of 20-plus years; he became very senior. However, through the 1980s and into the 1990s, he became increasing disenchanted with the Mugabe regime and then opposed to it. Finally, in 2008, after a warrant was issued for his arrest on account of his political dissent, he sought asylum in this country. Victor was eventually granted leave to remain in 2022 and was united with his wife after a 14-year enforced separation. So, in the end, his has been a good news story.
However, in 2019, Victor experienced detention. Reporting in one week as required, he was in effect arrested and assigned for deportation. The decision came out of the blue, with no notice and no explanation. It was apparently arbitrary. In Victor’s case, deportation did not follow. He had by then lived for 10 years in Sheffield, which sets itself out to be a city of sanctuary, and he was known and valued. Within four days, 70,000 people had signed a petition for his release; he was indeed swiftly released and, within another two years, had been granted leave to remain.
I summarise his story because the inhumane way in which the detention and deportation process is operated makes every person subject to it vulnerable. At the time of his detention, Victor was a resourceful and accomplished adult male in good health. He was not vulnerable, according to the definitions in these regulations, but the impact of his detention on his well-being made him vulnerable. It was terrible at the time and remains considerable today. In other words, until the whole process of detention is managed in a way that is humane, consistent, fair, transparent and accountable, every immigrant and asylum seeker detained will be vulnerable.
I am deeply concerned that these regulations expressly remove the intention to reduce the numbers of people in detention who are vulnerable in specifically acute ways. As the Minister will know, the previous Government appear to have accepted just one of the Brook House inquiry’s 33 recommendations. I would welcome confirmation from the Minister that, as the noble Baroness, Lady Lister, requested, the detention review will revisit that inquiry report to ensure that all the recommendations are given due consideration for implementation.
Lord Davies of Brixton (Lab)
I support the need to discuss and debate these regulations. The issues have been laid out more than clearly by my noble friend Lady Lister. This stems from the Shaw review, reinforced by the subsequent Brook House inquiry.
The principle that we work under—I am sure that we all agree with it—is that the detention of people with severe mental health conditions amounts to inhuman and degrading treatment. I hope we can all agree on that. It has been defined as such by the European Court of Human Rights, but the issue runs wider than that. There should be—indeed, there must be—a clear presumption that people at risk because of existing or potential mental health problems should not be detained. “Detained” is a euphemism; they are, in effect, imprisoned. We imprison people as a punishment, so the need to avoid providing these people with punishment is clear.
The statutory guidance was established in 2014 and has been reviewed. One could not object to the review at all; I hope that my noble friend the Minister will accept that a full and adequate review is reasonable. The problem with this review is that it is driven— it says as much in paragraph 5.4 of the Explanatory Memorandum—by a wish to avoid “undermining lawful action” to remove people from the UK. That is the most concerning statement in the EM. Such an objective is totally at odds with the general principle that we should not imprison people with severe mental health conditions when they have committed no offence. The story it tells us is one of an attitude in government of wishing to prioritise the need to remove people from the UK rather than protecting people who are vulnerable.
The statutory guidance clearly represents its purpose: a weakening of the guidance originally given. One particular example, which is clearly a major issue here, is the issue of a second opinion. As the Secondary Legislation Scrutiny Committee concluded, the data
“does not provide compelling evidence either way on the need for the second opinion policy”.
We do not really know what the effect of the second opinion policy would be, except that it will result in people remaining in detention for longer; that is the one known effect of having a second opinion policy. Clearly, that in itself suggests that it is something to be done with great care and attention.
Another problem is that there is a general belief among a number of the voluntary organisations most closely involved in these issues that the consultation process on the new statutory guidance was woefully inadequate. It was short, there was a lack of information and there was no equality impact assessment.
The upshot of all of this is that I hope my noble friend the Minister will accept that the statutory guidance requires review and reconsideration, and that it should be driven by the clear presumption that we do not lock up people with severe mental health conditions.
Baroness Mobarik (Con)
My Lords, less than a year and a half ago, this House debated one of the most draconian powers of the state: the power of administrative detention. Noble Lords may remember that my concern then was with the wielding of this power over children and families, including lone children who arrive in this country without anyone caring for them.
When we debated the Illegal Migration Act in spring and summer 2023, what was at stake was the length of time for which children could be administratively detained. Let us remember that this is the deprivation of a child’s liberty, not after a trial in a court of law but purely at the convenience of the state. Alongside noble Lords from across this House, I defended the time limits on child detention, legislated in 2014 by a Conservative-led Government. I ask the Minister: what happened to those time limits when the Illegal Migration Act was passed in July 2023? The time limits were removed for children falling under the Illegal Migration Act’s scheme, reversing the much-heralded ending of child detention a decade prior.
Some concessions were made, for which I was grateful, so that regulations would have to be laid before the UK Government could detain unaccompanied children, and so that unaccompanied children facing removal could apply for bail earlier than adults. However, the power to detain children without time limit was nevertheless put on the statute book for children falling under the Act’s scheme—that is, those who had family with them.
To date, the relevant provisions at Section 2 and 11 of the Act have not been brought into force. Indeed, under the new Government, the Illegal Migration Act scheme and the idea of the duty to remove have now been abandoned. Given that the scheme will not come to pass, its detention provisions are redundant. It is now time to reapply the time limits on locking up babies and children. The forthcoming border security, asylum and immigration Bill provides the perfect opportunity to do so, but beyond repealing child detention provisions in the Illegal Migration Act scheme, the Government must also closely consider what is happening to children and families who are detained within the 24-hour, 72-hour and one-week time limits of the Immigration Act 2014. This is especially important because the Government intend to remove 14,500 people by February and have not indicated whether this will include children.
Fifty children were detained on the year to June 2024, 29 of them in Yarl’s Wood short-term holding facility and 10 in Gatwick pre-departure accommodation. A recent report from the independent monitoring board that looked into detention conditions in family pre-departure accommodation at Gatwick called for this detention centre to be closed. The report uncovered that since 2017, 48 families have been held in the family PDA as part of the Home Office removals process, with only six of those removals going ahead. Detaining families for removal must be re-examined, with the utmost concern given to the welfare of children at all times.
Moreover, there are other children who end up in detention because they are mistakenly treated as adults. There are profound issues with visual age determination at the port of entry by UK Border Force officials. Reports and testimonies from children who ended up in adult detention, sharing rooms with unrelated adults, or even imprisoned, have been well documented. Charities share that they are concerned that de facto children are routinely detained. A joint report by the Helen Bamber Foundation, the Humans for Rights Network and the Refugee Council uncovered that at least 1,300 refugee children were placed in unsupervised adult accommodation and in detention in an 18-month period from January 2022 to June 2023 after being wrongly age-assessed on arrival in the UK.
I know that noble Lords share my concern about depriving infants and children of their liberty and the effect that has on them psychologically, medically, educationally and developmentally for the rest of their lives. In this new Parliament, I look forward to working with noble Lords to ensure that this extreme power of the state is used with great care.
The Lord Bishop of Manchester
My Lords, I am grateful to the noble Baroness, Lady Lister of Burtersett, for enabling us to have this debate. I was, as usual, in church yesterday and as usual had a cup of tea with some of the people in that parish afterwards. I was introduced to a young man, probably in his thirties—I will not name him as I did not have a chance to seek his permission. We exchanged a few words and he moved on, and then the ladies I was talking to explained that he had first come to them three or four years ago as an asylum seeker. He had become a member of that church, had grown in his faith and had become much loved in that community, and then he disappeared for several months. When he came back, it turned out that that was because he had been held in detention. The good news is that just a few weeks ago he received his right to remain in the UK and is now back in his church and being a stalwart member of that community. That is just one Sunday. It is not unusual in a city such as Manchester.
Also in Manchester, we have Pennine House, an immigration detention centre close to Manchester Airport. A few years ago, there was an absolutely damning inspection report into that facility. When the then Government made their response, it was “We’re going to ignore all the recommendations in this report”. What is the point of having a debate about regulations about how we are going to care for people in these places if, when it is not being done properly and when independent inspectors go in and say, “This is wrong. This is not what is supposed to be happening”, the Government just turn around and ignore them? I would be grateful if, in his response at the end of the debate, the Minister could give us some assurance that where those kinds of inspections take place and it is found that an immigration detention centre is not doing what it is supposed to do, there will be a requirement for those recommendations to be implemented in a timely fashion.
One of my priests has just come back from several months on sabbatical in east Africa. He is a gay man and he asked me whether he could spend three months working with people living in fear in countries where homosexuality, particularly male homosexuality, is a criminal offence. He sent me weekly emails, sometimes harrowing, sometimes encouraging, about what he was meeting there.
I know that a sizeable number of those who come to Manchester seeking asylum are from the LGBT community—I am grateful to the noble Baroness, Lady Hamwee, for raising this earlier. They are at particular risk, not least because, when they are housed in a detention centre alongside other people, you might think, “Oh, they’re from the same country; they’ll get on together”. But, actually, the homophobia in some of these places is so severe that they are not safe. I do not see how anybody who is LGBT can be considered not vulnerable or considered safe in a detention centre.
The noble Baroness, Lady Mobarik, mentioned children a few moments ago. It would be nice to hear from the Minister whether we have now moved on from painting over cartoon characters in centres. How we care for the most vulnerable in our society really matters.
Above all, I am trying to get a sense of whether these regulations and the changes we are talking about today will create a regime that will promote and prioritise safety and well-being, as referred to earlier. I echo what my right reverend friend said: yes, everybody is vulnerable—these are people who have fled the most horrific circumstances, and they are all vulnerable and traumatised when they get here—but, to misquote George Orwell, all are vulnerable but some are more vulnerable than others. Today, we are thinking about the most vulnerable.
I end with Douglas Adams who, in The Hitchhiker’s Guide to the Galaxy, famously got a computer to come up with the answer to the ultimate question. The answer was 42. The trouble was, they had not worked out what the question was. I am left thinking: if these sorts of detention centres and regulations are the answer, what is the question? Is it genuinely a real risk that significant numbers of people will take flight? If so, where is the evidence base for that? Is it in order just to make the UK look a really unwelcoming and unfriendly place? If so, what is the evidence that that makes a difference to the numbers of people who come here and seek asylum? We might have the answer, but what is the question?
Baroness Lawlor (Con)
My Lords, I thank the noble Lord, Lord Hunt of Wirral, for his Select Committee’s report and for highlighting some of the questions that the statutory instruments raise. I also thank the noble Lords and right reverend Prelates who have spoken.
I comment first on the context of the wider debate, which these statutory instruments seek to address part of. As we know, there has been an increase in illegal immigration, including by small boats. This is greatly to be regretted, from the point of view of the people themselves, as has been pointed out time and again in your Lordships’ House. These people cross the channel in small and unseaworthy vessels, endangering their lives and damaging every aspect of their medical and physical health.
The reduction of current levels of migration, legal and illegal, was—this is the political context, not the human context—a core aim of the previous Government and is indeed the stated aim of the present Government, in response to the democratic wish of the people. To meet the political aim, the Government use detention centres and have published both guidance and an impact assessment for the statutory instrument’s update for 2024. The core changes include guidance on removing references to the reduction of places, which was in the 2016 statutory instrument. The Secretary of State has greater powers to decide, and there will be an expansion of detention places.
We see, therefore, that there are two separate tensions in this debate. It is perfectly clear from the Home Office’s published guidance and statements that it seeks to balance the vulnerability risk for people who are detained against immigration factors, one of which is the likelihood to abscond and another is the potential danger to the public.
I share your Lordships’ concerns about the conditions of the detention centres, which certainly should be addressed. However, I do not oppose the use of detention centres to manage migration factors. Managing migration is in the interests of those who are victims of traffickers, and I applaud the new Government for doing their utmost to tackle the problem there. I know that they are continuing the work of the previous Government, but anything on that front is very welcome. That will help.
However, having detention centres will serve as a deterrent. It is harder to sell your wares to unfortunate asylum seekers and encourage them to cross the channel on small boats if there is a likelihood that they will be detained at the other end, unlikely to be able to abscond. It is as much in the interests of victims of traffickers as it is in the interests of a constitutional democracy, with Governments of both colours—blue and red—seeking to address the real concerns of the voters in this country and to manage both legal and illegal migration.
Lord German (LD)
My Lords, before I begin, I declare my interest: I am supported by the RAMP project. I thank the noble Baroness, Lady Lister, for raising this important issue, which will set the agenda for the new Government as they move forward. On behalf of the Liberal Democrats, I say that we support the timely and accurate processing of asylum cases as well as swift and humane removal for those who do not meet the criteria for protection. To do that, we should front-load the asylum application process with decision-making expertise and legal aid provisions so that accurate decisions are made without the need for many appeals.
I will address the issue of legal versus illegal—we have had this discussion in the Chamber already. The thing you have to tell yourself is: you do not know whether people are fleeing persecution, torture or other things in the treaties, whether or not they are legal asylum seekers. That is why any asylum seeker is a legal, not an illegal, person. We do not know how many of the 52 people who have died in the channel in the past year would have made a justifiable claim for protection in this country and, therefore, would have been legal by definition. We must be very careful, when we use these words, that we do not misuse them. Certainly, with the way in which the legislation is being altered, that becomes the case even more.
The key aim of the original 2016 regulations, amendments to which we are discussing today, was to improve protection for particularly vulnerable people in detention. However, the changes that we are debating are of the previous Government. The present Government will make changes to this legislation, I hope, now that they have got control of matters. That is the first and most important thing we need to hear from the Minister today.
This is particularly relevant given that the regulations before us had an inadequate consultation exercise: it lasted only five weeks when, normally, at least 10 would be expected—there was also no equality impact assessment—and this was published before the Government responded to the Brook House inquiry. In the absence of the SLSC’s chair making a contribution, I wonder whether he would mind me quoting one of the conclusions that the committee reached. As I understand it, it said that the Home Office agrees that it will “logically follow” that these changes will mean
“detaining more of those considered vulnerable, despite a ‘presumption against’ such detention”.
The Minister will, I am sure, be able to confirm what the SLSC report states.
The inference from the current regulations is that people who were not really vulnerable were getting released, and that that is the reason why these regulations were put in place. They also bring into force changes to the statutory guidance on adults at risk in immigration detention, which sets out the process for making decisions on immigration detention where an individual may be vulnerable to harm if detained. So, the question to be addressed today is: will the changes weaken the protective purpose of the “adults at risk” policy and risk exposing more vulnerable people to harm in immigration detention? If so, will this Government make the necessary changes in order to decrease the damage being done by these regulations?
The submission that we received from Medical Justice states that the changes weaken:
“the protective purpose of the Adults At Risk policy and risks exposing more vulnerable people to harm in immigration detention”.
It quotes, by way of example, the change in the wording from a
“clear presumption … that detention will not be appropriate if a person is considered to be ‘at risk’”
to a “general presumption of liberty” that
“is strengthened for those considered vulnerable under this guidance”.
Those are two crucial sentences, but clearly one is stronger than the other. The key concern in that submission was whether the overall increase in the number of people detained will also lead to a greater number of vulnerable people being detained, with the possible adverse effects that detention might have on these people.
My noble friend Lady Hamwee and the noble Baroness, Lady Lister, both talked about the second opinion issue of getting a second MLR. The Home Office provided data to the Secondary Legislation Scrutiny Committee. It is worth looking at that data: over a period of approximately 19 months, 199 MLRs were received for migrants in detention, of which 47 were referred for a second opinion report. Of those, 30 second opinion reports were received. As a result of those 30 reports, 14 cases were released and 16 remained in detention, although all but two of those 16 were later released following a further review. In total, therefore, 28 of the 30 cases with a second opinion still resulted in a release. Do the Government agree with the SLSC report that this data does not provide compelling evidence, as outlined by the report and by the noble Baroness, Lady Lister, in her opening? What steps will the Government take to closely monitor its effects, particularly the number of release and detention decisions that are changed because of the second opinion, and the impact on those whose detention is extended to obtain a second opinion? Crucially, will these results be published?
The Brook House inquiry has already been raised by a number of noble Lords in this debate. That substantial report—three volumes—exposed the dehumanising abuse of vulnerable people held in immigration detention by the Home Office. It was not a case of a few bad apples but systemic failure. The inquiry made, as we heard, 33 recommendations, of which only one has been taken up in full. Adopting those recommendations is the only meaningful way of ensuring that the mistreatment and abuse, including the breaches of Article 3 of the ECHR, do not happen again.
Supplemented by that, we now have the report by the independent monitoring board on the Gatwick PDA. It is worth while reading this into the record here today. That report says, in its recommendations to the Minister, that:
“Given the evident suffering and distress for parents involved and the unknown impact of the experience on their children, the PDA should be closed”.
There are, then, plenty of examples of where everything is not in fact happening in a good state. It is important that the fundamental mistake of reducing detention safeguards without properly considering the implications of a public inquiry is acknowledged, and that the public inquiry is considered as a route to making sure that we change more for the future.
I want to address some questions to the Minister because this is our first opportunity to ask the new Government about these matters. I do not necessarily expect an answer to all of them today, but I ask that the Minister writes to me if this becomes too tricky.
If the aim is to facilitate more removals of people with no right to remain in the United Kingdom, which must be the case from the evidence we have just been talking about from the SLSC and the facts provided to us, what assessment has there been to establish what barriers there are to increasing the numbers of people removed from the UK, who after due process do not qualify for leave to remain? What are the barriers that the Government see are still in place?
What impact have the recommendations and learning from the Brook House inquiry had on the proposed government review? Will those things be part of the terms of reference for that inquiry and review? It would be very helpful to know whether a timescale can be provided for that review so that we can judge the speed with which the Government are going to move on this process.
What progress has been made by the cross-governmental working group that was established to monitor progress against the Brook House inquiry recommendations and to drive forward implementation? Can we have more details about this group and its work?
Given the findings of failings of detention, will the Minister commit to re-engaging with the alternatives to detention that were piloted by the Government between 2019 and 2022? Finally, what evaluation and monitoring report is in place for this policy change that we are seeing before us today? If it is not in place now, when will it be in place?
The standards by which we treat people in our society should be constant; whoever they are, human rights are human rights. However, the processes are set out in guidance by the Home Office, and the evidence is that they are not happening. The Brook House inquiry shows that processes by which vulnerabilities are identified and acted upon are not working. Where we are removing someone’s liberty, protections have to be significant. On current evidence, that balance has not been struck, and the treatment and safeguards for everyone in detention, particularly those with additional vulnerabilities, are just not sufficient.
Lord Sharpe of Epsom (Con)
My Lords, I congratulate His Majesty’s Government on proceeding with these regulations, although I of course acknowledge that like all regulations, they should be kept under constant review.
Over the past couple of weeks, we have seen that illegal channel crossings are at their highest level in more than two years. We need to secure our borders, and I once again welcome the Minister’s commitment to ensuring that we protect our national interests on this matter.
I note that during this short debate, there have been some comments about the Secondary Legislation Scrutiny Committee. I commend my noble friend’s report on this subject. I point out that paragraph 12 of that report states that,
“the Home Office reiterated that ‘the right to liberty remains a fundamental principle which underpins all of our detention policy. In all cases the presumption is against detention’. However, the Home Office went on to say that ‘there may be circumstances where it is necessary to detain an individual in order to maintain effective immigration control’”.
Underpinning this debate, we should bear in mind that key line that the presumption is against detention. My remarks, therefore, will be for the benefit of—I hope—reassuring noble Lords who have expressed certain concerns about the regulations.
Moving on to medical second opinions, this statutory instrument will reinstate the ability to seek second medical opinions in relation to the detention of potentially vulnerable migrants. I welcome this and congratulate the Government on putting clinical best practices first. Medical Justice, the organisation that advocates for the legal rights of people in immigration detention, has opposed this in written evidence to the House. It states that a,
“second opinion on professional evidence risks prolonging the detention of vulnerable people and putting them through a potentially re-traumatising process”.
However, a second medical opinion is an entirely standard and well-established practice in the treatment of vulnerable persons. I refer noble Lords to the Mental Health Act 1983, which states:
“An application for admission”
to a mental health facility must,
“be founded on the written recommendations in the prescribed form of two registered medical practitioners”.
Noble Lords on all sides of the Committee should be reassured that a second medical opinion is a commonplace, uncontroversial and clinically accepted principle in the medical profession, and not to have it as an option would increase the likelihood of vexatious claims. To put a slightly different spin on the statistics cited by the noble Lord, Lord German, this is just an option; it does not have to be followed in all cases, and nor has it been up to now. These regulations also directly address the High Court’s decision of January 2024. That decision was not about the principle of second opinions but the fact that the previous regulations in effect authorised caseworkers to act contrary to the statutory guidance. These regulations correct that. Does the Minister agree that we should strive for medical best practice in the Home Office and reject this submission on second opinions? Does he agree that we should not in effect have a two-tier system that differentiates between vulnerable citizens and illegal migrants or asylum seekers?
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
I am grateful to my noble friend Lady Lister for bringing this debate before the Committee and for not just her contribution but those of the noble Baroness, Lady Hamwee, the right reverend Prelates the Bishops of Sheffield and Manchester, my noble friend Lord Davies of Brixton, the noble Baronesses, Lady Mobarik and Lady Lawlor, and, on the Front Benches, the noble Lords, Lord German and Lord Sharpe. I will try to refer to the points that they made.
If I may, I shall start with a straightforward statement: there is a similarity with the previous Government’s objectives, but there are very stark differences too. In general terms, this Government, which I am proud to represent, want to secure our borders and provide a new border command to ensure that we deal with the issues of illegal migration, but also to ensure that we fulfil our responsibilities on asylum, speed up asylum claims, take action on criminal gangs and ensure speedy decisions across the board to limit the amount of detention that takes place.
These regulations were initiated by the noble Lord, Lord Sharpe, and his Government when the Home Office was under his jurisdiction. When I assumed this position on 9 July, one of the first requests I had for a meeting was from my noble friend Lady Lister. I met her on 22 July—before I had even been sworn in as a Member of this House—to understand her concerns and reflect on them accordingly. She put some very strong points to me then and was not sufficiently reassured not to call for this debate, but I will repeat to the Committee what I said so that it is aware of the direction of travel in the broad context of the Government’s overall position on migration issues.
Noble Lords have mentioned a number of points, which I will try to cover in turn. First, on the review, I have indicated to my noble friend that, along with my colleague Dame Angela Eagle, the Minister for Migration, I will look at the issues at Brook House, the principles of detention and the issues of second opinion, retraumatising behaviour and managed migration, which the noble Lord, Lord German, mentioned. The logical place to start is, therefore, the review.
When we met on 22 July, one of the points I made to my noble friend Lady Lister was the simple fact that I, along with my honourable friend Dame Angela Eagle, had inherited the immigration guidance regulations, which had been tabled and were coming into effect. I had discussions with officials about the impact of those regulations and whether, given the representations made by my noble friend Lady Lister in the first week of July, we could reflect on those changes—our first week of ownership of the responsibilities of the Home Office. I was clear, as I hope I fed back honestly and openly to my noble friend, that we wished to maintain the regulations in place as the guidance had been issued, but that I would commit to a review of the regulations and the wider policy of detention at an appropriate time to examine the concerns which were put to me at that private meeting and had been the subject of correspondence with others outside the House.
So, what does the review mean? We have agreed to undertake a review of the adults at risk policy. It is currently ongoing and we are looking to complete the policy review by spring 2025. The scope of the review includes not just the Detention Centre Rules generally but rules 34 and 35, which have recently been expanded to include the SI laid in April 2024, following the concerns raised by my noble friend Lady Lister. I and my colleague in the House of Commons are taking a thorough approach to ensure that the review looks at improving the effectiveness of the regulations and safeguards and includes a period of engagement—I know that my noble friend is very keen on this, and I share her wish—to get the views of external stakeholders, including NGOs, on how the regulations are operating currently and what changes, if any—I say “if any” to keep the review open—should be made following its completion. I hope that reassures my noble friend and others who raised the circumstances of the review. We will look at those issues in detail and come to some conclusions, based on an assessment by Ministers and officials and taking into account the views of NGOs, on how this will work in future.
I am conscious that a number of noble Lords today have perceived the amendments to the statutory guidance as weakening the protections. To be clear, we are committed to safeguarding vulnerable people in detention and the existing safeguarding mechanisms continue to operate, including a dedicated team that is constantly reviewing how those rules operate in practice.
That leads me to the question of the Brook House inquiry because, again, that indicated—this was a reflection by the authors of that inquiry—how the rules were operating in certain establishments. I hope we can reassure the House that, as Ministers, we continue to reflect on the recommendations of that inquiry. That was mentioned by the right reverend Prelate the Bishop of Sheffield, the noble Baroness, Lady Hamwee, my noble friend Lord Davies of Brixton and by the noble Lord, Lord German, from the Liberal Democrat Front Bench. I want to assure colleagues that the amendments made to the adults at risk policy through this SI are separate from that ongoing wholesale review of the policy, and that the recommendations will be considered as part of the general review that I will be undertaking.
I say to the right reverend Prelate the Bishop of Manchester that I cannot envisage any circumstances in which Ministers in this Home Office will be painting over murals undertaken by children in detention centres as a whole, and I hope that gives him some reassurance. In fact, I believe that even the Minister who ordered the painting over those murals is now somewhat backtracking on his ability to remove a mural from a wall. But perhaps he can answer for himself in due course on that issue.
The question of a second opinion was raised by a number of noble Lords. I agree that seeking a second opinion could lead to delays in detention decision-making, and that could have an impact on the length of time a detention occurs. However, I think that I have made it very clear, as have officials, that casework guidance is clear that the second-opinion process does not constitute a pause in the consideration of a case more generally, and we wish to seek to limit the amount of detention that an individual undertakes. I also understand—this point was raised by a number of colleagues—that there is the potential for retraumatisation of individuals because of that long period. But, again, I want to put vulnerable people at the heart of any policy and any review, and to look at how we can manage that system downstream in due course.
On the adults at risk policy itself, the amendments made to the statutory guidance did not change the requirements placed on the Home Office to identify potentially vulnerable people or indeed to assess the appropriateness of detention. Again, to reach out to the noble Lord, Lord Sharpe, I think there was an intention on the part of the previous Government to limit the amount of detention that was in place, but this House has to accept that, in some cases, detention will be a necessity. We have to try to ensure that, when that detention occurs, there is open, transparent and clear guidance for members of staff, constant medical monitoring of individuals who are potentially vulnerable, and that we ensure that that detention is done for a purpose. In addition, allied to the other points I have mentioned to my noble friend Lady Lister, we must look at how we can speed up the asylum claim issue to ensure that we reach conclusions speedily, fairly and openly. It is in nobody’s interests to have the long levels of backlog or indeed, therefore, the long levels of detention for some individuals because of an assessment process on the grounds of asylum claims.
We want to—and certainly have to—expand the detention estate to bolster our capacity to ensure that we have swift, firm and fair returns. However, we also need to do that in a way where we understand that we will never be at the point of detaining no vulnerable people, and we must be mindful that all those subject to immigration control who are liable to removal could indeed become vulnerable once in detention.
I am acutely conscious that the regime that we have, based on the legislation and the SI before this Committee today that was tabled by the noble Lord, Lord Sharpe, previously, needs to be reviewed. That review will take place, it will be part of the wider review of the policy as a whole and I will report back to this Committee and face scrutiny, as ever, by the terrier—as I think the noble Baroness, Lady Hamwee, called my noble friend Lady Lister. Having been a terrier on occasion myself, I know that terriers are a good thing to chew Ministers’ legs and keep them focused on issues. From my experience both as opposition spokesman, as I have been, and as Minister, as I have been before this post, I know that terriers are a useful asset to parliamentary democracy. I hope that I can also reassure my noble friend Lady Lister that we are examining these issues in what I hope will be a productive way.
The wholesale review of this policy is under way, with a view to reforming it. Officials have been advised to progress this work at pace, given the paramount importance of this safeguard. Indeed, we now have officials monitoring the performance of the existing regulation to ensure that we feed into that review in a proper and effective way.
The issue that was raised about pregnant women remains the same under the latest regulations—unchanged—and we will not get a second opinion either, ensuring that they are excluded from this process; I hope that that reassures the noble Lord, Lord Sharpe.
Baroness Lister of Burtersett (Lab)
I assure noble Lords that I do not plan to speak until 7.45 pm, as some people might have been expecting. I am grateful to everybody who spoke and who, in many cases, amplified what I was saying.
I am extremely grateful to the noble Lord, Lord Sharpe. I am not very good on the Bible but he said something about “a sinner who repenteth”. I would love to reread what the noble Lord said about pregnant women at the time, but I thank him for acknowledging that we have ended up at the right place on that; it is appreciated.
I take quite a lot of reassurance from what my noble friend has said. It sounds like this review will look at a lot of the issues we are concerned about and genuinely look again at these regulations. I note that the noble Lord, Lord Sharpe, congratulated the Government on retaining them, but I hope they will retain them only for a limited period and that they will emerge from this review different from what they are now. I hope we will revert to the original situation.
A few questions were not answered. The noble Lord, Lord German, asked about alternatives to detention. My noble friend said that we have to detain people sometimes—yes, but the previous Government had until quite recently taken seriously community-based alternatives to detention that the UN had been promoting. I hope that will be taken seriously as part of this review, and that the time limit will too. Some noble Lords agreed with me on that; not surprisingly, the noble Lord, Lord Sharpe, did not, but it will keep coming back. I am grateful to my noble friend for, in a sense, giving me carte blanche to carry on chewing at his leg for as long as is necessary. The question of the time limit on detention will be one of those issues on which not only I but others will carry on chewing.
I appreciated everyone who spoke and—I hope other noble Lords did as well—the open way that my noble friend spoke about what is happening. It was worth while having this debate because there are a lot of things that we were not clear about which will now be on the record. I thank him for that. I beg to move.