Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2024
(Limited Text - Ministerial Extracts only)
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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.