Immigration Bill

Baroness Williams of Crosby Excerpts

Monday 3rd March 2014 Lords Chamber

[The Archbishop of York]

My Lords, Amendment 12 provides what I believe to be a necessary safeguard to reassure the public that those responsible for enforcement are fully accountable. Accountability is at the heart of all of this. This is surely an improvement as it ensures independent oversight by Her Majesty’s Inspector of Prisons, the Independent Police Complaints Commission and the Chief Inspector of Borders and Immigration of enforcement powers, such as searching persons and premises as well as the general power to use reasonable force. If we are confident that such powers are always fairly and humanely exercised, there is nothing to fear from this amendment. If we are not, then this amendment is absolutely necessary.

[Baroness Williams of Crosby (LD)]

My Lords, I will speak briefly on Amendment 12. I congratulate the noble Lord, Lord Rosser, and the noble Baroness, Lady Smith, on bringing it forward.

It is very striking that the positions of the people mentioned who should be involved in oversight are intended to be independent. That is clear with regard to the IPCC, but is also the case with the Inspector of Prisons, as is exemplified by the remarkable record of the noble Lord, Lord Ramsbotham, when he was Inspector of Prisons, and calls on an old tradition that rules will be enforced and kept in respect of the Prison Service, with a long and remarkable record among prison officers in terms of these expectations. I was a Minister of State in charge of prisons for a while and I was impressed by the level of responsibility shown, particularly by prison officers who had worked in prisons for a period of time. They often had a strong sense of responsibility for those with whom they worked, who were held in prisons in the ordinary criminal justice system. There has been nothing like the same level of expectation regarding rules or ethics within the immigration estate as we had in the Prison Service at its best.

Amendments 9 and 10 have already been discussed and I will not return to them, but I will say very loudly that they show how remarkably a concerned and responsible Minister can alter the culture and attitudes of those for whom he or she is responsible and over whom he or she has oversight. The problem, quite simply, is that the Home Office has not had that oversight, particularly in respect of the outsourcing of responsibility for people who are detained or who are held under the immigration provisions of many earlier Acts. That is only too clear in the complaints and concerns that arise over the handling and management of that estate. We are grateful for Amendments 9 and 10. They are very detailed and have been carefully worked out. However, I repeat the question of the noble Lord, Lord Rosser, about whether there is any training for immigration officers who now have the responsibility for enforcement. I will go further and ask whether the Home Office writes into its contracts with the private companies to which it extends the right to run these establishments a specific requirement that the practices that we hope to be embodied in the code will be upheld. Does it hold them responsible for reporting on any breaches of those rules and codes of practice? Does it hold them responsible for any accidents, injuries or deaths that occur in the establishments for which they are responsible? If the number of those is seen to be unusually high or if they are inexplicable, will real consideration be given to withdrawing the contracts as soon as possible? The contracts should clearly indicate that they are conditional on the proper running of those establishments.

[Lord Ramsbotham]

I will speak to Amendment 13, in my name and that of the noble Lord, Lord Roberts.

I am very grateful to the noble Baroness, Lady Williams, for highlighting some of the points that were in the code of practice that I gave to the Minister, as I mentioned earlier. I did not read out all the points but I did mention that there were three codes that I had produced. One concerns the use of restraint. I will mention the three elements in that, which say that the Home Office must:

“Confirm the Independent Advisory Panel on Non-Compliance Management … as a permanent establishment”,

and that one member must have,

“experience of both the design and use of restraint techniques in a wide variety of settings, both custodial and non-custodial”.

The Home Office must also:

“Lay down precisely what safe and pain-free restraint techniques are acceptable in various situations such as vehicles transporting returnee to airport, transfer from vehicle to aircraft including in crowded airports, and in economy class on board commercial, passenger-carrying aircraft”.

Finally, the Home Office must “specify compulsory training requirements” for detainee custody officers,

“and other escorts, including compulsory continuation training”.

I repeat that because the amendment in the name of the noble Lord, Lord Roberts, and myself, refers particularly to the use of the word “reasonableness”. I am sure that the Minister will agree that it was not reasonable force that caused the unlawful killing of Jimmy Mubenga in an airport, and the 78 other cases that I presented to the Home Office, along with numerous others. I suggest that the problem is that the Home Office has delegated all use of force to the contracting companies without overseeing it or insisting that anyone do so. I suggest to the Minister that it would be a very good thing if the Home Office thought through and tried to define what “reasonable” is.

It seems to me that there is a mnemonic, “JPLANS”, which provides the circumstances that must be honoured in using force. The letters stand for six phrases. The first: is the force “justifiable”? It might be lawful, but that does not make it justifiable. All other options must be considered before it is used. Secondly, it must be “proportionate” to the behaviour and consequence it was intended to prevent. Any force used should always be the minimum necessary to achieve a lawful objective.

Thirdly, it must be “lawful” in all circumstances and, provided the person has done what he honestly or instinctively thought was necessary in all the circumstances, and no more, that would be good evidence that he has acted reasonably and lawfully. Force must never be used as a punishment to intentionally cause pain, injury or humiliation. Fourthly, use of force must also be “accountable”; one must always be prepared to account for any force used. Force should be used only as a last resort, and one must be able to demonstrate that this was the case.

Fifthly, force must be “necessary” in all circumstances, and consideration should be given to any other reasonable alternatives: could the situation have been resolved without the use of force? Were risk assessments properly carried out before the removal to reduce tension and any consequent need to use force? Could this have included a planned meeting between the escort and the person they were escorting in order to try to build up a relationship that might remove the tension?

Finally, was the force used “safe and supportive”? Techniques and procedures must be applied correctly and safely, and the person on whom they are applied must be monitored to ensure their safety. There are some techniques and facilities that are known to give rise to a foreseeable risk of injuries. They are permitted only in extreme circumstances and will have to be justified by the member of staff who uses them.

I do not think that anyone writing “reasonable” without thinking it through can have applied the JPLANS test. I therefore suggest that the Minister considers a definition of “reasonable” whereby any use of force must be necessary, reasonable and proportionate, and applied for the minimum period necessary to achieve the lawful objective. If that definition were in the Bill, rather than just the word “reasonable”, I would find it a great deal easier to accept. I suspect that it would be much more supportive of the regime that I hope the independent advisory panel will impose, which should not consist merely of repeating techniques designed for use in custody that are wholly inappropriate when removing a detainee.

--- Later in debate ---

[Lord Taylor of Holbeach]

I set out earlier detail on those people who are responsible for oversight in this matter. Indeed, the training procedures and codes that apply in this area are designed especially to ensure that the people exercising these functions are properly aware of what is considered to be proportionate. I do not think that it is an unusual situation for anyone carrying out activity on behalf of a government agency. Reasonableness is perfectly well understood, which I think most noble Lords will know. I hope that I am being reasonable in the way in which I am answering my noble friend's question.

A number of noble Lords questioned the role of private contractors in this area. As I have explained, the amendments do not address private contractors. But detention staff are subject to a number of oversight and monitoring bodies. All complaints concerning the use of control and restraint are referred to the UKBA Professional Standards Unit, which passes all such allegations to the appropriate bodies such as the police or other oversight bodies where appropriate, and I have explained who they are.

In addition, independent monitoring boards, Her Majesty’s Inspectorate of Prisons and the Parliamentary and Health Service Ombudsman can conduct unannounced inspections of detention premises. Independent observers from Her Majesty's Inspectorate of Prisons and from independent monitoring boards also monitor a number of removal flights from the UK and I am intending to go on one such flight in a few weeks’ time.

[Baroness Williams of Crosby]

Before the Minister concludes his extremely reasonable remarks, may I press him on one point? Those companies to whom the conduct of these issues is outsourced need more than simple reference on to the Chief Inspector of Prisons or the IPCC. Could I therefore press him, before he concludes, about whether we can build in serious incentives to the companies to which these activities are outsourced so that they recognise that their contracts will be at risk if they fail to carry out the expectations of the conduct and behaviour that we are laying upon them in this very sensitive area?

--- Later in debate ---

[Lord Judd]

My Lords, last Thursday in the Moses Room we were debating terrorism. In the context of that debate some of us were raising the issues of immigration. This is a specific and good example of the danger that some of us foresee. Forgive me if I repeat a bit of what I said on Thursday. Extremists operate best in a climate of ambivalence, one in which a significant number of people—particularly young people but not only young people—are pursued by doubt. They may not like what the extremists do. They may actually abhor the actions themselves, but they sometimes wonder whether those extremists are perhaps acting on their side.

This does not create a climate in which everyone is busting a gut to co-operate with the security services. There are anxieties and doubts. Ruthless recruiters for extremism play on that kind of ambivalence. I can think of no area such as the one that we are debating that illustrates better the point that I am making. If it can be said that we have double standards of justice and that we do not live up to the ideals that we like to proclaim to the world as essential, and if it seems that freedom is not a complete but a relative principle—something that you like to apply when you can and when it is inconvenient you do not apply it—sometimes very intelligent people begin to raise queries. It does not take many people to be in such a state of anxiety and doubt for the extremists to make more recruits. It takes only a very few people in the age in which we live to do terrible things in the context of terrorist action. If we are going to win the cause of wooing people away from terrorism and extremism, it is a battle for hearts and minds. That kernel of toughness should be in all that we do. The battle for hearts and minds means that we should live up to the principles we proclaim and make them transparently clear in all the practice of policy throughout the penal system and, particularly because of the complications of international terrorism, in the sphere of migration.

I hope that when the Government consider their response to these issues they do some connective thinking and ensure that at the very time when we are desperately anxious about, for example, the implications of Syria in terms of accentuated terrorist activity, we are doing nothing that inadvertently even marginally plays into the hands of extremists.

[Baroness Williams of Crosby]

My Lords, I very much agree with what has just been said by the noble Lord, Lord Judd, and what was said by the noble and right reverend Lord, Lord Harries of Pentregarth.

I will be very quick because the debate is going on. It is worth remembering that in 2008 the European Commission produced a directive which said that the maximum period for detention was normally six months and that in exceptional cases 12 months could be added to that, with an absolute limit of 18 months in every single case. It is not to the great credit of our dear country that the United Kingdom and the Republic of Ireland both decided to opt out of that directive. Consequently, we, as one of the world’s oldest and most stable democracies, have to our discredit the shame of having people detained in prison conditions month after month, as the noble and right reverend Lord, Lord Harries, pointed out. We should say that the time is well over when we can continue to try to justify this kind of thing.

We could have a limited period; for example, the Federal Republic of Germany has a maximum period of two months as normal practice. We have already heard that France has 45 days. Spain has a serious terrorism problem—as serious as ours, possibly more so—yet retains two months as its normal limit. It is beyond my understanding and belief how this country has continued to leave this issue without seriously addressing it and saying that the time has come for us to opt back in to the directive and ensure that we never exceed 18 months for any case at all.

[Lord Taylor of Holbeach]

My Lords, the contribution of my noble friend Lady Williams of Crosby is probably a good place to start. The deprivation of liberty is a very serious matter so I will first set out the safeguards that are currently in place to ensure that detention powers are used appropriately. Although there is a power to detain, the Home Office has a policy presumption in favour of temporary admission or release. Wherever possible, alternatives to detention are used. Detention must be used sparingly and for the shortest period necessary. I hope that that reassures the noble and learned Lord, Lord Hope of Craighead, and my noble friends Lady Hamwee and Lady Williams.

The noble and right reverend Lord, Lord Harries, asked why we do not have a time limit on detention. That was echoed by a number of subsequent speakers. The current system is derived from case law, specifically a case called Hardial Singh. The system works well, is understood by the tribunal and other judges, and has been authoritatively restated by the Supreme Court in a case called Lumba. The system affords appropriate protections to individuals and flexibility to the Government. It is not indefinite detention: every case is carefully and regularly considered to see whether detention continues to remain appropriate. Regular reviews of detention are required to be undertaken to ensure that detention remains lawful and proportionate, and individuals can apply for bail and challenge the legality of detention by judicial review, as has been stated.

I reassure noble Lords that these safeguards are also built into the provision already included in the Bill. Clause 3 will not prevent an individual from applying for bail immediately after being placed in immigration detention. Likewise, an individual can challenge the legality of their detention at any point by way of judicial review, and legal aid will remain in place for this. The existing internal formal reviews of detention will also remain. I reassure noble Lords that detainees will have full access to legal advice.

My noble friend Lady Hamwee wanted to know more about the requirement to decide on the papers. She asked what qualified as a “material change in circumstances”. It will vary on a case-to-case basis and the tribunal will decide whether that test is met. An example could be a significant deterioration in someone’s health over a short period. The provision will not apply where there are genuine reasons to seek a further hearing because there are materially different grounds to consider. If the tribunal concludes on the papers that there are material changes that need to be considered, it will proceed to a hearing and can grant bail if it thinks it right to do so.

Noble Lords should also be aware that the Tribunal Procedure Committee has consulted on placing a time limit on repeat bail applications. The committee may have proposed implementing the requirement through the Tribunal Rules rather than in primary legislation, as here, but it is clear that repeat applications on the same facts are a concern to the Tribunal Procedure Committee.

I want to highlight to noble Lords the context of the requirement for the Secretary of State to consent to the grant of bail where removal is 14 days or fewer away. Rather than introducing a new power, the Government are clarifying existing legislation to block immigration bail granted by the tribunal, defining an existing power. Under paragraph 30 of Schedule 2 to the Immigration Act 1971, the Secretary of State can prevent bail being granted while someone is pursuing their appeal at any stage,

“if directions for the removal of the appellant from the UK are for the time being in force or the power to give such directions is for the time being exercisable”.

The Government consider that the proposal in the Bill requiring the Secretary of State’s consent to release on bail 14 days prior to removal is a proportionate approach. As I have explained, this proposal actually represents a reduction in the powers available to prevent the grant of bail. In that context, I hope that noble Lords will not feel unduly concerned about this condition.

My noble friend Lady Hamwee asked whether exercising this veto would not just cause people to seek judicial review, thereby delaying removal and creating an expense. A judicial review would not have to be pursued in-country. Removal would therefore not need to be postponed. There are obvious savings from proceeding with removal and not allowing anyone to remain in the country either in detention or on bail with conditions.

We should try to get some of these figures in proportion. Admittedly some individuals have been detained for considerable periods of time but 62% have been in detention for fewer than 29 days, and the total number of people who have been in detention for more than a year is 199. In terms of proportion, this system is therefore dealing effectively with the vast majority of detainees.

--- Later in debate ---

[Baroness Benjamin]

My Lords, I rise to speak to Amendment 80, to which I have put my name, as I believe we need to find a sensible way forward to deal with the international student figures. International students make up less than 1% of the UK population, yet their spending power supports £80 billion-worth of UK economic output. International students support over 830,000 UK jobs across the country, including in Wales and Scotland. Interestingly, they are the most heavily regulated and monitored and are subject to strict visa controls. Yet there are proposed processes being considered here in this House that will deter many potential international students from choosing the UK as the place to study. This worries me greatly, as I speak as chancellor of the University of Exeter—I declare an interest.

This is why I support Amendment 80, which my noble friend Baroness Hamwee has spoken so eloquently on. I believe this is a common-sense way forward that deals with this important issue, and highlights international student numbers in a coherent and sensible way to show them that they are not perceived as the enemy and that they are wanted and welcome. It will ensure that the Government will know that, if there are any concerns detrimental to our country, they will know exactly where the problems are if there are any. Therefore, I hope that my noble friend the Minister will give careful consideration to Amendment 80. I look forward to his reply and will accept nothing less than a compromise.

[Baroness Williams of Crosby]

My Lords, the hour is late and there is much to say, but I will be brief in my remarks. Let me begin by declaring an interest as a member of the court of the University of Hertfordshire, which is very like what the right reverend Prelate had to say about the University of Bedfordshire—a very young, growing but exciting and expanding university in a part of the world which, rather surprisingly, has not got as many universities as exist around Oxford and Cambridge and London.

Let me be quick and say the following. I would like first to add one other distinguished name to the list given by my noble friend Lord Maclennan. It is a name worth thinking about for a moment, and it is of course that of the new President of Iran. He holds a postgraduate degree from Glasgow Caledonian University, and one has to ask oneself whether his much more enlightened view of global relationships has nothing whatever to do with the fact that he is one of the very few senior figures in Iranian society who has spent substantial time outside his own country, speaks good English and is interested in what is happening elsewhere. That is the kind of benefit, one which cannot be listed economically, that a country like ours gets from the very wide spread of its students from all over the world who, over the last generation, have attended universities in this country. Out of that has grown an abiding affection both for their university and for the country in which it happens to be located.

Let us be honest: there is a profound division of opinion within the Government on this issue. We all know that the department for business enthusiastically supports the idea of a substantially greater expansion of British universities. That department includes some able Ministers with considerable knowledge of higher education, and it knows one important thing. The important thing that it knows is that you can grow out of a university relationship a whole range of relationships with other businesses, public services and so forth across the front. The noble Lord, Lord Tugendhat, pointed to the effect of this kind of relationship on global attitudes. It allows us to extend our acquaintances and friendships all over the world.

I shall put this very particularly because the noble Lord, Lord Hannay, said something less dramatic than I am about to say. He pointed out quite rightly that the National Union of Students study, based on a careful poll conducted at the end of last year of more than 3,000 students in this country, is the best figure that he could get; it is a figure showing what undergraduates think. Some 51% of undergraduates have said that they think that this country is not welcoming to overseas students. The more drastic figure—more drastic for the reasons given by my noble friends Lady Hamwee and Lady Benjamin—shows that 66% of postgraduate students, people who have spent some time studying here, take the view that this country is unwelcoming to overseas students. These are the very men and women to whom the noble Lord, Lord Tugendhat, was referring when he talked about relationships with scientific, medical and cultural groups in this country. They have a valuable contribution to make, but increasingly they are being somewhat frozen out.

One of the worst examples of this is the playing around with visas, which means that students suddenly find themselves without a visa a matter of months before they are due to start their course, and no one repays them for the work they have done to get that visa in the first place. British visas are among the most expensive to be found in any country offering higher education in the whole of Europe. Our visa expenses are something like three or four times higher than those of our major competitors. Now we are going to add to that cost health surcharges, decisions about tenancies and a whole range of things, all of which are off-putting and not welcoming. I agree with my noble friend Lady Hamwee that this country has to make a great effort to retain this huge asset value in one of the few areas in which we still lead the world. It is to my mind almost totally irrational to make it harder and harder for our most effective industry, that of higher education, to expand, grow, root itself and be there for the distant future.

The reason for all this is that we have become so obsessed with immigration numbers that we can no longer see the larger picture. The great bulk of students, over 95%, who come here to study go back to their own countries, having fostered friendships and relationships with us. I shall give only one example before I stop. In this country we suffer considerably from a long increase in waiting times for people getting into, for example, A&E to look after accidents and injuries that they have. We used to have a substantial number of junior doctors serving in A&E, particularly those who came from countries like India, but elsewhere as well, who gained great knowledge of medicine and of our hospitals and made a huge contribution to a National Health Service that ran smoothly. Increasingly, those numbers are no longer there. In two years’ time we shall see A&E waits rise, and we shall ask, “How did this come to happen?”. The answer is right here and now. It comes to happen if we turn off the young medics who would like to come here, who would like to learn about how we work and about how our health service works and then go back to their own countries and spread that knowledge more widely.

So I end simply by saying that we have a profound schizophrenia in this country on this issue. I do not understand why it is not clearly seen to be of such advantage to us, to our own people and to those who come. We do not recognise that we should have the strength to face up to looking again at this extraordinary conflict that we look at all the time between different departments, different people and different individual political attitudes. We should look at it and say to ourselves that this is something that we do very well, something for which we have been admired, something which benefits the world and benefits us, and decide to get on with it and make our universities the core of one of our most rapidly rising and highest reputation industries.

[Lord Clement-Jones (LD)]

My Lords, I shall briefly add my support to both Amendment 26 and my noble friend’s Amendment 80. The fact is that overseas students are temporary migrants. They should be both treated and reported differently. These two amendments reflect that approach.

This debate is very timely. Last week, the net migration figures were published and none of the media coverage disaggregated the figures. I do not know what the Government’s original press release stated, but it seems that by publishing in that form they are simply creating a rod for their own back. Amendment 80 at least is an attempt to make sure that for some purposes, the student visa figures are clearly and publicly disaggregated.

The obsession with the original pledge to reduce net migration to tens of thousands seems to me and to many others in the university sector to be totally counterproductive in terms of its impact on our ability to attract foreign students. I and many others made clear on Second Reading that we are in danger of an adverse impact both in economic terms and in terms of the soft power to which the noble Lord, Lord Hannay, and my noble friend Lord Maclennan referred. As we heard from the noble Lord, Lord Hannay, the total number of international students coming to the UK fell for the first time last year.

The number of voices that we have heard over the past two years, not just in this House, has been legion in that respect. In 2012, 68 representatives of universities wrote to the Government urging that these figures should be disaggregated for public policy purposes. The Business, Innovation and Skills Select Committee did likewise. The noble Lord, Lord Hannay, referred to the five chairmen of Select Committees. All the aforementioned are powerful voices recommending that for domestic policy purposes, overseas students should not be counted against the overall limit on net migration.

Contrary to that, the Government’s response to the Business, Innovation and Skills Select Committee’s report stated that they were following the same practice as the US, Canada and Australia, our main higher education competitors. That is simply not the case. Those countries do exclude students, treating them as temporary migrants for domestic policy development. It is high time that we did likewise—failing which we are going to find that we are in grave difficulties over our ability to attract these students in future.