Immigration: Detention of Pregnant Women

Baroness Williams of Trafford Excerpts

Thursday 27th October 2016 Grand Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who spoke in this debate, in particular the noble Baroness, Lady Jones, who secured it. The issue of pregnant women in detention is a delicate one and understandably it is often quite emotive. Perhaps I may be clear on behalf of the Government that the decision to detain any individual under immigration powers is never taken lightly. As published Home Office policy already makes clear, detention must only ever be used sparingly and for the shortest period necessary. There is a presumption of liberty for any individual and our preference will always be that those who have no right to remain in the UK should leave the country of their own volition, but unfortunately that does not always happen. Where that is the case, regrettably detention may be necessary to enforce an individual’s removal.

Where we decide that detention is the appropriate course of action, it is important that the individual is treated with respect and dignity for as long as they remain in our care. To underline this commitment, in February 2015 my right honourable friend the Prime Minister, when she was still Home Secretary, announced that she was asking the former Prisons and Probation Ombudsman, Stephen Shaw, to undertake a review of the welfare of those in detention, to which the noble Baroness, Lady Lister, referred. Mr Shaw’s comprehensive Review of the Welfare in Detention of Vulnerable Persons was published under cover of a Written Ministerial Statement in January. It made a number of recommendations addressing detainee welfare and vulnerability, including in relation to pregnant women.

The Government accepted the general thrust of Mr Shaw’s recommendations. We were not, however, persuaded by his recommendation to completely exclude pregnant women from detention in future. Home Office detention policy has never been based on excluding entirely any particular group of persons, including pregnant women, from detention. There will be occasions in which it is both appropriate and justified to detain a person, even if they are vulnerable in some way. For example, a pregnant woman might pose a risk to the public which would make her detention in the public interest and outweigh the fact of her pregnancy. There is a need to keep the capability to detain at the border, pending removal, if entry is refused.

The Government listened to concerns about the detention of pregnant women. During the passage of the Immigration Act 2016, to which many noble Lords referred, we introduced statutory limits on periods of detention of any woman who we are satisfied is pregnant. Section 60, which came into force on 12 July, restricted the circumstances in which a pregnant woman who is being removed or deported from the UK may be detained. Detention of pregnant women is limited to a maximum of 72 hours, although there is provision—as the noble Lord, Lord Kennedy, pointed out—for this to be extended to an absolute statutory maximum of one week in total, only in exceptional circumstances. Ministerial authorisation must be obtained for any extension beyond the 72-hour point, to ensure that periods of detention are kept to a minimum and to provide an effective safeguard against the risk of the longer period of detention being used inappropriately.

Most noble Lords asked about the numbers of women in detention. There are no women in immigration detention today recorded as being pregnant. Since July, when the Immigration Act came into force, the total number of women recorded as being pregnant while in detention is 15. None of them were detained beyond the statutory limit bar one, where there was ministerial authority. That means obviously that 14 were detained up to 72 hours.

We do not propose to publish statistical information routinely on the detention of pregnant women. Such information would be limited by caveats as to scope and accuracy, given that it could relate only to those women known to be pregnant. In addition, any statistical information would not in itself provide a fully accurate, rounded picture unless it was accompanied by a detailed narrative on the circumstances of the individual cases, which would not be appropriate, not least given the risk of identifying particular individuals. For the same reasons, the Government do not propose to provide a running commentary on the numbers involved.

The legislation, as I have just discussed, also imposes a duty to have regard to the pregnant woman’s welfare in deciding whether or not to detain. This might include matters such as whether there have been complications with the woman’s pregnancy. The Home Office published comprehensive guidance for its caseworkers on the detention of pregnant women. That covers the general principles to be considered in deciding whether to detain a pregnant woman, consideration of the duty to have regard to the pregnant woman’s welfare, the operation of the detention time limit, and the procedures in exceptional cases for seeking ministerial authority to extend detention beyond 72 hours.

There will be occasions, particularly where a woman is in the early stages of pregnancy and not visibly pregnant, when it is possible that her pregnancy will come to light only after she has been detained. That might be because she does not want to disclose her pregnancy, or she might not even be aware yet that she is pregnant. The Section 60 restrictions still apply in such cases, with the 72-hour time limit being calculated from the point at which the Home Office accepts that the woman is pregnant.

To support the new statutory arrangements, we published a new operational instruction on the management of pregnant women in detention. All staff working in immigration removal centres, including healthcare staff, must follow this. It covers matters such as the woman’s welfare during her transfer to her place of detention, her care while in detention and the arrangements for her removal.

The Home Office has now introduced its new adults at risk policy for the detention of vulnerable persons, in direct response to Stephen Shaw’s recommendations. Under Section 59 of the Immigration Act 2016, the Government laid before Parliament draft statutory guidance on the policy in July. This guidance came into force on 12 September. Although the policy applies to all detainees considered vulnerable, it provides additional safeguards for pregnant women, beyond those set out in the 2016 Act. The starting point of the policy will be that an individual considered to be at risk in the context of the new policy should not be detained. This builds on the general presumption against detention and will be displaced only when the immigration factors outweigh the contention that the individual in question is at risk. The underlying principle is that the greater the weight of evidence of risk, the weightier the immigration factors need to be to justify detention.

Under the adults at risk policy, individuals are considered to be at a particular level of risk depending on the type and quality of the evidence available in their particular case. The mere existence of a woman’s established or accepted pregnancy will place her automatically at the highest level of risk. As a result, the pregnancy will be afforded significant weight when assessing the risk of harm in detention and require weightier immigration factors to be present to justify authorising or maintaining detention. The position of pregnant women in the context of immigration detention has changed. The combined effect of the statutory restrictions on the detention of pregnant women and the introduction of the adults at risk policy, with its specific protections for pregnant women, ensures that pregnant women will be detained only in very limited circumstances, for very short periods, and only when such action is justified, taking full account of the likelihood of risk to the woman in question. This strikes the right balance between recognising the inherent vulnerability of pregnant women, particularly in relation to detention, and the need to secure our borders and maintain effective immigration control.

The Home Office has never detained pregnant women in large numbers. Previous Home Office detention policy was clear that pregnant women should be detained only in very exceptional circumstances. Although the Home Office began collating data on the detention of pregnant women only comparatively recently, anecdotally, numbers have always been small. We expect the statutory restrictions introduced in July and the more recent implementation of the adults at risk policy to reduce those numbers still further.

The noble Baroness, Lady Jones, asked about the publication of the DSO. It will be published in November, which is some time from next onwards for four weeks. The noble Baroness, Lady Lister, asked about FoIs. We take our responsibility under the FoI Act seriously. FoIs are being dealt with as a matter of priority. On 29 September, we answered an FoI on pregnant women statistics that we had received from Medical Justice.

The noble Baroness also asked about the Family Returns Panel, which has proved so efficient and effective, and how lessons can be learned from that in detaining and removing pregnant women. In addition to the time limit that now applies to the detention of pregnant women, we are putting in place a robust package of safeguards, including: the duty to have regard to the welfare of the woman; detaining only if removal is due to happen shortly or, if there are exceptional circumstances; the adults at risk policy, which I have talked about; and improvements to the caseworking process when managing vulnerable persons. Taken together, those developments will ensure that detention is used sparingly and for the shortest period of time when it becomes absolutely necessary to detain pregnant women who will not leave voluntarily. We do not believe that oversight by the Family Returns Panel would add any further safeguard, although I accept that it has been a very effective process.

The noble Lord, Lord Ramsbotham, asked why we limited the definition of torture for adults at risk to that set out in the UN Convention against Torture. The Government adopted that definition as it most accurately reflects the need to protect those who are the most likely to be adversely affected by detention, which is those who have been harmed by the state or by an organisation exercising similar control and for whom detention is most likely to be redolent of the harm that they suffered.

The noble Lord also asked why the STHF rules have still not been made. The Home Office undertook a targeted consultation of detention stakeholders on the draft set of short-term holding facility rules earlier in the year, and the responses received were extremely detailed and will take some time to go through. However, that process is almost complete. He asked how many responses there were to the consultation exercise. There were 10.

The noble Lord, Lord Kennedy, asked at what stage of pregnancy the Home Office considers flying to be inappropriate. A pregnant woman’s fitness to travel by air, and therefore whether it is likely to be possible to remove or deport her, is assessed on a case-by-case basis using guidance from the IATA. The guidance states that for a single uncomplicated pregnancy, travel would be appropriate without a medical certificate up to 37 weeks.

My time has run out by a minute. If I have not answered any questions, and I suspect there might be a couple from the noble Lord, Lord Kennedy, I will do so in due course. I thank all noble Lords who have taken part in the debate.