Immigration Bill

Lord Keen of Elie Excerpts

Tuesday 15th March 2016 Lords Chamber

Moved by

[Lord Keen of Elie]

82: Clause 49, page 46, line 6, leave out “, or intends to make,”

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I propose to address a range of amendments relating to Part 3 of the Bill. I shall turn first to government Amendments 82 and 83. During Committee the noble Lord, Lord Paddick, raised concerns that the Secretary of State’s ability to direct prison and prisoner custody officers to search persons in respect of whom she “intends to make” a deportation order was too wide. While the noble Lord accepted our assurance that it was the Government’s intention to capture those foreign national offenders who are liable to deportation and who have been given a notice of a decision to make a deportation order against them, he asked us to reflect on why such clarity could not appear in the Bill. We have taken on board this point and have therefore tabled Amendments 82 and 83, so that the power is expressed by reference to a person being given a notice rather than simply the intention of the Secretary of State. I trust that this allays the noble Lord’s concerns.

I turn to the matter of bail conditions and, in particular, to the government amendments between Amendments 88 and 112. This is a somewhat lengthy set of amendments to Schedule 9, in response to the concerns raised by Peers about the Secretary of State having the ability to impose an electronic monitoring or residence condition where the tribunal decided not to do so. As I said in Committee, having recognised the constitutional concerns that were raised, the Government have thought again about this. I will try not to take up too much of your Lordships’ time but it may help if I describe the effect of these amendments in a bit more detail, in addition to responding to the probing amendments laid by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick.

Amendments 88, 89, 90 and 91 would replace the current approach with a statutory duty on both the Secretary of State and the tribunal to impose an electronic monitoring condition when granting bail to an individual being deported. This would limit the provision to foreign national offenders or those whose deportation has otherwise been deemed conducive to the public good, such as on national security grounds. This duty would not apply if the Secretary of State considered that imposing electronic monitoring would be impractical or contrary to a person’s convention rights. Just as the Secretary of State or the tribunal must impose an electronic monitoring condition where the duty applies, they must not impose such a condition where the duty is disapplied. If a person wishes to challenge the Secretary of State’s decision that the duty should not be disapplied, they can do so by way of judicial review. Separately from the duty to impose electronic monitoring, the amendments make it clear that the tribunal may not vary an electronic monitoring condition. This is simply a matter of clarification as, in paragraph 4 of Schedule 9, the arrangements for electronic monitoring are a matter for the Secretary of State.

Amendment 89A would mean that any individual granted bail must be subject to an electronic monitoring condition save in exceptional circumstances, including where monitoring would breach the individual’s human rights. This amendment would therefore significantly expand the application of the duty to impose electronic monitoring, which is limited to individuals in the process of being deported. We do not consider this amendment necessary. In non-deportation cases, electronic monitoring should remain a discretionary condition that the Secretary of State or the tribunal can impose having weighed the individual’s circumstances, as they are not as intrinsically high risk as the deportation cases. In reaching that decision, the tribunal and the Secretary of State will continue to be bound by Section 6(1) of the Human Rights Act, which makes it unlawful for a public authority to act in a way which is incompatible with a convention right.

Amendment 91A would mean that the Secretary of State could have regard to obstacles which are insurmountable only when considering whether electronic monitoring would be impractical. This would set the bar far too high. Even tremendous difficulties in making arrangements for electronic monitoring would not fall within this, so the Secretary of State could in such circumstances be precluded from deeming monitoring to be impractical because the difficulties she faces are not, technically, insurmountable. For example, the Secretary of State could spend millions of pounds putting in place new infrastructure to overcome an obstacle.

Amendment 91B would prevent the Secretary of State from considering matters such as a person’s risk of absconding or reoffending when prioritising the limited resources available for electronic monitoring. I make it clear that where the duty to impose an electronic monitoring condition on a deportee is disapplied because of impracticality or the individual’s human rights, this does not mean that the individual may not be released on immigration bail. All the relevant factors must be taken into account by the tribunal or the Secretary of State when considering whether it is appropriate to grant immigration bail, and other conditions could be tailored to ensure that risk is managed in lieu of electronic monitoring.

Amendments 92 to 97 make provisions for the circumstances in which an electronic monitoring condition on an individual being deported must be removed, and if a deportee is not currently subject to monitoring, then the circumstances in which it must be imposed. Amendments 98 to 100 expand the circumstances in which the Secretary of State may provide accommodation support to an individual on bail to include where it is the tribunal that imposes a residence condition. Amendments 101 to 103 apply the duty to impose monitoring to grants of immigration bail to deportees who have been arrested for breach of bail.

Amendments 104 to 106 amend paragraph 10 on the transitional provisions to prevent the electronic monitoring duty from automatically applying to those persons who routinely transition on to new immigration bail. The amendments also provide that regulations made in accordance with paragraph 10 may allow the Secretary of State to determine how the duty is to apply to transitional cases.

Amendment 106A seeks to amend proposed new sub-paragraph (2A) to remove the ability of transitional regulations made under Clause 86(1) to modify proposed new paragraphs 6A or 6B in how they apply to the transitional cohort. Proposed new sub-paragraph (2A) was drafted to allow the Secretary of State flexibility to manage this cohort so that she can prioritise in deciding when to apply the electronic monitoring duty to those deportees who are subject to immigration bail before commencement. Finally, Amendments 107 to 112 simply ensure that, as a result of the above amendments, the Special Immigration Appeals Commission can be substituted for references to the First-tier Tribunal where appropriate.

I hope that these amendments allay the concerns expressed by your Lordships and therefore ask that Amendments 89A, 91A, 91B and 106A be not moved. I beg to move Amendment 82 and ask your Lordships to support Amendment 83 and the government amendments between Amendments 88 and 112.

[Baroness Hamwee]

My Lords, I will confine myself to one question and to thanking the noble and learned Lord for that remarkably succinct explanation of several pages of amendments. I am sure it will bear reading and rereading. I think that he has answered my question, but I just want to be sure. What happens if electronic monitoring cannot be imposed, for instance because of mental health concerns or some other human rights issue? I think that he said that bail could—or indeed would—still be granted. That is the central question.

[Lord Keen of Elie]

I am obliged to the noble Baroness. The answer is that, in those circumstances, bail could still be granted. It will be dependent on the individual conditions that arise in a particular case. But I make it absolutely clear that it would still be possible for bail to be granted in such circumstances.

[Lord Mackay of Clashfern (Con)]

My Lords, I was one of those who expressed concern at the possibility of the Secretary of State being able to overrule a judicial determination by the tribunal. I am very grateful for the very quick response I had to that concern, which was shared by a number of my noble and learned friends.

--- Later in debate ---

[Lord Rosser]

The noble Lord, Lord Ramsbotham, has made a powerful case in support of Amendment 84, to which my name is also attached, and I do not intend to repeat all the points. The amendment is intended to provide for judicial oversight if a person is to be detained for a period longer than 28 days. If the noble Lord, having heard the Government’s response to Amendment 84, decides to test the opinion of the House, we will vote in support.

Immigration detention is a matter of concern. For the person detained it is detention for an indefinite period, since they are not given a date when it will end. Their life is in limbo. A recent all-party group inquiry into immigration detention heard evidence that detention was in some ways worse than being in prison, since at least people in prison know when they will get out. There is medical evidence that it causes anxiety and distress, not least among the more vulnerable groups. The all-party inquiry to which I have referred heard from medical people with knowledge in this field that the sense of being in limbo and the hopelessness and despair it generates lead to deteriorating mental health. One such witness said that those who are detained for more than 30 days have significantly greater mental health problems.

For his report for the Home Office into the welfare in detention of vulnerable persons, Stephen Shaw commissioned a review by Professor Mary Bosworth of the evidence linking detention with adverse mental health outcomes. Mr Shaw said that he regarded her view as a study of the greatest significance. Two of Professor Bosworth’s key findings were: first, that there is a consistent finding from all the studies carried out across the globe, which were from different academic viewpoints, that immigration detention has a negative impact upon detainees’ mental health; and, secondly, that the impact on mental health increases the longer detention continues.

In his conclusions, Mr Shaw stated:

“Most of those who have looked dispassionately at immigration detention have come to similar conclusions: there is too much detention; detention is not a particularly effective means of ensuring that those with no right to remain do in fact leave the UK; and many practices and processes associated with detention are in urgent need of reform”.

He ended by saying:

“Immigration detention has increased, is increasing, and—whether by better screening, more effective reviews, or formal time limit—it ought to be reduced”.

In the first three quarters of 2014, 37% of those detained were detained for longer than 28 days. Home Office guidelines are that detention should be for the shortest possible time and should be used only as a genuine last resort to effect removal. Yet despite centres being called “immigration removal centres”, most people who leave detention do so for other reasons than being removed from the United Kingdom. According to government statistics, more than half the detainees are released back into this country.

There could surely be some scope for a wider range of community-based alternatives to detention, enabling more people to remain in their communities while their cases are being resolved or when making arrangements for them to leave the country. The family returns process, which is designed to reduce the number of children detained, has resulted, according to the Home Office’s own evaluation, in most families being compliant with the process and no increase in absconding.

I note the views expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and his reason for not supporting but also, as I understand it, for not opposing this amendment if it is put to a vote. If Amendment 84 is passed by this House, the Government also have the option, if they choose to take it up, of putting an amended proposition as the Bill goes through its remaining parliamentary stages.

Amendment 84 does not of course put a time limit on immigration detention but it would ensure that a decision to continue to detain after 28 days was a judicial decision dependent on the Secretary of State having to make the argument that the circumstances of the case concerned required extended detention. The amendment does not preclude or prevent detention going beyond 28 days but it means, in a country where we uphold justice and the right to liberty, that at least after a period of time the decision to continue to detain has to be a judicial one, not an administrative one. Surely this House can support that.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions to this debate. The diversity of views expressed perhaps underlines the issues that have to be wrestled with in such a difficult area.

The Government take the issue of deprivation of liberty very seriously. Our current published policy in respect of immigration detention is quite clear: there is a presumption of liberty. There is a well-established principle that for an individual to be detained pending removal there must be a realistic prospect of removal within a reasonable time, and that is carried out by virtue of judicial oversight. Depriving someone of their liberty is always subject to careful consideration and account is invariably taken of individual circumstances.

Amendment 84 would significantly impact on our ability to enforce immigration controls and maintain public safety, particularly at a time when the Government have set out a commitment to ensure effective use of detention, complemented by a renewed focus on facilitating an increased number of voluntary returns without detention, which safeguards the most vulnerable while helping to reduce levels of immigration abuse.

It might be helpful to remind noble Lords that most people detained under immigration powers spend only relatively short periods in detention. According to published statistics for the year ending September 2015, more than 32,000 people left detention. Of these, 62% had been in detention for fewer than 28 days. The overwhelming majority of detainees—93%—left detention within four months. Of those, approximately 40% were subject to deportation action, having been previously convicted of criminal offences in the United Kingdom or the EU and having refused to leave the UK on a voluntary basis.

--- Later in debate ---

[Noble Lords]

Oh!

[Lord Keen of Elie]

With that encouragement, perhaps I may take just a little longer, knowing that I have noble Lords’ ears if not their best wishes.

The noble Baroness, Lady Lister, raised a number of questions. I would be perfectly content to respond to them in writing, albeit that no commitment can be given. Putting the matter shortly—yes, the Scottish Law Officer is somewhat verbose, I am afraid—it is the intention of the Government to reflect on the matter of the detention of pregnant women. They do not consider that it would be appropriate for there to be an absolute rule. To give one very short and simple example, if an illegal immigrant arrives at an airport and it is possible to return them almost immediately, it may be necessary for there to be detention even for a very short period. However, the Government will reflect on this and will have considered the matter by Third Reading. I hope that that will reassure the noble Baroness, Lady Lister, at this stage.

In these circumstances, and with your Lordships’ benign encouragement, I ask that Amendments 84 and 85 be not pressed and that Amendment 86 be agreed.

[Lord Ramsbotham]

My Lords, I am very grateful to all those who have spoken and to the Minister for that careful but rather depressing exposition. I shall be brief.