Immigration Bill

Lord Keen of Elie Excerpts

Tuesday 26th April 2016 Lords Chamber

84A: Page 108, line 7, at end insert—
“Duty to arrange consideration of bail
(1) Subject as follows, the Secretary of State must arrange a reference to the First-tier Tribunal for the Tribunal to decide whether to grant bail to a person if—
(a) the person is being detained under a provision mentioned in paragraph 1(1)(a) or (c), and
(b) the period of six months beginning with the relevant date has elapsed.
(2) In sub-paragraph (1)(b) “the relevant date” means—
(a) the date on which the person’s detention began, or
(b) if a relevant event has occurred in relation to the person since that date, the last date on which such an event has occurred in relation to the person.
(3) The following are relevant events in relation to a person for the purposes of sub-paragraph (2)(b)—
(a) consideration by the First-tier Tribunal of whether to grant immigration bail to the person;
(b) withdrawal by the person of an application for immigration bail treated as made by the person as the result of a reference under this paragraph;
(c) withdrawal by the person of a notice given under sub-paragraph (6)(b).
(4) The reference in sub-paragraph (3)(a) to consideration of whether to grant immigration bail to a person—
(a) includes such consideration regardless of whether there is a hearing or the First-tier Tribunal makes a determination in the case in question;
(b) includes the dismissal of an application by virtue of provision made under paragraph 9(2).
(5) The reference in sub-paragraph (3)(a) to consideration of whether to grant immigration bail to a person does not include such consideration in a case where—
(a) the person has made an application for bail, other than one treated as made by the person as the result of a reference under this paragraph, and
(b) the First-tier Tribunal is prevented from granting bail to the person by paragraph 3(4) (requirement for Secretary of State’s consent to bail).
(6) The duty in sub-paragraph (1) to arrange a reference does not apply if— (a) section 3(2) of the Special Immigration Appeals Commission Act 1997 (persons detained in interests of national security etc) applies to the person, or
(b) the person has given to the Secretary of State, and has not withdrawn, written notice that the person does not wish the person’s case to be referred to the First-tier Tribunal under this paragraph.
(7) A reference to the First-tier Tribunal under this paragraph in relation to a person is to be treated for all purposes as an application by that person for the grant of bail under paragraph 1(3).”

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

My Lords, I shall also speak to my Motion D.

It is clear that both the Government and noble Lords who supported this House’s amendment in respect of a time limit on immigration detention have a common purpose—to prevent the detention of individuals for any longer than is absolutely necessary. As the Government have stated previously during the passage of this Bill, I can reassure the House that individuals who are removed will be detained only for that purpose and only where there is a realistic prospect of removal within a reasonable time.

We all also agree on the need to ensure that any decision to deprive someone of their liberty must be subject to careful consideration and scrutiny, taking into account an individual’s circumstances. Work on a wide package of reform, which was announced in the response to the review by Stephen Shaw of the welfare of vulnerable people in detention, is already under way. This reflects the seriousness with which the Government regard these issues.

The Government have made clear previously their rationale for opposing general time limits on immigration detention—that they would be arbitrary, that they would not take account of individual circumstances, and that they would encourage individuals to seek to frustrate the removals process until the time limit is reached. I fully respect the views of those noble Lords who voted in favour of a time limit but the Government’s strong view remains that a time limit would have a negative impact on their ability to enforce immigration control and, consequently, to maintain public safety.

However, the Government have considered the views expressed by many noble Lords that there should be a greater level of judicial oversight over detention. That is why the Government tabled a Motion in the other place, the effect of which would be that individuals would be automatically referred to the tribunal for a bail hearing six months after their detention began or, if the tribunal has already considered whether to release them within the first six months, six months after that consideration. The individual would then receive further referrals at six-monthly intervals calculated from the point of the last consideration. This referral requirement will ensure that individuals who do not make an application themselves, for whatever reason, will have independent judicial oversight of their ongoing detention.

Individuals will still be able to make an application themselves at any time. They will be made aware of and have access to legal advice to support them in making challenges to immigration detention and in making applications for bail. This will be another important safeguard which will complement the wider reforms that the Government are putting in place in response to Stephen Shaw’s report.

The adults at risk policy will strengthen the existing presumption against detention of those particularly vulnerable to harm in detention. A new gatekeeper function will provide additional oversight and scrutiny to ensure that detention is the appropriate option for those entering the detention estate. Furthermore, a new approach to case management with a clear focus on removal plans and panel reviews on at least a quarterly basis will ensure that only those who should be detained remain detained. As the Government have already made clear, they fully expect these reforms to result in fewer people being detained and for a shorter period.

Six months is a proportionate approach. It will ensure that an adequate safeguard is in place to protect individuals who have been detained for an extended period and have not made their own application for bail, while not imposing unreasonable burdens on the tribunal and on the Home Office. Earlier referrals might result in mandatory work for the tribunal and the Home Office whereby individuals would be referred for bail hearings at the very time when their removal from the country is planned and imminent. This is not a good use of taxpayers’ money or of the tribunal’s time. Together with other reforms—the gatekeeper role, the adults at risk policy and the new casework management system with frequent internal reviews—this amendment will provide adequate oversight of detention.

Amendment 85A requires the Government to issue guidance to those making decisions on the detention of individuals for the purpose of immigration control where issues of vulnerability are raised. This relates directly to the adults at risk policy announced in a Written Ministerial Statement on 14 January as part of the Government’s response to Stephen Shaw’s report. The amendment reinstates the clauses as agreed in this House on Report. The reinstatement removes the amendment agreed to by this House at Third Reading, the effect of which would be to place an absolute exclusion on the detention of pregnant women.

The Government have been considering this matter since they received Stephen Shaw’s review and have also listened carefully to the views of the noble Baroness, Lady Lister, who tabled the amendment, and those of Peers who voted in favour of it. As the House will be aware, the Home Secretary announced just last week that the Government plan to end the routine detention of pregnant women. This would be similar to the arrangements put in place as part of the ending of routine detention for families with children in 2014, a reform which demonstrates the Government’s commitment to balancing proportionate immigration controls with safeguarding vulnerable people. The Government have listened carefully to the concerns expressed on this issue in both this House and the other place.

The Motion agreed in the other place yesterday would put in place a statutory time limit on the detention of pregnant women for the purposes of removal. The effect would be that pregnant women could be detained only for up to 72 hours, for example, immediately prior to a managed return or to prevent illegal entry at the border where a return can be arranged quickly. This could be extended up to a maximum of seven days in total, but only with ministerial approval. That could be appropriate where, for example, a removal has failed due to a cancelled flight and where arrangements can be made for a new flight within the seven-day period. Finally, as a further demonstration of how seriously the Government take these matters, we plan to invite Stephen Shaw to carry out a further short review to assess progress in relation to key actions identified in his original review in the context of these new measures. I am sure that we are all in agreement that our focus should be on striking the right balance between protecting pregnant women and maintaining effective immigration control, and we believe that this amendment achieves that.

Motion D1 seeks to place a statutory requirement that detention powers should be used only in the most exceptional circumstances. Current policy is that pregnant women may be detained in very limited circumstances where there is a clear prospect of early removal or otherwise in very exceptional circumstances. Motions D1 and D2 would restrict that even further to only the most exceptional circumstances, which would almost certainly prevent detention to support removal, including immediately following arrival at the border and foreign criminals facing deportation. This would also require the Home Office to set out what the most exceptional circumstances are. This would be overly prescriptive and would not allow officers to respond to the individual circumstances presented by a varied group of people. Placing such a prescription in statute would provide no further safeguards. Courts can and do hold the Home Office to account based on published policy and guidelines, as well as the facts of individual cases.

The amendment also seeks to set the clock on the time limit running from the point of detention rather than the point at which the Secretary of State is satisfied that a woman is pregnant. The amendment is unworkable for a number of reasons. While there are circumstances where it is obvious that a woman is pregnant, there may be many instances where it is not immediately apparent, and the woman may not inform immigration officers of her condition. This is of particular concern where women are detained at borders without the facilities to conduct pregnancy tests, unlike at immigration removal centres. That could lead to instances where the Home Office becomes liable for unlawful detention because it was not aware that the woman in question was pregnant and the time limit has already expired. It could also prevent removal of pregnant women, as the Home Office would have to release a woman if she was found to be pregnant and had already been detained for 72 hours. This, in turn, could disrupt travel and removal plans.

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[Lord Lester of Herne Hill (LD)]

My Lords, will the Minister clarify for my benefit a matter which concerns me? Does he agree that the writ of habeas corpus referred to by the noble Lord, Lord Ramsbotham, would not be of any use in the circumstances that we are discussing because the return to the writ would simply show that there was lawful authority for the detention? If that is right, does he agree that the right to liberty could be relied upon only by reference to the Human Rights Act and Article 5 of the European Convention on Human Rights, which would mean that any statutory provision that we approve would have to be read and given effect in accordance with the convention right to liberty?

[Lord Keen of Elie]

My Lords, on the last point, in respect of any answer to a writ of habeas corpus it would be possible to rely upon lawful detention, but the relevant lawful provision would have to be in compliance with the convention.

I turn to notice, a point that was made by the noble Lord, Lord Pannick, when he was referring to the matter of bail. He spoke of the default position. That is very important. It is a matter that was pointedly not addressed by the noble Lord, Lord Ramsbotham, who said repeatedly that it was only after six months that there would be any judicial oversight of detention in the context of immigration. That is not the case. Once a person is detained, it is open to them to make an application for bail. That application is made to a judicial tribunal and will therefore be the subject of judicial determination. The onus will rest very firmly, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, made clear, upon the Home Secretary to justify the detention or continued detention in those circumstances. So it is not a question of judicial oversight arising only after six months: it is available from the outset. What we are providing for is the exceptional case in which an application is not made or is refused and, after a delay of time, should be reviewed.

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[Noble Lords]

Oh!

[Lord Keen of Elie]

How prescient I have been, it would appear.

In those circumstances, I respectfully suggest to this House that the Government have responded in a reasoned, reasonable and proportionate way to the issues that have been raised, and I invite the noble Lord to withdraw the amendment.

[Lord Ramsbotham]

My Lords, I am very grateful to the noble and learned Lord for his response and to all noble Lords who have taken part in this short debate.

Referring first to the Minister’s comments I would say yes, of course it is open to a person to ask for bail. What I sought to illustrate was that although that may be so in theory, in practice many of them simply do not know what to do. I accept that there have been many applications for bail. However, just out of interest, I would like to know at what period in their detention those people made the bail application and how long they had been there. In report after report of inspections of immigration detention centres, both the Chief Inspector of Prisons and the chief inspector of immigration have pointed out the absence of interpreters and legal advice and the fact that they were approached by many detainees asking how they could get help. We will not resolve this situation in this House tonight, but it is clearly unsatisfactory as seen through the eyes of the people on the ground, who are making the applications. I absolutely accept that the 1999 automatic bail provision was repealed because it was unworkable, but I am just interested that automatic bail should be substituted for it.

If I might refer to the comments of my noble and learned friend Lord Brown of Eaton-under-Heywood and the noble Lord, Lord Pannick, I never said that immigration detention should be limited to 28 days. What I said was that nobody should be submitted to administrative detention—that is, detention ordered by civil servants—without judicial oversight of that detention within the shortest time possible. A period of 28 days is entirely reasonable. It was the decision taken by the commission which the noble Baronesses, Lady Hamwee and Lady Lister, and I, were on, and which was agreed to by the other place in a debate last September. Bringing in judicial oversight of immigration detention as quickly as possible must be the aim of any system. Yes, it is said the expert advice is available, but it is not in fact, as I have tried to illustrate.

My contention is that a principle is at stake here. If we wish to remain a civilised country, we cannot go on with a system in which civil servants are allowed to put people in immigration detention for unspecified periods which, as we all know, have stretched to months and even years. Anything longer than a month, in circumstances which I inspected for a long time—I think I know a little bit about them—is not successful. Therefore, without more ado, I wish to test the opinion of the House.