Immigration Bill

Lord Ramsbotham Excerpts

Tuesday 22nd December 2015 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I am very grateful to the Minister for writing to all those speaking today at 6.30 last night, following the briefing that he and James Brokenshire, the Minister for Security and Immigration, gave to the Cross-Bench weekly meeting last week about the Bill. In his letter, he comments on the three concerns that I represented to him, resulting in my altering some of what I intended to say today. However, he has not allayed all my concerns, and I warmly agree with what many other noble Lords have said about them today.

My first concern was about timing because, in addition to having Second Reading today, the last day before the Christmas Recess, we were faced with three Committee days out of five on which the House was sitting, starting on the third day after our return. By any standards, that is indecent haste, and I congratulate the Minister on persuading the Government to put the first Committee day back to 18 January.

The Immigration Law Practitioners’ Association reported its impression that the Bill as it emerged from the other place showed signs of,

“haste: proposals not fully thought through or developed; inadequate evaluation, and drafting that is struggling to keep up”.

That is not a very good advertisement for what the Government clearly regard as a flagship Bill, accompanied, as it is, by a health warning to concerned people such as myself: as so many of its provisions were in the Conservative Party election manifesto, interfere if you dare.

I know from Hansard what was debated in the 15 Committee days in the other place and that a flood of government amendments were tabled only on Report and were therefore unscrutinised in Committee. While the constitutional position of this House in relation to secondary legislation is subject to a review by the noble Lord, Lord Strathclyde, I wonder whether the constitutional rectitude of the committee system in the other place has ever been questioned in the same way. A built-in government majority of nine to seven is hardly an example of democracy at work and explains why so few non-government amendments are ever accepted. I suspect that this contributes to much legislation arriving in this House accompanied by a frank admission that the other place has been unable to scrutinise it properly before sending it on but is doing so because of its confidence that we will do our job. This large and complex Bill contains a number of very contentious issues. I hope therefore that, rather than being pressurised into completing our scrutiny in too short a time, under the cosh of manifesto conventions, we will be allowed to focus properly on such issues as the observance of the rule of law and safeguarding the reputation of this great country of ours.

My second point was that parts of the Bill appear to be in breach of the rule of law. Here, I must thank the Bingham Centre for the Rule of Law for its admirable document Immigration Detention and the Rule of Law: Safeguarding Principles, which I hope has been seen and read by not only the Minister, but by every other Minister and official in the Home Office who has anything to do not only with this Bill, but with asylum and immigration issues in general. Despite what the Minister said today, I remain unhappy, as do other noble Lords, about what is proposed in Clause 34 regarding appeals, particularly the suggestion that some may be made only from outside the United Kingdom. When the majority of current appeals are against flaws in Home Office casework, such a drastic change to procedures long practised by a country that prides itself on being thought civilised should be based on stronger grounds than ministerial assurance that the Home Office will get things right in future. Then there is the suggestion in Clause 31 that the Home Secretary is claiming the right to overrule the judiciary on immigration bail. That issue will no doubt be explored fully in Committee, but it gives the impression that the Government are prepared to ride roughshod over niceties that for centuries have characterised our reputation for humane behaviour towards those who seek sanctuary here.

In his letter, the Minister comments on my particular concern about possible breaches of the Children Act 1989 in respect of vulnerable asylum-seeking children. When I was Chief Inspector of Prisons, the Home Secretary and the Prison Service claimed Crown immunity from the provisions of the Act as far as the treatment of children in custody was concerned. Both were taken to judicial review by the Howard League for Penal Reform, and the provisions of the Act now apply in every place in which children are held. The Children Act is in line with the UN Convention on the Rights of the Child, to which this country is a signatory, and I hope that any doubts about the application of the Act to destitute asylum-seeking children will be removed, once and for all, during the remaining passage of the Bill through Parliament. I also hope that the Government are disturbed that recent research by the Children’s Society has disclosed that, despite their protestations of their humanity, separated children involved in Article 8 immigration cases are unable to get legal aid or exceptional funding for advice and representation.

My third concern is much more difficult to quantify, but has been with me ever since 1997, when I was asked to take on the inspection of immigration detention centres, then under the Immigration and Nationality Directorate of the Home Office. It was immediately apparent that the directorate was dysfunctional, not to say unfit for purpose—a soubriquet applied later to its successor, the UK Border Agency, by the then Home Secretary, the noble Lord, Lord Reid. Honourably, and quite understandably, the Minister defends the performance of the Home Office, but I have to tell him that my experience over the past 18 years does not give me the same degree of confidence in its ability.

I shall not bore the House by repeating all my dealings with the immigration system, but if there has been one constant bar to progress throughout this period it has been the inability of the Home Office to cope with what is demanded of it. What is worse, what the Independent Asylum Commission, of which I was a commissioner, described as a culture of disbelief pervades the whole asylum and immigration structure and is manifested in much shoddy work, shown up by the number of appeals that are granted because of flaws in decision-making.

One incontrovertible fact that inspecting immigration centres proved to me was that they were neither designed nor resourced for other than short-term holding. The lack of activity places for more than a few makes them unsuitable for holding anyone for long and totally unsuitable for the detention of children. I found it particularly concerning that their population included far too many ex-prisoners, sentenced to be deported but whose deportation had not been processed while they were in prison. Ever since 1999, I have campaigned to have this stopped, recommending that such prisoners should have their deportation processed in prison so that at the end of their sentence they are taken straight to an airport and out. Most of the disturbances in immigration detention centres are caused by such ex-prisoners, who should not be there in the first place.

However, of more relevance to the Bill is the issue of time-limiting immigration detention. The committee of the All-Party Groups on Refugees and Migration, of which, like the noble Baronesses, Lady Hamwee and Lady Lister, I was a member, recommended that it should be limited to 28 days, which was endorsed by the other place on 10 September. I note what my noble and learned friend Lord Brown of Eaton-under-Heywood said about this issue. We are told that the government response to an as yet unseen report on the issue by the Home Office’s favourite rapporteur, Stephen Shaw, is due to be published before we begin Committee, which presumably means over Christmas. This issue will undoubtedly be pursued in Committee.

However, because of its dreadful record of failure over so many years, there is clearly a pressing need for a root-and-branch overhaul of the Home Office’s case-handling process, long called for by many organisations that support immigration detainees. Only last week the Chief Inspector of Borders and Immigration highlighted the Home Office’s failure to remove several thousands of asylum seekers, many of whom had “gone missing”. During the passage of the Immigration Act 2014, it was suggested that there was a backlog of over 50,000 unresolved asylum cases, which millstone makes it impossible for any current system to be up to date. If the immigration system is to work properly, let alone absorb the extra responsibilities that the Bill seeks to thrust upon it, that backlog must be cleared so that the business of the day can be handled in the day and decisions reached in a timely fashion.

Despite what the Minister says, my concern about some of the provisions in the Bill is that they are simply undeliverable given the lack of a functional system for handling cases in the Home Office. Until and unless there is a proper structure, with built-in systems of accountability and responsibility to ensure consistency, immigration will remain in a mess, which is the only word to describe it now. That it is in this state is not the fault of any one Minister but the failure of a succession of short-term Ministers, served by ineffective officials, to get to grips with what is required.

In addition to all those presently trying to come to Europe, mass migration, related to climate change, is bound to increase the pressure on countries such as ours, to which many people will wish to come. If we are to be able to cope with that inevitable future, it is essential that we put our house in order now. Legislation may be required to do this, but not, I suggest, many of the provisions in the Bill, which will complicate rather than simplify procedures.

Every business, hospital and school has named individuals who are responsible and accountable for different departments. The cult of managerialism, which presumes that because an instruction has been issued from on high it will automatically be obeyed, is no way to run an operational system such as immigration. Individual caseworkers need to be responsible and accountable to a manager, who is him or herself responsible and accountable to a director for different countries or types of cases, who is in turn responsible and accountable to a Minister. Only then can you be certain that an instruction will be obeyed and its obedience overseen. Therefore, if the Government are so keen to tighten the way asylum and immigration applications are handled, I suggest that before introducing yet more complicated legislation, they should first ensure that a functional system, capable of implementing the actions that they wish to take, is in place.