Nationality and Borders Bill (Twelfth sitting)

Bambos Charalambous Excerpts

Committee stage
Thursday 28th October 2021 Public Bill Committees

[Jonathan Gullis]

I have one daughter and a son on the way in early February, which I am pleased to announce to the House. What a lucky father I am going to be. The hon. Lady said it—there is nothing dangerous about France, Italy or Greece. People’s lives are not at risk. They may well be in Afghanistan or Syria. People will have left those countries and made that dangerous journey, which they should not have done because there are safe and legal routes to the UK. Other countries across mainland Europe could look to us as an example. They can claim asylum in those countries and not risk their lives by crossing the channel from France to the United Kingdom.

As I said, 70% of people making that illegal crossing are men between the age of 18 and 35. Predominantly, women and children are not coming with them but staying in those dangerous countries, which is why what we did with Afghanistan and Syria was so brilliant—we took women and children from a terrorist regime that I have no time for whatsoever, who treat women as second-class citizens and force certain children into slavery. We need to ensure that those women and children are protected.

I therefore believe that we should give commanders the confidence to do that again if they believe it to be safe. It is the commanders who will make that decision, and I have full faith that they will do so knowing the law, and the legal system in this country will have their back. Most importantly, they will take into account the condition of the waters at the time and the passengers onboard, so they can decide what is safe. The French can then do what they are meant to do when boats are in French territorial waters—stick to the obligations they sign up to for the money they get from British taxpayers and take those people back.

The people of Stoke-on-Trent North, Kidsgrove and Talke are so angry about what is going on that they want us to pick people up and take them straight back to Calais. I am sympathetic to their viewpoint, and that is one way to deter. This is a legal opportunity for us and the right one for the Government.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

It is a pleasure to follow the hon. Member for Stoke-on-Trent North. He has shown a real insight into seafaring from Stoke-on-Trent, which we all know is a coastal town.

It will come as no surprise that we will vote against clause 41 and schedule 5. Both plan to extend and enhance the new maritime enforcement powers beyond the UK territorial waters into international waters. They seek powers to stop, board, divert and detain foreign ships and ships without nationality.

The overarching goal of clause 41 is to push back asylum seekers, and for Government to redefine ships in legal terms, as the hon. Member for Glasgow North East mentioned. They broaden that definition to include fragile and insecure vessels that cross the English channel. At present, the definition of “ship” includes every description of vessel, including hovercraft, used in navigation. That definition is to be supplemented so that “ship” also includes any other structure, with or without means of propulsion, constructed or used to carry persons, goods, plant or machinery by water. To be more precise, it is referencing the small boats that cross the English channel.

The clause would grant new powers to the Home Office to stop or board ships, take them to any place on land or water in the UK or elsewhere, retain them there or require them to leave UK waters, if it has reasonable grounds to suspect that a relevant immigration-related offence is being committed. The powers may be exercised in relation to a UK ship, a ship without nationality, a foreign ship or a ship registered in another British territory. In addition, extensive new enforcement powers are to be conferred in this clause, and the power to seize and dispose of ships will be conferred in schedule 5. The problem with the power to divert ships bound for the UK is that it raises profound questions about the safety and wellbeing of the people on board, and ultimately presents a risk to lives. There is no proof that the diversion of a ship would occur only where safe, no suggestion of how it would be policed and enforced, and no intention from the Government to act in accordance with international law. Such intentions are likely to be assessed meaningfully only in retrospect, once people have been harmed.

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Removals: notice requirements

[Bambos Charalambous]

I beg to move amendment 137, in clause 43, page 40, line 8, leave out subsections (3) to (5).

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

Government new clause 28—Removals: notice requirements.

[Bambos Charalambous]

Clause 43 refers to no-notice removals and presents another problem of access to justice in the Bill. The clause aims to provide a statutory minimum period to enable individuals to access justice prior to removal and makes provisions for removing individuals following a failed departure without the need for a further notice period. It also includes the provision of written notices of intention to remove and departure details. It makes clear in statute the duty of the Home Office to give people a maximum of five working days’ notice when they are going to be removed from the UK.

For more than 10 years, the courts have recognised that that duty to give notice of removal is essential to accessing justice and the rule of law. As the Committee will acknowledge from our discussions on the Bill so far, it is vital that, when officials decide people should be removed, those people can access the courts to challenge that decision if they have a legitimate case.

However, while this clause sets out to provide access to justice, its effectiveness in doing so is very unclear. If the purpose of the notice period is, as stated, to enable those facing removal to access legal advice and the courts, it is essential that people served with a notice are able in practice to access that advice.

For example, the clause does not explain how the Government will ensure that access to legal advice will be provided. Asylum seekers can be highly vulnerable and may experience difficulties in effectively accessing legal advice and in understanding the legal intricacies of the asylum process, such as studying legal determinations or preparing submissions. As we know from our earlier scrutiny, clause 22 in part 2 provides for up to but no more than seven hours of legal aid for those served with a priority removal notice to receive advice on their immigration status and removal. We do not believe that provision goes far enough, but this clause is worse still. Unlike the provisions for priority removal notices, there is no specific provision in part 3 for ensuring that those who are served with notice of intention to remove can access legal advice within the notice period. The scheme therefore depends on existing legal aid provision, which has of course been decimated by the Conservatives for more than a decade. There are serious limitations in the availability of this provision for those both in detention and in the community.

Subsection (8) inserts new section 10A in the Immigration and Asylum Act 1999. It sets out potential scenarios where a further notice period is not required, which includes, for example, where the person was not removed on the date specified in the first notice due to matters reasonably beyond the control of the Secretary of State, such as adverse weather conditions, technical faults or transport delays, or disruption by the person to be removed.

Disruption is very broad of course, and can be interpreted on a very broad basis. It could be applied to a person refusing to leave their room in detention because they want to speak to their lawyer. The fine print also states that a new notice of intention to remove and a further notice period are also not required where the person was not removed on the date specified in the first notice as a result of “ongoing judicial review proceedings”.

That point is even more problematic. It applies where a planned removal does not proceed because of judicial review proceedings. If those proceedings are resolved in a way that means removal can proceed, the Home Office does not have to give any notice of removal if it is carried out within 21 days of the court’s decision.

As the Public Law Project and JUSTICE have pointed out, that decision could come weeks, months, or even years after the first notice of removal. Over time, the person’s circumstances could have changed fundamentally, important new evidence could have come to light or the situation in their own country might have changed dramatically. Such changes can happen virtually overnight, as recently witnessed in Afghanistan. Yet once the previous judicial review proceedings, which were potentially based on completely different facts and circumstances, are decided, a person can be removed without any notice or opportunity to raise these new circumstances with the Home Office or to access the court. If implemented, that could give rise to significant injustices.

I have one example to highlight this point—I thank the Public Law Project and JUSTICE for sharing this example. MLF is a Sri Lankan national whose asylum claim had been dismissed. During judicial review proceedings, in which he was unrepresented, he submitted further representations to the Home Office based on new evidence of the killing of three male relatives. That new evidence could not be considered in the judicial review proceedings because it post-dated the decision being challenged. The Home Office’s barrister informed him that the material would be forwarded to the relevant part of the Home Office for consideration.

MLF was subsequently served with a decision that refused to consider his fresh representations. He was subsequently removed to Sri Lanka on the same day without any notice or opportunity to access the court. In hiding in Sri Lanka, MLF applied for judicial review of his removal without notice. The Home Office conceded that he had been unlawfully removed and arranged for MLF to return to the UK. He has since been granted refugee status on the basis of evidence that post-dated his original appeal, including that which he had submitted during his judicial review proceedings.

If clause 43 was implemented in that case, it would have authorised the removal of MLF without notice. To avoid situations where people are wrongly removed and evidence is not considered properly, amendment 137 seeks to delete subsections (3) to (5) of new section 10A of the 1999 Act. That change would ensure that people are required to be given notice of removal directions and an opportunity to ask the court to issue an injunction preventing their removal while additional elements of their case are considered or in order to present fresh evidence to challenge an initial decision.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

The shadow Minister has raised lots of sensible questions. I have one other brief question for the Minister, on new clause 28. He may not be able to answer it today, but I would like it clarified, if possible.

Proposed new section 10E to the 1999 Act that the new clause would add is supposed to apply when a person has applied for judicial review and the court has made a decision authorising the removal. To be clear, does that decision relate to the judicial review, or could it relate to any prior decision? That point will not affect lots of people, but it will be important. I appreciate that the Minister may not be able to answer immediately, but I hope we will get clarity on that in due course.

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Government new clause 28 will ensure that migrants have ample time to access justice. The cumulative result will be a more efficient and streamlined removals process. I commend our amendment to the Committee.

[Bambos Charalambous]

We are not convinced by the Minister’s response and wish to press amendment 137 to a Division.

Question put, That the amendment be made.

--- Later in debate ---

[Bambos Charalambous]

The Government will disagree to clause 44 and replace it with new clause 8, although I understand that new clause 8 has fundamentally the same principle as the clause. Clause 44 and new clause 8 will extend the length of time a foreign national offender can be considered for early removal from the last nine months to the last 12 months of their sentence if they become eligible for the scheme. The Opposition have concerns that increasing that time limit will lead to unfairness in accessing justice for foreign national offenders as well as leaving them with inadequate time to obtain access to legal representation.

In our already overpopulated and overworked prison system, foreign national offenders have limited access to legal support and resources even when compared with people detained in immigration detention centres. They have no access to mobile phones or the internet. In the limited time that they do have access to a phone, the contacts they can call are vetted by the prison and this process can take many weeks. Thus, acquiring adequate legal representation becomes near impossible. Time is of the essence to these individuals and increasing this early removal widow will only lead to exacerbating these difficulties.

Bail for Immigration Detainees produced a report in 2017 on the lack of legal advice available to prisoners, which found that only five of the 86 prison detainees surveyed had received independent advice about their immigration case. They found that detainees in prison are routinely denied access to basic information that might help their immigration case. Cuts to legal aid have only made this situation worse. The High Court earlier this year held that detainees in prison have suffered discriminatory treatment due to obstacles in getting legal advice—in particular, exemptions from legal aid eligibility.

Despite what high-profile recent Home Office failings might imply, when it comes to deportations the already heavily stacked deck is stacked against the deportee. Not having proper legal representation means that the detainees will almost certainly be denied the fundamental right to a fair hearing. It would mean that they could be deported to countries in which they face persecution, or it would be in breach of their human rights. We should not undermine that right by extending the length of time they have for removal. Charities such as Bail for Immigration Detainees are already stretched to breaking point trying to support these vulnerable individuals. Instead of limiting access to justice, the Government should work on increasing its efficiency so that foreign national offenders who have committed serious crimes are dealt with swiftly and those who have claims to remain are given a fair hearing.

Question put and negatived.

Clause 44 disagreed to.

Clause 45

Matters relevant to decisions relating to immigration bail

Question proposed, That the clause stand part of the Bill.

[Tom Pursglove]

For too long, individuals with no right to remain in the UK, including foreign criminals, have been gaming the system in order to get released from detention and frustrate their removal. We have seen individuals making asylum claims while in detention, but then delaying the resolution of that claim through their own deliberate actions, such as refusing to be interviewed. The current system incentivises non-compliant behaviour. By creating obstacles, bail is more likely to be granted due to the time it will take to resolve the claim and any subsequent appeals. It is not right that a person’s non-compliance enables their release.

Similarly, an individual may refuse to provide fingerprints for a travel document or may lie about their true nationality, thereby obstructing the returns documentation process. This again makes the prospect of removal more remote and increases the likelihood that bail may be granted. From an operational perspective, non-compliance is difficult to tackle and becomes much harder to counter once individuals are released from detention into the community, where they have the ability to abscond or continue with non-compliance. Therefore, eliminating the risk and impact of non-compliance is a key benefit that arises from the use of immigration detention if appropriate in the individual case.

We must have an immigration system that encourages compliance. The purpose of clause 45 is to ensure that, so far as possible, appropriate weight is given to evidence that a person has not been co-operative with the immigration or returns processes without reasonable excuse when making immigration bail decisions. This is currently not explicitly referenced as one of the specific mandatory criteria for considering whether to grant immigration bail.

[Tom Pursglove]

I do not accept that depiction. We are requiring decision makers to take into account co-operation with removal proceedings and immigration processes when considering applications for immigration bail. We are mindful that non-compliance may already be considered, and that the tribunal takes such behaviour into account when deciding whether to grant bail. However, the intention behind the provision is that there be the same focus on evidence of non-compliant behaviour as there is on those factors already particularised and considered in every case. As we have always made clear, we do not detain indefinitely, and the clause will not mean that people will be detained solely due to non-compliance, as there must always be a realistic prospect of removal within a reasonable timescale.

[Bambos Charalambous]

We will oppose the clause. It makes it more difficult for individuals to get bail and leaves them stranded in immigration detention indefinitely.

The clause would require decision makers to consider previous failure “to cooperate with” certain immigration processes when considering whether to grant immigration bail. That is extremely vague and broad language. There is a risk of it being misconstrued and used to penalise those who use their legal rights to resist or appeal against immigration decisions made against them.

The Public Law Project has stated that if detainees are given the impression that any resistance to a decision of the Home Office may be held against them, it would increase unfairness and have a significant chilling effect on those bringing legitimate legal challenge. There is already an uneven playing field; the clause risks tipping things still further in the Home Office’s favour. The Home Office is expanding its powers of detention, while preventing independent judicial oversight of its decisions to detain.

Immigration detention is a harsh measure. It has no time limit and little judicial oversight, and should be used only when necessary and for the shortest time possible. The Government hold vulnerable people in prison-like immigration detention centres for periods ranging from days to several years. That includes people who have lived in the UK since childhood, people fleeing war and persecution, torture survivors and victims of human trafficking. Such vulnerabilities cannot be managed in detention and will no doubt be worsened by the prospect of bail being denied.

Since 2000, 49 people have died in immigration detention centres, and incidents of self-harm are now recorded at more than one a day. The Home Office’s immigration detention facilities are not fit for purpose, and narrowing the availability of immigration bail will only make the situation worse.

The uncertainty of indefinite detention is cruel not only for the detainee, but for family members waiting for them at home. Research by Bail for Immigration Detainees, which helps 3,500 detainees to apply for bail every year, shows that children of detainees are often British citizens, and suffer a range of physical and mental effects due to separation from their parent. Those are compounded by further, unexpected separation. For those children, cutting off the prospect of bail will lead to further mental ill health and suffering.

The majority of people in detention do not need to be there. More than 60% of people taken into detention are eventually released, their detention having served no purpose, at a cost of £76 million a year, according to Matrix Evidence research. BID has said that the Home Office repeatedly breaks the law and detains people unlawfully. In the past two years, the Home Office has paid out £15.1 million to 584 people whom it had detained unlawfully.

The clause will make it tougher for people to get bail and leave them trapped in detention for longer. The Government have committed to reducing detention, but this measure is counter to their own rhetoric. It means less justice for detainees, more harm for vulnerable refugees and more wasted costs for the taxpayer. That is why Labour opposes the clause.

[Stuart C. McDonald]

As I said in my intervention on the Minister, the decision has to be based on whether there is a reasonable prospect of imminent removal, and included in that is the question of the likelihood of the person absconding if bail is granted. If any historical non-compliance has any sort of relation to that question—if it is relevant—the tribunal will obviously already be able to take it into account. Today, the Minister is asking us to tell the decision makers to take into account historical non-compliance even where it has absolutely no bearing, in the decision maker’s view, on the fundamental question of whether someone should be interned. That is moving from weighing up those considerations in the question about removal to using detention almost as a form of punishment. It is completely unjustified, and I echo what the shadow Minister has said.

Question put, That the clause stand part of the Bill.