Immigration Bill

Baroness Smith of Basildon Excerpts

Monday 3rd March 2014 Lords Chamber

There are other amendments in this group but I shall not attempt to deal with any of them now—it would be impertinent. I beg to move.

[Baroness Smith of Basildon (Lab)]

My Lords, although there are other speakers in this debate, I am rising early because I have a number of questions and I thought it would be helpful to give the noble Lord time to seek inspiration to respond to them.

As we have heard, Clause 3 amends the Immigration Act 1971 to ensure that in certain circumstances, that is, where removal is scheduled for the next 14 days, the Home Secretary must consent before a person is released on bail. It also amends the tribunal procedural rules to prevent repeat bail applications in the absence of a material change in circumstances, as we heard from the noble Baroness, Lady Hamwee. Our Amendment 18 is very specific. It specifies:

“In deciding whether to give consent to bail, the Home Secretary will consider whether the applicant is pregnant”.

Matters have not been very clear so this is a probing amendment. We chose the issue of pregnancy but we could have chosen anything else. The reason for tabling this amendment is more general. We are seeking clarification as to when the Home Secretary will approve bail, and what additional considerations will be taken into account.

Reading the clause and reading the debates that took place in the other place, it seems that there is a lack of clarity about what is intended by this clause. We understand that shortly before a person is due to be removed, there is a higher risk of absconding, and that it is right that in those circumstances bail should not be granted when the risk of absconding is high, unless—as the Government state at present and in the Bill—there are exceptional circumstances. The government statement of intent says:

“If the immigration judge considers that there are exceptional circumstances that mean an individual should be granted bail, despite removal being imminent, the Secretary of State will give serious consideration to release”.

Then it cites possible examples, including persons who are recently bereaved or have complex medical requirements.

It would be interesting to know what other circumstances the Government envisage here and to hear other examples of issues that should be considered by the Secretary of State when bail is being granted. We have proposed that one of them is being pregnant but I assume that the Government have other issues in mind. We have heard about mental health examples. That is one that came to mind, as well as primary care givers for young children or where somebody is dying. I appreciate that the pregnancy one is a narrow example. I am trying to understand how the government proposal works in practice and whether it will be effective or make any difference at all. For example, I should have thought that the risk of somebody absconding is something that the tribunal would take into account at the moment, as with bereavement and complex medical needs. What additional factors would then be taken into account by the Secretary of State that are not currently taken into account by the tribunal? If there are matters that should be taken into account by the tribunal but are currently ignored, should not the tribunal rules or the guidance be amended?

Under the Bill, the final decision would rest with the Secretary of State, so it is important to understand how and according to what factors and processes she—or perhaps in future, he—will make her decision. I found the debate in the other place in Committee quite helpful. The Minister there, when asked on the above point what other considerations would the Secretary of State take into account, said:

“The Secretary of State will consider the same factors as a tribunal, but she has ultimate responsibility for enforcing immigration action”.—[Official Report, Commons, Immigration Bill Committee, 5/11/13; col. 165.]

If no new factors are to be considered, why not leave the decision with the tribunal? It would be helpful to hear and understand the evidence showing that this measure is necessary, and showing how it would make a difference. Will the Home Secretary re-examine the evidence put before the tribunal, or will she exercise her power on other grounds even though that is not what the Minister, Norman Baker, said in the other place? It would also be helpful to understand the cost implications of any challenge to the Secretary of State’s decision. Again, the Government’s statement of intent says:

“Legality of detention will still be challengeable by way of judicial review or habeas corpus applications”.

However, given that the Secretary of State will exercise the power in this clause only when the immigration judge has said that there are exceptional circumstances that mean that an individual should be granted bail, if there is no clarity about the grounds on which the Home Secretary is making her decision, does that make a legal challenge more likely?

Further, given that a case of unlawful detention, if it were brought, would be heard in the High Court, is there not a danger of it becoming more expensive and more time-consuming, and causing more delays and imposing more costs to the taxpayer, than the fairly simple decision of whether to grant bail? The Government say that the current system costs money. That is one of the reasons for introducing the new measure. What consideration has been given to the possible costs of challenges under this system? My colleague Helen Jones asked this point in the Commons and the Minister, Norman Baker, did not really address the point, so it would be helpful if the Minister was able to respond today.

Leaving costs aside, what about those who cannot afford a judicial review claim? What will their recourse be if they believe a decision is wrong and the Home Secretary has overruled the immigration judge? Let us be clear: this matter goes to the Home Secretary to refuse an application for bail only if the immigration judge has said that there are exceptional circumstances in which bail should be granted. Therefore, I am still somewhat confused about whether the Home Secretary will take into account matters other than those considered by the tribunal and the immigration judge. Norman Baker says that she will not, but that raises the question about the evidence base for this change. From the response of Norman Baker in Committee in the other place, it appears that the Home Secretary could be making a political decision in overruling the immigration judge. There must be a concern that the decision-making process is therefore open to greater and more expensive legal challenge.

In trying to understand the clause, it would be helpful to clarify whether, when a bail applicant is told of a bail decision, they will be told whether the decision has been taken by an immigration judge or the Home Secretary. If they are not granted bail, will they know that in some circumstances that may have been a decision where the Home Secretary has overruled the immigration judge who has said that there are exceptional circumstances? Will the applicant know what the process is in that case? If, as Norman Baker has said, no new factors will be taken into account, the question will be whether the decision has been taken on the facts, or whether it has been taken on political grounds. Unless it is absolutely clear what criteria the Home Secretary has used, surely that could make it far more likely that those decisions will be legally challenged.

I am genuinely trying to fully understand why the Government are bringing forward the change. What difference will it make, if there is no difference in the criteria looked at, and what are the cost implications of what could be an increase in the number of judicial reviews? I have read the debate in the other place and the material that the Minister and the Government have provided, and these questions remain outstanding. It would be helpful if the Minister could provide some clarity on these points and the reason for this clause.

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Amendment 18 would include a new subsection in the provision whereby a person will not be released on bail without the consent of the Secretary of State if there are removal directions in place for within 14 days of the date of the decision to grant bail. The new subsection makes provision for the Secretary of State to consider whether the applicant was pregnant. The noble Baroness, Lady Smith, used this as an example in a number of questions that she went on subsequently to raise. I understand why noble Lords seek to include this safeguard. However, the Government consider that it is not necessary to legislate for it, because a person’s circumstances, including pregnancy and health, are taken into account during the detention and removal process, including when a bail application is received. I can assure the Committee that where a woman reaches the later stages of pregnancy and cannot travel to the country of return, imminent removal would not be considered and detention would normally not be appropriate, so the provision would not be relevant. I hope that this reassures the noble Baroness and other noble Lords on this point.

[Baroness Smith of Basildon]

I am grateful to the Minister for addressing the amendment, but he will know that that was not the substance of the questions that I asked. It was used as an example to raise two issues, the first being the criteria that the Home Secretary would use and the second, significantly, whether an individual who had had bail denied would be told whether the Secretary of State had overruled the tribunal judge. The amendment was just probing. If the Minister could address the questions that I asked, I would be grateful.

[Lord Taylor of Holbeach]

I was about to go on to develop the theme based on the noble Baroness’s example. I cannot give an exhaustive list of the circumstances where the Secretary of State might consider it right to intervene, but examples which we have already given in the statement of intent are good ones. Mental health and family bereavement are examples of such circumstances which I hope the noble Baroness will understand. We expect the power to be exercised in a relatively small number of cases.

[Baroness Smith of Basildon]

I think the Minister has missed the point that I made. I was probing not what the exact examples would be but the criteria that the Secretary of State would use given that she will have the ability to overturn a decision by a tribunal judge. In the other place, Norman Baker said that there were no other grounds that she would look at, yet that begs the question about it being a political decision. What grounds will the Secretary of State use if she decides to overturn the decision of a tribunal judge?

[Lord Taylor of Holbeach]

I hope that the examples I have given show that these are not trifling matters. Deterioration in a person’s mental health or a family bereavement are changes in the circumstances of the applicant which would mean that the Secretary of State was able to make an immediate decision without it having to go back to the tribunal for a bail hearing. This is the Secretary of State using her executive power to ensure that in circumstances where people are significantly disadvantaged by a change in their conditions the matter can be resolved. If the noble Baroness wishes me to elaborate further, I shall do my best to explain it to her in writing so that she has something more positive than just a few scattered notes from which I am addressing her.

Amendment 19 would have the effect of creating many unnecessary bail hearings in the tribunal, increasing the inefficiency and complexity of the system. An individual can still apply for immigration bail at any time or challenge the legality of their detention by way of judicial review. A significant number of individuals are released on bail by the Home Office without the need for a bail hearing—we have just heard examples of why that is so—and so to mandate a requirement in primary legislation to require bail hearings to take place will unnecessarily increase the number of hearings and will slow the system and add complexity.

Amendments 20 and 21 would make two changes. First, they would limit judicial discretion to maintain detention of those who are suffering from mental health concerns or of those who are under 17 where the judge considers immigration detention remains appropriate for their own or, in the case of those with mental health concerns, others’ protection. Secondly, the amendments would remove the requirement for repeat applications made within 28 days of a previous application where there has not been a material change in circumstances, made under the bail provisions in Schedule 2 to the Immigration Act 1971, to be decided without a hearing.

Published guidance provides that certain categories of people are considered unsuitable for detention in the first place unless there are very exceptional circumstances in play. Unaccompanied young people under the age of 18 and those suffering from serious mental illness which cannot be satisfactorily managed within detention are specifically listed as case types that should be detained only in very exceptional circumstances. However, there will always be cases with very exceptional circumstances which mean that detention is appropriate. An example may be when it is necessary for detention to continue while an individual is being or waiting to be assessed or awaiting transfer under the Mental Health Act. We may also need to hold unaccompanied children where, for example, it is in the public interest because of a risk of reoffending or a risk to national security. They may also be held for a very short period either on arrival pending collection by social services or when we are trying to remove them. In any decision to hold an unaccompanied child, we will consider our duty to safeguard and protect the welfare of children.

The noble Lords’ amendment would prevent a judge in a bail hearing from considering if very exceptional circumstances are in play and would require judges to release individuals even where there is the real possibility that this will put them into a more vulnerable situation or where they clearly pose a threat to themselves or others. Amendment 21 seeks to remove the requirement for the Tribunal Procedure Committee to change the rules to require repeat applications to be disposed of without a hearing, thus undermining the Government’s proposals. It would also allow the current inefficient bail processes to remain in place.

However, I have listened to the points made by noble Lords in this debate. It has been a good debate about a very important aspect of the provisions of the Bill. I will consider those points before we return on Report. In the mean time, I ask noble Lords not to press their amendments.

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[Baroness Lister of Burtersett]

My Lords, as a member of the Joint Committee on Human Rights, I speak in particular to Amendment 27. At Second Reading, the Minister included in his list of myths surrounding the Bill that it undermines access to justice. The Joint Committee therefore looked again at this question. As the Minister may be aware, we published a second scrutiny report today. We write:

“We have considered carefully the Government’s argument that the right of effective access to a court or tribunal in immigration and asylum cases will be preserved by a combination of the continued availability of full appeals in cases concerning fundamental rights, the new system of administrative review, and the availability of judicial review, and its argument that the practical effectiveness of judicial review will not be affected by the proposed reforms to legal aid and judicial review itself. We do not share the Government’s confidence”.

We go on to say:

“We have already reported our concerns about the implications of the proposed residence test on effective access to justice. We have also inquired into the Government’s proposed reforms to judicial review and we will be reporting our conclusions in due course. For present purposes it is sufficient to say that, while we accept that it is a perfectly legitimate objective for the Government to seek to reduce the risk of unmeritorious claims being brought, we do have serious concerns about the effect of some of the Government’s proposed judicial review reforms on the practical ability to bring meritorious challenges to decisions, including in the immigration and asylum context … We also draw to Parliament’s attention the paradoxical fact that after years of seeking to reduce the number of immigration and asylum judicial review cases that have been causing backlogs in the High Court, including by transferring such cases from the High Court’s jurisdiction to the Upper Tribunal, the Government is now seeking to justify a significant reduction in appeal rights by reference to the continued availability of judicial review … In light of our concerns, we recommend that the removal of appeal rights for which the Bill provides should not be brought into force until Parliament is satisfied that the quality of first instance decision-making has improved sufficiently to remove the risk that meritorious appeals will be prevented from being brought”.

In other words, we express the spirit of Amendment 27.

Going beyond that, and speaking in a personal capacity, I also support my noble friends in their opposition to the question that Clause 11 should stand part of the Bill.

[Baroness Smith of Basildon]

My Lords, I speak to our Amendments 27 to 29, and to the question that the clause stand part of the Bill. We have heard examples from the noble Lord, Lord Hannay, and my noble friend Lady Lister of why we consider this clause one of the most controversial in the Bill.

The Government have made it clear that the clause reduces the number of immigration decisions that can be appealed from the current 17 to just four. Only three types of decision will remain appealable: a decision to refuse a claim of asylum or humanitarian protection; a decision to refuse a human rights claim; or a decision to revoke asylum or humanitarian protection. A decision by the Home Office to refuse an application which does not involve one of these claims but is made, for example, on erroneous grounds or without reference to highly relevant information could not be challenged before a tribunal. Instead, the Government’s plans are that an administrative review system be set up to, according the Government’s fact sheet on the clause,

“provide a proportionate and less costly mechanism for resolving case working errors”.

We can all sign up to a process that gives timely, accurate decisions with a swift process to address any errors. However, taken in context, that is not what this clause does. We have therefore tabled a number of amendments, and have given notice of our opposition to the clause standing part of the Bill. Often, clause stand part debates are used as a kind of probing amendment, a technical way of ensuring discussion on the principle of the clause or an attempt to tease out the detail and address questions. We will be doing that with this clause. However, I also say to your Lordships’ Committee that removing the clause entirely would be our preference given the current position. Failing that, our Amendment 27 would ensure that appeal rights could not be abolished until the quality of Home Office decision-making for managed migration is deemed by the Independent Chief Inspector of Borders and Immigration and the Secretary of State to be efficient, effective and fair. That would require that the provision be introduced by order subject to affirmative procedure; that is also the position of the Joint Committee on Human Rights.

We have also tabled Amendments 28 and 29 to introduce two new clauses. Amendment 28 would require the Secretary of State to undertake an impact assessment before being able to commence the clause. The issue of students, as raised by the noble Lord, Lord Hannay, would be relevant to Amendment 28. Amendment 29 would require the Secretary of State to undertake a review of the number of people successfully deported within a calendar year of a decision under Clauses 11 to 14.

We have tabled those amendments because of deep concerns about the clause. Our country has one of the most highly respected judicial systems in the world, and the right to appeal is a fundamental principle of British law. There can be few decisions more important, or which have a greater impact on an individual or community, than who is able to live here. These are decisions of life and livelihood which affect families, communities and, potentially, businesses and employers.

The noble Lord, Lord Hannay, has highlighted the situation with students. Other noble Lords are concerned about the position of families and children. However, we are looking at the wider concerns and principles raised by the Bill. The evidence, and the impact on businesses and the economy, make it very important that we get these decisions right. It is right that such a decision should be challengeable and that recourse should be available.