Keir Starmer
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Immigration Bill (Tenth sitting)
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Keir Starmer (Holborn and St Pancras) (Lab)
I beg to move amendment 93, in schedule 3, page 72, line 8, at end insert—
‘(8A) The Secretary of State shall provide any individual she determines to be a disqualified person with the information resulting from her checks under 40C(1) that led to this determination.
(8B) The Secretary of State shall provide an individual she determines to be a disqualified person, and any person or body by or for whom the relevant account is operated, with compensation in accordance with [New Clause: 40HA Compensation], where that determination is found to have been incorrect.”
The Chair
With this it will be convenient to discuss amendment 94, in schedule 3, page 72, line 8, at end insert—
“40HA Compensation
(1) This section applies where—
(a) a person is determined by the Secretary of State (following a check under 40C(1)) to be a disqualified person;
(b) the Secretary of State provides notification to the bank that the person is a disqualified person under section 40C(3) or 40D(7);
(c) the bank closes an account or prevents an account being operated in compliance with section 40G; and
(d) the determination by the Secretary of State under 40C(1) is found to have been incorrect.
(2) Where subsection (1) applies, the Secretary of State shall pay compensation to—
(a) a person incorrectly determined to be a disqualified person;
(b) any person or body by or for whom the relevant account is operated.
(3) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State before the end of the period of two years beginning with the date on which the information resulting from its checks under 40C(1) is provided to the person incorrectly determined to be the disqualified person.
(4) But the Secretary of State may direct that an application for compensation made after the end of that period is to be treated as if it had been made within that period if the Secretary of State considers that there are exceptional circumstances which justify doing so.
(5) The question whether there is a right to compensation under this section shall be determined by the Secretary of State.
(6) If the Secretary of State determines that there is a right to such compensation, the sum of £10,000 is paid.”
To make provision for statutory compensation from the Secretary of State to compensate the holder of a bank account where their account is closed or suspended by their bank in reliance on incorrect information provided by the Secretary of State as to the status of the account holder as a disqualified person.
Keir Starmer
I had the opportunity when we were discussing clause 18, which inevitably included a discussion of schedule 3, to speak to the amendments. I hope the Minister heard my concerns. I do not think I will make them any stronger by repeating them.
The Solicitor General (Robert Buckland)
I am grateful to the hon. and learned Gentleman for his observations. We believe amendments 93 and 94 are unnecessary and would create a disproportionately expensive bureaucracy around the provisions. The Home Office will only share the details of migrants who are liable for removal or deportation from the UK, such as those who have exhausted all appeal rights. Those will include people who have been served with a deportation order or enforcement papers or who have absconded from immigration control. They will be fully aware of the reasons why they are considered to be disqualified people. Those who are refused permission to stay will be warned in the Home Office decision letter of the practical consequences, including for their continued ability to operate a bank account in the UK. To require the Home Office separately to actively provide them with such information in every case where their data are shared would cause delay and waste resources. Details of the individuals are already shared with the anti-fraud organisation CIFAS for the purpose of enabling banks to comply with the Immigration Act 2014 and also to assist in the prevention of fraud. The accuracy of the data is subject to rigorous checks by the Home Office before it is shared. This is reflected in the fact that the Home Office receives very few complaints or inquiries from banks or individuals regarding the current sharing of data arrangements under section 40 of the 2014 Act. Only three official complaints have been received since the Home Office started to share data with CIFAS in 2011.
Under the new provisions, the Home Office will be notified by banks when they believe that an account holder is a disqualified person. It will then carry out a further thorough check before the bank will be required to take any action to close an account. The bank will be notified if circumstances have changed and the person is no longer disqualified. This double check will act as a further safeguard to make sure that the bank acts on the most up-to-date information. Individuals whose accounts are subject to closure will be told by the bank of the reason why, provided that it is lawful to do so. If, despite all the checks, a person still considers they are lawfully present and that incorrect information has been provided, they will then be given the information they need to swiftly contact the Home Office so that any error can be rectified.
As is currently the case with data provided to CIFAS, the Home Office will be able to correct any mistake in real time so that the person’s details will immediately be removed from the data that are shared with the banks. That will be a far swifter and more effective means of correcting any error than in the process proposed in the amendment. If an account is closed, any credit balance will not be withheld from the individual, but returned to them by the bank in the normal way. In the unlikely event that an account is closed by mistake, the situation can be swiftly rectified in the way I have described without the serious consequences for the individual that have understandably been envisaged by the hon. and learned Gentleman. We believe the proposed compensation would therefore be disproportionate in the circumstances, and I invite him to withdraw the amendment.
Keir Starmer
I am grateful to the Solicitor General for his explanation and reassurance as to how it is intended the scheme will work. Would he be good enough to write to me or to the Committee, setting that out, since it is not in the Bill?
The Solicitor General
I am happy to write to the hon. and learned Gentleman. That is now on the record.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 3, as amended, agreed to.
Clause 19
Powers in connection with examination, detention and removal
Keir Starmer
I beg to move amendment 209, in clause 19, page 23, line 10, at end insert—
‘(2A) in paragraph 2(2) after “examine” insert “at the point of entry into the United Kingdom.”
To limit the power contained in Schedule 2, paragraph 2 of the Immigration Act 1971 to examination at the point of entry, as intended by Parliament.
We move to part 3 of the Bill, which is on enforcement. Amendment 209 is intended to limit the power contained in paragraph 2 of schedule 2 to the Immigration Act 1971 to examination of individuals at the point of entry—on arrival in the UK—as intended by Parliament. There has been an ongoing dialogue, for want of a better word, between various concerned parties and the Home Office on the purported use of the power in places other than the point of entry. A number of organisations, including Liberty, have written to the Home Office.
At one stage, any purported reliance on the provision as giving a power to examine away from the point of entry was not accepted, but there is concern as to whether that is still the position, and the amendment is intended to clarify that. If that is the position, the amendment ought to pose no problem, because it would clarify that the examinations are at the point of entry into the United Kingdom. If, on the other hand, it is said to be the case that paragraph 2 of schedule 2 to the 1971 Act does give a power of examination away from the point of entry, obviously I will have more to say in my reply.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Part 3 of the Bill deals with the powers that will be handed over to immigration officers, members of the public, on-service police officers and detainee officers, amongst others. Their powers will be extended to an unparalleled level. With the aim of clamping down on illegal immigration, this part of the Bill will equip immigration officers with enhanced search-and-seizure powers to collect evidence that will, according to Government, help to secure more civil penalties and removals.
Before discussing the specific amendments tabled, we should take note of the points made by the organisations that have provided evidence during the passage of the Bill. Liberty, in particular, has voiced a number of concerns about the Bill, including the extension of powers to be handed over to immigration officials, a lack of training and accountability for immigration officers, the expectation that those officers will carry out police-like activities and the transformation of members of the public into the UK Government’s very own immigration agents.
We should be concerned about the impact that this part of the Bill will have on people. Regardless of our own views on illegal immigration, the Bill needs to deal with illegal immigration in a humane, respectable and appropriate manner. The amendments tabled by Scottish National party and Labour Members aim to capture that mood and, in doing so, reduce the damaging impact that some of the clauses may have on people.
The Bill aims to clamp down on illegal immigration, and we should accept that action must be taken on those who are here illegally. Being classified as an illegal immigrant, however, creates a number of difficulties. As we have heard in our discussions on illegal working, the status of illegal immigrant can push a person and their family into a serious and vulnerable position. We should still treat people who are here illegally with respect and dignity. In addition, although illegal migration exists in the UK, we should not tackle it in a way that damages the experience that other migrants have while here. Clause 19 highlights that point. Tackling illegal immigration will have an impact on those who are living here or enter the UK illegally, but we should equally be concerned about the impact that the clause will have on migrants who have been granted legal authorisation to live in the UK.
The Solicitor General
The hon. Gentleman’s interpretation is interesting. I am sure it would be an attractive submission to make were the issue to be revisited, particularly in litigation. It is nearly 30 years since that case. Since then, the Home Office has relied on it. There has been no attempt by a Government of any colour to redefine things and go back to what he would describe as the original 1971 position. There must be a very good public policy reason for that; that reason is simply that it is entirely reasonable to allow the immigration authorities to have a little more time and space, based upon a reasonable suspicion, in which they can question a person who they reasonably suspect might be an illegal immigrant. The published guidance reflects the Singh v. Hammond judgment. It makes it clear that before any inquiry begins, there has to be reasonable suspicion.
My concern is that if the power of examination is limited only to the point of entry, we could have—perversely—an increase in people being arrested, because the power to ask questions is, as I said, not a power of arrest, but a different type of power. It allows people to give a reasonable explanation before we get to the stage of any apprehension or arrest, which I think is a good thing. I would not want to see a perverse situation where, in effect, the immigration authorities are shooting first and asking questions afterwards. I am sure that the hon. Gentleman would agree that that sort of approach would definitely inflame the situation and lead to the perverse consequences that we all worry about.
Keir Starmer
I have listened very carefully to the Minister’s explanation and justification. It must follow that operations at tube stations or other places against a number of individuals, based perhaps on what they look like, would be outwith the guidance and outwith the Minister’s explanation and role.
The Solicitor General
I entirely agree. If their operations relate to other intelligence—for example, on organised fare dodging or some sort of illegal activity on the tube that was either antisocial or worse—then clearly, that joint working would be very important and would reflect the best intelligence-led operations. We are all keen to eliminate a random use of these powers that would be arbitrary and would not, in my judgment—and I am sure, in any reasonable person’s judgment—reflect the criteria set out in the Singh case and reflected in guidance ever since.
The Solicitor General
I fully expect that any revised guidance notes published to reflect any changes passed in this Act will be a faithful reflection of the case law as we have outlined it today. I am absolutely sure that my colleagues in the Home Office will keep these matters under continuous review. If, indeed, a body of evidence emerges that challenges the position I have outlined today, I am sure that colleagues would look at that. It would perhaps be wrong of me to commit to anything specific today, but the hon. Lady has placed her concerns on the record for all to hear, and I am sure that the observations that we have made in this debate will be heard in another place and at other stages before the Bill, as we hope, eventually becomes law.
The final point I want to make is that I do not think that anybody wants to see the lawful and proportionate operations of our immigration authorities severely hampered. My genuine fear is that however well intentioned this amendment might be, it would lead to a hampering of those operations. Therefore, for those reasons, I urge Opposition Members to withdraw the amendment.
Keir Starmer
I am grateful to hon. Members for setting the context within which the powers that now exist operate and to the Solicitor General for his explanation. I accept that technically, in a number of legal respects, there is a difference between stop-and-check and stop-and-search, but I am not convinced that the impact on community relations follows from what are legal distinctions. In other words, I am not sure that the public out there quite accept and understand the nuances that we in this Committee might understand as the differences between the two, and there are real concerns about the way in which the existing power is being exercised. In the end, this comes back to the words that the Solicitor General used, which I jotted down. He said that it makes sense to have a little more time and space, and that that would avoid action possibly being taken on arrival that need not be taken. That is true in the sense that this is supposed to be a power that is excisable on arrival, but it very quickly moves from a little more space to a generalised power that has been exercised in the way that has been described. On that basis, I do not withdraw this amendment.
The Solicitor General
I do not want to criticise the hon. Lady for repeating an important point but, as I have already said to her, it is vital to remember that these powers are going to be exercised in a proportionate way, based on genuine intelligence. They are not going to be exercised in a scattergun way that would demand a significant increase in resources. We are confident that the proposals and powers we propose to introduce will make it easier for immigration officers to take that action and remove some of the understandable practical obstacles that exist with administrative procedures such as this, which then end up with a civil consequence as opposed to a criminal consequence. In short, at the moment it is easier for immigration officers investigating a criminal offence to search and seize than it is when it comes to the more practical measure of enforcing the civil consequences of decisions made after due process. This is a harmonisation of powers, if you like—let us remind ourselves that this is not a new power of entry. It relates to a time when immigration officers are already lawfully on the premises. It is a reasonable and proportionate measure. I think that the concerns that the hon. Lady raises are therefore met by the increased flexibility that the authorities are now going to enjoy.
Keir Starmer
As I think the Minister accepts, powers of search and seizure in connection with the imposition of civil penalties are rare in our law. There are other examples, but they are rare. The usual circumstances are for search and seizure powers to be in connection with the imposition of criminal penalties. The question I want to put to the Minister is, what is the principle? I do not think that anybody would argue that it is sensible to move to a situation where all civil penalties give rise to a power of search and seizure and therefore there is a sub-class that may have these powers connected to it. What is the principle behind this clause and that sub-group of civil penalties that attracts the search and seizure powers?
The Solicitor General
Putting it as simply as I can, the principle is that we want to ensure that, rather than having to resort to the use of criminal sanction—which, although it might mark the commission of offences and impose a punishment and penalty on individuals, could properly be seen as a disproportionate use of state power—we can resort to what, as I have said, is perhaps a lesser used path but one that is still within what the hon. and learned Gentleman and I would regard the bounds of compatibility with the European convention on human rights and our existing law. It is a proportionate use of powers. I remind the Committee that this is not a power of entry. Immigration officers have to be lawfully on the premises before these powers can be used—and, of course, there have to be reasonable grounds to suspect that the person with regard to whom the powers are being used may be liable to be detained and removed from the United Kingdom. There is a caveat, too: the search should only be to the extent reasonably required to find the documents, so a complete top to tail, fingertip search of the house, which would be wholly disproportionate, would not be within the particular use of this power.
I will give another example. There is concern about seizure of mobile telephones. Yes, there is a power to seize, but any such device on which electronic documents are stored will be seized only if it is not possible for the owner otherwise to produce the document in a visible and legible form. Again, that is an example of the proportionality and the safeguards that exist in this particular instance. I hope that on the grounds of principle and particular efficacy I have outlined what I regard as a middle way, which these provisions represent.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Search of premises in connection with imposition of civil penalty
Question proposed, That the clause stand part of the Bill.
The Solicitor General
Clause 23 inserts a new section 28ZI into the Immigration Act 1971 that provides for the retention of material seized by immigration officers for the purposes of a criminal investigation. This simply aligns the framework for the retention of anything seized by an immigration officer for a criminal purpose with that applying to police in England and Wales under the Police and Criminal Evidence Act 1984. That should be a welcome insertion that all Members will feel comfortable with, knowing that there is a harmonisation of the powers.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clause 24
Search for nationality documents by detainee custody officers etc.
Keir Starmer
I beg to move amendment 197, in clause 24, page 30, leave out lines 13 to 16
To remove the power to conduct a strip search from detainee custody officers.
We now move to an area of considerable concern. The amendment would remove the power to conduct a strip search from detainee custody officers. The context in which the amendment is put forward is one of considerable concern for some time about the exercise of powers over those in immigration detention—a concern that I believe is shared across the House.
Clause 24 (1) provides:
“The Secretary of State may direct a detainee custody officer, prison officer or prisoner custody officer to exercise any of the powers in subsection (6) in relation to—
(a) a detained person who is detained in a removal centre, prison or young offender institution, or
(b) a person who is detained in a short-term holding facility.”
Subsection (5) provides that the relevant officer must then comply with the direction, with subsection (4) providing that the Secretary of State must have reasonable grounds to believe that,
“a relevant nationality document will be found if a power in subsection (6) is exercised in relation to the person.”
If we press on through the clause, we find a point that ties in with amendment 198—that the definition of nationality document is very wide. Under subsection (15) “nationality document” means,
“a document which might—
(a) establish a person’s identity, nationality or citizenship”.
A document that might establish a person’s identify is a very wide class of documents for all of us. Many documents might establish or help to establish our identity. This gives the Secretary of State a wide power to make a direction in relation to a wide class of documents where the relevant officer must then comply, and the power to include strip search in an environment and a context where there has already been heightened concern about the exercise of powers within immigration detention.
Those are the reasons why these amendments will be pursued. They are pursued with real concern about how the powers will be exercised, based on many points that have already been raised and the reports that have been written about this area.
Sarah Champion
There is frequent reference to a young offender institute. Does my colleague share my concern that this means that the power to strip search will also be extended to children?
Keir Starmer
Unless the Minister assures me otherwise, that is precisely how far the strip search provisions will go and it heightens the concern about the exercise of these powers. In those circumstances, a powerful case has to be made for the power to exist at all and for it to be as wide as it is, bearing in mind the definition to which I have already referred.
Anne McLaughlin (Glasgow North East) (SNP)
I want to focus on Clauses 24 and 25, which hand power to detainee custody officers to perform strip searches. Women are in this country because they have experienced horrific sexual abuse in the countries they have come from. Whether or not they can prove it, does not take away from the fact that they have experienced it. All sexual abuse is horrific and we have all heard truly harrowing stories. I would like to share one with Members.
When I was a Member of the Scottish Parliament, I attended an event addressed by an academic from the Democratic Republic of the Congo, who had sought and been given asylum here. She was addressing a group of MSPs and talked about how on the day that she published her academic research into the sexual abuse of women in the DRC, she got a phone call from her family to say that by way of punishment the army had come to her family home, taken her teenage niece, and stood in a circle round her. One by one they raped that child and the rest of the family was forced to watch. It goes without saying that that is incredibly horrific. She hoped to be able to bring her niece over to this country. I do not know whether she ever did, because I never heard from her again, but let us say that she did and her niece ended up here. Her niece, like many women who have experienced such things, will no doubt have a lifelong terror of anyone in uniform—male and female soldiers conducted the abuse—and of people in authority. If it is absolutely necessary for anyone to undergo a strip search, it has to be conducted with professionalism and sensitivity and must meet the highest standards, which means extremely experienced, highly trained officers.
The Solicitor General
This is one of the most important functions that we as a Committee can perform: not having artificial debates but putting on the record the concerns, using the evidence we have as Members of Parliament or, indeed, from our observation of important events at places such as Yarl’s Wood, then seeking clarification from Ministers. I hope that my colleague the Minister for Immigration feels exactly the same way I do—that this is an opportunity for the Government to put on the line what we expect the standards to be when it comes to non-intimate full searches.
Keir Starmer
I am grateful for the Solicitor General’s explanation, and I understand exactly the case he puts for the power, but there is sometimes, as he will understand, a gap between the words that go into Hansard as a result of this exchange and what happens on the ground. That is the real cause for concern, particularly in the light of the Yarl’s Wood example. What practical steps can be taken to turn the assurances the Solicitor General is rightly giving into reality on the ground?
The Solicitor General
We are going to provide additional guidance on the power to search under clause 24. That is for those who are directing the search on behalf of the Secretary of State and those who are conducting the search. Detainee custody officers, prison officers and prisoner custody officers are trained in the use of search powers, which includes strip searches. Detention services order 9/2012 provides instructions to detainee custody officers, and prison service instructions 67/2011 and 16/2014 provide instructions for searching persons in prisons and young offenders institutions respectively. We will build on those and ensure that the new provisions contain clear guidance.
The hon. Member for Rotherham made a point about the wording, “in the presence of”. We would say that the words are clear: it obviously means the person conducting the search as well. I hope that the explanation that I give as the Minister presenting the clause will be sufficient clarification to allay her fears on that point.
The Solicitor General
I was coming on to that very point. The power to search children in this way will only be used in exceptional circumstances. Let me explain the background. The Government’s policy is not to detain children in immigration and removal centres, so as part of the family removal process where children are held in a short-term holding facility a few days prior to removal, we believe that this search power will not be necessary because we will have the travel documents in place already.
Regarding young offender institutions, children under the age of 18 are exempt from the automatic deportation provisions for foreign national criminals, so one ground is already removed. Let me give me an example of exceptional circumstances. A 17-year-old male might be held in a young offender institution following a conviction of rape. He is facing deportation on conducive grounds because of this sentence and gang affiliations. If the Secretary of State has reasonable grounds to believe that he may have nationality documents in his possession, then it may be necessary for officers to conduct a full search in the way that we have described. I hope that gives the hon. Lady reassurance that we really are talking about exceptional circumstances, such as an older male who has perhaps been convicted of a very serious offence, where there is a clear public interest in making sure that all reasonable steps are taken before removal from the UK.
Keir Starmer
The example that the Solicitor General gives is a 17-year-old male. What does he see as the limits on children under the age of 17? At what age does it become inappropriate to ever exercise this power? I know that is a difficult question in general but this is a sensitive area. A 17-year-old male is one thing—he has given a good example, but there are clearly other examples of concern. What are the limits as the age goes down?
The Solicitor General
The only answer I can give is that it will depend on a thorough case-by-case analysis. For example, it might be somebody younger who is a persistent offender who has committed a very serious offence. It would be wrong to say that there would be a hard and fast threshold, other than one that would be based on a genuine case-by-case analysis. Many people in this room have had experience of the youth offending system. I think that with training and guidance, we can get this right and make sure that the power is not used in a disproportionate way that reasonable people would regard as an infringement and an inappropriate use of the power with regard to young people. [Interruption.] There is Ministry of Justice guidance which says that searches of males in young offender institutions must be risk based or following intelligence on a case-by-case basis. That is the guidance that will be followed. There will be a read-over and therefore the fear of randomness and of arbitrary judgment is removed by the use of that guidance and careful case-by-case analysis.
Keir Starmer
I appreciate that to some extent we are exploring the limits of this as we go along and I am grateful for the way that the Minister is dealing with that. It may be a simple question of reassurance but are there any circumstances where under this provision, a child under the age of 10 would be subject to a search? I do not think that would be available under any other provision in criminal law because they would be under the age of criminal responsibility. This is a genuine concern. I am not asking for an instant answer if it is impossible. It may be something that is better done in writing. I think for all criminal law provisions, 10 would be the lower trigger for obvious reasons.
The Solicitor General
I think, in asking the question, the hon. and learned Gentleman is almost answering the point. In that case, a child under 10 would not have been convicted of any criminal offence. That is an important start. I am happy to give the assurance that the measure would not apply to a child under 10.
Keir Starmer
Of course, the question answers itself regarding young offender institutions. I was not exploring that aspect but I am grateful for the Solicitor General’s assistance. My concern relates to those and any other centres. It is an exploring question, rather than one that may be capable of being answered straight off the cuff.
The Solicitor General
I am happy to give a direct answer. In any circumstance, this will not apply to children under 10.
Keir Starmer
I have said all that I need to say on amendment 197. I wish to press the amendment to a vote.
Question put, That the amendment be made.
The Chair
We now come to amendment 198 to clause 24. The hon. and learned Member for Holborn and St Pancras has briefly discussed the amendment but he needs to move it.
Keir Starmer
I beg to move amendment 198, in clause 24, page 30, line 45, leave out from “which” to end of line 2 on page 31 and insert
“establishes a person’s nationality or citizenship.”
To narrow the definition of nationality document to mean a passport or identity card for the purposes of custody officers, prison officers and prison custody officers who are given powers to search for nationality documents.
I think that the Solicitor General avoided eliding amendments 197 and 198, but I am not sure that I did; therefore, I have already made the point about amendment 198. He sought to give some assurances in his answers to my questions on the previous amendment. My question is the same. The category of nationality documents is potentially very wide. What practical steps can be taken to bring it within reasonable limits and ensure that it is exercised proportionately? It may be that it could go in the envisaged guidance, but it would be useful to have some reassurance about this category of document.
Keir Starmer
I appreciate that the definition has been used elsewhere. It is the combination of that definition with the strip search that is of such great concern, although in the circumstances, and given the assurances on strip searches, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 ordered to stand part of the Bill.
Clause 25
Seizure of nationality documents by detainee custody officers etc
Question proposed, That the clause stand part of the Bill.
The Solicitor General
Clause 25, like clause 24, deals with a gap in the powers of officers charged with the care and security of immigration detainees and foreign national prisoners who are liable to deportation to obtain nationality documents to help the Home Office remove these people from the United Kingdom. As noted on a number of occasions, the ability to remove foreign nationals who have no right to remain here is often delayed by the need to obtain a passport or other travel document. We need to take all necessary steps to obtain those documents that will facilitate removal. This clause allows relevant officers to seize nationality documents that are found in the course of a routine search conducted using their existing powers and to seek the Secretary of State’s consent to retain that document and to pass it on to the Home Office where the Secretary of State has reasonable grounds to believe the document will help with the person’s removal from the UK.
Question put and agreed to.
Clause 25 accordingly ordered to stand part of the Bill.
Clause 26
Amendments relating to sections 24 and 25
Question proposed, That the clause stand part of the Bill.
Keir Starmer
I beg to move amendment 220, in schedule 4, page 77, line 33, at end insert—
‘(1) The Immigration and Asylum Act 1999 is amended as follows—
(2) in section 145(1) for “may” substitute “must”.”
Makes mandatory the issuing a code of practice that immigration officers must follow.
The Chair
With this it will be convenient to discuss amendment 221, in clause 54, page 45, line 9, at end insert—
‘(3A) Sections 19 to 28 shall come into force on a day to be appointed, that day being no earlier than the day on which the Secretary of State gives a direction under s 145 of the Immigration Act 1999 and lays before Parliament the codes specified in that direction.”
To delay the entry into force of the provisions in Part 3 Enforcement under the subheading “Powers of immigration officers” until such time as the Secretary of State has made a direction under s 145 of the Immigration and Asylum Act 1999 and has laid the codes specified in that direction before both Houses of Parliament.
Keir Starmer
Let me start by setting out the purpose of these two amendments. Amendment 220 is intended to make mandatory the issuing of the code of practice that immigration officers must follow. Amendment 221 would delay the entrance into force of the provisions of part 3—which concerns enforcement, under the sub-heading “Powers of immigration officers etc”—until such time as the Secretary of State has made a direction under section 145 of the Immigration and Asylum Act 1999, and has laid the code specified in that direction before both Houses of Parliament. The context here is an agreement across the House that there has to be care, professionalism, necessity and proportionality in the exercise of all the powers that we have been discussing this afternoon.
The amendments are prompted by the current mismatch between Home Office guidance and the successive reports of the chief inspector of borders and immigration. To elaborate on that, the Home Office guidance by and large suggests that enforcement raids on premises and businesses are directed on the basis of specific intelligence about an individual who does not have leave to be in the UK. However, successive reports by the chief inspector of borders and immigration paint a different picture. In the inspection that the chief inspector conducted from October to November 2013, he reported that 59% of the cases he examined lacked the required justification for the use of the power and that in a further 12% there was insufficient information for him to form an opinion. Taken together, that 71% is a very high percentage of cases that the inspector is reporting. There is a mismatch between the guidance being issued and what is happening on the ground.
In the same report that related to October and November 2013, the chief inspector reported high varying use of the power across the country. In south London it was used in two-thirds of illegal working operations, and in east London it was used in 3% of cases. Therefore, the purpose of the amendments is to bolster the provisions for a code, to make the code mandatory and to delay the provisions until the code is laid before the Houses of Parliament.
The Solicitor General
In essence, our objections to these amendments are, with respect, that they have no substantial effect, given that it is already the case that immigration officers’ coercive powers are subject to the Immigration (PACE Codes of Practice) Direction 2013 and that the specified codes themselves—that is, the PACE codes of practice—have been laid before both Houses of Parliament.
Section 145 of the Immigration and Asylum Act 1999 makes it mandatory that immigration officers should have regard to such provisions as the PACE codes of practice as may be specified. “Specified” means in a direction given by the Secretary of State. It is already the case that the 2013 direction applies the relevant parts of the PACE codes of practice to the powers exercised by immigration officers. This direction is available in the Libraries of both Houses and is also published on the gov.uk website. Hon. Members will be well aware that any changes to the PACE codes of practice are laid before Parliament. We will of course update the immigration direction to reflect the new immigration powers in part 3 of the Bill and will ensure that is done in time for the commencement of these enforcement powers.
The hon. and learned Gentleman raised some points about a criticism about the use of enforcement powers, for which I am grateful to him. I think it was Liberty that referenced some statistics from the independent chief inspector of borders and immigration’s report on the use of the power to enter business premises without a search warrant—that was published in March of last year. An internal review had already highlighted that as an area for improvement, and the inspector’s report noted the following:
“During the course of our inspection, the Home Office moved quickly to address the issues that we identified. This was positive and demonstrated that the Home Office was, for the first time, starting to exert a much stronger grip on how the power was used by its staff.”
I hope that that is encouraging information for all Members present.
Where immigration officers are entering premises using a warrant, in order for that warrant to be issued, they will have to have satisfied the court that there are reasonable grounds for suspecting that a person who is liable to be arrested for a relevant offence is to be found on the premises or that there are reasonable grounds for believing that material that is likely to be relevant evidence of an immigration offence is on the premises. The safeguards for the use of these warrants is set out in sections 28J and 28K of the Immigration Act 1971 and reflect those provisions in the Police and Criminal Evidence Act 1984.
In the light of those points, I hope that the hon. and learned Gentleman will agree to withdraw his well-intentioned amendment.
Keir Starmer
I am grateful for the Minister’s explanations and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 30, in schedule 4, page 78, line 1, leave out from “application” to “, or” in line 3.—(The Solicitor General.)
See the explanatory statement for amendment 24.
Schedule 4, as amended, agreed to.
Clause 28 ordered to stand part of the Bill.
Clause 29
Immigration bail
Keir Starmer
I beg to move amendment 115, in clause 29, page 33, line 13, leave out “bail” and insert “temporary admission”
See explanatory statement for Amendment 113.
The Chair
With this it will be convenient to discuss the following:
Amendment 117, in schedule 5, page 78, line 29, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 118, in schedule 5, page 78, line 40, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 119, in schedule 5, page 79, line 2, leave out “bail to a person, grant that person bail” and insert “temporary admission to a person, grant that person temporary admission”.
See explanatory statement for Amendment 113.
Amendment 120, in schedule 5, page 79, line 11, leave out “immigration bail, in relation to a person, are to the grant of bail” and insert “temporary admission, in relation to a person, are to the grant of temporary admission”.
See explanatory statement for Amendment 113.
Amendment 121, in schedule 5, page 79, line 14, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 122, in schedule 5, page 79, line 15, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 123, in schedule 5, page 79, line 22, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 124, in schedule 5, page 79, line 24, leave out “immigration bail from when a grant of immigration bail” and insert “temporary admission from when a grant of temporary admission”.
See explanatory statement for Amendment 113.
Amendment 125, in schedule 5, page 79, line 26, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 126, in schedule 5, page 79, line 38, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 127, in schedule 5, page 80, line 1, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 128, in schedule 5, page 80, line 3, leave out “Immigration bail” and insert “Temporary admission”.
See explanatory statement for Amendment 113.
Amendment 129, in schedule 5, page 80, line 5, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 130, in schedule 5, page 80, line 11, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 131, in schedule 5, page 80, line 15, leave out ““bail condition”, in relation to a person on immigration bail, means a condition to which the person’s bail is subject.” and insert ““temporary admission condition”, in relation to a person on temporary admission bail, means a condition to which the person’s temporary admission is subject.”.
See explanatory statement for Amendment 113.
Amendment 132, in schedule 5, page 80, line 20, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 133, in schedule 5, page 80, line 21, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 134, in schedule 5, page 80, line 23, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 135, in schedule 5, page 80, line 28, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 136, in schedule 5, page 80, line 30, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 137, in schedule 5, page 80, line 37, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 138, in schedule 5, page 80, line 40, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 139, in schedule 5, page 80, line 46, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 140, in schedule 5, page 81, line 2, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 141, in schedule 5, page 81, line 7, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 142, in schedule 5, page 81, line 9, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 143, in schedule 5, page 81, line 10, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 144, in schedule 5, page 81, line 11, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 145, in schedule 5, page 81, line 13, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 146, in schedule 5, page 81, line 43, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 147, in schedule 5, page 81, line 44, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 148, in schedule 5, page 82, line 3, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 149, in schedule 5, page 82, line 9, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 150, in schedule 5, page 82, line 10, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 151, in schedule 5, page 82, line 35, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 152, in schedule 5, page 82, line 41, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 153, in schedule 5, page 82, line 43, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 154, in schedule 5, page 83, line 9, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 155, in schedule 5, page 83, line 22, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 156, in schedule 5, page 83, line 25, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 157, in schedule 5, page 83, line 33, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 158, in schedule 5, page 83, line 35, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 159, in schedule 5, page 83, line 41, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 160, in schedule 5, page 83, line 43, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 161, in schedule 5, page 84, line 2, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 162, in schedule 5, page 84, line 34, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 163, in schedule 5, page 84, line 41, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 164, in schedule 5, page 84, line 43, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 165, in schedule 5, page 84, line 47, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 166, in schedule 5, page 85, line 2, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 167, in schedule 5, page 85, line 3, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 168, in schedule 5, page 85, line 23, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 169, in schedule 5, page 85, line 25, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 170, in schedule 5, page 85, line 37, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 171, in schedule 5, page 86, line 5, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 172, in schedule 5, page 86, line 15, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 173, in schedule 5, page 86, line 18, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 174, in schedule 5, page 86, line 36, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 175, in schedule 5, page 87, line 2, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 176, in schedule 5, page 87, line 12, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 177, in schedule 5, page 87, line 31, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 178, in schedule 5, page 87, line 32, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 179, in schedule 5, page 87, line 35, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 180, in schedule 5, page 87, line 38, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 181, in schedule 5, page 87, line 42, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 182, in schedule 5, page 87, line 43, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 183, in schedule 5, page 87, line 45, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 184, in schedule 5, page 88, line 1, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 185, in schedule 5, page 88, line 17, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 186, in schedule 5, page 88, line 19, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 187, in schedule 5, page 88, line 23, leave out “Bail” and insert “Temporary admission”.
See explanatory statement for Amendment 113.
Amendment 188, in schedule 5, page 89, line 23, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 189, in schedule 5, page 89, line 26, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 190, in schedule 5, page 89, line 32, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 191, in schedule 5, page 89, line 34, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 192, in schedule 5, page 89, line 37, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 193, in schedule 5, page 89, line 38, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 194, in schedule 5, page 90, line 1, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 195, in schedule 5, page 90, line 3, leave out “immigration bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
Amendment 196, in schedule 5, page 90, line 5, leave out “bail” and insert “temporary admission”.
See explanatory statement for Amendment 113.
You do not have to speak to all the amendments, Mr Starmer.
Keir Starmer
Thank you, Mr Owen. It is a daunting list of amendments; I am sure those on the Government Benches are asking themselves whether I intend to push each of them to a vote, which would probably take us most of the rest of the afternoon.
These amendments are all directed to the concern that there is a merging in the Bill of immigration bail into what is, in truth, temporary admission. Temporary admission, temporary release and bail are being replaced by one form of admission, subject to conditions, which is being called “immigration bail”. The purpose of the amendments is to re-name “immigration bail” as “temporary admission”. Not only will that accurately reflect the status of the individual; it carries with it presumptions and assumptions about the way they are to be treated. The best example of that I can give is that, in relation to temporary admission, the presumption is in favour of temporary admission. By re-naming it immigration bail, the presumption—not in the Bill, I accept, but in practice—is one of detention, to which bail is the exception. This will obviously affect a wide category of individuals, including refugees, children, survivors of torture, trafficked persons and so on. Those presumptions and assumptions make a real difference on the ground and these amendments address that concern.
Gavin Newlands
It is important to remember that not all people who are being detained in detention centres are criminals or offenders. With that in mind, the wording and terminology is extremely important as we do not want to create a system or a process that gives a false, misleading or wrong impression. The Bill removes the concept of temporary admission and creates a situation whereby anyone without leave who is waiting for a decision on their application will be on immigration bail. Therefore, saying that someone is on immigration bail implies that they have conducted a criminal act of some sort, and that they are on temporary release from their place of imprisonment. However, as has been pointed out by the helpful House of Commons Library paper, people can be detained for a number of innocent and excusable reasons, such as detention until such time as a person’s identity or basis of claim has been established—asylum seekers, stateless citizens and so on. It is not right to claim that such people are on bail, since they are innocent people who have not done anything wrong. As such, “temporary admission” is a more fitting and appropriate term.
The Immigration Law Practitioners’ Association and others make the important point that:
“The terminology of ‘immigration bail’ suggests that detention is the norm and liberty an aberration and also suggest that persons seeking asylum are a form of criminal”.
Liberty also makes the point that:
“A large number of asylum seekers, previously granted temporary admission will now be seen exclusively through a prism of detention and bail, casting aspersions of illegitimacy and criminality”.
James Brokenshire
The tone the Committee has adopted towards the measures in the Bill has been that they should be firm but fair. That is the approach that I have sought to provide. Yes, this is about sending a clear message that those who have no right to be in the country should leave, and we will support and facilitate that. With regard to the specific provision, it is not a pejorative term. The term immigration bail is already used and I have sought to distinguish it from criminal bail. That is understood in respect of the differences in the system.
The hon. Member for Paisley and Renfrewshire North was right that people who might be subject to an Immigration Act might not have committed a criminal offence. Detention can be and is used properly for the removal of someone who does not have the right to be in the country to their home country. Bail may be appropriate if it is determined that the principles that underpin detention—often referred to as the Hardial Singh principles—are not adhered to. In such circumstances, bail or continued detention may not be appropriate.
It is understood in that context, rather than having any negative sense. I certainly would not wish to communicate to the Committee—and I do not think I have—any negative approach or term by the use of the word bail in the context of this provision. I do understand the sentiment and the point made by hon. Members across the Committee. With that clarity of intent and approach towards the provisions, I hope that the hon. and learned Member for Holborn and St Pancras will withdraw the amendment.
Keir Starmer
The Minister has been very clear in his response to the proposed amendments, both as to the intent and as to what is not intended to change. I am grateful to him for that and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
James Brokenshire
I rise briefly to speak to clause 29 as I know that the more substantive debate will be on the underlying schedule—schedule 5. I emphasise that the proposal is intended to give clarity to the circumstances in which immigration bail is intended to operate. There are various lines of cases that operate in this sphere, in particular a current Court of Appeal case that has suggested that immigration bail conditions could be applied only when there was a right to detain. That certainly goes against existing understanding and practice and pre-existing law. That particular case is subject to appeal to the Supreme Court and has been stayed, so it does not have immediate effect.
Our judgment is that the provisions in clause 29 and schedule 5 give further clarity and are important in the context not only of simplification, putting everything into one place and promoting better understanding, but of providing clarity and certainty in law. That is why I hope that the Committee will be minded to include the clause in the Bill.
Question put and agreed to.
Clause 29 accordingly ordered to stand part of the Bill.
Schedule 5
Immigration bail
Keir Starmer
I beg to move amendment 199, in schedule 5, page 78, line 28, at end insert—
“( ) The following provisions apply if a person is detained under any provisions set out in paragraph (current Schedule 5 paragraph 1(1))—
(a) the Secretary of State must arrange a reference to the First-tier Tribunal for it to determine whether the detained person should be released on bail;
(b) the Secretary of State must secure that a first reference to the First-tier Tribunal is made no later than the eighth day following that on which the detained person was detained;
(c) if the detained person remains in detention, the Secretary of State must secure that a second reference to the First-tier Tribunal or Commission is made no later than the thirty-sixth day following that on which the detained person was detained and every twenty-eighth day thereafter;
(d) the First-tier Tribunal hearing a case referred to it under this section must proceed as if the detained person had made an application to it for bail; and
(e) the First-tier Tribunal must determine the matter—
(i) on a first reference, before the tenth day following that on which the person concerned was detained; and
(ii) on a second and subsequent reference, before the thirty-eighth day following that on which he was detained.
( ) For the purposes of this paragraph, ‘First-tier Tribunal’ means—
(a) if the detained person has brought an appeal under the Immigration Acts, the chamber of the First-tier Tribunal dealing with his appeal; and
(b) in any other case, such chamber of the First-tier Tribunal as the Secretary of State considers appropriate.
( ) In the case of a detained person to whom section 3(2) of the Special Immigration Appeals Commission Act 1997 applies (jurisdiction in relation to bail for persons detained on grounds of national security) a reference under sub-paragraph (3)(a) above, shall be to the Commission and not to the First-tier Tribunal.
( ) Rules made by the Lord Chancellor under section 5 of the Special Immigration Appeals Commission Act 1997 may include provision made for the purposes of this paragraph.”
To make provision for automatic bail hearings, after eight days, 28 days and every 28 days thereafter.
The Chair
With this it will be convenient to discuss the following:
Amendment 200, in schedule 5, page 79, line 22, leave out paragraph 1(6)
To remove from the Bill the power for the Secretary of State to detain an individual granted bail by the Tribunal without just cause.
Amendment 210, in schedule 5, page 79, line 42, leave out “, occupation or studies” and insert “or occupation”
Probing amendment to understand why restriction on a person’s studies is to be included in the list of conditions to which a person may be subject when on immigration bail.
Amendment 211, in schedule 5, page 80, leave out lines 1 and 2
Probing amendment to ascertain what additional conditions are envisaged to be imposed on immigration bail.
Amendment 201, in schedule 5, page 80, line 5, leave out sub-paragraphs (3) to (5)
To remove the provision which would allow the Secretary of State to override a decision of the Tribunal with regard to electronic monitoring or residence conditions placed on immigration bail.
Amendment 212, in schedule 5, page 80, line 32, leave out “in that person’s interests or”
Amendment 213, in schedule 5, page 80, line 33, leave out “and”
Amendment 214, in schedule 5, page 80, line 34, leave out sub-paragraph (f) and insert—
(f) whether the person’s removal from the UK is imminent, and
(b) such other matters as the Secretary of State or the First-tier Tribunal thinks relevant.”
To remove a requirement that that the Tribunal or the Secretary of State have regard to - when considering a grant of bail - whether continuing immigration detention is necessary in a person’s best interests.
Amendment 202, in schedule 5, page 83, line 4, leave out sub-paragraph (5)
To remove the provision which would allow the Secretary of State to override a decision of the Tribunal with regard to electronic monitoring or residence conditions placed on immigration bail.
Amendment 203, in schedule 5, page 83, line 12, leave out sub-paragraphs (8) to (10)
To remove the provision which would allow the Secretary of State to override a decision of the Tribunal with regard to electronic monitoring or residence conditions placed on immigration bail.
Amendment 204, in schedule 5, page 83, line 22, leave out sub-paragraph 7(1), (2), and (3) and insert—
7 (1) The Secretary of State must provide, or arrange for the provision of, facilities for the accommodation of persons released on immigration bail.”
To restore the power, provided by section 4(1)(c) of the Immigration and Asylum Act 1999, for the Secretary of State to provide such accommodation pursuant to a detainee’s application for bail to the Tribunal.
Amendment 205, in schedule 5, page 83, leave out lines 30 to 32
To remove the purported limitation on the use of the power to provide support to persons to enable them to meet bail conditions to circumstances where the Secretary of State considers that there are “exceptional circumstances” justifying its use.
Amendment 206, in schedule 5, page 83, line 29, at end insert—
‘(2A) If the Secretary of State decides that the applicant does not qualify for support under sub-paragraph (2), the applicant may appeal to the First-Tier Tribunal (Asylum Support).”
To provide a right of appeal to the First-tier Tribunal (Asylum Support) where the Secretary of State decides not to provide support or to discontinue support under this Part to enable a person to meet bail conditions.
Amendment 207, in schedule 5, page 84, line 34, leave out from “(a)” to “otherwise”
To provide that a person arrested without a warrant and detained because it is considered that they are likely to breach any of their bail conditions or that there are reasonable grounds for suspecting that they have done so must be brought before the First-tier Tribunal.
Keir Starmer
There are a number of amendments grouped together for obvious reasons. In my view, amendment 199 probably stands slightly apart from the others, being of a different nature, and I will deal with that first.
Amendment 199 would make provision for automatic bail hearings after 28 days and every 28 days thereafter. Bail hearings in immigration cases have been a source of considerable concern on both sides of the House and outside the House. There is concern about how bail hearings work and how effective they are, and there have been a number of questions as to what changes should be made.
Sarah Champion
My hon. and learned Friend is making a strong case but, on the flip side, surely it is in no one’s interest to have people languishing in a detention centre, because the cost to the taxpayer will be enormous.
Keir Starmer
The flip side of this argument is important. It is right that we should not detain people who do not need to be detained, both for their own sake and because it is costly to do so. I raise this issue because often, since I have been here, we take up the case across the House of those with mental health issues and many Members readily pledge greater support. It is those who have mental health issues who are least likely to be able to operate under the current system with no automatic right of bail. When we sign those pledges, make those commitments and say what we say about mental health, there is an obligation to see it through in a practical context—where it makes a real difference to people with mental health issues. In that spirit we put forward the amendment for automatic bail hearings, to cure a defect in the system that has been picked up by the APPG, has been accepted by the House and goes to central issues about vulnerable people and their ability to access a review of the decision to detain them.
Sarah Champion
If I went into a situation such as this, it would put enormous pressures on my own mental health. My hon. and learned Friend is talking about people who go into detention centres with mental health issues, but I would also say that to be incarcerated in sometimes very extreme situations will bring on underlying mental health issues that perhaps no one knew about.
Keir Starmer
I am grateful for that intervention and I agree. I wait to hear the Minister’s response on the amendment. I conclude by asking what the Government response to the APPG inquiry and its recommendations is, in light of their acceptance by the House. Mr Owen, I do not know if it is convenient to go on to the other amendments at this stage as they move into different territory.
The Chair
It is indeed convenient to debate them now if the hon. and learned Gentleman wishes to proceed.
Keir Starmer
I am happy to. Amendment 200 would remove from the Bill the power of the Secretary of State to detain without just cause an individual granted bail by the tribunal.
Clause 29 and schedule 5 taken together make a significant change to the powers of the Secretary of State and the first-tier tribunal in relation to immigration bail. The changes will have a significant effect on the ability of the tribunal to provide an effective safeguard against prolonged detention. In particular, paragraph 1(6) of schedule 5 provides that a grant of bail by a tribunal does not prevent the person’s subsequent re-detention. That is a significant departure from current provisions where bail is granted by a tribunal, under which re-detention is permissible only where the individual has breached the conditions of their bail. Paragraph 1(6) would allow the Secretary of State to effectively ignore and overrule the decision of an independent tribunal to grant bail. That is an issue of some concern.
There is a point in being able to go to a tribunal. It is generally recognised that at some point within the process, the individual must have access to an independent judicial body, with all the attributes of a judicial body, in order for a decision to be made on their liberty. Put bluntly, there is not much point in providing for an individual to go before a body with judicial characteristics if, at the end of that exercise, the Secretary of State can simply override the tribunal. In that sense, the amendment makes a point about rule of law and separation of powers. In what circumstances is it envisaged that it will be necessary for the Secretary of State to have the power to override a tribunal on a question of bail such as this?
Moving on to amendment 210—
The Chair
Just to help the Minister, he can refer to the amendments either as a whole group or individually. It is up to you.
The Chair
No, I am just offering you advice that you can speak to the amendments individually or as a group.
The Chair
Order. We are expecting a Division in a few minutes’ time, which will provide an opportunity to have a break for 15 minutes.
Keir Starmer
I am grateful, Mr Owen. As I have said on several occasions, I am learning the procedures, so I will simply continue until someone wrestles me to the ground or otherwise orders me to sit down.
Amendment 210 is probing and seeks to understand why a restriction on a person’s studies is to be included in the list of conditions, imposed by the Home Secretary, to which a person may be subject when on immigration bail. The reason for that is unclear to us. A decision from the Home Office should take about six months, but a constituent who came to see me last Friday has been waiting for two years. He was more concerned about the fact that he could not work, but such decisions can take a considerable period of time, so the introduction of a condition meaning that someone cannot study requires significant explanation.
Amendment 211 is probing and seeks to ascertain what additional conditions are envisaged to be imposed on immigration bail. The Bill states that a condition to require a person
“to appear before the Secretary of State or…Tribunal at a specified time and place”
can be imposed on someone currently on temporary admission, now renamed immigration bail. The conditions imposed by an immigration officer are those currently—
Keir Starmer
I think I had just got pretty much to the end of amendment 211, dealing with additional conditions. The concern here is that there has been the ability, obviously, to impose conditions for a significant period of time under an understood regime. That now includes a power to impose additional conditions that are unspecified. At the moment, as I understand it—unless the Minister says otherwise—judicial review is the only opportunity to challenge in many cases. There is a concern about what the likely additional conditions are. What is the need for them, given that the current regime has been in operation for some time, and what assurances can be given on challenging the conditions without going to the High Court through judicial review, which is a long and expensive route and only for those who can get support or otherwise afford to go that route?
James Brokenshire
On the point about vulnerability and acute mental health episodes, that is something that we are considering closely with the Department of Health. I am clear that an individual in those circumstances is best suited in a health setting and not in detention. At times, difficult assessments must be made in ensuring that transfer. Perhaps that will give him a sense of the purpose and manner in which we apply the powers in relation to mental health. He might be reading something into the Bill that we certainly do not read in that way.
Keir Starmer
I am grateful for that intervention; it certainly clarifies the issue and deals with part of my concern. As the Minister will know, the High Court looked at this in 2010. The case then went to appeal and its decision was upheld. The High Court said that,
“the use of immigration detention to protect a person from themselves, however laudable, is an improper purpose”
and that,
“there are alternative statutory schemes available under section 48 of the Mental Health Act 1948 or under the Mental Health Act 1983”
for people with acute and real mental health issues. Notwithstanding the intervention, the concern is that on their face, the provisions are wide enough to enable an individual to be detained in such circumstances. I will wait to hear what the Minister says about how his assurance will be carried into effect in practice, because the provisions are currently wide in the Bill.
I conclude by asking the Minister two questions. First, in what circumstances, if not the harm to self or harmed by others examples—classic criminal justice examples—is it envisaged that the provisions would be used? Secondly, how does the Minister intend to put his assurance, or at least his statement of intention, into practice to ensure that it is not used in the way that the High Court thought inappropriate, as endorsed by the Court of Appeal in 2011 and 2014, and is now considered inappropriate in a criminal justice context? I will wait for the Minister to deal with those two questions before saying any more on that.
Amendment 204 is intended,
“to restore the power provided by Section 4(1)(c) of the Immigration and Asylum Act 1999 for the Secretary of State to provide such accommodation pursuant to a detainee’s application for bail to the Tribunal.”
It is a practical amendment. In part 5 of the Bill, the Home Office is making changes to arrangements for support to be applied to persons under immigration control. We will get to that part of the Bill in due course. One set of circumstances in which support is provided is in the case of persons who might be released on bail who would otherwise be destitute. In other words, section 4(1)(c) of the Immigration and Asylum Act 1999 is used to enable an individual to be granted bail. The concern is that in the absence of that support, the individual will not be able to propose a bail address to the tribunal. If that is the case, they will be detained in circumstances where they would not otherwise be detained.
I am not sure whether that was the intention of those drafting the Bill, but it appears to be one of the consequences. If we are wrong about that, we will reconsider the amendment, but it seems that the consequence could be that a number of people who under the current system would be granted bail without difficulty, because they can provide an address because of the support they have received, will now not be able to do so and will not be bailed, to their detriment and to the detriment of public expense.
Amendment 206 picks up the same theme. It is intended:
“To provide a right of appeal to the First-Tier Tribunal (Asylum Support) where the Secretary of State decides not to provide support or to discontinue support under this Part to enable a person to meet bail conditions”.
I think that the background points are pretty much the same as the points that I have just made.
Amendment 205, linked to the previous two amendments, would remove the purported limitations on the use of powers to provide support to people to enable them to meet bail conditions to situations where the Secretary of State considers that there are “exceptional circumstances” justifying its use. We have similar concerns here. We wait to hear what the Minister has to say on those three amendments. If our concerns about possible unintended consequences are allayed, it may be sufficient for us to have set out the concerns.
Finally, amendment 207 would provide that a person arrested without a warrant and detained because it was considered that they had breached bail, or there were reasonable grounds for suspecting that, is brought before a tribunal. The amendment almost speaks for itself. In a number of contexts, individuals are released on bail or condition. It happens frequently in the ordinary criminal justice arena. It also operates for those released from prison on condition. In most circumstances, where someone is arrested and re-detained on the basis that they have breached bail conditions, there is usually a provision for a tribunal before which that individual can argue that they had not in fact breached bail. There are thousands of cases, year in, year out, where on examination by a tribunal it is found that the suspected breach of bail is not made. The person concerned is usually put back in the position they were in before being arrested for breach of a bail condition. The amendment would align the provisions with that common-sense approach that prevails elsewhere. That brings me to the end of this group of amendments.
The Chair
I am grateful to the hon. Lady. Points of order are for me, not for the Minister. I do not consider that to be a point of order; it is more a point of clarification and a reminder to the Minister that he has promised something. I am sure that he will do his best to deliver that.
James Brokenshire
Before turning to the amendments tabled by the hon. and learned Gentleman, I will give way to him.
Keir Starmer
Perhaps the Minister would clarify something. I understand the argument that mental health in and of itself does not override the provisions if there is another reason to detain. It would depend on the facts of the case. The assurance the Minister has just given applies where mental health is the only concern, and there is not another reason to detain. Would he be good enough to write to me to set out what he has just said? That is the real issue of concern. I accept that in the other cases, there is the overlap that he has described.
James Brokenshire
I appreciate the manner in which the hon. and learned Gentleman has sought to raise this issue. As I have tried to elucidate, there has to be an examination on a case-by-case basis but, to return to the principles, the purpose of immigration removal centres and of detaining somebody should be for removal. However, there may be public protection issues as well, particularly if we are looking at foreign national offenders, for example. There are other elements which sit alongside this. There could be someone who is potentially dangerous, and obviously balancing decisions must be taken on the use of immigration detention for public protection reasons.
I understand the point that the hon. and learned Gentleman makes about whether, from the utility of a public protection standpoint, the provisions and the conditions for immigration bail might be triggered purely on the basis of the individual’s state of mind. I am happy to reflect further on that. Certainly, as I have set out, the approach and the intent concerns what is an appropriate setting for someone. I will look at what the hon. and learned Gentleman has said in Committee and, if there is some further clarification that I can offer, I will certainly review that. There is a sense of the most appropriate setting, and immigration removal centres have to meet certain criteria. The normal Hardial Singh-type principles on detention operate. The hon. and learned Gentleman has made a specific point on mental health, and I will reflect further on whether there is anything I can add to what I have said.
Amendment 199 would require a bail hearing in the tribunal after eight days, after 28 days, then every 28 days thereafter. As I have highlighted to the Committee, the Government take matters of liberty extremely seriously, but we do not consider that there is a need for mandatory judicial oversight of detention in terms of the checkpoints that the hon. and learned Gentleman outlined. There is already well-established judicial oversight available. Individuals detained under immigration powers have unrestricted opportunity to apply to the tribunal for bail at any time. They can also apply for a judicial review of their detention, or for a writ of habeas corpus to the High Court, again at any time.
The current system was designed to be flexible in the interests of justice, and allows the detainee ready access to the tribunal. Legal advice and legal aid remain available for challenges to immigration detention. All detainees are made aware of the ability to apply for bail, but there is obviously a need to strike a balance. Introducing automatic bail hearings in all cases would be a further significant burden on the tribunal, with potential financial loss to the taxpayer, and would utilise time that could be spent on other matters. That could prolong the time spent in detention, and could deny other appellants timely access to justice.
It is interesting to note that the House has considered this issue before. The hon. and learned Gentleman may indeed wish to reflect on the comments of his hon. Friend the Member for Wallasey (Ms Eagle) when the Nationality, Immigration and Asylum Bill was in Committee. In respect of the repeal of an uncommenced provision that then existed, the hon. Lady, who was then a Home Office Minister, said:
“We concluded that it would be a logistical nightmare that would divert scarce resources from processing asylum applications. That would make it harder for us to complete the asylum process as speedily as all members of the Committee want…We have to be honest and open about these issues. The administrative consequences of automatic bail hearings are substantial. Given the figures and the potential for bringing the whole system to a halt, it was our reluctant judgment that unfortunately it would not be realistic for us to introduce part III bail hearings. We thought it more open and transparent to repeal those provisions, as the amount of available funding and the priorities we have for getting asylum claims through the system would not allow us sensibly to bring them into effect without that having an adverse or catastrophic effect on our system.”—[Official Report, Standing Committee E, 14 May 2002; c. 256-57.]
Although I understand the intention behind amendment tabled by the hon. and learned Gentleman, it is worth understanding the history and, equally, the challenges of automatic hearings.
During our evidence sessions, much was made of the Home Office seeking to take control of bail from the tribunal, and I want to assure the Committee that that is not the case. It is an inaccurate description of the effect of the bail clause and the schedule. I want to make it clear that the Home Office is already responsible for the management of the vast majority of cases on conditions imposed by the legislation that is being consolidated.
I turn to amendment 200, which would prevent the detention of an individual on bail unless it was thought that they intended to breach, or had breached, their conditions. I think that I understand the intention of the amendment. I underline the purposes for detention, primarily on removal but equally there might be public policy conditions. I suppose what the hon. and learned Gentleman asks is whether we can do more to achieve removal from this country of people who should not be here, without the necessity of detention. That might, in part, underline some of his thinking. Our approach to immigration enforcement seeks to promote and encourage more facilitated or encouraged removals, rather than simply to use detention as a means of achieving the outcome that I think people would want to see. Certainly that is an approach—an embodiment—that we seek to take with our removal strategy. The hon. Member for Rotherham made a point about not only the cost but the efficiency and effectiveness of the system.
Keir Starmer
I understand the Minister’s comments about detention and its purposes, but we are talking about a situation in which the tribunal is charged with faithfully going through a test of the individual circumstances of the case. In that situation, in what way and for what purpose does the Minister see the Secretary of State overriding the tribunal? Normally, if one side in a tribunal loses an argument on detentional conditions, there is an appeal route, but this appears to be something different in that the side that loses simply gets on with what it wanted in the first place.
James Brokenshire
I will come on to that point. It is a slightly different one from the one I was addressing. On amendment 200, I was responding to points about preventing detention where bail had been granted and about re-detaining if there was no risk of a breach. Sometimes, very close to a removal, when it is felt that the safest and most appropriate action would be to use detention, that mechanism may be adopted. Re-detention could be appropriate. It is also worth remembering that people granted bail might never have been detained. There will be people who are allowed into the UK on conditions while their claim is being considered. The amendment would mean that the Secretary of State could not detain such individuals if there were a change in their circumstances—for example, if their claim had been refused—without a suspicion that they were about to breach or had breached conditions.
Keir Starmer
I am grateful to the Minister for outlining the position on changes of circumstances. He has given a degree of reassurance, because what he said chimes with other not dissimilar regimes, but the matter is not clear in the Bill. Nothing in the Bill refers to changes of circumstances, so what level of assurance can he give that the provision is not intended to be used, nor will it be used, in a case where there is no change of circumstances?
James Brokenshire
If we are talking about detention, we are in many respects back to some of the basic principles as to why detention would be used, such as the immediacy of removal. Alternatively, we are talking about some other public policy objection on the basis of established legal principles around the matter. Those principles are what guide the potential use of the power, in addition to the obvious example of a change in circumstance.
Amendments 210 and 211 are probing. The Committee wants to better understand why there is a need for a restriction on study and what other conditions are envisaged on immigration bail, and when they may be imposed. We have chosen to include a restriction on study as it is something that may be considered under the bail powers. Like the other conditions listed, a restriction on study is only an option that is available; it is not a mandatory requirement and can be imposed as appropriate.
The power is not, as was suggested, about trying to deny education. If a child can lawfully access education services, we will not seek to disrupt that by using restrictions under the bail power to place a prohibition on them attending. We also do not intend to impose through the use of the power a blanket ban on asylum seekers accessing education. Where the power could have utility, however, is on specifying the place at which someone can study, for example. That would mean knowing where they are and saying that they are permitted to study, but only at a particular institution. For example, the wrap-around for a particular family group may be most appropriately provided for by conditions that are allied to a child going to a particular school. I point to it in that way. We have other regimes where conditions can be attached to study that are more towards that stance and approach.
On the broader power to impose conditions as appropriate, it is designed to maintain current flexibility in the ability to impose bail conditions specific to the facts of the case. That is most readily seen in Special Immigration Appeals Commission bail, but it is also seen in some of the most harmful foreign national offender cases. SIAC bail conditions are often bespoke, based on the risk the individual poses. Some cases will require specific conditions to mitigate specific risks. For example, we may want to impose an overnight curfew based on the risk posed, or it may be appropriate to create an exclusion zone if a convicted paedophile is bailed pending deportation.
A slightly more general point I would make is on the question posed on the general conditions that can be attached. The hon. and learned Gentleman sought to argue that that should be limited. My understanding and advice is that that is already maintained in the existing legislative framework and is in essence a read-across from pre-existing legislation. The power to impose any conditions appearing to be likely to result in the appearance of the person answering bail is currently in primary legislation at paragraph 22(2) of schedule 2 to the Immigration Act 1971. I think it is to maintain the existing flexibility that that applies.
Amendments 201, 202 and 203 would remove the ability of the Secretary of State to require a residence condition or the imposition of an electronic monitoring condition as a condition of tribunal bail, undermining the Government’s commitment to deliver electronic tagging as part of our manifesto commitments. If we did not take this power, the tribunal could in theory decline to impose a tag. During the evidence sessions earlier in Committee, it was suggested that these provisions make the role of the tribunal meaningless. Let me assure the Committee that that is not the case. The tribunal will still be able to order the release of an individual on bail and will still be able to impose the conditions it sees fit, subject to the specific point that I have highlighted on requiring that an individual resides at a certain address or wears an electronic monitoring device where the tribunal has declined to impose such a condition when granting bail. We expect this power to be used very rarely, as the tribunal would normally impose a residence condition or tag when one is requested. If the Home Office seeks to impose a condition where the tribunal earlier declined to impose one, such a decision would be challengeable by way of judicial review. The Secretary of State would need to justify why the condition was imposed.
Keir Starmer
How is it proposed that this will work in practice? There is a hearing before the tribunal. The tribunal goes through the individual facts of the case and there is an argument before the tribunal on whether a condition of electronic tagging, for example, is appropriate. The tribunal looks through all the relevant material and says that in this case, it is not necessary according to the test. As I understand the Minister, the Secretary of State then comes along and says, “That’s all very well, tribunal, we disagree and we are now imposing a condition that you have just decided it is not necessary to impose.” If the individual does not like it, they go to the High Court on judicial review. Is that the regime?
James Brokenshire
I think the hon. and learned Gentleman has set out what I have just indicated to the Committee. It is that sense of requiring. We have looked at, for example, foreign national offender-type cases. Our judgment is that foreign national offenders who are in this country unlawfully should be subject to ongoing monitoring through electronic tagging. It is that clear policy intent that we judge, but, as I have indicated, there would be a right of challenge by way of judicial review.
There is a precedent for such a power. The House passed a similar provision in the Immigration Act 2014; the Secretary of State is required to consent to the release of an individual on bail by the tribunal when removal is 14 days or fewer away. The Secretary of State already has that mechanism—in, I accept, a slightly different situation—and that sets a precedent on how the Secretary of State has a direct interest.
Amendments 212, 213 and 214 remove the requirement to consider whether it is in a person’s best interests to be detained before releasing on bail. I understand that these are probing amendments to understand when it will ever be in anyone’s best interests to be detained under immigration powers. First, I want to repeat that it is the Government’s policy that there is a presumption of liberty and that immigration detention should be used as a last resort. I make no apologies for stating that fact again and I hope that the Committee welcomes that clear and unequivocal statement. However, there may be some cases in which immigration and detention powers have to be exercised while arrangements are made for an individual to be transferred to appropriate care. I have given some examples of that in my earlier comments. I want to be clear that the power should only be used in a limited way and for the shortest period possible, but I hope that the Committee understands that that may be needed in those exceptional circumstances.
Amendments 204 and 206 relate to accommodation arrangements for individuals who are on bail. Amendment 204 would create a duty to provide accommodation to anyone released on bail even if they had the funds to secure their own accommodation. Amendment 205 would remove the term “exceptional circumstances” from the new power in the Bill and amendment 206 would create a right of appeal against refusal to provide accommodation to a person released on bail. Schedule 5, paragraph 7 provides a power to allow the Secretary of State to meet accommodation costs and travel expenses for those granted immigration bail. That arrangement is designed to replace section 4(1)(c) of the Immigration and Asylum Act 1999, which is repealed by the Bill, but to date has been used to provide accommodation for persons released on bail in the limited circumstances where we judge that that is appropriate. The repeal is part of the wider changes to support provision for failed asylum seekers and other irregular migrants which will be debated later, so I hope to leave detailed debate on that until we get to schedule 6, when we can have a much fuller debate.
The power is deliberately drafted in a restricted way as in general, individuals seeking bail are expected to accommodate themselves or arrange accommodation through friends or relatives. This is no different from the way the section 4 power is currently used. It is clearly inappropriate to spend public money providing accommodation for people who do not need it. It should therefore only be in exceptional circumstances that the Secretary of State should pay for the accommodation of people seeking release from detention on bail. If the person is truly unable to arrange their own accommodation, the powers can be used to provide it on a case-by-case basis, considering the particular circumstances, including whether they are able to avoid the consequences of being left homeless by returning to their own country. It would be unnecessary to use the power to accommodate asylum seekers, as section 95 or section 98 of the Immigration and Asylum Act 1999 are already available for this group.
On amendment 205, the concern expressed about the provision appears to be based on the assumption that there will be increased use of detention for a longer period, because bail can only be granted when an address is available. The new bail powers contain the concept of conditional bail, at paragraph 3(8). That will allow the tribunal to grant bail conditional on arrangements specified in the notice being in place to ensure that a person is able to comply with the conditions. Where a residence condition has been applied, it will be for the individual to find a suitable address during the period of conditional bail and, if a suitable address cannot be found, for them to go back to the tribunal for a further hearing. If the person is unable to find an address, consideration will be given to using the powers in paragraph 7 to provide one. We do not consider it necessary to add further complexity to the process by creating a specific right of appeal against refusal to provide an address. Any claim that there has been a refusal to provide an address could be challenged by way of judicial review.
Keir Starmer
I am grateful to the Minister for giving way because it may settle this amendment. As I understand the Minister, it is envisaged that the tribunal will use conditional bail to bail someone on the condition of a residence, or an address, unspecified. There will then be a period during which the individual either finds an address or consideration will be given to supporting the individual to have an address so that they can be released. Is that how it is envisaged that this will work, when looked at in the round?
James Brokenshire
That is how conditional bail can be used in these circumstances, as I think I described in my response to the hon. and learned Gentleman’s points. I think that I have covered all his amendments and, in the light of that, I hope that he will be minded not to press them.
Keir Starmer
I want to press amendment 207 to a vote. I do not know whether it is appropriate, but on amendments 199, 200, 201 to 203 and 212 to 214, I have listened to the Minister with care and I will not press them to a vote now, but I reserve the right to bring them back later, having reflected on what has been said about them.
The Chair
Just for clarification, the hon. and learned Gentleman is pressing amendment 207 to a vote?
The Chair
I am grateful. The decision on amendment 207 will be happening shortly. Does the hon. and learned Gentleman wish to withdraw amendment 199?
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
On a point of order, Mr Owen. I said that I was not pressing amendments 199 to 203 and amendments 212 to 214 to a vote.
The Chair
You either withdraw an amendment or press it to a vote, and you decided to withdraw.
The Chair
That is the position. It has been a long day and it was a complex group of amendments.
The Chair
As I explained earlier on, there is a difference between a point of order and a point of frustration. I can see that the hon. Lady is frustrated by not getting an answer from the Minister, but that is a matter for him. He has heard what has been said. He may want to intervene now or to indicate that he will do so later. He is not indicating anything, so that is the position. It is not a point of order.
Keir Starmer
On a point of order, Mr Owen. I am sorry if I am labouring the point but, whatever the procedure, I want to preserve the right to raise amendments 199 to 203 and amendments 212 to 214 on Report. There is a temptation when someone is doing this for the first time to possibly take advantage of their ignorance.
The Chair
I have got the gist. I think what the hon. and learned Gentleman is saying is that he will not press those amendments to a vote at this stage, but he reserves the right to do so on Report.
Amendment made: 54, in schedule 5, page 84, line 9, at end insert—
‘( ) Sections 28J and 28K of the Immigration Act 1971 (warrants: application and execution) apply, with any necessary modifications, to warrants under sub-paragraph (3).’.—(James Brokenshire.)
This amendment provides for the supplementary provisions about warrants in sections 28J and 28K of the Immigration Act 1971 to apply to warrants issued under Schedule 5 for entry into premises to search for and arrest named persons.
Amendment proposed: 207, in schedule 5, page 84, line 34, leave out from ‘(a)’ to ‘otherwise’.—(Keir Starmer.)
To provide that a person arrested without a warrant and detained because it is considered that they are likely to breach any of their bail conditions or that there are reasonable grounds for suspecting that they have done so must be brought before the First-tier Tribunal.
Question put, That the amendment be made.
Keir Starmer
I beg to move amendment 216, in clause 30, page 33, line 28, after “decision)” insert—
“(a) leave out ‘and’ at the end of subsection 1(b);
(b) leave out subsection 1(c);
(c) in subsection (2) for ‘The leave is extended by virtue of this section’ substitute ‘The leave is extended from the day on which it would otherwise have expired’”
To ensure that a person whose application is refused before their original leave expires and is still in time to bring an appeal or has brought an appeal by the time their original leave expires, benefits from the protection of 3C leave in the same way as they would had they been refused by the Secretary of State only after their original leave had expired.
The Chair
With this it will be convenient to discuss amendment 217, in clause 30, page 33, line 28, after “decision)” insert—
“(a) in subsection 3C(1)(c) after ‘decided’ insert ‘or declared invalid’
(b) in subsection 3C(2)(a) after ‘withdrawn’ insert ‘nor declared invalid’”
To ensure that a person who makes an “in time” application which is later determined to be invalid benefits from “3C leave” for the period, if any, between the expiry of their original leave and the Secretary of State’s notification to them that the application is invalid and thus to give effect to the interpretation of the law for which counsel for the Secretary of State argued in the case of R(Iqbal v SSHD) [2015] EWCA 838.
Keir Starmer
I apologise for coming to very technical amendments at this stage of the day and the proceedings; we seem to have been dealing with technical amendments for some time. Perhaps it will be possible for the Minister to give an assurance; the purpose of the two amendments is to ensure that individuals in the circumstances set out in the explanatory statements will not be in a worse position under the Bill than they are now.
The Solicitor General
Amendment 216 seeks to change the way the leave that is extended by section 3C of the Immigration Act 1971 operates. With respect, there has been a misunderstanding of the current position. The effect of the amendment would be that where a person applies for leave to remain and their application is refused while they still have immigration leave, their leave would be extended by section 3C while they bring an appeal or administrative review. Where an appeal or administrative review is lodged, leave will continue to be extended until any appeal or administrative review is no longer pending.
It was said that the reason for the tabling of the amendment is that people in that situation do not have their leave extended by section 3C, and that is an unintended consequence of the Immigration Act 2014. That is not the case. In fact, if anything, the 2014 Act actually improved the position with regard to section 3C. It has always been the case that, where an application is refused while the applicant still has immigration leave, leave is not extended by section 3C while a challenge to the refusal can be brought. In other words, section 3C applies only to undetermined applications. Where somebody is still waiting for an application to be dealt with, section 3C kicks in to allow the delay to be remedied.
Keir Starmer
Just to clarify that point, what is the position if the Secretary of State cancels the leave during that period?
The Solicitor General
The whole purpose of the provision is to deal with the question of cancellation where there has been a breach of the conditions. I will come on to that point in the clause stand part debate. At this stage, we see no reason to change the position in the way that is outlined in amendment 216.
Amendment 217 would have highly undesirable consequences and is unnecessary. With respect to the hon. and learned Gentleman, he does not fully outline the Government’s case in the Iqbal case, the Court of Appeal judgment by Lord Justice Elias that was reported earlier this year. The amendment, as outlined by the hon. and learned Gentleman, would mean that immigration leave would be extended by virtue of section 3C for anyone who makes an invalid application for further leave.
The problem is that that is clearly open to potential abuse. A person could deliberately make an invalid application, for example by neglecting to pay the required fee or by failing to provide mandatory documents, and continue to remain in the UK lawfully. That leave would continue until the Home Office determined that the application was invalid. That, I am afraid, would potentially be a charter for exploitation by unscrupulous people who could make invalid applications simply to extend their immigration leave and to take advantage of the section 3C provision.
The amendment is also unnecessary, because our rules and guidance set out clearly how to make a valid application, and an opportunity is provided for mistakes that lead to an application becoming invalid to be made good. That provides a safeguard for people who, from time to time, make a genuine error. Where a fee is paid, we will contact those who make invalid applications to tell them what steps they need to take to make their application valid. Where people respond within the specified time limit and provide the missing information, they will be deemed to have made a valid application, and their leave will be extended by section 3C if the application was made before the expiration of their previous leave. That point was dealt with chiefly in the case of Iqbal.
The safeguard works. More than 650,000 applications were made between April last year and June this year, of which only 2.45% were rejected as invalid. I understand the concerns expressed about access to services and about the offences that the Bill introduces for those who work illegally or drive while unlawfully in the UK. However, in practice, those measures will not be applied to individuals until the Home Office has determined whether an invalid application has been made.
Keir Starmer
I am grateful to the Solicitor General for that clarification and assurance as to how the provision is intended to operate. Obviously, the public interest will be for the Crown Prosecution Service, but what he has said will no doubt be taken into account by it. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 30 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Charlie Elphicke.)