Illegal Migration Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

Finally, the Delegated Powers and Regulatory Reform Committee’s report says that the procedures of the SI that are to come, the regulations, should be done by the positive procedure and not the negative resolution procedure which has been adopted. I would be grateful if the Minister said that the Government are considering that matter. In the end, what steps are the Government taking to ensure that individuals who are vulnerable and cannot be safely detained will be swiftly identified by appropriately qualified staff and released, with appropriate safeguards in place, following the removal of currently available legal challenge? Of course, we expect to see the Home Secretary’s risk assessment in the impact assessment which we understand is to follow.

[Lord Anderson of Ipswich (CB)]

My Lords, I would like to accept the invitation of the noble Lord, Lord German, as another lawyer, to address the Hardial Singh principles and habeas corpus, but since, on my reading of the Bill, they arise under Clauses 11 and 12 respectively, I think it might be best to reserve that treat for another day. I do have a question about Clause 10, which I candidly admit I do not find the easiest to understand. The Bar Council, in its briefing prepared by immigration practitioners far more expert than me, states that the powers already exist to detain any individual who is suspected to be subject to the Clause 2 removal duty, that Clause 10 does not provide for any additional persons to be detained, and that the purpose of the clause is simply to remove existing protections for unaccompanied minors, families and pregnant women. Is there any more to it than that?

[Baroness Mobarik (Con)]

My Lords, I shall speak to Amendments 59, 63, 64 and 67 standing in my name. I am immensely grateful to my noble friends Lady Helic and Lord Bourne of Aberystwyth and the right reverend Prelate the Bishop of Durham for adding their names to these amendments. I am also extremely grateful to the many children’s organisations that sent invaluable briefings and gave clarity on the subject. I refer noble Lords to the relevant interests in my name in the register. 

The words “detention” and “children” have no place in the same sentence. In the case of this Bill, it can also mean the possibility of indefinite detention, as proposed by the Government. In 2010, the organisation Medical Justice coined the term “state-sponsored cruelty” in relation to children in immigration detention. Its reports highlighted the great calamity being inflicted on thousands of innocent children, with lasting and detrimental consequences, including leaving them traumatised and suicidal. This led to a deep conviction across the political spectrum that such practices were inherently wrong and that a better, more humanitarian approach had to be taken. A pledge was given in 2010 by someone seeking the office of Prime Minister—David Cameron. He pledged that, if elected as Prime Minister, child detention would end. He was true to his word, and it became part of the coalition’s programme for Government in 2010, with policy changed as soon as 2011. With the Immigration Act 2014, the routine detention of children came to an end. That was progress. It was, as one would expect, a humanitarian response to an unacceptable and cruel practice. It is therefore with some dismay and disbelief that we are seeing attempts to reverse the progress made. Almost a decade on, we are discussing the reintroduction of those measures in an even more draconian form.

This Bill creates powers to detain en masse those who arrive in the UK without permission, on or after 7 March 2023, because they are not coming directly from a country where their life and liberty are threatened. Fleeing war-torn Syria but crossing through, for example, Belgium disqualifies them. As mentioned many times, there are no legal routes to the UK for most of those seeking asylum here. Of those coming, thousands of children could face detention. This is not a random statement but one based on the Refugee Council’s careful analysis in its impact assessment of the Bill. The exact figures are available in its report, but over a three-year period it equates to around 13,000 to 15,000 children in detention per annum. We are talking about babies, toddlers, children who are victims of child trafficking, unaccompanied children and children with families—defenceless little people, many of whom have not yet learned to speak and others who may be of speaking age but have no English language. They are detained, and with no legally defined time limit to their detention. They are detained anywhere,

“in any place that the Secretary of State considers appropriate”,

and without the possibility of bail for 28 days. Needless to say, children’s and refugee organisations are aghast at what is being proposed. They are not alone. Many of us across all Benches in this House and the other place feel the same.

Let us stop and think for a moment that perhaps it is not the intention of the Home Secretary to lock up thousands of children. Perhaps we can put this down to the lack of an economic impact assessment or child’s rights impact assessment conducted by the Home Office itself. If that is the case, now is the opportunity, in Committee in this House, for my noble friend the Minister to reconsider what is being proposed. Of course it is understood that there will inevitably be very specific and limited occasions when children are detained, but the existing legislation already gives parameters for this. That is why I propose amendments to Clause 10, to retain the existing time limits of 24 hours in detention and with safeguards for unaccompanied children. Amendments on those who are with families seek to retain existing time limits so that they can be detained only for up to 72 hours, or not more than seven days where detention is personally authorised by a Minister. Importantly, this should be in short-term holding facilities or pre-departure accommodation.

Existing legislation on the detention of children, as under the Immigration Act 2014, is already in place. I ask only that the status quo be maintained. The Home Secretary may argue that by not detaining children we are creating another pull factor, but the evidence shows that there was no significant increase in the number of children seeking asylum once routine detention ended in 2011.

The question then is what the intention of the Government is if, as Prime Minister Sunak says:

“The intention of this part of the policy objective is not to detain children”.


We were given reassurances by the Minister during the Commons Report stage on 26 April that,

“we do not want to detain children. We will do so only in the most exceptional circumstances”.

There was also assurance from the Minister that the time limits

“will be as short as practically possible”.—[Official Report, Commons, 26/4/23; col. 837.]

However, these tests of “most exceptional circumstances” and

“as short as practically possible”

cannot be found in the Bill. All that can be found following the Government’s amendment is a delegated power for the Home Secretary to make regulations under the negative procedure that specify circumstances for the detention of unaccompanied children. There is also a discretionary power for the Home Secretary to make regulations that specify time limits. There is no clarification in the Bill as to the length of the time limits for detention or to which unaccompanied children they might apply, or how discretion might be exercised. Moreover, the regulations may or may not specify time limits for unaccompanied children. We have no assurance in the Bill that they will. Either way, they will do nothing for children and families.

I understood from my noble friend the Minister that later in the Bill’s passage the Government propose to

“set out the new timescale under which children may be detained for the purposes of removal without judicial oversight”.—[Official Report, 10/5/23; col. 1783.]

I must ask for clarification from my noble friend. If the Government truly wish to detain children for as short as practically possible, why are they disapplying the 2014 safeguards to children affected by this Bill? These safeguards were put in place by a Conservative Prime Minister and a Conservative Home Secretary.

Given this late stage in the Bill’s passage, when do the Government propose to set out these new timescales in the Bill, and what will they be? What are the circumstances in which unaccompanied children would be detained and why can these “most exceptional circumstances” not be stated on the face of the Bill and be open to full scrutiny during its passage? Will those timescales in regulations be an absolute time limit for the detention of children, or merely a timescale for judicial oversight of that detention? As a country in which the rule of law is a pillar of our constitution, can we detain children without judicial oversight? I presume detention is for the purposes of removal but would like clarification on whether the Government are proposing child detention for other purposes. If so, can the legal basis for such detention be explained?

Verbal reassurance is completely inadequate. I am no expert but I understand that this is not the way that laws are made. Laws must be much more firmly established. They cannot just fluctuate depending on which Home Secretary is in the driving seat; that is surely a dangerous precedent. Amendments 59, 63, 64 and 67 seek to place our current safeguards for the detention of children in the Bill, so that children impacted by it need not rely on mere verbal assurance. I understand that the issue of illegal migration is complex and requires a deterrent factor so that those who genuinely qualify can be identified, and that it requires a genuine solution, but I think most here would agree that the solution being proposed is not the right one on so many levels.

We are speaking about defenceless children. I say to noble Lords that it may be difficult for us to think back to our six year-old selves, so let us think about our children or grandchildren, who have neither the physical strength to defend themselves nor the verbal sophistication. We have a moral obligation to ensure that we protect the rights of these most vulnerable human beings.