Immigration Bill

Lord Avebury Excerpts

Monday 3rd March 2014 Lords Chamber

[Lord Roberts of Llandudno (LD)]

My Lords, I support everything that has been said by the noble Baroness, Lady Lister, the noble Lord, Lord Ramsbotham, and the noble Earl, Lord Listowel. In particular, the words of the former Chief Inspector of Prisons must carry very serious weight in this particular discussion.

I am looking at what is happening to the outsourcing of many of these functions and thinking of the question asked by the noble Earl, Lord Listowel, just now. What are the qualifications and the development of those who are now involved in these private companies with this particular action? How do they exercise their duties?

The Minister made a statement last year concerning the call from Her Majesty’s Chief Inspector of Prisons not to use force against pregnant women. He told the House that:

“The recommendation in the report by HM Inspectorate of Prisons on Cedars pre-departure accommodation that force should never be used to effect the removal of pregnant women and children was rejected by the UK Border Agency”.—[Official Report, 10/4/13; col. WA 313.]

At the moment, the powers of forced removal—I hope I am not misinformed here—apply only to the immigration Acts of 1999 or 1971. Enlarging this and making it applicable to any immigration inquiry is a very dangerous move. I ask the Minister for his assurance on these matters.

Also, as mentioned already, the culture and the evidence we have of the methods used do not show any change. What are the Government doing to make sure that when this enforced departure has to be undertaken it is done in a humane way?

[Lord Avebury (LD)]

My Lords, I agree with what my noble friend has just been saying, particularly about the failure of the Home Office to deal with the serious criticisms of the case owners that were referred to earlier by the noble Lord, Lord Ramsbotham. The whole point about disbanding the UKBA and returning these functions to the control of the Home Office itself was that by common acknowledgement, including that of the Home Secretary herself, the UKBA had become dysfunctional and something had to be done. However, what has in fact been done since it was disbanded is that the case owners are not the same persons who were making decisions before and were manifestly incapable of doing the right thing, by reason of the fact that a very large number of the appeals against their decisions were upheld by the tribunal. It would be useful if we had an answer to both that question and the noble Lord’s further question about the consideration of Outsourcing Abuse, the report to which he referred, which never had the consideration that I believe it deserved in the Home Office but is crucial to the future health and efficiency of the people who are making these fundamental decisions, which affect the lives of so many people.

On these amendments, I agree with the Delegated Powers Committee that the definition of “family members” must be in the Bill and limited to those whose leave to enter or remain in the UK is expressly dependent on the principal’s leave to enter or remain. For example, a family member who came to the UK for work or study, not as the dependant of the principal, should not be included in the definition. That seems to be the effect of Regulation 3 of the draft Immigration (Removal of Family Members) Regulations 2014 but, as has been said, it should be in the Bill. As the Delegated Powers Committee found, the justification for placing both this and the time limits for removal in secondary legislation—that they may have to be amended from time to time—is not borne out by experience over many years and through a good many immigration Acts.

Draft Regulation 4 has the same effect as Section 10(1)(c) of the 1999 Act, providing that notice has to be given to any family member who is liable to removal, but the Bill provides only that notice “may” be given, as my noble friend Lady Hamwee pointed out in moving the amendment. This is partly covered by our Amendment 4, but the Minister may wish to consider placing the obligation to give notice firmly in the Bill. As ILPA makes clear in its briefing, quoting the noble and learned Lord, Lord Steyn, giving notice is vital for the legality of the decision to remove a person so as to give him the opportunity of challenging the decision before the courts. The Secretary of State’s attempt to remove certain persons without notice has been ruled unlawful by the High Court and the Court of Appeal. In short, the powers and safeguards dealing with the identification of family members who may be removed, the question of when the powers may be exercised and the notice to be given should all be in the Bill, as should the provisions of Section 10(5) of the 1999 Act, providing that removal directions should cease to have effect against a person who ceases to be a family member.

[Lord Rosser (Lab)]

My Lords, I will not at this stage make any comments relating to the extension of enforcement powers but will wait until we discuss Amendments 12 and 13. We are not opposed to the principle of Clause 1 but we have questions to raise. We cannot see what the problems for the Government would be in accepting Amendments 5, 6 and 7, and we await the Minister’s response with interest.

We have Amendments 2 and 8 in this group. Amendment 2 is not dissimilar to that moved by the noble Baroness, Lady Hamwee, and provides that a person should be given written notice of their liability for removal. According to the Government, there are approximately 14,000 enforced removals a year, with people being arrested, detained and then removed, and about 29,000 people depart voluntarily to a greater or lesser degree. Apparently, an enforced removal costs about £15,000.

The Immigration Act 1971 requires written notice of decisions to give, refuse or vary leave to be in the United Kingdom. Currently, migrants are told if they are not allowed to be here, and they are then told separately about their removal. Under the Bill, the Government want to be in a position to serve only one decision that gives, refuses or varies leaves and, following that decision, where notice has been given, those who do not have leave to remain will be subject to removal without a separate removal decision or notice being required. It seems that the notice giving the decision on leave to remain will tell the immigrant of their destination for removal, advise them to seek early legal advice and place them under a duty to raise any asylum, human rights or European free movement issues with the Home Office. It is not clear why this is not stated in the Bill. No doubt the Minister will explain why and indicate what else will be required to be included in this decision notice. Apparently, the decision notice will be issued at least 72 hours before any removal is attempted, which is in line with the amount of notice given currently when a removal decision notice is issued. Will the decision notice make clear the individual’s liability to removal, and will it state when, where and how that removal will take place? I look to the Minister to give a response to that question when he replies. Will the minimum 72 hours apply to family members? The draft regulations refer to,

“at any time prior to … removal”.

I hope the Minister will respond to that question. Included in the decision notice will be options for voluntary departure and the consequences of not so departing. Will the Minister say what the consequences of not departing voluntarily will be that will be set out in the notice and, once again, why that should not be in the Bill?

Since financial reasons appear in part to be behind the provisions in Clause 1, will the Minister say what the Government anticipate those savings will be and what impact the change to not having a separate removal notice will have on the number of enforced removals and on the number of people departing voluntarily? Perhaps he will also say what impact the Government expect the change to having no separate removal notice will have on the net migration figure each year, since one assumes that one key purpose of the Bill, as far as the Government are concerned, is to have an impact on that overall figure. It seems unlikely that the current system will be strengthened if the time gap between an individual receiving notice that they do not have leave to be in the United Kingdom and the time they are removed if they do not leave voluntarily is longer than under the current arrangements, under which a separate notice of removal decision is issued. Will the Minister say how long it currently takes, on average, for an attempt to be made to remove a person following a refusal to grant or vary leave being made, how long it takes following the removal decision being sent, and how long the Government intend it should take under the proposed arrangements with only one decision notice being issued in the light of the intention that a decision notice will be issued at least 72 hours before a removal is attempted?

Amendment 8 provides that the regulations that the Secretary of Sate can make about the removal of family members under Clause 1(6) should not be made unless a draft has been made before and approved by resolution of each House of Parliament. The Bill does not provide for this to be the case in respect of regulations under Clause 1(6), which would not be subject to the affirmative procedure. Clause 1(6) enables the Secretary of State to enable regulations that, in effect, define who should be considered a “family member” and the period during which they may be removed. Surely legislation should be clear about the people who are subject to the powers it contains. The Secretary of State’s definition of a family member, which could be wide-ranging, should be subject to full discussion and affirmative approval by both Houses.

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[Lord Judd (Lab)]

My Lords, this amendment is certainly a move in the right direction, but the one anxiety I have is that it still leaves matters very much in terms of systems and the responsibilities for ensuring systems are running properly. If we put ourselves in the position of the unaccompanied child, who may be going through all sorts of mental turmoil and agony—bewildered, uncertain and desperately in need of friendship and help—it would be good to hear a little about the Government’s thinking on how these real psychological, and consequently very often physical, needs of the young person are being dealt with. We have debated the policy in this Bill in previous years and, ideally, the child in this situation needs a personal champion, who is there throughout the process, advising, talking to and consulting them—if you like, a counsellor, who is there to enable the child to make sense of what is happening and being proposed and to enable the child to start developing his or her own views about what they really want to take place.

[Lord Avebury]

My Lords, these amendments, which are all concerned with the detention and removal of children, either on their own or as part of families, are a reflection of existing government policy, which, in the absence of these amendments, could be reversed without parliamentary oversight, as the Home Secretary observes in her Factsheet: Ending the Detention of Children for Immigration Purposes, issued last month. In fact, children are still to be detained, but in places described as “pre-departure accommodation”. The only place identified as such so far is, as has been mentioned, Cedars near Heathrow, which has hitherto been included in the list of short-term holding facilities to be discussed in the next amendment. It appears to me that holding children in Cedars is still detention, as I think my noble friend Lady Hamwee remarked, because the families are still deprived of their liberty, albeit in far more congenial surroundings than in immigration removal centres and even though they are no doubt looked after far better by child-friendly Barnardo’s than the impersonal money-making subsidiary of Capita that runs the IRCs.

Amendment 9 allows for a 28-day grace period following the exhaustion of appeal rights before a child and the relevant carer may be removed, during which it is hoped that agreement can be reached on their voluntary departure. This system is already operating on a non-statutory basis, but it would be useful if my noble friend could say what statistics there are on voluntary, as compared with forced, departures up until this point. In addition, are any resettlement grants available to families who agree to voluntary departure and what are the details of the organisation through which the voluntary departures and any associated grants are organised? They used to be organised by the International Organisation for Migration, but I think that that has changed in recent years.

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Moved by

[Lord Avebury]

11: After Clause 1, insert the following new Clause—
“Short-term holding facilities rules
(1) Within six months of the passing of this Act, the Secretary of State must make rules for the regulation and management of facilities maintained for the purpose of the detention of a detainee for a period up to 7 days (“short-term holding facilities”).
(2) Short-term holding facilities rules may, among other things, make provision with respect to the safety, care, health, activities, discipline and control of detained persons.”

[Lord Avebury]

My Lords, as the Minister is aware, we have been concerned about the disgraceful conditions of the short-term holding facility at Heathrow Airport for some time. These facilities and others like them are not subject to any rules making provision for the health, safety, care, activities, discipline and control of the persons detained in them, unlike immigration removal centres, which have been subject to a set of rules of this kind since 2001.

The short-term holding facilities are defined in Section 147 of the Immigration and Asylum Act 1999 as places,

“used solely for the detention of detained persons for a period of not more than seven days or for such other period as may be prescribed”.

These facilities are needed for persons either arriving in the UK whose status is being investigated by an immigration officer or being returned to their country of origin, having exhausted their rights of appeal. All 36 of them are managed by contractors on behalf of the Home Office. The main provider used to be G4S but that role has now been taken over by another private contractor, Tascor, highlighting the fact that the Home Office itself no longer has the expertise in-house to resume the management of operations that have been privatised and are no longer effective.

Since 2006, when the UN’s optional protocol to the UN convention against torture came into effect, we have been required to provide inspections by an independent expert body to routinely visit and report on all places of immigration detention to prevent the inhuman and degrading treatment of detainees. This task is being performed both for immigration removal centres and for short-term holding facilities by the Chief Inspector of Prisons, whose remit extends well beyond that of the convention to detainee welfare, the need for a decent and respectful approach to detainees by staff and the physical conditions of detention. In the case of the IRCs, there are detailed rules governing such matters as welfare and privileges, religion, communications, healthcare, requests and complaints, and it has been the Government’s intention, ever since 1999, to publish an equivalent set of rules for short-term holding facilities. Drafts of the rules were published in 2006 and there was a consultation on them, but a final version was not presented to Parliament. In 2009, the same thing happened again: there was a draft followed by a consultation, but no sign of the finished product from that day to this. When inquiries were made of policy officials in the Home Office on my behalf, those officials said,

“the rules have been subject to various delays and as such have yet to be finalised”.

That was more or less the same as the answer the Minister gave when the noble Lord, Lord Ramsbotham, asked him about when the rules would appear.

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[Lord Taylor of Holbeach]

My Lords, I appreciate the concerns of my noble friend Lord Avebury, the comments of the noble Lord, Lord Ramsbotham, and the concerns of the most reverend Primate the Archbishop of York. They have caused my noble friend to table the amendment, and caused us to debate not just the rules but the provision of facilities.

I start by reassuring the noble Lord, Lord Ramsbotham, that in the past year the Home Office has been in acute dialogue with Heathrow Airport Ltd about the Heathrow Airport facility to progress accommodation units. That is now bearing fruit. My noble friend Lord Avebury asked me if I could place information on the design of these facilities in the Library. I understand that HAL, the Border Force and, for that matter, the Home Office are in final discussions on the detailed design stage and, indeed, are going out to contractors for quotes in March of this year—that is, now. If that is the situation, I am sure that I will be in a position to satisfy my noble friend’s request to place a copy of the design in the House Library, and I will seek to do that for him.

I am aware that there has also been a lack of legislative framework governing the operation of the short-term holding facilities. As has been pointed out by noble Lords, this has been a matter of concern for years to a number of interested parties, including Her Majesty’s Chief Inspector of Prisons, who has responsibility for inspecting the UK’s detention facilities. The delay in introducing these rules is regretted, but it has been a case of unavoidable delay being caused by a number of different reasons, including, most recently, the discussions surrounding the legislative framework that should apply to Cedars, which we have just discussed, which initially had been classified as a short-term holding facility and, as such, would have been covered by these rules. We have just debated those amendments. Accordingly, today, I give my noble friend a commitment that separate sets of rules governing the management and operation of short-term holding facilities and the Cedars pre-departure accommodation will be introduced before the Summer Recess. With that, I hope that my noble friend will feel able to withdraw his amendment.

[Lord Avebury]

It remains only for me to thank the most reverend Primate the Archbishop of York and the noble Lord, Lord Ramsbotham, for their powerful support for this amendment. I also thank the Minister not only for the very welcome reply that he has given to this debate but for the close attention that he has paid to the correspondence that we have had over the past few months, particularly on the facilities at Heathrow. I am delighted to hear him give the assurance that we will have separate sets of rules for the short-term holding facilities and the pre-departure accommodation within a shorter space of time than I asked for in the amendment. It is rather an unusual experience to have a Minister grant something better than that for which the amendment asks—I think it is probably unique in my 52 years in one House or the other. I can only say how grateful I am to my noble friend and how much we look forward to the implementation of his kind undertakings. I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

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[Lord Ramsbotham]

I will speak to Amendment 13, in my name and that of the noble Lord, Lord Roberts.

I am very grateful to the noble Baroness, Lady Williams, for highlighting some of the points that were in the code of practice that I gave to the Minister, as I mentioned earlier. I did not read out all the points but I did mention that there were three codes that I had produced. One concerns the use of restraint. I will mention the three elements in that, which say that the Home Office must:

“Confirm the Independent Advisory Panel on Non-Compliance Management … as a permanent establishment”,

and that one member must have,

“experience of both the design and use of restraint techniques in a wide variety of settings, both custodial and non-custodial”.

The Home Office must also:

“Lay down precisely what safe and pain-free restraint techniques are acceptable in various situations such as vehicles transporting returnee to airport, transfer from vehicle to aircraft including in crowded airports, and in economy class on board commercial, passenger-carrying aircraft”.

Finally, the Home Office must “specify compulsory training requirements” for detainee custody officers,

“and other escorts, including compulsory continuation training”.

I repeat that because the amendment in the name of the noble Lord, Lord Roberts, and myself, refers particularly to the use of the word “reasonableness”. I am sure that the Minister will agree that it was not reasonable force that caused the unlawful killing of Jimmy Mubenga in an airport, and the 78 other cases that I presented to the Home Office, along with numerous others. I suggest that the problem is that the Home Office has delegated all use of force to the contracting companies without overseeing it or insisting that anyone do so. I suggest to the Minister that it would be a very good thing if the Home Office thought through and tried to define what “reasonable” is.

It seems to me that there is a mnemonic, “JPLANS”, which provides the circumstances that must be honoured in using force. The letters stand for six phrases. The first: is the force “justifiable”? It might be lawful, but that does not make it justifiable. All other options must be considered before it is used. Secondly, it must be “proportionate” to the behaviour and consequence it was intended to prevent. Any force used should always be the minimum necessary to achieve a lawful objective.

Thirdly, it must be “lawful” in all circumstances and, provided the person has done what he honestly or instinctively thought was necessary in all the circumstances, and no more, that would be good evidence that he has acted reasonably and lawfully. Force must never be used as a punishment to intentionally cause pain, injury or humiliation. Fourthly, use of force must also be “accountable”; one must always be prepared to account for any force used. Force should be used only as a last resort, and one must be able to demonstrate that this was the case.

Fifthly, force must be “necessary” in all circumstances, and consideration should be given to any other reasonable alternatives: could the situation have been resolved without the use of force? Were risk assessments properly carried out before the removal to reduce tension and any consequent need to use force? Could this have included a planned meeting between the escort and the person they were escorting in order to try to build up a relationship that might remove the tension?

Finally, was the force used “safe and supportive”? Techniques and procedures must be applied correctly and safely, and the person on whom they are applied must be monitored to ensure their safety. There are some techniques and facilities that are known to give rise to a foreseeable risk of injuries. They are permitted only in extreme circumstances and will have to be justified by the member of staff who uses them.

I do not think that anyone writing “reasonable” without thinking it through can have applied the JPLANS test. I therefore suggest that the Minister considers a definition of “reasonable” whereby any use of force must be necessary, reasonable and proportionate, and applied for the minimum period necessary to achieve the lawful objective. If that definition were in the Bill, rather than just the word “reasonable”, I would find it a great deal easier to accept. I suspect that it would be much more supportive of the regime that I hope the independent advisory panel will impose, which should not consist merely of repeating techniques designed for use in custody that are wholly inappropriate when removing a detainee.

[Lord Avebury]

My Lords, I wish to say a word or two in support of the amendment. Currently, the use of force by an immigration officer is licensed under the Immigration Act 1971 and the Immigration and Asylum Act 1999. Paragraph 5 of Schedule 1 amends this to license the use of force under eight other Acts passed since 1971, and any future legislation that may be included in the definition of “the Immigration Acts”. The Explanatory Notes wrongly claim that this “clarifies” that the power is not limited to the exercise of powers under the 1971 and 1999 Acts, which would mean that the power already exists. In fact, the use of force under any of the eight Acts not already covered would be unlawful until the Bill is passed, as I hope my noble friend will concede.

No justification is given for this extension of the power to use force. On the contrary, there have been huge concerns about the use of existing powers, as in the case of Jimmy Mubenga, and in the report of the chief inspector on the use of force to remove a pregnant woman and her child via Cedars. The former Immigration Minister gave an assurance that the power to use force was confined to immigration officers as distinct from workers employed by private contractors on detention and removal activities. However, private contractors do use force, as has been mentioned and as the noble Baroness, Lady O’Loan, found in her report of March 2010.

In the chief inspector’s report on an unannounced inspection of Harmondsworth in August last year, it was found that a wheelchair-bound, low-risk detainee who had suffered a stroke was handcuffed on a hospital visit, and other cases were noted in which the use of handcuffs was “grossly excessive”, including one case in which the individual was sedated and undergoing angioplasty, and another in which an 84 year-old man suffering from dementia died while still in handcuffs. It is clear that some immigration officers have no idea whatever about proportionality in the use of force—a matter that was referred to by the noble Lord Ramsbotham—and each and every extension of this power should be separately justified.