Border Security, Asylum and Immigration Bill

Lord Bach Excerpts

Report stage
Wednesday 5th November 2025 Lords Chamber

[Lord Hanson of Flint (Lab)]

On that note, I will try to move Amendment 38 as quickly as possible to help support my noble friend. This group includes three government amendments to Clause 43. On this occasion, the Government have listened to debates that have taken place in the House. We have carefully considered recommendations in the JCHR report and listened to representations from the noble Lords, Lord Jackson and Lord Kirkhope of Harrogate, and the noble Baroness, Lady Hamwee. In the light of this, government Amendment 40 does not alter the original purpose of Clause 43 but instead sets out the limited circumstances in which an individual could have conditions such as electronic monitoring and curfews placed on their leave to enter or to remain. This includes cases where the Secretary of State considers that the person poses a threat to national security, public safety or has been convicted of a serious crime or offence.

The powers in Clause 43 are therefore in place to protect the public and to meet our obligations under domestic and international law. The clause will end the disparity in powers available to protect the public in respect of immigration bail and conditions of leave to enter or remain. I know that the Government have listened to the points made in Committee and I will therefore move the amendments on their behalf.

I note that my noble friend Lord Bach has tabled Amendment 41. I will respond to any points he raises once he has had an opportunity to contribute to the debate. I beg to move.

[Lord Bach (Lab)]

My Lords, the Minister is quite right. I have a short but important amendment that is very fittingly in this group. It is unusual in that lawyers who act in immigration cases and the Home Office itself are at one on the issue. Both sides agree that in paragraph 9(1)(a) of Schedule 10 to the Immigration Act 2016, “specified in the condition” should be widely interpreted to mean

“that is known at the time of the grant or variation of immigration bail, or”—

and this is the important point—

“an address that is yet to be specified”.

This has been the Home Office’s interpretation of that paragraph for a number of years. There is evidence from 2018 that that is the Home Office’s view. It has occurred in cases, and guidance was issued as recently as this summer. In my submission, it is a practical and sensible way of interpreting it.

Why, then, does this amendment, with its proposed change of words in paragraph 9(1), need to be laid and discussed in your Lordships’ House at all? The reason is that there is a Court of Appeal case in Northern Ireland called Bounar, which was decided not many years ago, in which their Lordships in that court took a different view and decided on a much stricter interpretation of the words of the schedule: for a person to be given bail by the Secretary of State, they must already have been granted immigration bail—and here are the words that matter—with a condition to reside at a specific address. So one has on the one hand the decision of the court in Northern Ireland and, on the other, I submit, a practical, sensible way of dealing with a situation that arises more often than the House might think. The Home Office has dealt with it in that way, as have the lawyers on the other side.

Why does it matter that there are these two conflicting decisions about and ways of looking at this element of this schedule? It matters, first, because it is unsatisfactory in principle to have legislation that has been interpreted quite differently in the courts and in practice in government when dealing with this issue. Secondly, who knows what situations may arise where a court, for example, would prefer the Northern Ireland precedent. Thus, a bail claimant—someone who the Home Office wants to give bail to—might lose his or her bail merely because, for good, practical reasons, the specific address is not yet known. This is what happens in a number of cases.

There are already significant delays between grant of bail in principle and people being released to Home Office-sourced accommodation. In recent months, 21 people have faced a delay of more than three months. The Home Office wanted to bail them and was happy to, but there was no specified address at that moment so everything had to start all over again. Without amending the statutory provision relied on in the case of Bounar, every individual would need an address provided by the Secretary of State prior to applying for bail, resulting in wasted places and longer delays. My invitation to my noble friend, to whom I very grateful for having taken the trouble to meet me on this issue, is to accept this amendment to the schedule. I very much hope that he feels that he can do that today.

[Lord German (LD)]

My Lords, I shall address the issue that the noble Lord, Lord Bach, just raised. It seems to me, from having visited Harmondsworth IRC, met people who are ready for bail and seen them held back because of the bureaucracy, that what is being described is a bit of bureaucracy that ought not to be there. I hope the Minister will be able to say that he can deal with this matter. Unfortunately, it appears that it has to be in statute rather than simply a ministerial decision. Perhaps he will tell us how best this matter can be dealt with swiftly, because it is in no one’s interest for people who have the right to immigration bail to be kept at taxpayers’ expense in immigration detention when they need not be there.

--- Later in debate ---

[Lord Hanson of Flint (Lab)]

I am grateful to noble Lords for their contributions to this short debate. The government amendments were tabled in response to requests in Committee, not just from the noble Baroness, Lady Hamwee—who I hope to see back in her place as soon as possible—but the Joint Committee on Human Rights, the noble Lord, Lord Anderson of Ipswich, and others, including Members from the Opposition Back Benches and Front Bench. I hope I can reassure the noble Lord that we have taken all those matters into account in bringing forward the amendment today.

On Amendment 41, tabled by my noble friend Lord Bach, I welcome the opportunity to discuss this issue with him outside the Chamber and get clarification on the points he is pressing me to examine. I hope that the explanation I give him now will meet his points of concern, but we will see whether that is in fact the case. We believe that the amendment, while testing the Government, is ultimately dealt with in other ways, and would make no material difference to the operation of the legislation. The Bounar case, which my noble friend mentioned, pre-dated changes to our bail accommodation guidance. The Northern Ireland Court of Appeal decision was handed down in December 2024, and the Home Office guidance was republished on 31 January 2025.

There is a key extract from the guidance that I want to read to my noble friend, so I hope the House will bear with me:

“Where an individual is not subject to a residence condition, but they are applying for accommodation under Schedule 10, they may request for their bail conditions to be varied to include a residence condition on the BAIL 409 application form. Bail conditions can be varied to include a residence condition at an address yet to be specified, where the individual does not have a residence condition imposed and a refusal of accommodation would be in breach of their Article 3 ECHR rights”.


The key point for me in that extract is that in the case of Bounar the Northern Ireland Court of Appeal found that the person could not be given bail accommodation because they did not have a bail residence condition. Although that is technically correct, I believe and hope that our guidance—and I hope this satisfies my noble friend—now makes it clear that bail can be varied to impose a residence condition that will enable a person to be granted bail conditions, where to refuse to do so would breach the person’s human rights under Article 3. The key point that I emphasise to my noble friend is that our guidance is now clear that the situation in Bounar should not arise. If the person requires a bail condition in order to prevent an Article 3 breach, we will create one rather than refusing the application, and the courts can now apply that, as our guidance makes clear.

I am genuinely grateful for the discussions that I have had had with my noble friend outside both Committee and Report. He has raised these issues with me regarding the Bounar case as recently as today, outside the Chamber, prior to Report commencing. I have tried to give him an answer based on our legal interpretation of the understanding of that case in relation to our guidance, and I hope that, with that clarification, he is able to reflect on that, if not today then later in Hansard. I am happy to have further discussions with him about the application outside the Chamber at a later date, but I hope that the explanation I have given meets the objectives in his amendment, and I ask him not to press it.

[Lord Bach (Lab)]

My Lords, I am grateful to the Minister, as always, for his response. I cannot hide that I am disappointed by what he had to say, but I have not yet had the chance to read it in Hansard. I am sure I will want to take up his remarks with him, but I will not be moving my amendment.

[The Deputy Speaker (Baroness Fookes) (Con)]

For clarification, it is the Minister, with the lead amendment, who must now seek to press his amendment, if he so wishes.