Illegal Migration Bill

Lord Bishop of Southwark Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I want to make two quite separate points. I pick up on what the noble Lord just said; have the Government looked at what is really happening on the ground, the numbers of people currently waiting to be removed—that is a very large number—and the numbers coming in? How on earth are they going to get people away? Where they are going and what is going to happen was set out in much greater detail on an earlier amendment.

What worries me as I have sat listening, today in particular but really throughout the debates on the Bill, is that I do not think the Government have yet put their mind to the problems of numbers and how on earth they are going to get rid of these people, if I may put it rather bluntly.

The second point, which is so much more important, relates to what the noble Lord, Lord Scriven, just said, and I not only support him but admire him enormously for saying it. As I said on another Bill some time ago, I remind the Government that the Home Secretary is not a corporate parent, nor indeed at the moment is the Secretary of State for Education. The concept of the corporate parent is to be found in the Children Act 1989, as a local authority. Currently, the Government are expecting to deal with sometimes quite young children. I think they are concentrating on the 16 and 17-year-olds who are coming through and are not looking at a minority—but probably a relatively substantial minority—of children who are much younger. They have to be looked after. I do not want to repeat what the noble Lord, Lord Scriven, said, but it is crucial that they be looked after. The only corporate parent who can care for them is in fact the local authority where the children are. It is about time the Government started to look at not just the best interests of the children, which is so obvious—it worries me that I keep having to talk about that—but the points that the noble Lord, Lord Scriven, made, which really should strike home.

[The Lord Bishop of Southwark]

My Lords, I support Amendments 61 and 62 in the name of the noble Lord, Lord German, and welcome the opportunity to discuss what rules and regulations His Majesty’s Government will adhere to when selecting a site for the purposes of detention. The right reverend Prelate the Bishop of Durham had intended to speak but is unable to be here for this group of amendments; I am glad to be here in his place. I am grateful to Medical Justice for sharing how existing legislation governs both the nature and operation of detention centres. As it is a detailed policy area, I will focus my time on the context for these amendments while also posing questions to the Minister.

First, as the right reverend Prelate the Bishop of Durham explained at Second Reading, the Bill before us changes the nature and scope of detention considerably. It moves detention away from an administrative process to facilitate someone’s removal to a punitive system of incarceration intended thereby to deter asylum seekers from travelling to the United Kingdom. Deterrence, as we have seen, is a key theme stressed by the Government, albeit no evidence or impact assessment has been adduced in its favour. This shift towards incarceration signals a major transition in policy, but in embarking on this shift in the purpose of detention, the Government leave us with a lack of detail on what rules and guidance will be adhered to when the Secretary of State is selecting a place of detention.

However, the Minister replied on 26 May to the right reverend Prelate the Bishop of Durham’s Written Question that individuals can be detained for immigration purposes only

“in places that are listed in the Immigration (Places of Detention) Direction 2021”.

I know that the right reverend Prelate was grateful for that answer. Furthermore, the Minister stated:

“All Immigration Removal Centres … must operate in compliance with the Detention Centre Rules 2001, this includes any additional sites that are opened as IRCs to increase detention capacity”.


Can the Minister therefore say whether it will remain unlawful for the Government to authorise places of detention outside those specified in the direction?

Secondly, will the Minister explain how the power granted by Clause 10 to the Secretary of State to detain people

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

marries up with the Immigration (Places of Detention) Direction 2021? The Minister may understand my concern that the power to deprive a person of their liberty, and how and where someone is detained, should be constrained by law and not the discretion of a Minister of the Crown, or anyone else.

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The detention of this already vulnerable group increases the risk of retraumatisation and there is a risk to their long-term physical and mental health. On Monday, the noble Lord, Lord Alton, talked about the fact that victims must be identified because that enables them to be supported. In turn, as the noble and learned Baroness, Lady Butler-Sloss, has referred to several times, that affects the willingness and ability— ability is important too—to engage in investigations and prosecutions. This group of people is very much at risk of retrafficking and further exploitation, and needs the protection that these amendments put forward.

[The Lord Bishop of Southwark]

My Lords, I speak in support of Amendments 59, 63, 64 and 67 which, as has been demonstrated, have strong support from all quarters of this Chamber. It was the intention of the right reverend Prelate the Bishop of Durham to speak to these amendments but he is unable to be in the Chamber tonight.

I believe that the strength of opposition to any change in the current detention limits for both accompanied and unaccompanied children is because it is one of the most alarming and unedifying provisions in the Bill. Ministers have set out what they see as the need to detain children for immigration purposes in order to ensure that we do not inadvertently create incentives for people smugglers to target vulnerable individuals. Were this the case, then there would be a case for considering some sort of remedy. However, yet again we have been provided with no evidence that this is the case.

Building an asylum system with deterrence diffused throughout, as described by His Majesty’s Government, has led to this inappropriate proposal to restart detaining children, potentially for an unlimited period. As the noble Baroness, Lady Mobarik, said, it was a Government led by the party currently in office who took the brave decision to end the routine detention of children. That was against significant departmental pressure to retain the practice. How have we arrived, just 10 years later, at the conclusion that the well-being and welfare of children can now be sacrificed in consequence of the need to control migration?

In a rare admission to an evidential base for policy, on Monday the Minister referred to most persons deemed children in these categories being around the ages of 16 and 17. I accept his assertion on this point. However, as was said then, some children as young as 10 are involved.

The noble Baroness, Lady Mobarik, elegantly set out the impacts of detention of children. Studies show that the inescapable institutional nature of detention is traumatic for children and detrimental to the child’s physical and mental development. The Government are fully aware of the damaging impact of detention on children. I quote from one small section of the Home Office’s Assessing Age guidance, published only this March:

“Failure to adhere to the legal powers and policy on detaining children can have very significant consequences, for example … detention can be extremely frightening for a child, with their perception of what they might experience potentially informed by previous negative experiences of detention”.


It needs to be said explicitly that the Government will be sanctioning an intolerable level of emotional distress for the most vulnerable children. Understandably, a child will ask themselves, “What must be wrong with me to have been subjected to such conditions?”.

The Prime Minister stated that the Government’s objective behind the Bill is not the detention of children. None the less, that is what the Bill does. Given the Prime Minister’s just objective, why has the 2014 requirement that child detention be for the shortest time possible been expressly removed? In the year to March 2023, more than 8,000 children entered the UK who would meet Clause 2 conditions and who therefore could be detained indefinitely. In the first three years of the Bill’s operation, this may mean that up to 25,000 children will be deprived of their liberty. Should the deterrent effect of the Bill—about which we currently have no modelling whatever—fail, surely the 2014 requirement must be retained.

The Home Secretary bears a legal duty to safeguard children. Home Office guidance makes clear that this duty requires a demonstration of fair treatment that meets the same standard that a British child would receive. Would we tolerate the Bill’s proposals for our own children or grandchildren?

I welcome the amendments made in this area in the other place, but they do not go far enough. Legislating for the option to place limits on detention and for these limits not to be specified in the Bill is simply not adequate. It is an area that cannot remain entirely at the discretion of a Secretary of State, and children must have a means of challenging the lawfulness of a decision. Also, there have been no equivalent provisions for children within families. Why is one child different from another? Children will be detained after they have fled unimaginable horrors at home or been trafficked against their will. Children will be born in detention and others will have their futures shaped by it. It is the hope on these Benches that we are better than this and know what is right, having banished this immoral practice before. It will take real courageous leadership to change course, but we must. There is concern among my brother and sister bishops about the state of the nation’s soul if we tread so easily down this path.

[Lord Alton of Liverpool (CB)]

My Lords, that was a powerful intervention by the right reverend Prelate the Bishop of Southwark, whom it is a privilege to follow. I pick up a point he made a few moments ago about the amendments that were passed on Report in another place. Like him, I welcome those amendments but do not believe they go far enough. Nevertheless, the House of Commons recognised in those amendments that the power to detain unaccompanied children under the Bill should be exercised only in the circumstances specified in regulations made by the Secretary of State. Those regulations may include a time limit on such detentions, but the Bill neither requires nor establishes what other restrictions on detention will be put in place.

This is why the point that the noble Baroness, Lady Hamwee, made about the use of the affirmative resolution is so important. As things stand, the House of Lords Delegated Powers and Regulatory Reform Committee was right to say that, given the importance and the sensitivity of the subject matter, if regulations are made concerning the detention of children, the affirmative resolution procedure should apply. I hope that, when the Minister responds, he will deal specifically with that point and perhaps discuss with us how Clause 10 might be amended to take into account what the Delegated Powers and Regulatory Reform Committee suggested.

I turn now to the substantive points made in the wonderful speeches by the noble Baronesses, Lady Mobarik and Lady Helic, from the Conservative Benches. I hope that the Government will take into account the arguments that they have placed before your Lordships tonight. There is an echo of what they said in the evidence from the UK Committee for UNICEF, to which I referred in an earlier intervention, which said this about Clause 10, permitting the detention of children both unaccompanied and in families:

“This is not compatible with international standards and also risks undermining the great progress that the UK has achieved in working to end immigration detention of children since 2010”.


That point was made eloquently by both noble Baronesses, who do not want to see the clock turned back.

Whatever limits on the detention of children are made in regulations issued by the Secretary of State, they are unlikely to be sufficient to meet the requirements of the United Nations Convention on the Rights of the Child. Article 37(b) of the convention establishes the general principle that a child may be

“deprived of … liberty … only as a … last resort and for the shortest … period of time”.

The UK Committee for UNICEF says:

“Two relevant UN Committees have stated that the possibility of detaining children as a measure of last resort … is not applicable in immigration proceedings as it would conflict with the principle of the best interests of the child and the right to development … The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has stated that ‘within the context of administrative immigration enforcement … the deprivation of liberty of children based on their or their parents’ migration status is never in the best interests of the child, exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children’”.


The power to detain unaccompanied children pending removal or a decision on whether to grant them leave to remain would no longer be subject to the 24-hour time limit and other protections currently provided in Schedule 2 to the Immigration Act 1971. The Refugee and Migrant Children’s Consortium, referred to by the noble Baroness, Lady Lister, noted that this time limit was established by law

“because widespread evidence showed the long-lasting damage that detention has on children’s lives”.

The Government have stated that the detention of unaccompanied children will be

“for the shortest possible time in appropriate detention facilities with relevant support provisions in place”.

In an echo of what the noble Baroness, Lady Brinton, said earlier, I simply press the Minister to say what that word “appropriate” actually means. Please spell it out, because it has no definition as things stand and we are being asked to agree to something pretty awesome in this Bill tonight. That is why the speeches by the noble Baronesses, Lady Mobarik and Lady Helic, are so important and the Government should take proper note of them.

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Returning to Amendment 68, I fear that the Government’s obsession with deterrence, such that they intend to make life as grim as possible for all those who seek asylum in the UK through irregular means—not just small boats—regardless of vulnerability, means that they have lost all sight of humanity. I implore the Minister to think again and accept what is really a very small amendment but one that could make all the difference to the lives of pregnant women and their unborn children. I beg to move.

[The Lord Bishop of Southwark]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Lister, who has expertly outlined why these amendments are needed. My good friend the right reverend Prelate the Bishop of Gloucester has added her name in support of Amendments 68 and 70, and regrets she is not able to be here to give her support in person. I share her concern about the impact of detention on pregnant women in particular, impact which we know is considerable. Others will rightly draw attention to the impact on children, and the suggestion of the use of force against either group is unspeakable. His Majesty’s Inspectorate of Prisons advises that there

“is no safe way to use force against a pregnant woman, and to initiate it for the purpose of removal is to take an unacceptable risk”.

I turn now to Amendment 68, which is a preservation amendment. This simply asks that the Government maintain the status quo. In 2016, the Immigration Act introduced a 72-hour time limit on pregnant women’s detention, which saw the numbers detained drop from 99 in 2014 to just seven in 2021. It is alarming to think that we may see numbers rise, and the consequences are disturbing. According to research by Women for Refugee Women,

“women seeking asylum who are pregnant are an extremely vulnerable group. Many have experienced trauma such as rape, trafficking and torture, and have significant physical and mental health issues”.

I appeal to the Minister to consider also the well-being of the unborn child involved. The Royal College of Midwives has said:

“The detention of pregnant asylum seekers increases the likelihood of stress, which can risk the health of the unborn baby”.


Antenatal care and support provided to women who are detained has often fallen short of the care normally available to pregnant women.

Research by Medical Justice found that in Yarl’s Wood, women often missed antenatal appointments. Some had no ultrasound scans while detained, and women did not have direct access to a midwife and could not request visits. In recent years we have seen the devastating consequences of holding pregnant women in prisons. These facilities, including detention centres, are on the whole not set up to provide the necessary health and welfare oversight. This violates women’s dignity and puts lives at risk. The indefinite detention of pregnant migrant women, who are often extremely vulnerable and the victims of abuse and trafficking, is a very worrying and regressive move. The implication that force may be used against them, and against children, is beyond words. I hope wholeheartedly that the Committee supports these amendments and that His Majesty’s Government give them the consideration they so justly merit.

[Baroness Gohir (CB)]

I thank noble Baroness, Lady Lister, for putting forward Amendments 68 and 70, to which I have added my name. I also support Amendment 76A tabled by the noble Lord, Lord Scriven. Let me address Amendments 68 and 76A first.

I made a strong case at Second Reading as to why pregnant women should not be detained. I followed this up with a letter to the Minister. In the letter, which I sent on 19 May, I acknowledged that the Minister has a difficult job in trying to tackle illegal migration but inquired about the following points. I asked about what the Minister had said in his opening comments at Second Reading. He said:

“More than 45,000 people came here by small boat last year. The overwhelming majority of arrivals were adult males under the age of 40.”—[Official Report, 10/5/23; col. 1781.]


This suggests that there were only a small number of women. However, I asked for clarification to understand fully the numbers. If the number was indeed small, then the number of pregnant women would have been negligible. I therefore asked also for evidence of how many pregnant women had entered the UK illegally and whether there had been sharp rise in the figures. I asked this because if not detaining pregnant women was going to act as a magnet, we would have seen the sharp rise suggested by the Government. I chased up a response yesterday and was informed that a draft letter has been prepared and is going through final checks, and I will be receiving it soon. I wonder whether there could be a response today to my points.

It seems obvious that there are probably only a few pregnant migrant women coming to the UK every year, but of course I am happy to be corrected on that point. If the Government are trying to make a case that not detaining them would act as an incentive for more smugglers to bring pregnant women into the country or act as a magnet, that does not stack up. What assessment has been made to arrive at that conclusion?