Immigration: Detention

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 26th March 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, wish to pay tribute to my noble and learned friend Lord Lloyd of Berwick for his tireless work in this House over so many years, championing with such passion so many admirable causes. This is truly a fin-de-siècle occasion. Speaking as one who has been privileged for the last three years to have shared his room and plundered his wealth of knowledge and experience, I particularly will miss him.

I turn to the topic of today’s debate. I want both to congratulate the APPG on its inquiry report, with which in large part I sympathise and agree, but at the same time enter a defence for the judges who have been criticised in the report, notably on page 18, and again by my noble and learned friend Lord Lloyd in this debate. It is perfectly true that judges cannot be relied on to get the period of detention of all immigration detainees down to 28 days, the upper limit which the report recommends should be adopted, or indeed to the 60 days in all cases, as was advocated during the course of the Immigration Act. But without explicitly limiting legislation, it is not the fault of the judges.

There is no time today to explore the large body of case law on this subject. I would just mention a case in the Supreme Court in 2011, that of R (Lumba and Mighty) v the Secretary of State for the Home Office. It was one of the last cases in this part of the law with which I was concerned as one of nine justices, and the report on it is 115 pages long. This is a difficult area of the law.

Lumba brings me to the central point I want to make. There is all the difference in the world between the detention of those whom the Home Secretary is attempting to deport for whatever reason when they have absolutely no right to remain here, sometimes after a while, and those who are being detained pending an initial application for asylum. Lumba concerned the former category—foreign national prisoners having served their sentences of imprisonment. Although the appeals of both of the appellants in that case were in the event allowed by a majority of the court, they succeeded not because of the excessive length of their periods of detention—the House will be surprised and perhaps shocked by this: respectively almost 56 months and 26 months—but because the Secretaries of State in question had failed to apply their own published policy. No one was disputing that, even had that policy been applied, both would inevitably have been detained. They had been convicted of serious offences, the Home Secretary was seeking to deport them at the end of their sentences and they were detained pending removal because of the risks that they posed in the mean time in terms of absconding and reoffending.

The length of Lumba’s detention was the result of a series of appeals and judicial review challenges that he brought, all of which had to be heard and determined before he could be deported. The question of whether the length of detention was, in those circumstances, “reasonable” within what are known as the Hardial Singh principles—essentially the principles of reasonableness originally devised and set out by the noble and learned Lord, Lord Woolf, many years ago in the case of that name—was remitted to the High Court to decide on the particular facts of that case. It was, I may add, on the application of the Hardial Singh principles that the two claims referred to at page 23 of the inquiry report were decided.

The other main category of immigration detainees are those detained under what is known as DFT—the detained fast-track scheme—which is designed to get a speedy decision on an initial application, which is desirable both for the applicant and for others waiting in the queue to have their applications decided. That was the category under consideration by Mr Justice Ouseley in the case discussed at pages 37 to 39 of the report. As his lengthy judgment explains, the only respect in which he found the process carried an “unacceptable risk of unfairness” was that it does not provide for the sufficiently early instruction of lawyers to advise and prepare the asylum claims—a problem that I hope is now addressed.

Highly desirable though it would be, I do not know whether a 28-day time limit could be achieved in all DFT cases and I am sure that it would be quite impossible in many other cases, even if the Home Office faithfully follows its own guidance of using detention only sparingly and for the shortest possible period. Whether any time limit, and if so what, should be imposed, I leave to others. I add only that I suspect many other countries do better in terms of the length of detention because they are altogether more ruthless than we are in refusing appeals against deportation.