Immigration Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 22nd December 2015 Lords Chamber

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

My Lords, this 162-page Bill ranges obviously fairly widely over immigration law. Today, therefore, one needs to be selective. The two matters I have chosen for brief comment are, first, immigration detention and, secondly—if I have time—support for failed asylum seekers. Both have, of course, provoked a great deal of controversy and, indeed, litigation down the years—in much of which litigation I confess that I have been involved.

Immigration detention is the subject of Clause 32 and, more particularly, Schedule 7, which are intended to regulate the granting of immigration bail for all those detained under the several different powers in earlier, pre-existing immigration legislation. As to the term “immigration bail”, I respectfully ask whether it would really be of assistance to anybody to describe it instead as release from immigration detention.

The two basic concerns that arise in this area are, first, the conditions in which those detained are held and, secondly, the length of time for which they are held. The physical conditions of detention are, as is well known, the subject of an ongoing review by a former ombudsman, Mr Stephen Shaw. I think we are promised that report by Committee. Therefore, I shall say nothing about that aspect now.

However, I want to say a word or two about the length of detention. There are two basically different circumstances in which people are detained under the legislation: first, on initial application for asylum and, secondly, when, much further down the line, it is sought to remove people whose rights of whatever sort have expired and it is proposed that they finally be deported. These are very different situations. Speedy decision-making—that is, when it is thought likely that a decision one way or the other on an initial application can be comparatively speedily arrived at—is facilitated by keeping those who make their claims readily available for interview and so forth during the processing of the individual claims. This is known as the Detained Fast-Track—or DFT—operation and has itself spawned a number of legal challenges. It was considered in the APPG report on immigration detention. However, that report concluded that there is, indeed, a need for such a procedure, although it is only fair to say that the report expressed some concern that,

“the focus is on detention rather than making quick, high quality decisions”.

The need was recognised that, in these cases, speed is desirable for both the claimants themselves and the many others who are waiting in the queue to have their applications decided.

The other, very different, situation in which people are detained, sometimes for substantially longer periods, is where asylum seekers—or other categories of immigrants—have exhausted all their claims. They have no further appeal rights or rights to remain and are detained pending their proposed removal from the country. These cases present altogether greater difficulties, certainly in terms of introducing any fixed limit to the permissible length of time for which they can be held. Although, on the face of it, the statutory power to detain pending removal is unlimited, 30 years of case law, starting with a decision by the noble and learned Lord, Lord Woolf, then Mr Justice Woolf, have established that it is not. It exists only so long as there is a reasonable prospect of removal within a reasonable time. These questions are kept under review and are subject, ultimately, to judicial scrutiny and decision.

What is reasonable inevitably depends on the facts of each case and the sort of considerations in play. These obviously include factors such as the risk of the person offending or, often, reoffending. Many of those detained for deportation are FNPs—foreign national prisoners—who are completing their sentences of imprisonment here. There is also the risk of absconding —going to ground and thwarting all attempts to enforce immigration control. Unsurprisingly, all these considerations are listed in paragraph 3(2) of Schedule 7, among the various matters to which regard must be had in deciding whether bail should be granted. Many participants in this debate have urged and will urge, benevolently, for fixed limits—sometimes as little as 28 days—to immigration detention. I say to those noble Lords: do not underestimate the ingenuity and persistence of many of those who seek to defeat immigration controls. Time and again, down the years, the system has been cleverly played, often by those who are least deserving of our sympathies.

In the present edition of one of the standard textbooks on immigration law, the chapter on detention and bail extends to 96 dense pages and endless footnotes. A case on this topic in the Supreme Court in 2011, in which I sat as one of nine justices, stretched to 115 pages of judgments. This is a difficult area of the law and I respectfully suggest that we should not rush to impose some limit. I recognise that, under the EU returns directive—from which the UK opted out—most EU countries have a time limit of under 18 months, some substantially shorter. I would certainly be interested to know how this is achieved; perhaps the Minister can help us. I rather suspect it is because other countries are more ruthless than we have been, over the years, in refusing to allow appeals and challenges against deportation. I am no supporter of what has been called today “indefinite administrative detention” but nor would I support releasing back onto our streets foreign national criminals who have managed to stretch their fight against deportation beyond some arbitrary time limit.

I turn, inevitably and more briefly, to support for failed asylum seekers, covered in Schedules 8 and 9. I hope to be reassured by the Minister that, one way or another, by reference to either local or central government—much of the dispute down the years has been about which of those two bodies is responsible for keeping destitute asylum seekers off our streets—we shall not again be faced, as we have been over the years, with certain immigration regimes which have allowed destitute asylum seekers unsupported on the streets. Some 20 years ago, in the Court of Appeal, I cited the Lord Chief Justice, Lord Ellenborough, from a 200 year-old case:

“As to there being no obligation for maintaining poor foreigners … the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving”.

Surely that holds no less true today.

Those are the only matters on which I will address the House today. These and a number of others will need to be more carefully explored in Committee, when we have more time.