Illegal Migration Bill

Lord Coaker Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I am slightly nervous to stand up here. On a serious point, I want to say a few brief words in support of the amendments in this group, in particular Amendment 58B, in the name of the noble Lord, Lord German, Amendment 60, in the name of the noble Lord, Lord Scriven, and Amendment 69, in the names of the noble Lord, Lord Etherton, my noble friend Lady Chakrabarti and others.

In the interests of being brief, I will try to cut through to what I think is the fundamental issue. This group is about standards in detention. The reason this raises such concern, which I think the Minister should address, is that new subsection (2I), as inserted by Clause 10, as has been mentioned by others, says:

“A person (of any age) detained under sub-paragraph (2C) may be detained in any place that the Secretary of State considers appropriate”.


That is a huge power to give to the Secretary of State: to allow the detention of people arriving since 7 March, of any age, in any place. It is perfectly legitimate, and summarises all the amendments and all of the comments —I will not go through them all, and if I have got this wrong then people can intervene and I will apologise—for noble Lords to ask the Minister what that actually means in practice.

I thought that the remarks of the right reverend Prelate the Bishop of Southwark, on behalf of the right reverend Prelate the Bishop of Durham, cut to the chase. If that is the situation, how are those standards going to be maintained? What actually are those standards? Are the standards the same in a barge or in a military camp? These are the sorts of details that the Committee would wish to hear from the Minister. What are the standards, given that it can be any age and in any place? What difference will there be between arrangements for unaccompanied children, families and others? This is particularly important because the power in new subsection (2C) is not actually for people who have been definitely determined as being people we would wish to remove; it is that the immigration officer “suspects”. We are talking about the detention of individuals, maybe children, who we suspect.

That leads us into the next group. However, if we are talking about standards, this becomes particularly relevant. We are talking about people who might actually be regarded as legitimate and eligible asylum seekers, even under the criteria of this Bill.

In order to be brief, I think noble Lords are seeking an answer to the question posed by new subsection (2I). A significant extension of power to the Secretary of State to designate any place for somebody of any age demands that the Minister be very clear about what the standards will be in each of those places, and who will monitor them to ensure that those standards are kept to.

[Lord Murray of Blidworth (Con)]

My Lords, as we have heard, these amendments bring us on to the issue of detention. The amendments in this group look at the standards of detention accommodation and seek to impose certain minimum standards in respect of accommodation and the treatment of detained individuals.

As I have repeatedly made clear, we need a new, radical approach if we are successfully to tackle the people smugglers and put an end to the dangerous, illegal and unnecessary small-boat crossings of the channel. The scheme provided for in the Bill needs to be unambiguously clear that if you enter the UK illegally you will be liable to detention and swiftly returned to your home country or sent to a safe third country. I want to make clear that the welfare of those who are detained is of the utmost importance. We will detain families and children, including unaccompanied children, only when it is necessary to do so and in appropriate accommodation with appropriate healthcare provision.

Amendments 61, 61A, 62, 66A and 69, tabled by the noble Lords, Lord German and Lord Scriven, and the noble and learned Lord, Lord Etherton, deal with the issue of accommodation standards and limiting the place of detention. I assure noble Lords that persons detained under the powers conferred by the Bill will be detained in age-appropriate accommodation that meets appropriate standards.

We detain persons for immigration purposes only in places that are listed in the Immigration (Places of Detention) Direction 2021 in accordance with the long-standing provisions of the Immigration Act 1971, at paragraph 18 of Schedule 2. In answer to the point raised by the right reverend Prelate the Bishop of Southwark, following Royal Assent we will update that direction in line with the new detention powers. Moreover, we already have robust statutory oversight of immigration detention, including inspection by the prisons inspectorate and independent monitoring boards at every detention facility, and effective safeguards within the detention process that, I submit, are sufficient.

My noble friend Lord Wolfson made some powerful points about the application of the international instruments to the question of detention standards, and clearly made the point that the UNHCR was expressly not given the right to issue determinative interpretations of the convention. It is up to states to interpret its terms in good faith, as we are doing.

The noble Lord, Lord Scriven, also has Amendments 59B, 64B and 79C in this group, which seek to transfer certain powers in relation to the detention and accommodation of unaccompanied children from the Home Secretary to the Secretary of State for Education. To be clear, the noble Lord referred to the temporary housing of unaccompanied children in Home Office-provided accommodation prior to their transfer to the care of a local authority. Such accommodation is not detained accommodation and is therefore not caught by the provisions of these clauses. I assure the noble Lord and the noble and learned Baroness, Lady Butler-Sloss, that we will return to this issue when we reach Clause 15.

The immigration functions provided for in the Bill are properly a matter for the Home Office. As noble Lords would expect, we regularly consult and work with the Department for Education on matters impacting on children, and that will continue to be the case in respect of the powers conferred by the Bill as they impact on unaccompanied children. As I have said, these are matters that properly fall within the purview of the Home Secretary and, as such, the functions to which these amendments relate should be exercised by her.

In relation to Amendment 70A which is specifically on the health and well-being of detained individuals, I can assure the noble Baroness, Lady Brinton, that we will work closely with the Department for Education to ensure that there are proper provisions for children in detention, and we will build on our current detention facilities to ensure that they are appropriate and provide safe and secure accommodation for children. The statutory guidance referenced in the noble Baroness’s amendment would not be applicable where someone is detained, but we will ensure that all relevant policies that relate to detention will continue to apply.

All persons entering detention are medically screened on arrival and have access to round the clock healthcare. This will continue to be the case. The existing adults at risk in immigration detention policy will be updated in line with the Bill and will continue to act as a safeguard for vulnerable persons in detention.

The noble Lord, Lord German, and the noble and learned Baroness, Lady Butler-Sloss, asked about our plans to increase detention capacity. We are increasing our detention capacity to ensure we have enough detention space, and we already have plans in place to build two new immigration removal centres. These include developing a new immigration removal centre in Oxfordshire on the former site of Campsfield House and a new immigration removal centre at Gosport in Hampshire on the former site of Haslar.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Scriven, and to speak specifically to the amendments in this group to which I have attached my name and to the general tenor of this. I did consider not rising to speak at all, because the incredibly powerful speech of the noble Baroness, Lady Mobarik, and her proposition that the words “detention” and “children” do not belong in the same sentence, can be said to sum up all of this debate.

However, I did want to give voice to someone else in this debate—the voice of a nine year-old who was held in immigration detention previously in the UK before the laws were changed. When asked how detention made her feel, this nine year-old said very simply, “Sad and angry. Feel like screaming or breaking something”. That is a nine year-old, talking about the kind of experience that we could again be subjecting children to in this country if the Bill goes through.

To put that in terms of a 2009 briefing paper from the Royal College of GPs, the Royal College of Psychiatrists, the Royal College of Paediatrics and Child Health, and the Faculty of Public Health:

“Reported child mental health difficulties include emotion and psychological regression, post-traumatic stress disorder … clinical depression and suicidal behaviour.”


A more recent paper, published in 2023 by Tosif et al, entitled Health of Children Who Experienced Australian Immigration Detention, said it showed devastating impacts on children’s physical and mental health and well-being and on their parents’ parenting capabilities. I wanted to allow that voice to be heard and to share that medical reference.

I just want to make one final reflection. There is a hashtag I use on Twitter quite often, #CampaigningWorks. Sometimes people say, “Well, it should have worked indefinitely. Why do we have to fight this same battle again?” I think that what the Government have got this evening is a very clear message that this battle has been fought before. We have learned a huge amount and got all the evidence from last time, and it is going to be fought again, even harder, from all sides of your Lordships’ House, to stop this element of child detention and to stop this Bill going through.

[Lord Coaker (Lab)]

My Lords, it is a privilege to follow a number of the contributions to this debate. I shall concentrate on Amendments 59, 63, 64, and 67 by the noble Baroness, Lady Mobarik. These, along with some others, are the most important amendments in this group, and we support what she has said.

I am a proud Labour politician, but I am not someone who thinks a Conservative Government have never done anything that deserves recognition or praise. The Modern Slavery Act is one such thing; the noble and learned Baroness, Lady Butler-Sloss, and I do a lot of work with respect to modern slavery, and we know that to be the case. Another, under the prime ministership of David Cameron, was the ending of child detention for immigration purposes. That Government —to be fair, they were a coalition Government—deserved an awful lot of credit for that, since it was an affront to our country that it was happening in the first place.

So it is a great surprise to us to see this Government, in their desperation to do something about the small boats crossing—which we all want to see something done about—driving a coach and horses through that. I would have thought they would have said, “This is something we are proud of. This is what we stood up for. Whatever measures we take to try to deal with small boats, we will not abandon that principle”. I know the Minister will say that the Government made a concession in the other place and came forward with a regulation-making power that will allow exceptions to be made and so forth, but that is not good enough.

The noble Baroness’s amendments are supported by the right reverend Prelate the Bishop of Southwark, my noble friend Lady Lister and many others, and I hope the Government listen. Whatever else we would wish to see done in order to tackle the problem that we face with respect to small boats crossing the channel—and there is a problem—I do not think any of us want to see children used as one of the ways of doing that. To be fair, I do not believe the Government would wish that either, but the fact is that the legislation as it stands means that unaccompanied children will be detained, and most of us find that unacceptable. That needs to change. We need to go back to the situation that existed before, as suggested by the amendments by the noble Baroness, Lady Mobarik.

I have a specific question for the Minister. Many of us received the briefing from the Refugee and Migrant Children’s Consortium, which says:

“If the Government’s intention is to detain and remove those arriving on small boats, then more than 13,000 children may face detention annually under this government proposal”.


Is it wrong? If so, it is incumbent on the Minister, if not now, to look at the way in which the organisation has arrived at that figure and tell us why it is wrong. Thirteen thousand children annually facing detention under the Government’s proposals is a significant number of children.

If that figure is wrong—this goes back to the problem of the impact assessment—then what figure are the Government using? The Minister says, and the noble and learned Baroness, Lady Butler-Sloss, referenced this, that there are no unaccompanied asylum-seeking children in detention at present. What assumptions are the Government working on here? They must have some figures somewhere for their expectation of the number of children who will be impacted by the proposed legislation as it stands. It would be helpful for us all to know what the Government’s assumption is of the number of unaccompanied children who may be detained as a result of these measures. Presumably they have scoped out the regulations that may be necessary which the Secretary of State may pass in future, so what is the number that the Home Office is working towards?

Secondly, what is the number of children who would be detained under the measures as currently drafted in this Bill who are with a family? I think it would be extremely helpful to all of us to have some sort of understanding of the number of children the Government are expecting their proposals to impact.

We have heard movingly from the noble Baronesses, Lady Mobarik and Lady Helic, and the right reverend Prelate the Bishop of Southwark about all the moral reasons for which we should not proceed with the Bill as it is currently laid out in respect of children. I think that the country would be in a situation where it would say to our Government that, whatever they do to control small boats, not to do it at the expense of children.

[Lord Murray of Blidworth (Con)]

My Lords, Clause 10 is an integral part of ensuring the success of this Bill, both as a deterrent and as a means of ensuring that the Home Secretary can comply with the duty to make arrangements for removal. The statutory powers to detain are spread across several different pieces of immigration legislation, such as the Immigration Act 1971 and the Nationality, Immigration and Asylum Act 2002. The provisions in this clause create new powers that will enable the detention of illegal migrants to establish whether the new duty to remove applies and to promptly remove those eligible from the UK. Many of the amendments in this group seek to limit these detention powers in one way or another, impacting our ability swiftly to remove those to whom the duty applies.

Amendments 58C, 58D, 63A and 63B, tabled by the noble Lord, Lord German, probe the threshold for detention and in effect seek to raise it by replacing the current test based on an immigration officer or Secretary of State suspecting the relevant matter with a test that requires an immigration officer to have “reasonable grounds for suspecting.” To deliver the objectives of this Bill, our detention powers need to enable detention of illegal migrants to ascertain whether someone falls within the duty to remove, and these amendments seek to reduce our ability so to do.

The issue of time limits is the subject of Amendments 60 and 65, tabled by the noble Lord, Lord Scriven, and Amendments 59 and 63 tabled by my noble friend Lady Mobarik and co-signed by my noble friend Lady Helic. The detention powers in the Bill are fundamental to our approach, and here, as elsewhere, we need a robust and uniform scheme that broadly applies to all and does not allow the system to be gamed, for example by adults pretending to be children, or provide scope for the people smugglers to exploit any exceptions or carve-outs. The Bill will create new detention powers specific to all migrants subject to the duty to remove being introduced in this Bill. These new powers will not be time-limited. However, in line with our other existing immigration detention powers, detention will be limited to a period of time that is reasonably necessary for the statutory purpose to be caried out. The new detention powers will not be subject to the same statutory limitations as existing detention powers to ensure the power can apply more widely.

We recognise the particular vulnerability of unaccompanied children, and therefore the Bill provides that the statutory detention powers may only be exercised to detain an unaccompanied child in circumstances prescribed in regulations by the Secretary of State, such as, but not limited to, for the purpose of family reunion or where removal is to a safe country of origin. We will set out, in due course, having reflected on debates in this House and the other place, a new timescale under which genuine children may be detained for the purposes of removal without judicial oversight—

[Lord Coaker (Lab)]

Will those regulations be available, even in draft form, before Report?

[Lord Murray of Blidworth (Con)]

I will certainly take that request back to the department.

Along with a new timescale under which genuine children may be detained for the purposes of removal without judicial oversight, the Bill will also allow the Secretary of State to make regulations specifying time limits to be placed on the detention of unaccompanied children for the purpose of removal, if required. I would remind my noble friends Lady Mobarik, Lady Helic and Lady Sugg that unaccompanied children are not subject to the duty to remove and the power to remove them will be exercised only in the limited circumstances we have already described. For the most part, unaccompanied children will not be detained under the provisions of the Bill but will instead be transferred to local authority care—that care which the Committee has broadly agreed is the correct place for these children to be located.

In answer to the question of the noble Lord, Lord Coaker, I do not recognise the figure of 13,000 detained unaccompanied children in the NGO report to which he referred. Those statistics did not of course include any allowance for the deterrence effect of the measures in the Bill.

Amendment 73, put forward by the noble Lord, Lord German, seeks to introduce time limits on detention that apply at large, not just to detention under the powers conferred by the Bill. An absolute bar on detention of all children and a 28-day time limit on detention of adults would significantly impair the effectiveness of our enforcement powers. Such a time limit is likely to encourage individuals to frustrate immigration processes to the point where the time limit is exceeded, necessitating their release, which would then significantly inhibit our ability to remove those who have no right to be here and are subject to the duty. I agree that immigration detention cannot, and should not, be indefinite; as we will come on to with later clauses, the legislation places clear limitations on the duration of detention and provides for judicial scrutiny of continued detention. We judge the existing safeguards provided for in respect of existing and new detention powers to be sufficient.

Amendments 61B and 64C, tabled by the noble Baroness, Lady Hamwee, relate to the recommendations of the Delegated Powers Committee. I am grateful for the work of the Delegated Powers Committee in its careful scrutiny of the Bill. We are considering the report, published just before the Whitsun Recess, and will respond ahead of Report stage.

Turning to Amendments 74, 75 and 76, which relate to the detention of vulnerable persons, I can assure the noble Baroness, Lady Hamwee, that the existing adults at risk policy, which I discussed earlier, will be updated to take account of the provisions in the Bill, and will act as a safeguard when detention decisions are made in respect of such persons. This statutory policy requires that evidence of a person’s vulnerability be balanced against immigration factors when considering whether detention is appropriate in their particular case. Finally, I remind the noble Baroness that under the terms of Section 59 of the Immigration Act 2016, revisions to the statutory guidance must be laid in draft before each House and then brought into force by regulations subject to the negative procedure, so there will be an opportunity for this House to scrutinise the necessary changes.

There are no exemptions from immigration detention for any particular groups of people. Amendment 76B, again tabled by the noble Baroness, Lady Hamwee, seeks to create an exemption to immigration detention for potential victims of modern slavery. When decisions are currently made regarding detention or continued detention, potential victims of modern slavery are considered under the existing adults at risk in immigration detention policy.

To sum up, the Government recognise that unaccompanied children are particularly vulnerable. That is why we amended the Bill in the other place to place limitations on their detention under the powers conferred by the Bill. For all others caught by the duty to remove in Clause 2, we believe it is appropriate for the Bill to provide for a single legislative framework for their detention, with tailored provision being made in our adults at risk statutory guidance. On that basis, I invite the noble Lord, Lord German, to withdraw his amendment.

[Lord Coaker (Lab)]

Before the Minister sits down, can I clarify that the 13,000 figure was not just in respect of unaccompanied children? It included families with children.

[Lord Murray of Blidworth (Con)]

I am grateful for that clarification.