Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Kennedy of Southwark Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Monday 5th October 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, my name is also to this amendment on behalf of these Benches, and I am glad to have the opportunity again to support our head terrier and add my yap to the debate.

Rights are significant, but they are of no use if you do not know you have them and do not appreciate that because nobody has told you about them. It is the state, of course, that should. Something less than citizenship is not the same as citizenship. An immigration status is not as good as citizenship for all sorts of reasons, some of which we rehearsed in Committee, and some of which have been mentioned today. I am glad so many noble Lords have talked to the position of the Roma people.

Those with rights should be encouraged to exercise them, not discouraged. It would be a reassurance to those waiting to see the hard evidence of the lessons learned from the Windrush inquiry if the Minister could report progress. Like the noble Lord, I was impressed by listening to Wendy Williams. I heard that event some months ago, when I had a little more energy to log on to online events. I was impressed by her observations about cultural issues.

I also agree with the committee, which stressed the importance of curiosity. It is necessary to stand in other people’s shoes to be able to respond properly to a problem.

However, given how much we have to get through today, I will not say more than this: what Parliament intended to put into law in 1981 should be observed. The report, as proposed by the noble Baroness, would be an important step towards this.

[Lord Kennedy of Southwark (Lab Co-op) [V]]

My Lords, I fully support my noble friend Lady Lister of Burtersett and others, and endorse her comments on the rights of children to register as British citizens and exercise their rights.

I find it shocking that the Government have not given way on the level of the fee and the particular problem of looked-after children. Frankly, it beggars belief that we have not made progress on this during consideration of the Bill. The fact that the previous and present Home Secretaries have raised concerns about the level of the fee should mean that we have some progress. The Home Secretary is the one person who can do something about this, but it appears she will not.

Like the noble Lord, Lord Russell of Liverpool, I am persuaded by the evidence and the contributions of many noble Lords in this debate. Let us be clear: these children are entitled to British citizenship. I always thought that British values were those of decency, fair play and justice, but I am afraid none of these is on display here today. What is on display is meanness, unfairness and a failure to act justly. It is an unjust position which has no place in modern Britain. As the noble Baroness, Lady Hamwee, said, having rights is no good if no one tells you that you have them and you are not encouraged to take them up.

Points were made previously about why the amendment could not be accepted, such as the technical point that this is only about EEA and Swiss nationals. Unfortunately, it is; that is because of the scope of the Bill. On the question of finances, how the Government need a fee to cover the costs of the process and ensure the effective running of the department in this area, they cannot have it both ways; for many years, like many other noble Lords, I have been arguing with the Ministry of Housing, Communities and Local Government that all we want is fees to cover the costs of planning. We were repeatedly told that we could not have it and that planning has to be subsidised by the council tax payer. I am afraid you just cannot have that. We do this either everywhere or nowhere at all. On settled status as opposed to citizenship, there is no question which is the better status. If you are entitled to citizenship, you should be able to get it.

The noble Lord, Lord Alton of Liverpool, set out the wholly reasonable nature of this amendment. It is asking only for the Home Secretary to lay before this House and the other place a report—nothing else, just a report—which must address the issues as set out in the amendment. I really do not understand why the Government are resisting this. As the noble Lord said, surely with the vulnerable position of these children, particularly looked-after and Roma children, no one could suggest that they are not disadvantaged people who need our help and consideration.

The Government’s reaction to this amendment is more than just disappointing; it is very worrying. We can discuss the hostile environment and Windrush, we can hear the apologies and the assurances they will not happen again, but having heard the Home Secretary’s speech yesterday, I for one fear that no lessons have been learned and that, instead, we are prepared to let these children be at risk. That is unacceptable.

I implore the noble Baroness, Lady Williams of Trafford, for whom I have huge respect—I have worked with her closely many times—at least to give a commitment to the House that she will go away and explain to the Home Secretary the strength of feeling across the House and hopefully, on this one issue, be able to come back on Third Reading having accepted what people are asking for.

[Baroness Williams of Trafford (Con)]

I thank the noble Baroness, Lady Lister, for tabling her amendment. I note that it takes a slightly different approach to those previously discussed in Committee, this time concentrating on an initial assessment of how aware the affected groups are of their citizenship rights and, equally, their ability to exercise them. It specifically seeks to highlight those aged under 25 with potential vulnerabilities as warranting particular attention.

Several noble Lords have referred to the Roma community as particularly vulnerable in terms of ensuring their status, certainly throughout the transition period and going into the future. I am very mindful of that. Noble Lords will recall the various voluntary sector organisations I have spoken about which are there specifically and precisely to provide tailored help to those who might slip through the net in terms of their status going forward.

The noble Lord, Lord Russell of Liverpool, talked about Wendy Williams; the noble Baroness, Lady Hamwee, asked me where we were up to in taking forward some of the recommendations. She may or may not know that last week the Home Secretary set out a comprehensive plan to take forward the recommendations and reaffirmed her plan for cultural shift in the Home Office.

I know that the amendment does not fit the Bill, if you like, but that does not mean we cannot discuss the various things that noble Lords have raised. I gave an assurance last time that I would write to the Home Secretary to consider what might be required in this area and ensure that she is aware of this House’s feelings. I am taking this forward, but it will take some time to consider; the level of detail in this amendment will be a clear guide to the areas and individuals which the noble Baroness feels require the most support. I am very happy to meet her to discuss these matters. I have already confirmed that I would like to meet the noble Lord, Lord Alton.

A number of noble Lords mentioned things such as “belonging”, which we talked about the other day, and people falling through the gaps and feeling that they really do not belong in society. I completely acknowledge the points that the noble Baroness makes about citizenship costs; I will not tell her that you do not need citizenship to live here, because your Lordships will not accept that sort of answer. I would like and intend to meet with the noble Lord, Lord Alton, and the noble Baroness to take forward some of these broader issues around societal cohesion, in a way, and integration.

I hope that there can be some reassurance that part of the same commitment made by the Home Secretary was to ensure that nationality laws are fit for the modern day. This is an ongoing process. We have made sure that the process is easier and simpler by moving application forms online, but I know that that is not the point that the noble Baroness is getting at. In terms of accessibility, it is easier, but we are talking about a wider point than just the amendment.

The noble Lord, Lord Alton, challenges me on the costs of mounting appeals; obviously, I will not talk about the one in hand. I think that, in asylum, immigration and all sorts of areas, the lawyers are making an awful lot of money in these processes.

I will welcome the discussion that we are going to have. I hope that the noble Baroness will withdraw her amendment and, with that, I will sit down.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, as my noble friend Lady Hamwee has made clear, on these Benches we support Amendments 17 and 25. I am particularly pleased to see my Committee stage amendment enhanced in this way, and to see the noble Lord, Lord Patel, adding his powerful voice at this stage.

The noble Earl, Lord Clancarty, emphasised the importance of those from the EEA who work in our creative industries and those who work in international research and innovation. As he said, the creative industries are a hugely successful sector generating over £112 billion for the UK economy, and, as the noble Lord, Lord Hunt, emphasised, it is vital that changes being made in the immigration system protect the excellent UK medical research environment, which drives vital progress for our patients. As the noble Lord, Lord Patel, said, our research and innovation sector is world-class. I can testify to that as the chair of a university council.

All noble Lords have emphasised the importance of freedom of movement and international mobility to both these groups. I am not going to repeat what I said in Committee about the music industry. I will not rehearse those arguments, but that still does not diminish their power, particularly regarding freelance creatives, who have been mentioned today.

In respect of part of the predecessor to Amendment 25, which I moved in Committee, the Minister—the noble Lord, Lord Parkinson—said on 9 September,

“I appreciate the passion which many noble Lords have expressed for the UK’s creative sector and its unquestionable success—it is a passion I share—particularly in the current challenging climate.”

Then in a passage which could be taken both ways, depending on whether your temperament makes you an optimist or a pessimist, he said:

“In addition to keeping labour market data under careful scrutiny to monitor pressures, Home Office analysts will lead a comprehensive evaluation of the new immigration system.”


I am not sure whether that should chill my blood, in the circumstances, but he will find precious little passion in the Home Office. He then said:

“I part company with some of the noble Lords who have spoken this evening, as I do not believe we need to create a new mechanism for this. We are very fortunate that we have the Migration Advisory Committee, which has been mentioned many times already and which is widely recognised for its expertise and independence”.—[Official Report, 9/9/20; cols. 892-93.]


However, the expertise of the MAC is very narrowly focused. I looked through the list and I think there are three professors of economics, a doctor of economics and somebody who is a migration specialist. I suspect—it is not clear—that she has an economics background, so that is a full house of economists. The Minister tried to reassure us that the MAC has the ability to comment on any aspect of immigration policy as it sees fit and that it will produce an expanded annual report. What reassurance is that, if it is the wrong body? It may be good at producing reports on skills shortages in the wider economy, but where is the sectoral expertise?

As the noble Baroness, Lady Neville-Rolfe, said, this is about culture not economics. I thought that was a bullseye. Where is the committee’s understanding of the issues, particularly in respect of the creative industries and research science? Its track record on salary thresholds as they apply to the creative sector is not reassuring at all. Where is the ability to consider costs and reciprocity, as mentioned by my noble friend and other noble Lords? I do not believe the Minister has persuaded us that the MAC is the right body to carry out a review of the recruitment of international research and innovation staff, and creatives, into the country. We heard all around the House about this: from the noble Baroness, Lady Bennett, about artists; from the noble Lord, Lord Hunt, about orchestras; from my noble friend Lady Hamwee and, eloquently, from the noble Baroness, Lady Bull, about creatives. Where is that understanding in the MAC?

In contrast, Amendment 25 would have a proper focus—I think that was the phrase used by the noble Baroness, Lady Bull—on these sectors. On these Benches, we fully understand that the noble Earl, Lord Clancarty, intends not to put his amendment to a vote. But I assure him that we will give him every support in prosecuting his case in every other way possible.

[Lord Kennedy of Southwark (Lab Co-op) [V]]

My Lords, Amendments 17 and 25, in the name of the noble Earl, Lord Clancarty, and others are ones that I fully support. To deal first with science and research, in this instance I agree with the Prime Minister: I want Britain to be a science superpower. That is a wonderful idea and aim, and if we delivered it we would ensure that the wonderful work of our innovation continued. My problem is that we seem to be doing everything possible to ensure that it does not happen. I bet that our competitors in the United States, France and Germany cannot believe their luck given how Britain is acting, as we are doing everything possible to drive people away—the innovators and scientists, the people who want to come to develop new drugs. Look at all areas of work and business; they are being driven away by the attitude of the Government. I find it frankly astonishing that we have to have this debate. It is of course one of the many benefits of Brexit. It keeps on giving, and I find it astonishing that we are here.

I also remembered the words of the noble Earl, Lord Clancarty, in Committee, when he told us that we should not forget that:

“What we do to others will be done to us”.—[Official Report, 9/9/20; col. 876.]


We are going to find ourselves in all sorts of difficulties, and I will miss what we had. It gives me no pleasure at all to see what Britain is doing.

With regard to the arts, again, it is hard to overestimate the amount of money the arts bring in, and many noble Lords spoke passionately about them. I wanted to mention somebody who changed my life. Franz Busuttil was my music teacher at school; I met him when I was 11, and he taught me how to read music and play musical instruments. I did my Associated Board exams and he opened up my life to the world of the arts and music. Franz was Maltese, of course; he probably would not be allowed in under the present regime, but he changed my life and, when I go to the Globe or a concert, I always think about how Franz did that for me and his contribution to this country as an immigrant.

When you sit in a theatre, such as the Globe, and look around, people from all over the world are sitting there, watching Shakespeare being performed in a theatre very close to where it was performed originally. People often come to Britain—and we want tourists to come here—but they do not often come for the weather; they come for the art, the culture and the fantastic experience they can have. Look at the Edinburgh Festival, the greatest arts festival in the world. That is what this country is all about.

Again, with the decisions we will take here today on this Bill, we are just cutting our nose off to spite our face; it is absolute madness. I fully support these amendments and hope that the noble Baroness can see the passion of many noble Lords who have spoken in this debate and give a positive reply.

[Baroness Williams of Trafford (Con)]

I start by agreeing with the noble Lord, Lord Kennedy, that people do not come to this country for the weather. I also thank the noble Earl, Lord Clancarty, who has engendered a very thoughtful debate, and I am glad to say that I agree with most of the points that noble Lords have made tonight about migrants working in the research, creative arts and entertainment sectors, whose presence in the UK is often facilitated through short visits and who are crucial for this country; it is important to protect them. I also agree that international collaboration and movement of people are very important for these sectors to really thrive.

When noble Lords were making their speeches, I was thinking about the discovery of graphene by two Russian scientists in Manchester. What a difference it has made, not only to Manchester but to the future of innovation in this country and internationally. Our immigration system recognises this fact. I believe that the two sectors that have featured in tonight’s debate already receive what might be considered preferential treatment in the system.

Currently, visiting artists, entertainers and musicians can perform at events, take part in competitions and auditions, make personal appearances and take part in promotional activities for up to six months without the need for formal sponsorship or a work visa. They can also receive payment for appearances at permit-free festivals for up to six months—or for up to one month for a specified engagement—under the visitor route.

Artists wishing to come to the UK for longer-term work will need to do so under the points-based system. However, we will maintain a dedicated immigration route for creative workers under tier 5 of the immigration system. This route will continue to cater for the sector as it does now, permitting a broad range of creative workers to live and work in the UK for up to 12 months at a time. Noting what the noble Lord, Lord Hunt, said, about musicians who want to come for two years, I understand that they can stay for up to two years if the sponsor signs for it.

As non-visa nationals, EU citizens will benefit from the concession for temporary creative workers looking to remain in the UK for up to three months, without the need to apply for a visa in advance, provided they first secure a certificate of sponsorship. We will also keep the global talent immigration route, which I will say a bit more about when I talk about the research sector, but I mention it here to demonstrate to noble Lords the breadth and range of immigration routes available.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab Co-op) [V]]

My Lords, the noble Lord, Lord Oates, has given us an authoritative, commanding, clear, direct and confident explanation. The noble Lord can do that because of the power of the case he presented: it is simple, clear, and it is just the right thing to do. We on the Labour Benches will support the noble Lord when he divides the House.

As the noble Lord, Lord Polak, said, EU citizens need to be treated fairly, properly and with respect. The Government have provided nothing to justify what they are proposing to do. I also note that there has been only one speaker tonight in support of the Government, and that is out of not only the Members of the Opposition but the eight speakers from the Government Benches tonight.

The noble Lord, Lord Oates, reminded the House of the problems you can get yourself into if you are a landlord. There are serious penalties if you have not checked documents to ensure the person you are renting your property to is somebody who is entitled to rent the property. If you are an employer, you have to check documents to ensure that the person you are employing has the right to be employed. If you get those wrong, you face serious penalties.

I know that if I was in the position of these individuals, I would want a physical document, physical evidence or physical proof that I could put away and, if there was a problem, some years later get out and then justify that I actually had the right to live and work in the United Kingdom. I think we should not underestimate the stress and the worry—we have all seen from the emails we have received how concerned people are about the position of the Government. I think the noble Baroness, Lady Bull, gave a very powerful case on the question of domestic abusers and how abuse is often about control. Here we are, potentially putting people at risk again, having to go back to their abuser to give them that control over their lives again. We need to be very careful here.

Noble Lords who were at the debate in Committee will recall me explaining that I live in Lewisham, and I have done very many citizenship ceremonies where somebody becomes a British citizen. They get a letter from the Home Office and they are told to contact their local authority, and they ring up Lewisham Council—where I live—and they book a place at the next available ceremony. They come along, they bring their letter from the Home Office and they have it checked. I am there as one of the people who officiates at the ceremony, and the registrar—the person who normally does births, marriages and deaths—explains to people how important what they have done is and how proud they should be to be a British citizen. We sing the national anthem, the members swear an oath of allegiance to Her Majesty, and in the final part of the ceremony the individuals come up one by one and I hand them a paper certificate. These are signed by the Home Secretary; I have handed them out from Theresa May, Sajid Javid and Amber Rudd. I am absolutely confident that today in the Home Office there are people running off certificates signed by Priti Patel. That is the ludicrous situation we are in.

The Minister did not answer this point when she replied in Committee, but I hope she can address this point tonight. Can she please explain, for me and the House, the logic of and justification for the Home Office refusing individuals who have been granted EU settled status a physical document but, exactly at the same time, requiring those individuals to be granted British citizenship, to attend a ceremony, and at that ceremony be handed a certificate and be told by the official at the ceremony how important this document is? They are told, “You must check it before you leave, it is a really valuable document and you need this”, and how important it is. I cannot see the logic of that argument—it is nonsensical and ludicrous—and I do hope the Minister can address that point. At exactly the same time, not only the same Government but the same government department—talk about facing two different ways at once—are creating this ridiculous position.

I hope that the noble Baroness can step back and look at this farcical situation that the Government are seeking to justify here tonight. As many other noble Lords have said, she is highly respected. I like her very much. As a Minister, she has always been willing to engage with me outside the House and I have been able to raise things with her. I have appreciated that very much. However, I hope that she can go back to the Home Office, speak to the Home Secretary and explain how ridiculous this situation is. These certificates have been handed out with the present Home Secretary’s name on them.

In conclusion, I agree with the right reverend Prelate the Bishop of Southwark. We risk appearing to go out of our way to make the lives of our fellow citizens as difficult as possible. As the noble Lord, Lord Cormack, said, we should be a tolerant House and not seek to do that. There is no justification for behaving or acting like this. The Government are not being reasonable. I hope that they can accept the amendment but, if they do not, I have no doubt that it will be carried overwhelmingly tonight in a Division.

[Baroness Williams of Trafford (Con)]

My Lords, I think that there is one thing on which we can all agree this evening—that it is not a great week to be promoting the benefits of technology, and the difficulties have arisen on the immigration Bill as well, which is very irritating.

It is also true to say that, when speaking, the noble Baroness, Lady Bull, for example, absolutely relied on her iPad, and rightly so. It has been great to see noble Lords trusting the technology. In fact, it is probably fair to say that the past six months have seen us very reliant on technology, and for the most part it has not let us down. In addition, it has staved off loneliness for many people. I congratulate the the3million group on engendering concern on this matter but I hope—in fact, I know—that in the same way as noble Lords have thoughtfully addressed that concern, they will also listen to the points that I will be making this evening.

I think that it was my noble friend Lord Horam who talked about when the post office book was abolished. In fact, I remember when the children’s allowance book was abolished. I really did not trust that the money would be put into my bank account. More recently, the tax disc has been abolished. There is no paper record of you having paid the tax, but somehow the police know that you have because of the technology.

I thank the noble Lord, Lord Oates, for so thoroughly outlining his case and for providing the House with the chance to discuss the issue of physical documents for EEA citizens who apply under the EU settlement scheme. He knows that I will not agree with him and will try to argue that it is a hindrance to modernising our immigration system. He asked me about the policy equality statement. I understand that it will be published shortly.

Some noble Lords—in fact, I would say almost all, other than my noble friend Lady Neville-Rolfe—expressed concern about the move to providing access to immigration status online to EEA citizens granted leave under the EU settlement scheme. Like many other government departments, we are moving our services online and there are noble Lords who support digital systems, albeit maybe not in the context of this evening.

The noble Lord, Lord Oates, attested that those protected by the withdrawal agreement do not have their rights underpinned by legislation, but of course they do, through the withdrawal agreement Act. Moving to online services is part of our declared aim of moving to a system which is digital by default, whereby all migrants, not just EEA citizens, will have online access to their immigration status, rather than having physical proof. They will be able to access their immigration status online at any time and from anywhere via the view-and-prove service on GOV.UK, which is available through a variety of devices ranging from smartphones to desktop computers. I am very impressed to hear that my noble friend Lord Cormack has availed of the last few months to use computer software. I never thought I would hear him say that.

All this represents a major change. We have recently seen a real shift in how people behave; in the culture and habits of how the Home Office issues proof of immigration status, and the way in which migrants and others will be able to use this. Of course, we want a robust and secure system that is both efficient and convenient. My noble friend Lady Shackleton pointed out the horrors of having anything hacked. We are at the beginning of this important journey and we recognise that some people may not see it this way, but I urge noble Lords to persevere and let us see this journey unfold properly in a systematic and focused way. We have to commence change somewhere, and the EU settlement scheme has provided the right opportunity.

Noble Lords may remember that, not too long ago, we introduced a new application process for the settlement scheme based on a smartphone app. There was an absolute outcry against it, with press stories and complaints about people not being able to use it or adjust to this new way of making an application. However, this process has proved to be a success and over 3.9 million—almost 4 million—people have used it since its launch in August 2018. I challenge any noble Lord who has not seen the process work to take the time to do so. I will arrange for them to have a look; it is very simple. Change obviously brings complexity and resistance, but we have to embrace it and ensure the right mitigation and support for those who need it most. We have done that through the measures I have outlined previously.

As I said earlier, recent events with Covid have highlighted how vital it is that government systems and services are accessed digitally. As a result of the restrictions placed on the public by the pandemic, we have seen a sharp uptake in providers of services moving online and people have shown their ability to adapt. Digital services have enabled this country to cope during the pandemic, enabling many people—not us, obviously—to work from home, shop and obtain government services remotely.

Our online service has enabled many employers to conduct remote right-to-work checks on foreign national employees since January last year—nearly two years. This has removed the need for physical documents to be handed over, enabling social distancing rules to be followed and reducing contagion risks. This service is available to non-EEA holders of biometric residence cards, or biometric residence permits, and to those granted status under the EU settlement scheme. It represented the first step in our journey to make evidence of immigration status accessible online.

Making this status information available via secure online services has also meant that we can simplify and standardise the system of checks for employers, by providing information about an individual’s status in a format that is easy to understand and accessible to all users, removing the need for employers, and others, to authenticate the myriad different physical documents and interpret complex legal terminology or confusing abbreviations. This service provides employers with a secure, auditable record that they have conducted a check on the employee, which they can store electronically. There is no need for them to check whether a document is genuine, or to go through the process of photocopying it, signing and dating it and then filing it away in a folder or cabinet, all of which they have to do when relying on a physical document.

For those individuals, including employers, landlords and other third-party checkers, who have not already made use of the online service, we are developing an extensive package of communications to ensure that everyone is fully aware of the move to digital and how online immigration status can be accessed and used. The noble Lord, Lord Paddick, again brought up the issue of the physical document to enable renting. It does enable people to rent, but it is not a proof of status.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, I want to take up just two themes that wove through the debate in Committee. The first was about UK practice compared to that of other European countries. The Minister said in her response to the debate in Committee that

“no other European country has adopted anything close to a time limit as short as that which is proposed in these amendments. Acknowledging the complexity of securing arrangements for the return of people with no legal right to remain, the European Commission itself recently proposed that a new minimum detention period of three months be put in place.”—[Official Report, 14/9/20; col. 1019.]

I fear that the Minister might have got tripped up by the Brussels phenomenon known as “minimum maximum”, whereby the formulation “maximum of not less than” is part of a directive—or maybe a word got lost from the Minister’s speech, because the Commission’s proposal for the recast of the returns directive—a directive to which the UK of course has not opted in—actually reads:

“Each Member State shall set a maximum period of detention of not less than three months and not more than six months.”


In other words, member states should set a maximum period of detention in their national laws. That maximum period can be between three months and six months. There is no requirement in existing or proposed EU law for individuals to be detained for a minimum of three months, which the Minister’s words might have implied, no doubt inadvertently.

The second theme I will mention is the Government’s contention that detention is a necessary part of efficient and effective immigration enforcement. The report on immigration enforcement from the National Audit Office in June, to which reference was made in Committee, said:

“Immigration Enforcement … cites an increase in individuals making late or spurious claims for asylum … It believes many of these claims are used to delay removal but noted in 2019 that it did not have a strategy across the work of Immigration Enforcement and the rest of the Department to mitigate the abuse or to tackle the backlogs being caused by associated delaying tactics. We have not seen any systematic analysis designed to help the Department understand why claims are increasing, or to rule out if Immigration Enforcement’s own actions might have contributed to the increase.”


So my conclusion is that the Government have a lot of work to do across the whole field of immigration enforcement and removals. While they can rely on indefinite detention, they are not doing the work necessary to improve their systems to avoid unnecessary detention. To that end, a limit of 28 days would focus their mind on the other tools they need to have at their disposal and return detention centres to the genuine immigration removal centres that they should be.

[Lord Kennedy of Southwark (Lab Co-op) [V]]

My Lords, I intend to be brief, as this has been a long debate and the time is getting on. Amendment 20, moved by the noble Baroness, Lady Hamwee, along with her other amendments in this group, are ones that I support. My Benches will support the noble Baroness when she divides the House. The amendment would limit detention to a maximum of 28 days. As we have heard, people are often released into the community anyway. As the noble Baroness said, that begs the question of why they need to be detained in the first place.

Huge strain, stress and anguish are placed on those who find themselves detained with no clear idea of when that will end. As the right reverend Prelate the Bishop of Southwark said, the Government have had ample opportunity to bring forward an amendment of their own to deal with this issue. I will point out that there is not a single government amendment at this Report stage, and I do not think—I am sure I will be corrected if I am wrong—that there were any government amendments in Committee either. Sadly, that says to me that the Government have learned nothing, and that the hostile environment is alive and well. Despite the lateness of the night, I hope that the amendment is carried by a large majority.

[Baroness Williams of Trafford (Con)]

My Lords, I too shall try to be as brief as possible. We must have an immigration system which encourages compliance and provides opportunity for people to leave voluntarily, but, where they refuse, we must have the ability to enact that removal. We do not detain indefinitely: there must always be a realistic prospect of removal within a reasonable timescale, and this is a complex process which requires a case-specific assessment to be made for every single person whose detention is considered.

The noble Baroness, Lady Ludford, argued that we were the only European country without a time limit on detention. It is of course more complex than that. I note that no European country has adopted anything close to a time limit as short as that which is proposed in these amendments, as she outlined. I did not get her maximum/minimum point—maybe because it is just too late in the evening—but the EU seems to be very opaque in that regard. Of course, jurisdictions comparable to ours such as Australia and Canada have not gone down this route.

We have a duty to those in the immigration system, but we also have a duty to protect public safety. The introduction of a detention time limit would severely limit our ability to remove those who refuse to leave voluntarily and would encourage and reward abuse, in some cases from individuals who present a genuine threat to the public. It would also allow those who wish to frustrate the removal process to run down the clock until the time limit is reached and release is guaranteed, regardless of the circumstances of that person’s case, potentially placing the public at higher risk through the release of more foreign national offenders into the community.

Immigration detention is a limited but necessary aspect of the removal process. We agree that it should be used only where necessary, for the minimum number of people and the shortest possible time. The detention estate is now almost 40% smaller than it was five years ago, with 8,000 fewer people entering detention in the year ending December 2019 than in 2015.

Safeguards are central to our commitment to ensure that decisions to detain, and to maintain detention, are properly scrutinised. When a person is referred for detention, an independent detention gatekeeper assesses their suitability for it. Since 2016, this gatekeeper has rejected more than 2,300 referrals for detention.

Case progression panels provide important guidance on the appropriateness of anyone detained under immigration provisions at three-month intervals. We have responded to Stephen Shaw’s recommendations in 2018 and piloted the participation of independent members in these panels, increasing their diversity of professional and cultural expertise, and demonstrably raising the quality of their insight. We are now moving to make this independent element a permanent feature.

Automatic referrals for bail occur at the four-month detention stage for non-foreign national offenders, providing additional external oversight of detention decision-making. It is worth noting that automatic bail referrals are an additional safeguard and do not affect the rights of all detainees to apply for bail at any time, regardless of the timeframe for automatic referrals. Due to the pandemic, bail hearings previously held in court are temporarily being dealt with by remote means, using videolink et cetera. Our response to these unique circumstances has ensured that there is no resulting backlog in bail applications.

The adults at risk in immigration detention policy has strengthened the presumption against detention for vulnerable people, ensuring that people are detained only when evidence of their vulnerability is outweighed by the immigration considerations. Everyone in detention has access to round-the-clock healthcare of the standard that can be expected in the community. Over the last few years, we have increased the ratio of staff to detained individuals in immigration removal centres to ensure that people can access support and advice should they need them. We constantly review and amend staff training materials on the care of vulnerable people.

Detention is already used sparingly and, as noble Lords have said, we continue to pursue alternatives wherever possible; 95% of people who are liable to removal from the UK are managed in the community while their cases are progressed. We are piloting a scheme for vulnerable women who would otherwise be detained at Yarl’s Wood immigration removal centre to be housed and supported in the community prior to their removal.

I need to differ from the noble Baroness, Lady Meacher. In the current immigration system, it is only in the most complex cases—most frequently, though not always, foreign national offenders where serious criminality is involved—that detention exceeds 29 days. In the year ending December 2019, 74% of people were detained for less than 29 days; only 2% were detained for more than six months.

The noble Lords, Lord Kerr and Lord Roberts of Llandudno, talked about the number of cases that we lose on appeal; they are absolutely correct. Many people lodge claims right at the last minute and this makes it very difficult, but there are ways in which we are trying to limit that, for example by dip sampling cases after the two-month point to see if we can expedite them.