Immigration: Detention of Pregnant Women

Lord Ramsbotham Excerpts

Thursday 27th October 2016 Grand Committee

[Lord Ramsbotham (CB)]

My Lords, I congratulate the noble Baroness, Lady Jones of Moulsecoomb, on obtaining this debate, and I thank her for it. I salute her persistent pursuit of the right course of action regarding the detention of pregnant women. I also thank the House of Lords Library for yet another comprehensive and helpful briefing pack.

My interest in the subject began in 1997, when as Chief Inspector of Prisons I was invited to take on the inspection of what were then called immigration detention centres. I immediately found that the detention of pregnant women was one of many issues demanding urgent attention. What was particularly disturbing was the lack of availability of reliable statistics with which to identify the scale of separate parts of various problems, and proper scrutiny was inhibited by a lack of information. Like the noble Baronesses, Lady Hamwee and Lady Lister, I was a member of the All-Party Parliamentary Group on Refugees that reported on the use of immigration detention in 2015 so, while not exactly having an interest to declare, I must admit to having form on the subject.

Like other noble Lords, I was very glad when in April this year the Government announced that a 72-hour time limit was to be placed on the detention of pregnant women, which could be extended up to a week. However, that this debate has been tabled so soon after that makes me wonder whether the Home Office is producing the required statistical information. That scepticism results from numerous examples of poor availability over the years, and is reinforced by the recent experiences of the charity Women for Refugee Women, which the noble Baroness, Lady Jones, has already spoken about. You would think that after being publicly castigated by the Commissioner for Information for having breached the conditions of the Act, any organisation would learn its lesson. Not the Home Office. I am sure the Minister will agree that this story is simply not good enough, and if the Home Office knows the facts it should be able to answer by return rather than having to be chased. This failure to produce data has been matched by the Home Office’s failure to produce its promised detention services order, which the noble Baroness has also mentioned.

That leads me on to two other issues, not solely about statistics but about which statistics should be available: the definition of torture and the short-term detention rules, both of which affect pregnant women in detention. On 12 September this year the Government issued draft guidance on adults at risk in immigration detention, which did not adopt the wider definition of “torture” previously used in detention policy but, rather, the rather narrower one in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which limits torture to acts involving a public official. This conflicts with Stephen Shaw’s findings and recommendations in his recent report, including that there should be a presumption against detention for victims of rape and other sexual or gender-based violence. Therefore I have to admit that I was rather surprised by the Minister’s assertion in answer to a Written Question from the noble Baroness, Lady Hamwee, that those most likely to be adversely affected by detention are those who have been harmed by the state. I ask the noble Baroness from where the evidence for this assertion comes and how it was gathered? The Government’s time limit was based on evidence that pregnant women are extremely likely to be adversely affected by detention, which pregnancy may well have resulted from rape. Her assertion explains why I am also concerned that Home Office caseworkers should have appropriate statistical information available when considering a recommendation that any pregnant woman should be detained for more than 72 hours.

I now come to the conditions in which pregnant women are detained. When, as Chief Inspector, I expressed concern about the lack of facilities in detention centres, particularly for those detained for months or even years, I was told that they had not been deemed necessary because they were essentially only short-term holding centres. However, as their regimes did not appear to be geared to quick assessment and turnaround, I began agitating for the production of short-term detention rules which have since been promised over and over again. I thought, in vain, that we were there following a consultation on a draft in 2006 and again following a similar consultation in 2009. Yet again my hopes were raised and dashed following ministerial assurances that publication was imminent in connection with the Immigration Acts of 2014 and 2016, the latter accompanied by yet another consultation. Surely it should not take longer than World Wars I and II combined to produce a set of rules based on existing rules, but then this is the Home Office. I have to say to the Minister that I simply do not believe that officials have been so snowed under by new responses that they cannot produce something that allegedly has been so near completion for so long. In the past their habit has been to ignore submissions from outside sources, such as the Immigration Lawyers’ Association. I therefore ask the Minister: how many responses were received?

Noble Lords will no doubt sense that I am a long-time critic of our current immigration system but, starting with my time as Chief Inspector of Prisons and repeated since in numerous reports and inquiries, I hope that I have been a constructive one. Currently, the system has a millstone of over 630,000 unresolved cases around its neck that prevents it being able to handle new applicants quickly, which situation is likely to get worse rather than better as numbers increase. Ministers can only make timely and accurate decisions if they are given timely and accurate facts which emphasises the importance of timely and accurate statistics. If the Home Office cannot even produce timely and accurate statistics about the small number of pregnant women in detention, what chance is there of Ministers being given the facts about larger problems? I therefore suggest to the Minister that it is Home Office Ministers rather than Members of this House who should be pressing for the regular publication of accurate statistical information on the detention of pregnant women, thus ending the stream of very valid complaints from the many organisations that are trying to help the Government look after immigration and asylum seekers, including pregnant women, with the decency and humanity on which this country has always prided itself.

Immigration Bill

Lord Ramsbotham Excerpts

Tuesday 10th May 2016 Lords Chamber

Moved by

[Lord Ramsbotham]

Leave out from “House” to end and insert “do disagree with the Commons in their Amendment 84C, and do insist on its Amendment 84”.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

I beg to move that this House do not insist on its Amendment 84 and do agree with the Commons in their Amendment 84C in lieu and disagree with Motion A1 in the name of the noble Lord, Lord Ramsbotham, which seeks to reinstate Amendment 84. I shall speak also to Motion A2 in the name of the noble Baroness, Lady Hamwee, which would amend Amendment 84C to reduce the time limit for automatic bail referrals from four months to two months.

I start by reminding the House of what it has already achieved in its role as a reviewing and revising Chamber. There can be no doubt that the spirited debate in this House has added considerably to the quality of this legislation. This House has done its job, and more. This is indisputably a better Bill for it and, particularly, it does more to protect the interests of the most vulnerable. However, we must now make sure that we deliver what the British public voted for last May and pass this Bill into law.

The Immigration Bill delivers important reforms to our laws, and it is right that we ensure that there is proper consideration and debate of its content. The House’s achievement includes ensuring that the detail of the important reforms in the labour market and illegal working provide an effective mechanism to enable us to clamp down on those who exploit vulnerable migrants. The House has delivered improvements to the provisions on the criminal offences and ensured that the duty to have regard to the need to safeguard the welfare of children underpins all the provisions in the Bill. It has pressed the Government for the amendment tabled by the noble Lord, Lord Dubs, to do more to help refugee children, and the Commons yesterday accepted that amendment.

On detention, the Government recognise the strength of feeling on this issue, the need to ensure that detention is for the shortest period possible and that, in particular, there is proper provision to ensure that those who are vulnerable are detained only when necessary and for the shortest period possible.

On time limits on detention, while we do not agree that those are appropriate, we have listened to the concerns expressed in this House. We have listened to the concern that some people may be unaware of their ability to apply for bail or are unable to make such an application. That is why we have proposed our Amendment 84C, which ensures that, unless the detainee has already had a bail hearing, there will be a bail hearing after four months and every four months thereafter. That is an important safeguard, and this House deserves credit for it.

Amendment 84 places an upper limit on detention for all those who are not being deported of a maximum of 28 days in total, which may be extended by the tribunal only on the basis of exceptional circumstances. It might be helpful to remind noble Lords that we will seek to detain and enforce the removal of only those migrants with no basis to remain in the UK who are unwilling to depart of their own volition or who are non-compliant.

As I have stated before, this arbitrary time limit is frankly unworkable and would provide non-compliant migrants with an easy target to aim for in order to secure their release from detention and frustrate their removal. It would lead to meritless asylum claims being made, meritless judicial reviews being lodged and individuals refusing to co-operate with the documentation process. The aggregate limit of 28 days would cause difficulties if we need to redetain a person when a travel document is delayed or where a person disrupts their removal and needs to be taken back into detention until new removal arrangements are put in place.

It may help the House’s understanding if I illustrate this with some real examples. Mr R’s student visa was curtailed when he failed to enrol at university. He was encountered when giving notice of marriage to a British citizen, which was found to be a sham, and he was detained. The day before he was first due to be removed, he submitted a humans rights claim. He was subsequently removed after 30 days in detention. Mr M was encountered by the police and subsequently detained after his visa had expired. An emergency travel document was applied for, but when he lodged a judicial review he was released on bail. Once the judicial review was resolved he was redetained for removal. He disrupted the first attempt to remove him, so removal had to be rescheduled for a charter flight. Mr M’s two periods of detention totalled 130 days. Neither of these examples is likely to qualify as “exceptional circumstances” which would allow the Secretary of State to apply for extended detention.

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Moved by

[Lord Ramsbotham]

Leave out from “House” to end and insert “do disagree with the Commons in their Amendment 84C, and do insist on its Amendment 84”.

[Lord Ramsbotham (CB)]

My Lords, I am very grateful to the Minister for the care with which he has set out the Government’s case. I have often thought that the worst experience in life is to be associated with something that you know to be fundamentally wrong, but feel unable to prevent. I am experiencing that today, because, to our collective shame, this House could be about to sanction something that, as a nation, we have roundly condemned, and indeed fought against, when practised by others over the years—namely, the arbitrary detention of innocent people by administrative diktat, rather than the due process of the rule of law.

During the passage of this dreadful Bill, with more than 400 government amendments suggesting that it had not been thought through before it was introduced, the House has twice voted to uphold the recommendation of a committee of the All-Party Group on Refugees and Migration, of which I and the noble Baronesses, Lady Hamwee and Lady Lister of Burtersett, were privileged to be members. The committee recommended that administrative detention, ordered by Home Office civil servants, should be limited to 28 days, after which the Home Secretary should be required, by law, to seek the approval of the First-tier Tribunal for any extension. Last night the Minister in the other place spectacularly missed that point when alleging that to specify a maximum time for immigration detention would be arbitrary, would not take account of individual circumstances, and would have a negative effect on the Government’s ability to enforce immigration controls and maintain public safety by encouraging individuals to seek to frustrate the removals process until this time limit was reached.

During the past 19 years I have had frequent cause to express my concern about the appallingly low standard of casework and procedural oversight in our immigration system. This began when, as Chief Inspector of Prisons, I found over 20 people from Bradford, who had been in this country for over 20 years—many of them married and with businesses of their own—who had been arrested and transported to Birmingham prison where, not surprisingly because they had not been charged with any offence, they went on hunger strike against the wholly inappropriate prison regime. Their right to remain in this country had not been processed by the Home Office—which is true today of more than 631,000 others—whose officials saw them as easy pickings for meeting performance indicators. I immediately complained to the Minister responsible, and was asked to take on the inspection of all immigration detention centres for my pains. This included inspecting Campsfield House after a riot, where I found that immigration centre rules were also wholly inappropriate, being based on prison rather than detention rules. My inspectorate and I set about revising them, inviting Home Office officials to work with us, the outcome being the immigration detention rules often quoted in debate on this Bill.

Since retiring as chief inspector, I have been a member of the Independent Asylum Commission, chaired an inquiry into the unlawful killing of an Angolan by G4S guards during an enforced removal, delivered a dossier on deaths and injuries inflicted on others being returned, forwarded reports on the inefficiency of the complaints system to the Home Secretary and lost count of the number of critical reports by inspectors of immigration and prisons that I have read. In other words, my 19-year experience of the immigration system entirely endorses the view of its then titular head, the noble Lord, Lord Reid, who, when Home Secretary, described it as not fit for purpose. Indeed, these experiences have encouraged me to believe that only root-and-branch surgery will enable the system to have any hope of coping with today’s requirements, let alone tomorrow’s, which will be exacerbated not just by civil wars in the Middle East but by other population movements and the effects of climate change.

I must admit that I was somewhat surprised last week when my noble and learned friend Lord Brown of Eaton-under-Heywood and my noble friend Lord Pannick focused on the periphery of theoretical access to the bail system rather than the fundamental obscenity of administrative detention. Their intervention reminded me that, over the years, successive Ministers have preferred to listen to fudge presented to them by their officials rather than facts immediately apparent to anyone who, like me, has had cause to examine them in detail. As has been reported time and again, conditions in our immigration removal centres are not good for a whole variety of reasons, not least lack of Home Office oversight. Four months is far too long for anyone to be condemned to remain in such conditions, certainly when it seems to be primarily for the convenience of incompetent officials and is not sanctioned by a court of law.

I do not pretend that casework is easy—indeed, one former head of the UK Border Agency decreed that only graduates were to do it—but its present standard, judging by the number of successful appeals against it, is appalling. I am not surprised that first the noble Lord, Lord Bates, and then the noble and learned Lord, Lord Keen, should have announced new arrangements, although I must admit that, having heard similar promises many times in the past 19 years, I will only believe them when I see them.

I now feel squeezed. Not only is time running out before Parliament is prorogued but I fear that, on the evidence of the amendment not being pressed to a vote in the other place last night, should noble Lords support my appeal to put pride in the reputation of our great nation before party-political considerations and vote for what in their hearts they know to be right—namely, that administrative detention of anyone, anywhere, is fundamentally wrong—it may not succeed. I am conscious that it is easy for an independent Cross-Bencher to speak like that, but I am conscious, too, of the constitutional position of this House, which I do not want to put at risk.

The immigration system in this country is so dysfunctional that even the Home Office’s favourite reporter, Stephen Shaw, has criticised it in detail. As an optimist, I hope that the Home Secretary will read what he said, and has been said during our debates in this House, before she wilfully damages our global reputation for being a civilised nation by going ahead with her alternative to limiting detention to 28 days. It is with a heavy heart that I beg to move.

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[Lord Keen of Elie]

My Lords, I am obliged to noble Lords for their contributions to this debate. I acknowledge the work done in the past by the noble Lord, Lord Ramsbotham, on detention and on the revising of the immigration and detention rules. I must, however, take issue with the suggestion that access to bail is merely theoretical and that there is an absence of judicial oversight.

The access to bail arises immediately on detention and a tribunal must be persuaded that there are substantial grounds for believing that detention should be maintained. This is not a theoretical right; it is an obligation on the part of the Home Office to persuade a tribunal that detention should be maintained. So far as the period of detention is concerned, I can confirm to the noble Lord, Lord Rosser, that, after a period extending to four months—which is highly unusual—there will be an automatic bail hearing. In these circumstances, I renew my Motion to the House.

[Lord Ramsbotham (CB)]

My Lords, I am grateful to all those who have spoken, not least to my noble and learned friend Lord Brown of Eaton-under-Heywood and my noble friend Lord Pannick. It is rare for me to find myself in disagreement with them and I bow to their superior legal knowledge in this case. We have probably gone as far as we are able. I am pleased that, during the passage of the Bill, we have been able to raise so many issues. I sincerely hope that the Home Secretary and her officials will focus on these, not least when they concentrate on the reports that they have commissioned from Stephen Shaw and the report on the mental health arrangements commissioned by NHS England. I fear that the writing is on the wall for my hope of progressing further with this amendment during the passage of the Bill. With a heavy heart, I beg leave to withdraw the amendment.

Amendment A1 withdrawn.

Immigration Bill

Lord Ramsbotham Excerpts

Tuesday 15th March 2016 Lords Chamber

Moved by

[Lord Ramsbotham]

84: After Clause 55, insert the following new Clause—
“Immigration detention: time limit and judicial oversight
(1) Subject to the provisions of this section, a person may not be detained under any of the relevant powers—
(a) for a period longer than 28 days; or(b) for periods of longer than 28 days in aggregate.(2) The First-tier Tribunal may—
(a) extend a period of detention; or(b) further extend a period of detention,for such a period as is determined, on application made by the Secretary of State, on the basis that the exceptional circumstances of the case require extended detention.(3) The First-tier Tribunal has the power to review an extended period of detention without requiring the Secretary of State to make a new application.
(4) This section does not apply to a person who—
(a) has been sentenced to a term of imprisonment for a term of 12 months or longer; or(b) the Secretary of State has determined shall be deported.(5) Rules of procedure for the purposes of this section may be made by the Lord Chancellor.
(6) In this section—
“First-tier Tribunal” means—(a) in the case of an appeal against a decision on an asylum application which has not been determined, the chamber of the First-tier Tribunal dealing with the appeal; or(b) in any other case, such chamber of the First-tier Tribunal as the Secretary of State considers appropriate;“relevant powers” means powers to detain pursuant to—(a) paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971,(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act,(c) section 62 of the Nationality, Immigration and Asylum Act 2002, and(d) section 36(1) of the UK Borders Act 2007.(7) In the case of a person to whom section 3(2) of the Special Immigration Appeals Commission Act 1997 applies (detention on grounds of national security), the Commission established under that Act shall be substituted for the First-tier Tribunal.”

[Lord Ramsbotham (CB)]

My Lords, I will speak to my Amendments 84 and 85, and comment on government Amendment 86. Since I proposed to the Minister in Committee that the Bill should be temporarily withdrawn so that it could be redrafted to reflect the Government’s countless changes of mind during its passage and the recommendations of the reports and review they had commissioned, a further 59 government amendments have been added to the 250 that I mentioned at that time, and what was Clause 34 only three weeks ago is now Clause 59 in what has become a monster. I beg the Minister and his colleagues to consider their poor front-line officials, who have to interpret and administer this mass of micromanagement, on top of all the other legislation that is being introduced, and ask themselves whether they would like to be in their position.

Looking through the proceedings of the cross-party committee on immigration detention, of which I and the noble Baronesses, Lady Hamwee and Lady Lister of Burtersett, were members, and the evidence given that influenced our recommendation that it should be subject to a 28-day limit, I well remember my noble and learned friend Lord Lloyd of Berwick—sadly now retired from the House—pointing out that such detention was administrative, not legal, since it was imposed by Home Office officials and not in a court of law. In addition, the United Kingdom was an outlier, both within the European Union and elsewhere, in not having a limit on the length of time that a potential immigrant could be detained. It was also pointed out to us that there was no correlation between the length of detention and the likelihood of the Government being able to effect removal. Indeed, the opposite was true. Our recommendation was endorsed by the House of Commons in a detailed debate on our report of 10 September 2015.

Passionate cross-party opposition to limitless detention was displayed at all stages of the passage of the Bill through the other place. Indeed, the shadow Immigration Minister, Sir Keir Starmer MP, quoting the all-party report, said that,

“the United Kingdom has a proud tradition of upholding justice and the right to liberty. However, the continued use of indefinite detention puts this proud tradition at risk”.—[Official Report, Commons, 1/12/15; col. 186.]

However, all attempts to pass an amendment failed, thanks to the Committee system in the other place, which has a built-in government majority of nine to seven in a Committee of 16. I therefore tabled my amendment in the spirit of trying to restore some national pride.

As far as Amendment 84 is concerned, I thank the Minister for, and refer him to, his 11-page letter of 1 March to the noble Lord, Lord Rosser, which he copied to others, and his two-pager to me of 11 March. In the former, he states that individuals can challenge Home Office decisions by way of judicial review, and that legal advice is available to those contained in immigration removal centres. That is rather like the Home Office’s invariable assurance that although conditions in immigration centres may have been as bad as those reported by inspectors, all is now sweetness and light—until disproved at the next inspection. Whatever is wishfully thought by officials simply is not so in practice.

Of course, detainees can in theory challenge Home Office decisions, but new arrivals must wait for a week before they are allowed to apply for bail, and concerns have frequently been expressed about failures of centre staff adequately to explain the existence of and procedure for accessing the necessary procedures to detainees. In recent years, the Home Office has repeatedly been found to have unlawfully detained individuals for protracted periods. For example, in 2014, the High Court found the 11-month detention of a Zimbabwean woman seeking to join her husband in the United Kingdom under refugee family reunion rules to be in violation of both Articles 3 and 5 of the Human Rights Act. Between 2011 and 2014, £15 million was paid out in compensation for unlawful detention.

While on the subject of the Home Office, I repeat to the Minister what I have said many times before. The culture of disbelief that pervades the Home Office, allied to the appalling standard of its casework over the years—witnessed by the staggeringly high number of successful appeals against its decisions—and the appalling quality of its communication with applicants, gives me no confidence that it is capable of carrying out what the Government apparently wish. Nothing has been done to improve the situation for years.

The Minister now tells us—again in his letter of 1 March—that the Government propose to implement new approaches to case management and, by the summer, to appoint a separate gatekeeper team which will approve decisions about who enters immigration detention, scrutinise prospects and speed of removal and assess vulnerability. Furthermore, by the autumn, a new team will build greater expertise on making detention decisions and ensuring that appropriate safeguards are in place so that, by the end of the year, caseworkers will focus on progression towards a person’s return and those detained will have both better access to information about their case and greater interaction with casework staff in immigration removal centres. Furthermore, after 14 years of inaction, the short-term holding facility rules are to be referred to an eight-week consultation.

Familiarity is said to breed contempt. I have to say to the House that, based on almost 20 years of familiarity with the current immigration system, I regard all that as largely a figment of Home Office imagination.

Amendment 84 is designed to ensure that there is legal oversight of the detention of anyone detained by administrative rather than legal process. I acknowledge the thoughts of my noble and learned friend Lord Brown of Eaton-under-Heywood about whether 28 days is long enough and fears that the First-tier Tribunal might be swamped with appeals. I also understand his concern about new subsection (4) in the amendment, but if the Home Office is working as the Minister sets out in his 1 March letter, there should be little need to detain anyone for longer than 28 days. Should my amendment be agreed, such technical issues can be corrected by the Government at Third Reading.

Amendment 85 expands on the list of those considered to be vulnerable in the Minister’s letter of 1 March and those who qualify for the guidance that the Secretary of State is required to lay before Parliament under government Amendment 86. On this issue, a six-month study by the Helen Bamber Foundation carried out between 3 July last year and 3 January this year showed that, out of 371 people referred to it, 84% had significant indicators of vulnerability, including torture and human trafficking, that had been routinely ignored by the Home Office. I suggest that the fact that such an unacceptable rate of failure to identify vulnerability continues, despite the suspension of the detained fast-track process in July 2015, demonstrates that, in the Home Office-run system, the culture of disbelief that I mentioned earlier still overrides significant indicators.

This all adds up to my firm belief, arrived at after many salutary experiences over almost 20 years, that the way in which immigration detention is managed and conducted is in urgent need of improvement. Judging by the Minister’s letter, the Government seem to have reached that conclusion as well. The Bill should present an ideal opportunity for such improvement to be codified, and I suggest that that process should start with legal oversight of administratively awarded detention, but with my wider consideration in mind. I beg to move.

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

My Lords, I shall speak only to Amendment 84, not Amendments 85 and 86, which concern the detention of vulnerable persons. Far and away the most striking feature of Amendment 84 is proposed new subsection (4), which would disapply the time limit in any case where the detainee has been sentenced to imprisonment for 12 months or more, or is someone whom it is proposed to deport. The fact is that those are the vast majority of cases involving prolonged detention. Frankly, that provision emasculates the whole idea of a time limit.

None of the previous campaigns or arguments in favour of a time limit has suggested such a striking restriction on its scope; no such suggestion was advanced in Committee; and no other country has gone down this road. Small wonder that in its briefing on the amendment, the Equality and Human Rights Commission does not support subsection (4); nor does the organisation Bail for Immigration Detainees, to which I spoke at some length on the telephone this morning. It says that, with this restriction, it would regard the amendment as essentially pointless.

I suggest that subsection (4) is inconsistent with the definition of “relevant powers” in subsection (6), because those powers as identified in paragraphs (b) and (d) refer to detention pending deportation powers: detention which, under subsection (4), would not be subject to the limit anyway. I therefore propose to address the amendment for all the world as if subsection (4) was not part of it. Let me make plain at this stage that, even then, I shall conclude by offering limited support for the imposition of a time limit—certainly less opposition than I have expressed hitherto.

At Second Reading, I spoke against the introduction of fixed time limits for immigration detention. I pointed to the very real difficulties of such limits in the case of those whom we are trying to remove, who exercise remarkable persistence and ingenuity in their efforts to remain here. As the Minister made plain in answer to a Question a fortnight ago arising from the Chief Inspector of Prisons’ report on the immigration removal centre at Harmondsworth, the overwhelming majority of the 2,700 detainees there have committed immigration offences, 40% being foreign national offenders. Those figures are higher still if you consider those detainees who have been there for more than four months—or, indeed, more than 28 days. They are, as the Minister said, working very hard to avoid their removal, and trying to frustrate the system.

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[Lord Keen of Elie]

With that encouragement, perhaps I may take just a little longer, knowing that I have noble Lords’ ears if not their best wishes.

The noble Baroness, Lady Lister, raised a number of questions. I would be perfectly content to respond to them in writing, albeit that no commitment can be given. Putting the matter shortly—yes, the Scottish Law Officer is somewhat verbose, I am afraid—it is the intention of the Government to reflect on the matter of the detention of pregnant women. They do not consider that it would be appropriate for there to be an absolute rule. To give one very short and simple example, if an illegal immigrant arrives at an airport and it is possible to return them almost immediately, it may be necessary for there to be detention even for a very short period. However, the Government will reflect on this and will have considered the matter by Third Reading. I hope that that will reassure the noble Baroness, Lady Lister, at this stage.

In these circumstances, and with your Lordships’ benign encouragement, I ask that Amendments 84 and 85 be not pressed and that Amendment 86 be agreed.

[Lord Ramsbotham]

My Lords, I am very grateful to all those who have spoken and to the Minister for that careful but rather depressing exposition. I shall be brief.

[Noble Lords]

Hear, hear!

[Lord Ramsbotham]

I admit that I had a feeling of hope having read the Minister’s letter of 1 March, which set out that the Government recognised that all was not well with the immigration system and that improvements needed to be made. Far from being unnecessary and unhelpful, as the noble and learned Lord, Lord Keen, suggested we were being in tabling this amendment, we intend to be helpful. Having watched the system for 20 years, I know that it is not right. I know that this suggestion that administrative detention should not be subject to legal oversight has got to stop. Therefore, without mincing any words, I wish to test the opinion of the House.

Immigration Bill

Lord Ramsbotham Excerpts

Tuesday 15th March 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I support my noble friend Lord Roberts of Llandudno, who reminds us of the moral obligations that we have to a child or someone who is not quite a child any longer in the eyes of the law, when in effect the state has been that child’s parent up to the age of 18.

I am glad that the right reverend Prelate went ahead of me, as he said much of what needs to be said. I find the “deport first, appeal later” policy—as it has come to be called—difficult to tackle because I dislike the whole thing so much and am very frustrated that we have to approach it crab-wise because of it being a manifesto commitment. However, this does not at all detract from the importance of recognising how children’s interests can properly be dealt with in the way that this amendment seeks to do.

The right reverend Prelate said that he was concerned about the Government’s Amendment 145. However, I oppose Amendment 145, as by saying that Section 55 applies, all it does is put in doubt the application of Section 55 in other circumstances unless it is said that Section 55 applies. That is nonsense. The noble and learned Lord will appreciate that that cannot be what is meant and I hope he will appreciate that there is a danger, however good the Government’s intentions, in trying to confirm the application of Section 55 to us in this way, although I do not wish to be bought off by that.

I think the right reverend Prelate said that the child’s “voice” needs be heard. That struck me very much in the helpful briefing from the Refugee Children’s Consortium, in which it says:

“Crucially, there is … no mechanism by which children’s own views are systematically”—

the word systematically is probably important—

“considered by the Home Office”.

I appreciate that the Minister is bound not to be able to accept this from the Dispatch Box, but the consortium has told us that,

“best interests assessments are rarely conducted in any meaningful way, if at all. The Home Office routinely takes as their start and end point that the children’s best interests are met by being with both parents. They rarely, if ever, consider the child’s current circumstances, their likely future circumstances, the child’s own views”—

as I said—

“the parents’ likely circumstances on return and how they will impact on the child before making a decision”.

It also tells us:

“There is also no evidence that the Home Office proactively seek to find out whether any of the children within a family liable for removal might have a right to British citizenship”.

For all those reasons, and the four pages of briefing which Ministers can see me dangling, I very much support Amendment 114.

I have some amendments in this group in my name and that of my noble friend Lord Paddick. Amendments 113A and 114A deal with the position if, having been deported, an appeal is successful. The individual will have been made to leave the UK only temporarily, as it will turn out, against his or her wishes. I understand that there is guidance in connection with deportation that consideration must be given to the Home Office paying for the journey back. I would say in parenthesis that regard must be had to the quality of the Home Office decision. I do not know whether the noble and learned Lord can tell the House how the quality is assessed: is it a matter of comments made by the tribunal? It also occurs to me that if an appellant is not legally represented, will he know whether to raise the issue of payment for return to this country? In any event, my amendments are not about deportation, they are about administrative removal. If the administrative removal is wrong, the Administration should bear the costs of return to the UK.

Amendment 113B would prevent the certification of cases of persons with the characteristics specified in the amendment, so that such a person could not be required to leave the UK while the appeal was pending. The Minister will recognise how that aligns with cases of people who are vulnerable—if not “particularly” vulnerable, to use the word in Amendment 86. They are children, care leavers, persons with mental illness or learning disabilities, people who have been trafficked or enslaved, people who have claims based on domestic violence or are overseas domestic workers. For reasons which we spent some time on when debating the previous group of amendments, Ministers will understand our concern to pay particular attention to the need not to expose people who have such characteristics to the possibility of further damage.

[Lord Ramsbotham (CB)]

My Lords, I have added my name to Amendment 114 for two reasons. Proposed new subsections (4) to (6) seem to reflect all the experience of the practitioners on the ground with whom I have been in contact, but I was particularly keen on proposed new subsection (7), because the need for a written plan for the child resonates with the education, health and care plans which the Department of Health and the Department for Education require to be prepared for every child with speech, language and communication needs or special educational needs. So such a plan is already part of the structure for children in the United Kingdom.

I was particularly struck by a visit to a secure children’s home called Orchard Lodge, sadly now closed down, which was then run by Southwark council and provided particular help for traumatised children with mental health problems, many of whom were the very people covered by these amendments. They were immigration and asylum seekers who had suffered extraordinary trauma during the conditions that brought them to this country, and they needed help—but that help needed to be structured, co-ordinated and planned. Therefore, I particularly support the amendment tabled by the right reverend Prelate the Bishop of Norwich and hope very much that, in accepting it, which I hope that the Minister feels able to do, he will reflect on the model for the plans that he calls for.

[Baroness Lister of Burtersett (Lab)]

My Lords, I speak very briefly in support of these amendments, which are very much animated by the spirit of Every Child Matters, as the right reverend Prelate says. It reminded me of some of the reports that the Joint Committee on Human Rights published when I was still a member, both on unaccompanied young children and on children’s rights. A theme that kept recurring was how often in government policy immigration concerns trump children’s best interests and rights. All these amendments are attempting to shift that balance back so that children’s best interests and children’s rights take centre stage; it does not say that nothing else matters, but they are given the due that they and children deserve.

Immigration Bill

Lord Ramsbotham Excerpts

Wednesday 3rd February 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, from these Benches we support Amendment 227 and the opposition to Clause 34 standing part of the Bill. I will not speak to Clause 35.

The right reverend Prelate has just mentioned legal work provided pro bono. I would like to take this opportunity of echoing a comment made by the noble Lord, Lord Faulks, from the Dispatch Box the other day when he repeated an Answer to a Question on legal aid. He said that there are a lot of legal firms which are not “ambulance chasers”. Those firms do terrific work in very difficult circumstances, and many of them are engaged in this sort of work.

The noble Baroness, Lady Lister, referred to comments on the last Bill from the Joint Committee on Human Rights. The committee, of which I am a member, has drawn the attention of the House again to particular difficulties which might be faced by appellants if a non-suspensive appeals regime is extended in circumstances in which judicial review is the only means of challenge. This could mean that families with meritorious Article 8 claims are subjected to extensive separation. I think that she also referred to the report of the Constitution Committee, which commented among other things—there were two or three pages on this—on the practical extent to which legal aid is perhaps not likely to be available in respect of judicial review challenges to certification decisions.

We use the term, “Deport first, appeal later”, but of course it is not quite that. It is “Be deported and appeal later”, or deport first and then be appealed against in a situation in which the appellant can apply only in a way that the Court of Appeal and the Solicitor-General have acknowledged is less advantageous—that is the term used in the court. The noble Lord, Lord Rosser, referred to this and it is certainly less advantageous for the appellant or potential appellant. There is difficulty in paying for legal representation and liaising from abroad with legal representatives—if you can find any who can help in the circumstances—difficulty in obtaining, submitting and giving evidence, and difficulty for the tribunal in assessing evidence.

The human rights memorandum published by the Home Office said that,

“there is no intention to apply this power to cases relying on Article 2 and 3 rights”,

and that,

“case law … makes plain that where there is an arguable Article 8 claim, there needs to be the effective possibility of challenging the removal decision”.

If Clause 34 has to remain, it would be good if it could somehow refer to what is in that ancillary documentation.

It struck me during discussions about this how difficult it is to certify a negative. It is almost as difficult as proving a positive. The Secretary of State has to certify a claim, as we have heard, if she considers, first, that removal is not unlawful and, secondly, that the appellant would not face a real risk of irreversible harm. I am sure that the Minister will, as the noble Lord said, refer to the recent Court of Appeal case which ruled that the regime was lawful. However, that was in the context of deportation, and the fact that it was lawful does not make it right.

There is no equality of arms and a perversity about this. As the Law Society has pointed out,

“the spouse of a national of any EEA”—

European Economic Area—

“member except the UK would retain a full in-country right of appeal … whereas the spouse of a UK national”—

not the spouse of any national of any other EEA member—

“would have to leave the country”.

[Lord Ramsbotham (CB)]

My Lords, I am proud to be British and was both proud and privileged to serve for nearly 41 years in the British Army. But I have to admit that I am not proud of much of the thrust of this Bill, which seems to be based on the assumption that every would-be immigrant or asylum seeker is illegal, and should be treated as such. That is akin to regarding everyone awarded a prison sentence as being a combination of mass murderer, armed robber, rapist, arsonist and paedophile, and treating them accordingly. The vast majority of would-be immigrants and asylum seekers are legal, which should be the default thrust of any regulatory legislation.

On 12 July 1910, the then Home Secretary, the 36 year-old Winston Churchill, winding up a debate on prison estimates, said that the way in which any country treated crime and criminals was the true test of its civilisation. He could well have added immigrants and asylum seekers. On Monday night, I heard the noble and learned Lord, Lord Keen of Elie, read from his brief an assertion that:

“The Government already have a raft of guidance and standards in place for ensuring that the regimes in detention centres operate at appropriate levels and in the interests of the welfare of detainees”.—[Official Report, 1/1/16; col.1696.]

In view of my experiences while inspecting them, I thought of Churchill and was completely flabbergasted. Has no one in the Home Office paid the slightest bit of attention to inspection report after inspection report, which point out that what the Minister described as,

“a raft of guidance and standards”,

is not subject to any meaningful oversight? For “appropriate”, he should have said “'wholly unsatisfactory”. So stunned was I that I totally failed to ask the Minister what the word appropriate meant, and who in the Home Office was responsible and accountable for allegedly ensuring the operation of such regimes, and whether their reports could be made available to noble Lords.

That was bad enough. But Clause 34 is so far outside the rule of law, let alone what decent people regard as civilised, that I am ashamed to think that anyone British was responsible for the concept, let alone its inclusion in the Bill. I know that the Court of Appeal has ruled that the imposition under the Immigration Act 2014 of out-of-country appeals in deportation cases is legal, but such appellants have committed serious crimes and received substantial prison sentences before being deported. How can any Home Office Minister seriously bring forward so draconian a proposal for those whose presence in the United Kingdom is entirely legal knowing that, currently, 61% of immigration appeals are either allowed, remitted for the Home Office to retake its decision or acknowledged by the Home Office to be flawed before a hearing? This means that 61% of those whom Ministers intend to force to make their appeal from abroad will have legal grounds for compensation, which is bound to add up to more than the cost of continuing to do the decent and civilised thing.

Included in the 61%, as the Solicitor-General acknowledged to the Committee and the other place, is an appeal success rate of 42%, which the latest figures from the Asylum Support Tribunal show to have risen to 44%. On what grounds do the Government think their proposal to force legal, as well as illegal, potential appellants to leave the United Kingdom before appealing against such appalling and proven faulty decision-taking is justified, appropriate and civilised?

Psychoactive Substances Bill [HL]

Lord Ramsbotham Excerpts

Tuesday 26th January 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, the situation described by the Minister is very serious and seems to lead directly to issues of prison reform—drugs being one of the considerations—but one would want to look at far wider causes than how concerns about prison manifest themselves in this issue. I wondered what ingenuity might be applied to introduce the issue of poppers, since it would be quite difficult to provide an amendment to the government amendments to deal with that, so I congratulate the noble Lord, Lord Rosser, on finding a way to introduce the subject.

We, of course, will not oppose these amendments, but I must say that we will now have possession of a controlled drug being an offence, possession of a new psychoactive substance not being an offence, but possession of a new psychoactive substance in prison being an offence. In our view, that is too muddled but, of course, at earlier stages of this Bill we were calling for a widespread health-based review of all drugs laws, so I am sure that the Minister will not be entirely surprised that I make that comment.

[Lord Ramsbotham (CB)]

My Lords, I warmly endorse all that the noble Lord, Lord Rosser, has said. One aspect of Amendment 9 that the Minister mentioned was that a number of improvements were being made in prisons to the detection of new psychoactive substances. I should like to refer particularly to a very powerful report published last month by the Chief Inspector of Prisons on the use of new psychoactive substances. He said:

“Drug misuse is a serious threat to the security of the prison system, the health of individual prisoners and the safety of prisoners and staff”,

but the new psychoactive substances are an even more serious offence and,

“are now the most serious threat to the safety and security of the prison system”.

Because dealing with the new psychoactive substances—searching for them and so on—was so patchy in the Prison Service, the Chief Inspector of Prisons recommended:

“The Prison Service should improve its response to current levels and types of drug misuse in prisons and ensure that its structures enable it to respond quickly and flexibly to the next trend”.

I will mention the next trend before I conclude. The chief inspector recommended:

“A national committee should be established, chaired by the Prisons Minister, with a membership of relevant operational experts from the public and private prison sectors, health services, law enforcement, substance misuse services and other relevant experts. The committee should be tasked to produce and publish an annual assessment of all aspects of drug use in prisons, based on all the available evidence and intelligence, and produce and keep under review a national prison drugs strategy”.

If that annual report was required, it would, of course, cover the possession mentioned in the amendment that we are discussing, but I am particularly concerned that, in briefing the cross-party group on criminal justice, drugs and alcohol that I chair, the chief inspector mentioned the next trend causing him and his inspectors even more worry, which was the introduction of powdered alcohol. Therefore, we must have a system in place that monitors trends as well as current practices. I ask the Minister: what is happening about the establishment of such a national committee?

[Lord Bates]

My Lords, I thank the noble Lord, Lord Rosser, for his welcome of the amendment and other noble Lords who have spoken in favour of it. It is important.

The noble Lord asked a number of questions on whether the offence will apply only to prisoners. This is an important point to address to the noble Baroness, Lady Hamwee. The new offence will apply to all persons in possession of a psychoactive substance in prison. It is not particularly targeting prisoners themselves, so it could include visitors—or staff, for that matter—who possess these new psychoactive substances.

The noble Lord asked what pressure had come for this. Pressure came from a number of sources, including those that argued in favour of his amendment last July. Although it was not originally one such pressure, the noble Lord, Lord Ramsbotham, has brought to the fore the impressive and disturbing report of Her Majesty’s Chief Inspector of Prisons, called Changing Patterns of Substance Misuse in Adult Prisons and Service Responses, from December 2015. As the noble Lord has quoted, the chief inspector has said that new psychoactive substances,

“have created significant additional harm and are now the most serious threat to the safety and security of the prison system that our inspections identify”.

The noble Lord is absolutely right to identify this. I spoke in my introductory remarks about the additional dogs being trained for inspections, but it is right—the noble Lord, Lord Rosser, asked for this—that there should be a major push on prison communications to ensure that offenders are aware of the consequences of taking psychoactive substances, as are visitors attempting to bring them in. New drug tests are also being developed in this area.

I know that it was slightly ingenious to bring poppers into this group. I had prepared some remarks to address that in the second group of amendments. If noble Lords will allow me, I will address my remarks in that setting, lest I duplicate them.

On the prison drugs strategy, the idea that the noble Lord, Lord Ramsbotham, suggests is very interesting. While I cannot give a firm undertaking today, I would want to speak to the Prisons Minister, Andrew Selous, about this suggestion. I will get back to the noble Lord on whether a national committee could do this. Again, we are conscious of the constantly changing nature of this. In many ways, that was the argument for the blanket ban on psychoactive substances, rather than the whack-a-mole situation we were in before, where new things popped up as other things were outlawed.

With those comments and promises to get back to noble Lords on specific points of interest and to address further concerns in the next group, I beg to move.

Immigration Bill

Lord Ramsbotham Excerpts

Wednesday 20th January 2016 Lords Chamber

[The Earl of Sandwich]

My Lords, I am always heartened by the words of the noble Lord, Lord Roberts. I remember one rather lonely evening when he moved a version of this amendment and there were not so many friends present as there are today. I see already that he is heartened by the voices from all around the Committee.

I am strongly in favour of extending the time available to migrants and asylum seekers because it is realistic. It recognises and legalises a situation that is already happening. As my noble friend said, the issue of permission to work is linked to concerns about destitution, which we will come to in Part 5 when we discuss Section 95 support. As Sir Keir Starmer said about Clause 8 in the Commons, the most vulnerable will become even more so if we do not pass this amendment. For example, making it a specific crime to work without leave drives the exploited and enslaved further underground.

There is one more point which needs to be underlined. The Immigration Minister said during Committee in the Commons that asylum seekers could frustrate the process of application in order to qualify for the permission, and I expect that the Minister has this argument in mind this evening. But the amendment addresses this point—and the Refugee Council makes this clear—because permission would be granted only where the delay was in the process and not due to any action taken by the asylum seeker.

[Lord Ramsbotham (CB)]

My Lords, until seven years ago, I thought that Red Cross food parcels were handed out only to British prisoners of war in Germany. However, when I was a commissioner in the Independent Asylum Commission, I saw Red Cross food parcels being handed out on the streets of Manchester to destitute asylum seekers who had been refused permission to work.

One of the things that has distressed me most about what has been said tonight relates to remarks that I made at Second Reading about the quality of Home Office casework. Listening to the noble Baroness, Lady Hamwee, and my noble friend Lord Alton, I could not help reflecting that a great deal of this unnecessary destitution is caused by poor casework in the Home Office. I wonder whether the Minister can say what steps are being taken to improve that situation and speed up the processing of these applications.

Immigration Bill

Lord Ramsbotham Excerpts

Monday 18th January 2016 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, I support the amendments that the noble Baroness, Lady Hamwee, has laid before the Committee of your Lordships’ House this afternoon. In particular, I support her remarks about Scotland and the need for proper and adequate consultation. She is right to say all those things.

The noble Baroness referred to the Gangmasters Licensing Authority, an issue to which we will return in the later group of amendments dealing with government amendment 39 and those connected to it. However, it is linked in some ways with these amendments. I will not pre-empt remarks on the amendment by addressing it in detail, other than to note that, as the noble Baroness said, 112 government amendments have been tabled. There has been no pre-scrutiny of this legislation by both Houses, and these amendments have been introduced for the first time here in Committee, which is asking an awful lot in terms of producing good quality legislation. I know that this is not the Minister’s fault, but I raised that issue with him in the excellent meeting that he organised for all Peers. To make legislation on the hoof is always a mistake.

I am not alone in thinking that. The Immigration Law Practitioners’ Association has written to us to say:

“The volume of these amendments, the late stage of their introduction and the time available means that both ourselves and the House will be limited in our ability to provide the scrutiny that this detailed legislation requires”.

That was a point made by the noble Baroness, Lady Hamwee, a few moments ago. We simply cannot do our job properly when we are stampeded into having to make decisions on major questions of this kind with so many amendments being placed before us at once. The ILPA also says:

“We note that new clauses introduced by the Government contain a range of new delegated legislation which will not have been subject to scrutiny by the Delegated Powers and Regulatory Reform Committee which reported earlier on the Immigration Bill”.

That issue will surface again when we come to the question of the Gangmasters Licensing Authority.

I do not want to be churlish, either, because the legislation that we considered last year—also introduced by the noble Lord, Lord Bates—was classic and admirable of its kind, and benefited from having been scrutinised by both Houses. It was showpiece, showcase legislation and the Government should be justifiably proud of having introduced it—as should Parliament for having enacted it. The danger in some of these amendments, and we will come to this in due course, is that they may undermine some of the excellent legislation that we enacted last year. I hope that when the Minister replies, he will therefore address the concerns raised by the noble Baroness and the Immigration Law Practitioners’ Association. The noble Baroness did not describe this as hybridity, but effectively inserting an entirely new Bill inside an existing Bill at this late stage in parliamentary proceedings amounts to that. I hope her amendment will be taken in the spirit in which it has been offered, and that the Minister will address all those points.

[Lord Ramsbotham (CB)]

My Lords, I endorse what the noble Lord, Lord Alton, has just said. This is not the first time during the passage of this Bill that a vast number of government amendments have been inserted. The same thing happened in the other place immediately before Report, and the same complaints were made that none of the amendments had been scrutinised properly. Indeed, there was no time to do so before the other place had to vote on amendments in Committee that they had not had time to scrutinise. Remembering my own time in the Ministry of Defence, if I were faced as a civil servant with such a huge and complex piece of legislation, with additional complexities, I would have complained to the Secretary of State and to the Permanent Under-Secretary that legislation was being made so complex that it was simply undeliverable.

We have to realise that the immigration system in this country is currently under stress. There are said to be some 600,000 unrecorded migrants in the country now and we will face not just a flood of people coming here from the Middle East but an additional flood of people from places such as Africa thanks to climate change. Therefore, we should be simplifying our legislation so that it can cope with pressure rather than complicating it in this way.

[Baroness Afshar (CB)]

My Lords, I speak in support of the views expressed. If eminent Members of the House who are familiar with these matters are finding this legislation difficult, what can immigrants do with it? They are not British and many of them are possibly already here. These changing laws will be whirling around their heads just as they arrive. It makes it impossible for them to abide by the law when even this House cannot understand what the law is. Is it not possible to have something simple and clear that immigrants can abide by?

Identity Documentation

Lord Ramsbotham Excerpts

Thursday 14th January 2016 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I congratulate the noble Lord, Lord Campbell-Savours, on initiating this debate and salute him for his persistence in pursuing the issue. I also thank Mary Santo for her typically helpful and informative Library Note.

My strong support for the introduction and general use of identity cards stems from my time on active service in Northern Ireland when commanding my battalion in west Belfast in 1974 and the Belfast brigade from 1978 to 1980. In 1974, whenever we wanted to prove the identity of someone we had stopped, we had to carry out what was called a P-check, which meant contacting the company base in the area in which the person stopped claimed to live and asking for their identity to be confirmed by checking the P-cards that were held on everyone known in the area. Often, this took some time, and I well remember being increasingly nervous when having to wait for 45 minutes for a check to be carried out in another battalion’s area while standing on a street on which the IRA was very active.

In 1979, it was decided that the whole system should be automated, all the old P-card data being transferred to a computer database. This process proved the inefficiency of the old system, one person being found to have 13 different spellings of his name on 13 different cards. Within days, the operational value of almost instant response had proved the spend-to-save value of the cost of automation.

In 1974, it was almost impossible to persuade members of the public to talk to us, largely because of their resentment of internment without trial, which, fortunately, was ended in 1975. When I returned in 1978, that situation had changed somewhat, with more people being prepared to talk, but the overt presence of armed troops on the streets was an impediment to normality, many people citing frequent P-checking, particularly when newly arrived regiments were getting to know their areas, as a particular irritant. My RUC opposite number often used to say how much easier it would be, for both police and Army, if everyone had to carry an identity card, not least in countering false identity—which sentiment I note with interest quoted in the Library Note as being felt by many policemen today. In consequence, I have always thought that human rights are more likely to be protected than breached by identity cards, because they can be used to prove both who someone is, or is not.

I am not going to go into the technicalities of how this can be done with an identity card, because I know that the noble Lord, Lord Marlesford, will discuss biometrics, for example. Instead, because time is limited, I want to mention another practical use of identity cards of which I have long been in favour, not least because of its value in countering false identity. Every time someone is received into prison, they are given a new prison number, which is inefficient because it denies automatic access to previous records without a considerable amount of checking and comparing data. After prisoners are released, they have to apply to a jobcentre for any benefits to which they may be entitled, which takes time, during which they have to try to live on their £46 discharge grant.

When I inspected the prisons in the UAE for an extradition case, I found that prisoners were given identity cards, using the same number as their national identity card, which they could then use for many purposes such as access to medical provision, use of the library, or to record canteen purchases. But staff told me of the immense value of no longer having to carry out much time-consuming bureaucracy. How much simpler it would be on our prisons if an identity card number could also be used as a prison number, an NHS number and a national insurance number, all of which is perfectly possible given the power of current computer systems. Not only would this make life easier for the overstretched staffs of our overcrowded prisons but it would enable automatic access to medical records and transfer of records of treatment during imprisonment. A prisoner’s entitlement to benefits could be processed in prison, obviating avoidable temptation to reoffend in order to survive.

I dispute the Government’s continual refusal to consider the introduction of identity cards—largely, it would appear, on grounds of cost. I invite the Minister to consider that, from the point of view of many public servants, their introduction would be a spend-to-save measure.

Immigration Bill

Lord Ramsbotham Excerpts

Tuesday 22nd December 2015 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I am very grateful to the Minister for writing to all those speaking today at 6.30 last night, following the briefing that he and James Brokenshire, the Minister for Security and Immigration, gave to the Cross-Bench weekly meeting last week about the Bill. In his letter, he comments on the three concerns that I represented to him, resulting in my altering some of what I intended to say today. However, he has not allayed all my concerns, and I warmly agree with what many other noble Lords have said about them today.

My first concern was about timing because, in addition to having Second Reading today, the last day before the Christmas Recess, we were faced with three Committee days out of five on which the House was sitting, starting on the third day after our return. By any standards, that is indecent haste, and I congratulate the Minister on persuading the Government to put the first Committee day back to 18 January.

The Immigration Law Practitioners’ Association reported its impression that the Bill as it emerged from the other place showed signs of,

“haste: proposals not fully thought through or developed; inadequate evaluation, and drafting that is struggling to keep up”.

That is not a very good advertisement for what the Government clearly regard as a flagship Bill, accompanied, as it is, by a health warning to concerned people such as myself: as so many of its provisions were in the Conservative Party election manifesto, interfere if you dare.

I know from Hansard what was debated in the 15 Committee days in the other place and that a flood of government amendments were tabled only on Report and were therefore unscrutinised in Committee. While the constitutional position of this House in relation to secondary legislation is subject to a review by the noble Lord, Lord Strathclyde, I wonder whether the constitutional rectitude of the committee system in the other place has ever been questioned in the same way. A built-in government majority of nine to seven is hardly an example of democracy at work and explains why so few non-government amendments are ever accepted. I suspect that this contributes to much legislation arriving in this House accompanied by a frank admission that the other place has been unable to scrutinise it properly before sending it on but is doing so because of its confidence that we will do our job. This large and complex Bill contains a number of very contentious issues. I hope therefore that, rather than being pressurised into completing our scrutiny in too short a time, under the cosh of manifesto conventions, we will be allowed to focus properly on such issues as the observance of the rule of law and safeguarding the reputation of this great country of ours.

My second point was that parts of the Bill appear to be in breach of the rule of law. Here, I must thank the Bingham Centre for the Rule of Law for its admirable document Immigration Detention and the Rule of Law: Safeguarding Principles, which I hope has been seen and read by not only the Minister, but by every other Minister and official in the Home Office who has anything to do not only with this Bill, but with asylum and immigration issues in general. Despite what the Minister said today, I remain unhappy, as do other noble Lords, about what is proposed in Clause 34 regarding appeals, particularly the suggestion that some may be made only from outside the United Kingdom. When the majority of current appeals are against flaws in Home Office casework, such a drastic change to procedures long practised by a country that prides itself on being thought civilised should be based on stronger grounds than ministerial assurance that the Home Office will get things right in future. Then there is the suggestion in Clause 31 that the Home Secretary is claiming the right to overrule the judiciary on immigration bail. That issue will no doubt be explored fully in Committee, but it gives the impression that the Government are prepared to ride roughshod over niceties that for centuries have characterised our reputation for humane behaviour towards those who seek sanctuary here.

In his letter, the Minister comments on my particular concern about possible breaches of the Children Act 1989 in respect of vulnerable asylum-seeking children. When I was Chief Inspector of Prisons, the Home Secretary and the Prison Service claimed Crown immunity from the provisions of the Act as far as the treatment of children in custody was concerned. Both were taken to judicial review by the Howard League for Penal Reform, and the provisions of the Act now apply in every place in which children are held. The Children Act is in line with the UN Convention on the Rights of the Child, to which this country is a signatory, and I hope that any doubts about the application of the Act to destitute asylum-seeking children will be removed, once and for all, during the remaining passage of the Bill through Parliament. I also hope that the Government are disturbed that recent research by the Children’s Society has disclosed that, despite their protestations of their humanity, separated children involved in Article 8 immigration cases are unable to get legal aid or exceptional funding for advice and representation.

My third concern is much more difficult to quantify, but has been with me ever since 1997, when I was asked to take on the inspection of immigration detention centres, then under the Immigration and Nationality Directorate of the Home Office. It was immediately apparent that the directorate was dysfunctional, not to say unfit for purpose—a soubriquet applied later to its successor, the UK Border Agency, by the then Home Secretary, the noble Lord, Lord Reid. Honourably, and quite understandably, the Minister defends the performance of the Home Office, but I have to tell him that my experience over the past 18 years does not give me the same degree of confidence in its ability.

I shall not bore the House by repeating all my dealings with the immigration system, but if there has been one constant bar to progress throughout this period it has been the inability of the Home Office to cope with what is demanded of it. What is worse, what the Independent Asylum Commission, of which I was a commissioner, described as a culture of disbelief pervades the whole asylum and immigration structure and is manifested in much shoddy work, shown up by the number of appeals that are granted because of flaws in decision-making.

One incontrovertible fact that inspecting immigration centres proved to me was that they were neither designed nor resourced for other than short-term holding. The lack of activity places for more than a few makes them unsuitable for holding anyone for long and totally unsuitable for the detention of children. I found it particularly concerning that their population included far too many ex-prisoners, sentenced to be deported but whose deportation had not been processed while they were in prison. Ever since 1999, I have campaigned to have this stopped, recommending that such prisoners should have their deportation processed in prison so that at the end of their sentence they are taken straight to an airport and out. Most of the disturbances in immigration detention centres are caused by such ex-prisoners, who should not be there in the first place.

However, of more relevance to the Bill is the issue of time-limiting immigration detention. The committee of the All-Party Groups on Refugees and Migration, of which, like the noble Baronesses, Lady Hamwee and Lady Lister, I was a member, recommended that it should be limited to 28 days, which was endorsed by the other place on 10 September. I note what my noble and learned friend Lord Brown of Eaton-under-Heywood said about this issue. We are told that the government response to an as yet unseen report on the issue by the Home Office’s favourite rapporteur, Stephen Shaw, is due to be published before we begin Committee, which presumably means over Christmas. This issue will undoubtedly be pursued in Committee.

However, because of its dreadful record of failure over so many years, there is clearly a pressing need for a root-and-branch overhaul of the Home Office’s case-handling process, long called for by many organisations that support immigration detainees. Only last week the Chief Inspector of Borders and Immigration highlighted the Home Office’s failure to remove several thousands of asylum seekers, many of whom had “gone missing”. During the passage of the Immigration Act 2014, it was suggested that there was a backlog of over 50,000 unresolved asylum cases, which millstone makes it impossible for any current system to be up to date. If the immigration system is to work properly, let alone absorb the extra responsibilities that the Bill seeks to thrust upon it, that backlog must be cleared so that the business of the day can be handled in the day and decisions reached in a timely fashion.

Despite what the Minister says, my concern about some of the provisions in the Bill is that they are simply undeliverable given the lack of a functional system for handling cases in the Home Office. Until and unless there is a proper structure, with built-in systems of accountability and responsibility to ensure consistency, immigration will remain in a mess, which is the only word to describe it now. That it is in this state is not the fault of any one Minister but the failure of a succession of short-term Ministers, served by ineffective officials, to get to grips with what is required.

In addition to all those presently trying to come to Europe, mass migration, related to climate change, is bound to increase the pressure on countries such as ours, to which many people will wish to come. If we are to be able to cope with that inevitable future, it is essential that we put our house in order now. Legislation may be required to do this, but not, I suggest, many of the provisions in the Bill, which will complicate rather than simplify procedures.

Every business, hospital and school has named individuals who are responsible and accountable for different departments. The cult of managerialism, which presumes that because an instruction has been issued from on high it will automatically be obeyed, is no way to run an operational system such as immigration. Individual caseworkers need to be responsible and accountable to a manager, who is him or herself responsible and accountable to a director for different countries or types of cases, who is in turn responsible and accountable to a Minister. Only then can you be certain that an instruction will be obeyed and its obedience overseen. Therefore, if the Government are so keen to tighten the way asylum and immigration applications are handled, I suggest that before introducing yet more complicated legislation, they should first ensure that a functional system, capable of implementing the actions that they wish to take, is in place.