Immigration Bill

Lord Sentamu Excerpts

Monday 3rd March 2014 Lords Chamber

Finally, Amendment 8, in the names of the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, gives effect to the recommendation of the Delegated Powers and Regulatory Reform Committee that the broad powers contained in new Section 10(6) be subject to the affirmative procedure because the powers delegated are not merely in relation to procedural powers, when a negative procedure is appropriate, but are capable of very wide application. I support this amendment, which retains the necessary powers for your Lordships’ House.

[The Archbishop of York]

My Lords, there are some very welcome amendments to this Bill, and I will speak shortly to Amendments 1 and 4.

As someone who owes his life to a country that was willing to provide sanctuary at a time of extreme danger, as my wife and I secretly left President Idi Amin’s regime in Uganda, I feel strongly about these matters. This is not to say that I do not recognise the need for proper border control. States have the right to guard their citizens from any real negative impact—social or economic—of excessive immigration. Nevertheless, Amendments 1 and 4 are actually very helpful in a number of ways.

First, I apologise that I was not in the House for the Second Reading on 10 February, but I was pleased to see the comments of the noble Lord, Lord Taylor, that day. He said:

“The Bill does not undermine individual rights; rather, it strengthens them. The arbitrariness of whether the family life threshold has been met is replaced by clarity and consistency”.

He went on to say:

“It streamlines the process of removing illegal migrants while protecting the vulnerable. … Families being removed will continue to benefit from the coalition’s commitment to end child detention. … We will protect the vulnerable”.—[Official Report, 10/2/14; cols. 416-18.]

However, undue haste is rarely in the interests of fairness, especially when people are disorientated, confused and fearful. While I can see the merits of bringing the decisions together, giving people only 72 hours to access the legal support and advice necessary to make an appeal is not helpful. What if someone is unwell or on holiday? I can hear those responsible having no answer to make other than, “'Tough luck”. It is only fair that if a person is to be removed they be given adequate notice. The amendment in the name of the noble Lord, Lord Avebury, would have it that the date of removal was given at that point. This is perhaps better than receiving a letter simply saying that you are liable to removal, although either makes it clear that preparations must be made, which is better all round. Of course, some will say that giving notice gives the opportunity to abscond, but, on balance, it is more humane to give notice. The determination is there for those who are regarded as at risk of absconding: they can be detained.

Amendment 4 is another vital amendment that is consistent with the earlier amendment. It would remove the possibility that a family member being removed might receive no notice. It seems to me that, if they did not receive notice, in a society like this that would be not good. I therefore support Amendments 1 and 4.

[Lord Ramsbotham (CB)]

My Lords, I shall speak particularly to Amendments 1 and 2 but also to Amendments 4, 5, 6, 7 and 8, as I shall explain.

At Second Reading, I explained to the House that the whole business of enforced removals was by no means new as far as examination from outside was concerned. Indeed, in 2008, I handed the Home Secretary a document called Outsourcing Abuse, which referred to 78 cases where injuries or death had been inflicted on people who were being removed forcibly from this country. I was then a commissioner on the Independent Asylum Commission, which made some far-reaching recommendations about the whole process. In December 2012, I handed the Home Secretary the report of a commission on enforced removals, which made another series of recommendations relating to the Home Affairs Committee report published earlier that year.

Although Part 1 of the Bill has the sub-heading “Removal Directions”, what is lacking from the whole enforced removal process is overall direction. I was very grateful to the Minister, who was accompanied by the noble Earl, Lord Attlee, for meeting me last week with the Bill team, when I gave him what we had in effect drawn up in December 2012, which was a draft code of practice laying down precisely what should be done in the Home Office as well as by the contractors who are responsible for the removal. The draft also provided for oversight of the whole process, which is sadly lacking at the moment. I was grateful to the Minister for saying that he would take away the document and study it, having referred it to the Minister for Immigration, because it is further reaching in the whole enforced removals process than the content of the Bill. Therefore, I did not table it as an amendment.

However, I should like to inform the House about the content of that document, which is really three codes of practice. The first is all about the actual conduct and the preparation of the case. It refers to duties of the Home Office, which we suggested should establish a complex returns panel to deal with single returnees who refuse either a voluntary or an assisted return in the same way that the Independent Family Returns Panel deals with families. I am very glad that Amendments 4, 5, 6 and 7 deal particularly with the families, and the Independent Family Returns Panel has been a qualified success ever since it was appointed. However, I do not think that that is good enough for the whole process, because the vast majority of people taken back are single people, some of whom have very complex cases indeed.

The document also refers to a group of people who have suffered from totally inadequate supervision and direction for years: the case owners in the Home Office. Frankly, I reckon they are both inefficient and incompetent. I do not reckon that they have ever truthfully told Ministers exactly what has gone on. That has meant that Ministers have not been in possession of the facts. Therefore, we put in the code of practice a lot of things that must be done to oversee the case owners and make certain that they are competent to carry out their task, including having a detailed understanding of immigration law.

Then we come to staff in the immigration detention centre, because that is where the returnee is based. Frequently, the detention centre staff know quite a lot about the person being returned which is not passed on to the case owner and is therefore never taken into account. That causes some of the problems in returns. We believe that immigration detention centre staff must be brought into the process.

Finally come the contractors—the people who provide the detention custody officers taking the person back. Again, this is a sadly neglected part of oversight at present. The contractors have behaved appallingly badly, in public and in front of the Chief Inspector of Prisons when he was accompanying a flight. That they are prepared to do that in front of him suggests that for years they have got away with—literally—murder. It is time that that was stopped. We suggest what must happen to them.

The next part of the thing is oversight. We believe that the Home Office must establish a clearer description and direction of oversight. It has the ideal person to do that in the Independent Chief Inspector of Borders and Immigration. I have met the chief inspector on a number of occasions and know that he is very keen to improve on what he has done already. The difference he has made since he was appointed in 2007 is enormously marked, as I note from when I was Chief Inspector of Prisons and responsible for doing detention centres. If he is given oversight over the process, particularly the practicalities of it, Ministers will find that a lot of the problems that currently appear and are listed under their names will disappear because somebody is responsible and accountable for making certain that those problems do not arise.

I will not speak to the final part of the code of practice at this moment because it refers to the use of restraint, which comes under Clause 2 and Schedule 1. However, my purpose in all this is that underlying everything that has gone on for far too long in the whole conduct of immigration has been what we described in the Independent Asylum Commission as a “culture of disbelief”. It is time that that was eliminated. I find very worrying at the moment that, although the UK Border Agency has been eliminated, I do not detect in the Home Office the leadership of the three silos that have been appointed to take over those jobs. The intentions of this Bill will be achieved only with leadership and drive of the whole process, starting with a determined attack on the 500,000 backlog—it will be defeated only by a determined attack.

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[Lord Taylor of Holbeach]

No, the purpose of the changes is to make sure that people who are subject to removal leave voluntarily rather than through enforced removal. I am sure that the noble Lord and most noble Lords would agree with that proposal.

We will ensure that family members who have valid leave to remain in the UK in their own right will not be removed. We propose to remove only dependants of persons with no right to be in the UK. Where dependency is broken, such as when it involves a victim of domestic violence, the former dependant is expected to apply for leave to remain in their own right—and, if necessary, they will be removed if they were unsuccessful as a main applicant. We will also look at the best interests of the child in making any decision under our obligations—of which noble Lords are well aware—regarding victims of human trafficking.

This has been a helpful debate. I hope that I have been able to whet noble Lords’ appetite for a government response on this important clause before Report. I can reassure them that family members will always be notified if they are facing enforced removal. The draft regulations underscore this and make it clear how notice is to be given. In the light of those points, I hope that the noble Baroness will agree to withdraw the amendment.

[The Archbishop of York]

I still have not understood the Minister’s logic. I appreciate and want to commend the removal of the two-stage approach—the fast-forward immigration decision and then the removal decision. That has caused difficulty to a lot of people whom I have been representing and the Secretary of State knows that because we have had wonderful conversations. Therefore, I applaud that. But if there are 72 hours in which you can appeal the decision, what is the problem of giving notice in writing of the date and approximate time of the removal? People could still appeal within 72 hours. Why not state that? I cannot understand the logic. Can the Minister please help me?

[Lord Taylor of Holbeach]

The purpose of the notice is not to put people under notice as to the exact timing of when they will go. It is intended that they should be informed of where they will be removed to because that might have a bearing on human rights considerations. But the actual timing of their removal is an administrative matter. To my mind, it would be a complication that might reduce the effectiveness of these measures if the actual timing of their removal also had to be part and parcel of that notice.

If experience shows that it is possible to be more precise in working this new arrangement, I have little doubt that we will come back to the House to seek ways in which that can be done. But for the time being, it is expecting too much to be able to be precise about the actual time and date of a person’s removal when serving this notice.

[The Archbishop of York]

Is the Minister quite sure about that in the light of what the noble Lord, Lord Ramsbotham, said about the way that this thing will work—that it will not be very efficient and that people will not be very good at it? Now the Minister is saying that there will be an administrative decision by the Secretary of State. How can we be certain that the kind of problems that the noble Lord, Lord Ramsbotham, drew our attention to, which are real experiences that everyone knows about, will not affect the changes we are looking for?

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[Lord Ramsbotham]

My Lords, I, too, pay tribute to government Amendments 10, 14 and 15; 10 because of the Independent Family Returns Panel about which the noble Baroness, Lady Hamwee, spoke. I agree with the importance of independence. There is no doubt that the Independent Family Returns Panel has made marked improvements to the process since it was formed, and that it is very well led and well worth listening to. I commend the coalition on the determination with which it has pursued the detention of children. Having served on the advisory board early in 2010, soon after the election, I am glad to see this clause in the Bill.

Finally, I am very glad to see the place of detention at Cedars, and I commend Barnardo’s for the way that it has conducted the care of families who have been in that place.

[The Archbishop of York]

My Lords, I, too, welcome this amendment. The noble and right reverend Lord, Lord Williams of Oystermouth, and I visited Yarl’s Wood when he was Archbishop of Canterbury. We were quite surprised and shocked, and made very clear representations about this particular question of the detention of unaccompanied minors. I am very grateful for what is happening here but again, like the noble Baroness, Lady Hamwee, I want to know whether the Minister can give us an assurance that there will be monitoring of the 24-hours issue and that it will not turn into a norm that nobody can question, so that we can find out whether this is healing a very difficult problem. However, for all of that, I welcome this particular amendment.

[Lord Judd (Lab)]

My Lords, this amendment is certainly a move in the right direction, but the one anxiety I have is that it still leaves matters very much in terms of systems and the responsibilities for ensuring systems are running properly. If we put ourselves in the position of the unaccompanied child, who may be going through all sorts of mental turmoil and agony—bewildered, uncertain and desperately in need of friendship and help—it would be good to hear a little about the Government’s thinking on how these real psychological, and consequently very often physical, needs of the young person are being dealt with. We have debated the policy in this Bill in previous years and, ideally, the child in this situation needs a personal champion, who is there throughout the process, advising, talking to and consulting them—if you like, a counsellor, who is there to enable the child to make sense of what is happening and being proposed and to enable the child to start developing his or her own views about what they really want to take place.

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The amendment is generous in allowing the Government yet another six months from the passing of the Bill to produce a set of rules which has been delayed for so long. I beg to move.

[The Archbishop of York]

My Lords, I stand again to support this wonderful amendment with its mover. What is going on here? This makes sense to me. There are detention centre rules which govern immigration removal centres, but the short-term holding facilities in airports, as has already been mentioned, are very different. In some of them—for example, Pennine House in Manchester where, sadly, a Pakistani man died last July—people can be held for up to seven days. There need to be published rules to provide a sound governance structure. Without that, we will not be reassured. People can be held at times of great personal and familial stress. The intention behind the amendment is to make sure that these facilities make good provision, with clear rules, for safety, care, health, activities, discipline and control of detained persons. Who would argue against that?

[Lord Ramsbotham]

My Lords, I support the amendment so ably moved by the noble Lord, Lord Avebury. When I took over as Chief Inspector of Prisons and was given the responsibility for immigration detention centres, I was horrified to find that all of them were geared only for the short term and had no long-term arrangements for people who were there for a long time. When I went into it, I discovered that the reason for this was the lack of direction from the Home Office. There was at that stage the Immigration and Nationality Directorate, which was meant to be running the centres, and they were all let out on contract, but there was no overall drive, no direction.

The fact that we have now been waiting for longer than World War II for this matter to be resolved suggests that that lack of direction and drive obtains across the whole immigration detention centre system anyway. I am still told by members of immigration monitoring boards that, in fact, the centres where people are held—sometimes for years, let alone months—are not geared to look after their needs in any more than the short term, about which I asked last October and which has been so ably described by the noble Lord, Lord Avebury. It is important not just that the Government do this in six months, but that they appoint someone responsible and accountable for overseeing these centres, and seeing that things actually happen.

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[Lord Rosser]

My Lords, Amendment 12 provides for the enforcement powers provided for in Schedule 1 to be subject to oversight by the Chief Inspector of Borders and Immigration, the Independent Police Complaints Commission and Her Majesty’s Inspector of Prisons. The powers introduced by Schedule 1 include escorting and searching detained persons and entering and searching premises. There is also provision for a wider interpretation of the general power to use reasonable force compared with that in previous immigration Acts, and the schedule increases the powers of immigration officers, including with regard to the power to use reasonable force.

This is an important issue, not least in the light of the inquest into death of Jimmy Mubenga in late 2010, following the restraint used as part of his deportation undertaken by a private sector company. In that case, the coroner determined that the cause of Mr Mubenga’s death was an unlawful killing under existing provisions of immigration law. The coroner highlighted several areas of concern, including lack of training in scenario planning in relation to the use of force by private sector companies, dangerous restraint techniques being used at that time and a lack of accreditation of particular officers.

As Schedule 1 now extends the powers regarding the use of reasonable force to previous immigration Acts and gives additional powers to immigration officers on escort, search and entry, we need at the very least some assurances that immigration officials will receive or are now receiving training on the use of restraint and reasonable force that is on a par with that given to police officers. We also need assurances that these increased enforcement powers will be subject to proper oversight, and by whom, and that that oversight will also apply to the private sector. Is it the Government’s intention to issue guidance on how the provisions of Schedule 1 should be enacted, not least the power to use reasonable force, or will it be left to each company and organisation involved to interpret as they see fit how and when to use the considerably enhanced powers that they are being given? Will it be left to each organisation affected to produce its own definition of reasonable force and the circumstances in which it can be used? I hope that that is not the case.

I hope that the Minister will recognise the concerns on this issue, already expressed earlier today, and that, in the light of the discussions that he has had with the noble Lord, Lord Ramsbotham, on a possible code of practice, he will feel able to offer more than a belief—although genuine, I am sure—that everything will be all right on the night. I beg to move.

[The Archbishop of York]

My Lords, Amendment 12 provides what I believe to be a necessary safeguard to reassure the public that those responsible for enforcement are fully accountable. Accountability is at the heart of all of this. This is surely an improvement as it ensures independent oversight by Her Majesty’s Inspector of Prisons, the Independent Police Complaints Commission and the Chief Inspector of Borders and Immigration of enforcement powers, such as searching persons and premises as well as the general power to use reasonable force. If we are confident that such powers are always fairly and humanely exercised, there is nothing to fear from this amendment. If we are not, then this amendment is absolutely necessary.

[Baroness Williams of Crosby (LD)]

My Lords, I will speak briefly on Amendment 12. I congratulate the noble Lord, Lord Rosser, and the noble Baroness, Lady Smith, on bringing it forward.

It is very striking that the positions of the people mentioned who should be involved in oversight are intended to be independent. That is clear with regard to the IPCC, but is also the case with the Inspector of Prisons, as is exemplified by the remarkable record of the noble Lord, Lord Ramsbotham, when he was Inspector of Prisons, and calls on an old tradition that rules will be enforced and kept in respect of the Prison Service, with a long and remarkable record among prison officers in terms of these expectations. I was a Minister of State in charge of prisons for a while and I was impressed by the level of responsibility shown, particularly by prison officers who had worked in prisons for a period of time. They often had a strong sense of responsibility for those with whom they worked, who were held in prisons in the ordinary criminal justice system. There has been nothing like the same level of expectation regarding rules or ethics within the immigration estate as we had in the Prison Service at its best.

Amendments 9 and 10 have already been discussed and I will not return to them, but I will say very loudly that they show how remarkably a concerned and responsible Minister can alter the culture and attitudes of those for whom he or she is responsible and over whom he or she has oversight. The problem, quite simply, is that the Home Office has not had that oversight, particularly in respect of the outsourcing of responsibility for people who are detained or who are held under the immigration provisions of many earlier Acts. That is only too clear in the complaints and concerns that arise over the handling and management of that estate. We are grateful for Amendments 9 and 10. They are very detailed and have been carefully worked out. However, I repeat the question of the noble Lord, Lord Rosser, about whether there is any training for immigration officers who now have the responsibility for enforcement. I will go further and ask whether the Home Office writes into its contracts with the private companies to which it extends the right to run these establishments a specific requirement that the practices that we hope to be embodied in the code will be upheld. Does it hold them responsible for reporting on any breaches of those rules and codes of practice? Does it hold them responsible for any accidents, injuries or deaths that occur in the establishments for which they are responsible? If the number of those is seen to be unusually high or if they are inexplicable, will real consideration be given to withdrawing the contracts as soon as possible? The contracts should clearly indicate that they are conditional on the proper running of those establishments.

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[Lord Roberts of Llandudno]

My Lords, I repeat what I said earlier about the need for proper training and assessment of those who are legally able to use force. I do not have a great deal of confidence in some of these private companies, which have already failed in different ways. The Home Secretary should take very much to heart the suggestion that we need people who are able to exercise their duties in a way that is humane and within the Act because, as the report of the Chief Inspector of Prisons regarding the use of force against pregnant women and children said, it must not be contemplated. We need a review of the whole procedure, which we can come out of with a feeling that at least the best that can be done is being done.

[The Archbishop of York]

My Lords, I will speak to Amendment 13 of the noble Lords, Lord Roberts of Llandudno and Lord Ramsbotham. The trouble is that paragraph 5 of Schedule 1 widens the authorisation under which immigration officers can use “reasonable force” to cover all their powers in all immigration Acts, rather than just the specific powers of arrest, search and entry given in the 1971 and 1999 Acts. Such blanket permission for something as indefinable as “reasonable force”, as the noble Lord, Lord Ramsbotham, illustrated, is pretty unwise.

Surely it is important that any extension of use of force by agents of the state is justified in detail, rather than in this sweeping manner. For example, the use of force against pregnant women or children in a variety of contexts is problematic. I support Amendment 13 and hope that it will go in the direction of the definition given by the noble Lord, Lord Ramsbotham, of what could be included in the Bill about what we mean by the rather blanket word, “reasonable”. What is reasonable to me may be completely unreasonable to another person, unless it is defined.

[Lord Mawhinney (Con)]

My Lords, I will not take up much of your Lordships’ time because what I had wanted to say was said much better by the noble Lord, Lord Ramsbotham. In my reading of Schedule 1, I noted the words:

“The power to search … may be exercised only to the extent reasonably required”.

I do not know what “reasonably required” means; I do not know what “reasonably” means, and I do not know what “required” means. By whom is the power to be used and against what standard? I say to my noble friend on the Front Bench, who knows that I am supportive of this legislation, that the noble Lord, Lord Rosser, has done your Lordships’ House a favour by enabling this short debate to take place. I hope that my noble friend will listen to the variety of views that reflect a similar theme on all sides of the House, and perhaps at a later stage come back with something that is slightly more definitive in relation to “reasonably required”.