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

Paul Blomfield Excerpts

Tuesday 5th March 2019 Public Bill Committees

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is good to see you in the Chair again, Mr Stringer. I have spoken many times about immigration detention. I will essentially echo all the shadow Minister’s points, so I will be brief. As he said, there is cross-party support for these new clauses, and the Scottish National party is four square behind them.

Immigration detention for too long has become an accepted part of life, at least among politicians, but, for the reasons that the shadow Minister gave, I detect that that is changing, and not before time. Politicians have probably been out of step with the public in that regard. Every time I have a discussion with members of the public and explain to them the existing system of detention, they are actually quite horrified to hear what goes on out of sight and out of mind. Ultimately, we are talking about the indefinite deprivation of liberty in what are basically private prisons. There is little in the way of independent oversight, and all of this is done for administrative reasons. That is a huge invasion of fundamental rights.

We detain far too many people. The Minister will often say that the vast majority are not detained but are managed in the community. However, that is not the point. We are still talking about significant numbers of people—25,000 or so every year. That is a welcome improvement on previous years—let me put that on record—but there is a long way to go before we are anywhere near an acceptable position. We have a bloated immigration estate compared to many of our European neighbours, and we are still detaining far too many vulnerable people. The changes made in light of the first Shaw report have not made the difference that we would have expected or wanted so far.

As the shadow Minister said, half of all these people are released. Detention should be a matter of absolute last resort, but instead we are detaining so many people that we just release half of them again. That is completely unacceptable. The UK is an outlier in terms of international practice. This country has a long history of being very precious about the right to liberty, with severe and strict safeguards on the Government’s power to interfere with that.

We all know—I think it is inarguable—that detention is harmful. One key harm inflicted on detainees is the uncertainty—as has been evidenced in all sort of reports—of not knowing when their detention will come to an end. For all the reasons that the shadow Minister has given, there are no excuses for applying different rules to different people, and foreign national offenders should be included in the regime that we are proposing. We also need greater scrutiny of who goes into detention. Safeguards in relation to vulnerable people are still not working. Gatekeeping is not working.

These new clauses achieve two goals. They put in place a time limit and significantly improve oversight of who is being detained. I want to put on record my gratitude to all the organisations involved in drafting the new clauses, and to all sorts of organisations who, for many years, have documented the harm that is done by immigration detention and have kept it on the agenda, even when it was at severe risk of falling off.

There is a breadth of support for this new clause. The time limit is overdue. I think it will happen this time—I hope that is the case. Like the shadow Minister, I am keen to work with all parties, including the Government, to ensure that we put in place a system that is robust and fair but respects people’s right to liberty rather than detaining them for administrative reasons.

[Paul Blomfield (Sheffield Central) (Lab)]

I want to add my voice to support my colleagues on this, because in 2014 I was vice-chair of a cross-party inquiry into immigration detention. Although the focus of this Bill, and therefore of this new clause, is European economic area nationals, any decision that we make in relation to them should be seen as a stepping-stone to progress.

This is something on which I am confident we will make progress—I hope that we can make progress this morning—because there is not only strong cross-party support but very considerable support on the Conservative Benches, as the Minister knows, from the right hon. and learned Member for Beaconsfield (Mr Grieve) through to the right hon. Member for Haltemprice and Howden (Mr Davis); I do not think we could get much broader than that in the Conservative party at the moment.

On our inquiry team there were parliamentarians from both Houses and all the main parties, who brought in huge experience. They included a retired law lord and a former chief inspector of prisons. There were more Government Members among the inquiry team than those of us from the Opposition, including the right hon. Member for Meriden (Dame Caroline Spelman), with whom I have met the Minister to talk about these issues, as well as David Burrowes and Richard Fuller, who are no longer Members of the House, but to whose work I pay tribute.

The panel was brought together by the all-party parliamentary group on migration, which at that time I chaired, although it is now more ably chaired by my hon. Friend the Member for Stretford and Urmston, who is not in her place at the moment, and by the all-party parliamentary group on refugees, which is currently chaired by my hon. Friend the Member for Bristol West (Thangam Debbonaire), who I am pleased to see joining us in the gallery today. I also pay tribute to Sarah Teather, who chaired the inquiry throughout its eight-month period of evidence taking.

After that eight-month period, our recommendations, which included the limit on detention contained in new clause 1, were endorsed by the House of Commons on 10 September 2015. It is thus disappointing that, although there is growing recognition of the issue in the Home Office and there have been some welcome moves, we have not seen progress on the central recommendation of introducing a statutory time limit on detention. We are unusual in this country in not having one, and without it we have become increasingly dependent on detention.

Detention takes place within immigration removal centres—it is important that we listen to those words, because the clue is in the title. They are intended for short-term stays, but we have become increasingly reliant on them. I recognise that we have done so under successive Governments; I am not pinning the responsibility for it on the current Government. In 1993 we had 250 detention places in the UK. By 2009, it had risen to 2,665 and by 2014, when we conducted our inquiry, it was almost 4,000. The number of people entering detention in the latest year for which figures are available, through to June 2017, was 27,300. That is a slight drop from the previous high of 32,000, but by contrast, Sweden detains something like a 10th of that number and Germany around a fifth.

Home Office policy states:

“Detention must be used sparingly,”

but the reality is clearly very different. Hon. Members will be aware of a number of high-profile incidents in immigration removal centres, including deaths and allegations of sexual assault. That was reflected in the evidence that our joint inquiry heard over three oral evidence sessions and more than 200 written evidence submissions.

At our first oral evidence session, we heard from non-governmental organisations and medical experts, but we most powerfully heard from three people directly detained at that time. We questioned them over a phone link in their detention centres. One young man, who was from a disputed territory on the Cameroon-Nigeria border, told us that he had been trafficked to Hungary as a 16-year-old, where he had been beaten, raped and tortured. He had managed to escape and eventually made his way to Heathrow using a false passport, which was discovered on his arrival, and he was detained. We then asked him how long he had been detained and he told us three years—three years in an immigration removal centre. His detention conflicts with three stated aims of the Home Office: that those who have been trafficked should not be detained; that those who have been tortured should not be detained; and that detention should be for the shortest period possible.

Time and again, we were told that detention was worse than prison. Initially, that was puzzling, but it was explained to us that, in prison, people at least know when they are going to get out.

[Nic Dakin (Scunthorpe) (Lab)]

At the British Film Institute last week, I saw a documentary called “Island of Hungry Ghosts”, which I commend to all Committee members. It is about the Australian Government’s approach to detention on Christmas Island. The big issues are indefinite detention, not knowing what has happened and the lack of control, which are exactly what my hon. Friend is pointing out.

[Paul Blomfield]

My hon. Friend makes a powerful point, and I will make sure to see the film.

The point was driven home by a detainee who said to us:

“The uncertainty is hard to bear. Your life is in limbo. No one tells you anything about how long you will stay or if you are going to get deported.”

Medical experts told us that that sense of being in limbo—of hopelessness and despair—leads to deteriorating mental health. One expert from the Helen Bamber Foundation told us that those who are detained for more than 30 days, which is relevant to the limit we are looking for, had significantly higher levels of mental health problems.

New clause 1 would have an impact beyond those who are detained. A team leader from the prisons inspectorate told us that the lack of time limit encourages poor caseworking in the Home Office. He said that a quarter of the cases of prolonged detention it had considered were a result of inefficient caseworking.

Prolonged detention does not happen because it is inappropriate for people to be released. Despite these places being called immigration removal centres, we have found—everybody needs to focus on this fact—that most people are released from detention for reasons other than being removed from the UK. They are released back into the community.

The system is not only bad for those who are involved, but expensive, as my hon. Friend the Member for Manchester, Gorton pointed out. The recommendation in new clause 1 for a maximum time limit to be set in statute is about not simply righting the wrong of indefinite detention, but changing the culture that is endemic in the system.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I commend my hon. Friend on his speech; he is demolishing the case for indefinite detention. Does he agree that it is not just about the welfare of the individuals involved—although, clearly, the limbo they have been left in is unacceptable—but about improving the way that the Home Office works?

[Paul Blomfield]

I agree with my hon. Friend. Although that was not the reason why we conducted the inquiry, it became clear through the inquiry that there would be significant benefits in terms of the Home Office’s operation, as well as cost and compliance, which I will come to. Those benefits underlined the recommendation, which had initially been driven by common humanity and the way the system operates.

In trying to change the culture that is endemic in the system, we are trying to meet the aims of the Home Office’s own guidance, with detention used more sparingly and only as a genuine last resort. The proposed time limit is 28 days, which reflects best practice in other countries and is workable for the Home Office. Home Office guidance describes detention as being for imminent removal and defines “imminent” as four weeks—that is, 28 days. That is the recommendation of the report and the principle behind new clause 1.

Deprivation of liberty should not be a decision taken lightly or arbitrarily. Currently, decisions are taken by relatively junior Home Office officials, with no automatic judicial oversight. Without a time limit, it simply becomes too easy for people to be detained for months on end with no meaningful way of challenging continued detention.

The introduction of a time limit and the reduction in reliance on detention would be a significant change because, to detain fewer people for shorter periods, the Government would need to introduce a wider range of community-based alternatives. It was interesting to hear my hon. Friend the Member for Scunthorpe talk about Australia, which is often seen as a hard-line country on immigration. Some of the detention practices there are abhorrent, but there is wider use of community-based alternatives to detention than in the UK. I appreciate that the Home Office is running a pilot about that—as I said earlier, I met the right hon. Member for Meriden and the Minister, and we had a really useful discussion—and I am certainly convinced that it is putting genuine effort into developing community-based alternatives in a thoughtful way.

There is a precedent in the UK. When the coalition Government committed to reducing the number of children detained, they introduced a family returns process, which the House of Commons Library described as intended

“to encourage refused families to comply with instructions to depart from the UK at an earlier stage, such as by giving them more control over the circumstances of their departure.”

It worked; there was a dramatic fall in the number of children detained, and the Home Office’s own evaluation of the scheme found that most families complied with the process, with no increase in absconding.

In conclusion, I quote Nick Hardwick, who was Her Majesty’s chief inspector of prisons at the time of our inquiry. After he made an unannounced inspection of Yarl's Wood, he said that

“well-respected bodies have recently called for time limits on administrative detention…In my view, the rigorously evidenced concerns we have identified in this inspection provide strong support for these calls, and a strict time limit must now be introduced on the length of time that anyone can be administratively detained.”

In supporting new clause 1, we are not proposing to end indefinite administrative detention simply because that would be the just and humane thing to do—although, for goodness’ sake, that is a good enough reason—but because it would be less expensive, improve procedures in the Home Office and be more effective in securing compliance.

[Tracey Crouch (Chatham and Aylesford) (Con)]

I rise briefly to raise a specific issue that a constituent has brought to me, but also to recognise that the Home Office has done a significant amount of work to reduce the time people are in detention. I am sure members of the Committee are aware that 42% of detainees spend between one and 28 days in detention, which is much better than in 2017, when it was only 30%. However, the statistics show that 33% still spend one to three months in detention, and 13% still spend three to six months in detention. I have sympathy with a new clause that limits detention time, although I still need to be persuaded on the issue of excluding foreign national offenders.

From the evidence session and the questions that Tory colleagues asked, I recognise that there is a measure of sympathy on this issue. The hon. Member for Manchester, Gorton was correct when he talked about the impact on mental health, and there are colleagues who recognise that detention has a damaging impact on people’s mental health. Whether there is indefinite detention or a specific time limit is something that still needs to be discussed, although I am aware that in the public health, counter-terrorism and criminal justice systems, where individuals face the possibility of detention without charge, 28 days or lower is considered sufficient time. There is further debate needed as to whether it has to be 28 days, or whether it could be 30 or 40 days. That is an issue we still need to consider carefully.

My constituent Dane Buckley is the support services co-ordinator for the UK Lesbian & Gay Immigration Group and specifically wanted me to raise the issue of detention of lesbian, gay, bisexual, transgender, queer, intersex + people. I am sure that the Minister is aware that in 2016 UKLGIG and Stonewall published research, called “No Safe Refuge”, on the experiences of LGBTQI+ people seeking asylum while in detention. The report highlights the systemic discrimination, abuse and harassment that they face from staff and people who have been detained. It contains shocking examples of acts committed by fellow detainees and staff, and incidents where staff have failed to protect individuals.

In June 2016 the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, alongside the chair of the UN Committee against Torture and the chair of the board of trustees of the UN voluntary fund for victims of torture, called on member states to redouble their efforts to prevent ill treatment or torture of LGBTQI+ people in places of detention. The ninth annual report of the sub-committee on prevention of torture and other cruel, inhuman or degrading treatment or punishment raised similar concerns, stating that LGBTQI+ people were

“at the bottom of the hierarchy”

in detention. I think we are all acutely conscious of the vulnerability of LGB asylum seekers in detention, and recent court cases have asserted that.

My constituent suggests that detention has a direct impact on the prospects of LGBTQI+ people to claim asylum successfully. To convince the Home Office or a tribunal that they are LGBTQI+ as claimed, asylum seekers must be in a situation of trust and security, in which to consider and discuss their sexual orientation or gender identity. That can be extremely difficult if someone comes from a country where persecution has meant they have never spoken about their sexual orientation or gender identity, or if they have experienced trauma. It can be an impossible task in detention, where fear of discrimination or harassment requires them to conceal their identity as much as possible. In obtaining a legal aid lawyer, people are limited to the specific contractors for each detention centre. With the greatest respect, those advisers do not necessarily have the specialist knowledge required for asylum claims based on sexual orientation or gender identity.

Added to that is the difficulty in amassing the kind of corroborating evidence that decision makers routinely expect when someone is in detention, especially if the person is trying to avoid being outed to staff and other detainees. Home Office caseworkers and decision makers frequently ask, or indeed expect, LGBTQI+ asylum seekers to offer witnesses, including ex-lovers, who will attest to knowledge that the asylum seeker is LGBTQI+ as claimed. Clearly that can be incredibly difficult if the person does not live openly in their home country because of the fear of persecution. An additional issue is the fact that the Government do not keep statistics on the number of LGBTQI+ people who are detained. Perhaps the Minister could address that.

I wanted to raise that particularly sensitive issue of sexual or gender orientation of people in detention on behalf of my constituent and to offer sympathetic support to the idea of making sure there is a time limit on detention, for the mental health and wellbeing of those detained. Whether that is 28 days is a matter that still needs to be bolted down, but I do not personally support including foreign national offenders in that; we still need to consider that further.

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[Caroline Nokes]

The hon. Gentleman is absolutely right to point out that they are not the same thing. While we might draw on the experience and evidence from other countries, it is important that we have a system that works within our own legal system.

[Paul Blomfield]

The Minister was talking about expert evidence and the importance of the view of our legal system. Does she note that the Bar Council recommends a 28-day time limit?

[Caroline Nokes]

I certainly welcome the Bar Council’s views feeding into this debate. However, very few countries have a time limit as short as those proposed in these new clauses. While some have time limits, recognising the practical challenges in effecting successful returns, some are looking at the issue again.

For example, the European Commission has recently proposed a new detention time limit of at least three months to give member states sufficient time to carry out return operations. In comparison with other countries, the UK performs well in achieving the removal of individuals who have no right to stay. I agree with Stephen Shaw when he said that he had yet to see a coherent account of how a proposal for 28 days had been reached. That different time limits have been proposed in different amendments shows that identifying an appropriate time limit might not necessarily be a simple exercise.

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[Afzal Khan]

My hon. Friend the Member for Sheffield Central, the shadow Minister, will speak to the new clause.

[Paul Blomfield]

New clause 10 is important because, as the Committee should be aware, the Bill removes the current right, under EU law, to appeal against decisions relating to settled status. The new clause seeks to fill that gap by giving the right to appeal to the immigration and asylum chamber of first-tier tribunal to those whose application is rejected and those who have been granted pre-settled status but there is evidence to show that they should have been granted settled status.

As discussed during the oral evidence sessions, as it stands the only right to appeal consists of an administrative review at a cost of £80 or a judicial review at a significantly greater cost and with a drawn-out, time-consuming process. Ms Blackstock from Justice told us that it

“seems to be the most bureaucratic and inappropriate method for what is…potentially a simple grey area that requires a simple review.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 62, Q162.]

This is a problematic issue.

We also heard from Professor Smismans, who represents the3million, that there had been “considerable problems” with past administrative reviews by the Home Office. I am sure the Minister is aware of that. An administrative review may be fine as a first access point, but it is not sufficient on its own.

The Government clearly recognise the need to make the right of appeal available, as they have agreed that with the EU as part of the draft withdrawal agreement. That right exists under the withdrawal agreement that the Government have signed up to; UK courts and tribunals are authorised to refer cases on citizens’ rights to the European Court of Justice within eight years of the end of the transition period.

The withdrawal agreement also provides for an independent monitoring body to conduct inquiries into alleged breaches of part 2 of the withdrawal agreement. That body would also be able to receive complaints from EU nationals and bring legal action on their behalf.

So far so good, but both those mechanisms fall away in a no-deal situation. Following the delayed publication in December of the Government’s paper on citizens’ rights in the event of no deal, my hon. Friend the Member for Manchester, Gorton and I wrote to the Minister and the Under-Secretary of State for Exiting the European Union, the hon. Member for Worcester (Mr Walker) with our concerns. In reply, they stated their view that it is fair in a no-deal scenario to provide the remedies generally available to non-EU citizens refused leave to remain in the UK in other parts of the immigration system.

I ask the Minister: how is that fair? In the event of no deal, the Government are proposing to reduce the time that people have to apply for settled status. The process of registering 3 million people is already a challenge, and some people believe it might be beyond the Home Office. With less time comes greater risk of mistakes, so why are the Government reducing the means of appeal?

We are talking about a finite number of people who have already been subject to two and a half years of uncertainty. It is worth remembering that about 100 EEA citizens were erroneously threatened with deportation by the Home Office in 2017. Is it really fair to anybody that we are expected to trust the Home Office to mark its own homework? An accessible right of appeal under any terms on which we exit the European Union would provide much-needed reassurance to EU nationals.

[Stuart C. McDonald]

My original intention was to speak in support of new clause 34, but having considered the matter I have to say that new clause 10, which also covers family members of non-EEA nationals, is better drafted, so I will speak briefly in support of it instead. Hats off to the shadow Ministers for getting it right when I have not.

I echo everything said by the hon. Member for Sheffield Central. He is right to characterise this not just as a failure to grant the right to appeal, but as the taking away of the right to appeal currently available to EEA nationals under European law. I remind the Minister that the Home Office statement of intent, published in June last year, said:

“Primary legislation is required to establish a right of appeal for the scheme, but subject to Parliamentary approval, we intend that those applying under the scheme from 30 March 2019 will be given a statutory right of appeal if their application is refused. This will allow the UK courts to examine the decision to refuse status under the scheme and the facts or circumstances on which the decision was based.”

The question is simple: why is that appropriate if there is a deal, but not appropriate if there is no deal? There should be a right of appeal regardless of whether a deal is reached. The distinction is absolutely unjustified.

From the point of view of principle and practice, appeal rights are hugely significant in immigration law. It is about the separation between those who review a decision and the decision makers themselves, and about not allowing the Home Office to mark its own homework, thereby ensuring a fair and independent hearing. It is also about the fact that the Home Office simply gets it wrong far too often. Before the current Prime Minister started her slash-and-burn approach to appeal rights, half of Home Office decisions were being overturned by the tribunal. Administrative reviews and judicial reviews are a sub-standard alternative.

Finally, we have to bear in mind that these decisions will have hugely significant consequences for those individuals affected. If the decisions are wrong, the consequences could be catastrophic. It is a small ask to ensure that they have appeal rights, regardless of whether a withdrawal agreement is reached.

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[Paul Blomfield]

I am grateful to the Minister for taking an intervention on this point, because we have come to the nub of the debate. The Prime Minister and the Government have said consistently that EU and EEA nationals are our friends, our neighbours, valued members of our community and an important part of our workforce, and that they will not have diminished rights when we leave the European Union. What message does the Minister think is being sent to them by the proposal that in the event of no deal their right of appeal would be withdrawn?

[Caroline Nokes]

I was going to come on to talk about administrative review, which is available in the event of deal or no deal to those who are refused leave under the scheme on eligibility grounds. Under the settlement scheme, eligibility is focused primarily on how long an individual has been in the UK; it is not about demonstrating that individuals have been exercising free movement rights but simply about proving identity and that they are here. Administrative review will be able to correct any errors that might be made in calculating the time period, if necessary by considering new evidence. The hon. Gentleman will also be aware that application under the EU settlement scheme is free—I welcome the change that the Prime Minister made by removing the fee. It would be open to any individual simply to reapply, rather than go through an appeal or administrative review process, because there is no charge.

When an applicant is refused on suitability grounds, they will not have a right to administrative review. Refusals on suitability grounds will be made, in particular, if there is evidence of serious criminality. However, where people are refused on criminality grounds and subject to deportation, they can make a human rights or protection claim against their removal; they will have a right of appeal under existing legislation if that claim is refused. In addition, applicants who are refused leave under the settlement scheme have the right to apply for judicial review of the refusal, as we have heard. Such remedies exist now for those refused under the EU settlement scheme.

We are committed to protecting EU citizens, and I hope that what I have said provides reassurance to hon. Members that adequate remedies are already available to those refused leave under the settlement scheme.

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[The Chair]

Does the hon. Member for Sheffield Central wish to say anything before I ask the proposer of the new clause whether he wishes to withdraw it?

[Paul Blomfield]

I acknowledge that the Minister’s wish to reflect on some of the issues raised is helpful, but there are still fundamental matters on which we have had insufficient reassurance.

[Afzal Khan]

I will press the new clause to a vote.

Question put, That the clause be read a Second time.