Immigration Bill (Third sitting)

Sarah Champion Excerpts

Thursday 22nd October 2015 Public Bill Committees

[The Chair]

I had Sarah Champion down. Do you want to go now or later?

[Sarah Champion (Rotherham) (Lab)]

I was going to move to a separate topic, if that is okay, Mr Bone.

[The Chair]

Why not?

[Sarah Champion]

Q 215 I would like to move to the subject of bail. How many cases are detained each year? How many are ultimately removed from the UK and how many are granted permission to remain?

Jerome Phelps: In 2014, 30,364 migrants entered immigration detention and 29,674 left detention. The Government publish statistics on outcomes for those who leave detention—53% were removed or deported from the UK last year, 7% were released on bail and 1% were granted leave to remain although, of course, others may have subsequently been granted leave to remain after release. These figures are interesting in the light of the Bill in that they show that bail is used fairly selectively by the tribunal. The Home Office releases 38% of detainees so it is not that large numbers of detainees are being released by the tribunal.

[Sarah Champion]

Q 216 Mr Phelps, could I stay with you? If the rest of the panel want to chip in, they may. There have been suggestions that provisions in the Bill would fuel more unlawful detention litigation. What is your view?

Jerome Phelps: Absolutely. Bail provides a crucial safeguard and one that is working reasonably well in the current system. As I say, it is not generating excessive numbers of releases. It is a vital safeguard, first, because the UK has the most unconstrained powers of detention in Europe. We have no time limit on detention, unlike the rest of Europe, and we have no automatic judicial oversight of detention. The ability of the courts to scrutinise decisions by the Home Office to deprive someone of their liberty is entirely dependent on that person’s ability to apply for bail. That ability is dependent on having an address. It is important to note that that is not out of any concern by the tribunal to reduce homelessness; the primary reason why people in detention have to provide an address to apply for bail are solid immigration control priorities of the Home Office, in that if somebody cannot provide an address, it is very difficult for them to reassure the courts or the Home Office that they will keep in touch and be detainable and removable if it becomes possible.

Although the explanatory notes are not particularly clear here, it appears as though the ability of a destitute detainee to access an address will be subject to a non-appealable, discretionary decision of the Home Office, which would effectively enable the Home Office—the detaining authority—to prevent significant numbers of migrants in detention from accessing the tribunal to apply for bail.

That will have two potential consequences. First, it will significantly increase the levels of frustration, alienation and probably non-compliance within the detention estate if people have no lawful route to challenge their detention. Secondly, and more pertinently to your question, it will force applications into the High Court, because there is no ability to challenge detention in the lower courts. The High Court is already reeling under the pressure of immigration and asylum-related cases. It is already receiving large numbers of unlawful detention cases, and the Home Office is already paying out around £3 million a year in compensation for unlawful detention. This seems like a very retrograde step that would force more cases into the High Court and would be likely to generate more findings of unlawful detention and more compensation payments. That is something that no one in this room would want, I am sure.

[Sarah Champion]

Q 217 Does the rest of the panel agree with that sentiment?

Adrian Berry: Yes. At the moment, the issue with the innovation in bail provisions proposed in the Bill is that there are difficulties with allowing, for example, the Home Office to vary a condition set by the tribunal. That is more than a cosmetic change. You have independent judicial provision for granting bail and for setting the terms after a hearing. A judge takes a view of what conditions should be imposed. The Home Office can then vary them at their own suit, possibly having lost the argument before an independent judge. You end up with a situation where conditions may be difficult to respect in practical terms, and that will have an impact.

The issue with the provisions in the Bill regarding bail goes beyond that, because it also deals with this idea of branding people as on bail when they have simply come to this country seeking admission. Hitherto, such people have been on temporary admission, which is a different sort of status. There is also an issue about the creation of a culture of presumption of detention and the presumption that you are on bail when, in fact, you have simply come to the country and sought admission, and you are lawfully here without any risk of absconding.

This rebranding is of a piece with the power grab, if you like, on the part of the Home Office against independent judicial scrutiny. What is really required is independent judicial oversight of bail at regular periods, so that you do not get into a situation where you have unlawful detention—in other words, where the detention is without legal foundation because it is unreasonable in most cases or it is contrary to the Home Office’s own policy. Without independent regular judicial oversight, you are going to have more unlawful detention cases and more compensation being paid out. As people have said, nobody wants that. It is not a good situation.

Colin Yeo: The Bill will have the effect of reducing scrutiny rather than increasing it. It turns independent hearings into, virtually, a charade. There is no point in having a hearing in front of an independent judge about whether you should be released and what the conditions should be, and arguing them out in court, when the Secretary of State has a power under the Bill to impose whatever conditions they want immediately afterwards. That reduces scrutiny heavily, and turns the whole thing into a charade, rather than increasing scrutiny, as we would like.

[Rebecca Harris (Castle Point) (Con)]

Q 218 Am I right in thinking, though, that the Government are reviewing the whole issue of detention in parallel with this Bill?

Jerome Phelps: Yes, we understand that there is an internal review taking place, and the Stephen Shaw review into welfare and detention is reporting around now. In that context, we welcome the decision to announce the closure of Dover immigration removal centre as suggesting a very positive intention to use detention more smartly. I hope that that reflects the overall direction of travel and that the Bill does nothing to get in the way of that.