Immigration Bill (Fourteenth sitting)
Sarah Champion Excerpts(9 years ago)
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James Brokenshire
We move to new clauses, having considered the main substantive provisions of the Bill. New clause 14 requires immigration checks and continuing compliance with immigration laws as part of the existing licensing regime for taxis and private hire vehicles. It does so by adapting existing provisions for private hire vehicles in London in the Private Hire Vehicles (London) Act 1998 and for taxis and private hire vehicles in the rest of England and Wales in the Local Government (Miscellaneous Provisions) Act 1976.
The new clause seeks to prevent illegal migrants and migrants whose status does not permit them to work from holding taxi and private hire driver and operator licences. It is important to note that, because the majority of drivers are self-employed, they are not subject to existing right to work checks. In our judgment, that leaves scope for the sector to be exploited by illegal workers.
Licensing authorities already conduct checks to determine whether someone is a fit and proper person to hold a driver or operator licence. However, a licensing authority has discretion as to many of the checks that it undertakes to satisfy itself that someone passes the fit and proper person test. Many licensing authorities make immigration checks, but they are advisory at present. The new clause will make immigration checks mandatory and embed immigration safeguards in the existing licensing regime.
New clause 14 gives effect to new schedule 1, which amends the Private Hire Vehicles (London) Act 1998 for private hire vehicles in London and the Local Government (Miscellaneous Provisions) Act 1976 in respect of taxis and private hire vehicles in the rest of England and Wales. The new provisions also make relevant changes so that the same measures can be implemented in London, where the taxi licensing regime is slightly different, by amending the Metropolitan Public Carriage Act 1869.
We are in the process of consulting with the Northern Ireland Executive and the Scottish Government with a view to making similar changes to the licensing legislation in Scotland and Northern Ireland in the Bill or, if that is not possible, by regulations, for which provision is made in the new clause.
I will now comment in more depth on new schedule 1, the main meat of the provisions. On the changes to the Metropolitan Public Carriage Act 1869 for London, first, the provision ensures that where someone’s immigration leave is time-limited to less than the statutory length for a driver or operator licence, the licence will be issued for a duration that does not exceed the applicant’s period of leave. If someone has so-called section 3C leave under the Immigration Act 1971, because they have, for example, made a valid application to the Home Office to extend their leave, any licence granted will be limited to a period not exceeding six months.
Secondly, if someone is disqualified from continuing to hold a driver or operator licence for immigration reasons, they must return their licence, any copy and their driver’s badge to the licensing authority. Someone who fails to return their licence within seven days without reasonable cause will be committing an offence and, on summary conviction, liable to a fine not exceeding level 3 on the standard scale and, in the case of a continuing offence, a daily fine for each day they fail to return the documents after conviction. Thirdly, the grounds for disqualification—this is for someone who already holds a licence—will include that someone has no lawful status in the UK, or has no right to undertake the work in question.
The Local Government (Miscellaneous Provisions) Act 1976 and the Private Hire Vehicles (London) Act 1998 are similarly amended for operator and driver licences. In addition, the new schedule provides that a licence must not be granted under those Acts to someone who is disqualified by their immigration status. The licensing authority must have regard to any guidance issued by the Secretary of State in making a decision about someone’s immigration status. Importantly, the new schedule also specifies that the conviction of immigration offences and the requirement to pay penalties since the licence was issued are grounds to revoke a driver or operator licence. That is our approach, which intends to catch operators who may seek to engage people who are in the country unlawfully.
Sarah Champion (Rotherham) (Lab)
I would like further clarification from the Minister; I did not want to intervene in case he was coming on to this. Will he talk us through the logistics of how the legislation will be enforced?
I welcome the recommendations. I have not gone through the details of them, but it seems that currently different local authorities have different legislation and rules, so there can be confusion about who is responsible for enforcement of the local authority recommendations when people cross the border. Will the Minister talk a little more about how the legislation will be enforced and who will be responsible? He mentioned a seven-day period and said that the local authority would then have to enforce this. How does the local authority find out about that? What will happen with on-the-ground resources to enable the local authority to act? What happens if someone is in violation—will the Home Office or the local authority be responsible for that? I ask for practical ways in which the legislation will work.
James Brokenshire
I am grateful to the hon. Lady for her probing questions about enforcement. It is worth underlining that some licensing authorities are already doing basic right to work checks. That is what we are seeking to embed within the overall licensing regime.
Sarah Champion
I would like just a little more information. At the moment, if someone fails the fit and proper person test they can appeal through a magistrates court. Is it correct that under these measures that right would go and it would become a straight immigration issue?
James Brokenshire
Let us look at the provisions. Paragraph 12 of the new schedule amends the Local Government (Miscellaneous Provisions) Act 1976 as follows:
“In section 62(1) (suspension and revocation of operators’ licences) before the “or”…insert…“…that the operator has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty”.
The point is that that will be a matter of established fact. The terms are further defined in proposed new section 79B of the 1976 Act, which is inserted by the new schedule, and defines immigration offences and immigration penalties. The measures will be embedded within the overall framework of the licensing arrangements. If the relevant local authority were, for example, to seek to revoke or suspend a licence, a legal process would no doubt be followed. The point is that it would be made clear whether an operator had been subject to these specific measures, because of the nature of the definitions.
The fit and proper person test is built in. It takes place when someone is applying for a licence. Immigration offences are a clear factor that will have to be weighed in any determination of whether someone is a fit and proper person. If someone does not have the right to be here, the new provisions make it clear that they should not be considered a fit and proper person. That is how we are embedding the measures within the existing process. We believe their operation can be effected smoothly. We will issue guidance, as I have already indicated, to assist local authorities in the implementation of the provisions.
This is a question of raising standards, to ensure that abuse does not take place within the sector. These are positive and important new provisions, which will see immigration enforcement agencies working with local authorities—something that, as I have indicated during our discussions, I strongly support. If we can get our activities embedded well, in places where immigration enforcement officers may come across intelligence and information, we can work smartly with other agencies such as local authorities to raise standards more broadly and root out abuse and rogue operators. The measures are important and distinct, and will, we hope, not only deal with immigration offending and people who are in the country unlawfully and engaging in employment or contracts for services, but raise standards in the sector more generally.
Question put and agreed to.
New clause 14 accordingly read a Second time, and added to the Bill.
New Clause 15
Supply of information to Secretary of State
‘(1) Section 20 of the Immigration and Asylum Act 1999 (supply of information to Secretary of State) is amended in accordance with subsections (2) to (10).
(2) For the heading substitute “Power to supply information etc to Secretary of State”.
(3) In subsection (1) for paragraphs (a) to (f) substitute—
“(a) a public authority, or
(b) any specified person, for purposes specified in relation to that person.”
(4) In subsection (1A) in each of paragraphs (a) and (b) for “a person listed in subsection (1) or someone acting on his behalf” substitute “a public authority or someone acting on behalf of a public authority”.
(5) After subsection (1A) insert—
“(1B) This section does not apply to—
(a) information which is held by the Crown Prosecution Service, or
(b) a document or article which comes into the possession of, or is discovered by, the Crown Prosecution Service, or someone acting on behalf of the Crown Prosecution Service,
if section 40 of the UK Borders Act 2007 applies to the information, document or article.”
(6) After subsection (2A) insert—
“(2B) Subsection (2A)(a) does not affect any other power of the Secretary of State to retain a document or article.”
(7) In subsection (3) after paragraph (d) insert—
“(da) anything else that is done in connection with the exercise of a function under any of the Immigration Acts;”.
(8) After subsection (3) insert—
“(3A) “Public authority” means a person with functions of a public nature but does not include—
(a) Her Majesty’s Revenue and Customs,
(b) either House of Parliament or a person exercising functions in connection with proceedings in Parliament,
(c) the Scottish Parliament or a person exercising functions in connection with proceedings in the Scottish Parliament,
(d) the National Assembly for Wales or a person exercising functions in connection with proceedings in that Assembly, or
(e) the Northern Ireland Assembly or a person exercising functions in connection with proceedings in that Assembly.”
(9) Omit subsection (4).
(10) After subsection (6) insert—
“(7) Nothing in this section authorises information, a document or an article to be supplied if to do so would contravene a restriction on the disclosure of information (however imposed).”
(11) After section 20 of the Immigration and Asylum Act 1999 insert—
“20A Duty to supply nationality documents to Secretary of State
(1) This section applies to a nationality document which the Secretary of State has reasonable grounds for believing is lawfully in the possession of a person listed in Schedule A1.
(2) The Secretary of State may direct the person to supply the document to the Secretary of State if the Secretary of State suspects that—
(a) a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and
(b) the document may facilitate the removal.
(3) A person to whom a direction is given must, as soon as is practicable, supply the document to the Secretary of State.
(4) If the document was originally created in hard copy form and the person possesses the original document, it must be supplied to the Secretary of State unless it is required by the person for the performance of any of the person’s functions.
(5) If the original document is required by the person for the performance of any of the person’s functions—
(a) the person must, as soon as is practicable, supply a copy of the document to the Secretary of State, and
(b) if subsequently the person no longer requires the original document, the person must supply it to the Secretary of State as soon as is practicable after it is no longer required.
(6) Subsection (5)(b) does not apply if the Secretary of State notifies the person that the original document is no longer required.
(7) If subsection (5) applies the person may make a copy of the original document before supplying it to the Secretary of State.
(8) The Secretary of State may retain a nationality document supplied under this section while the Secretary of State suspects that—
(a) a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and
(b) retention of the document may facilitate the removal.
(9) Subsection (8) does not affect any other power of the Secretary of State to retain a document.
(10) The Secretary of State may dispose of a nationality document supplied under this section in such manner as the Secretary of State thinks appropriate.
(11) Nothing in this section authorises or requires a document to be supplied if to do so would contravene a restriction on the disclosure of information (however imposed).
(12) The Secretary of State may by regulations amend Schedule A1 so as to add, modify or remove a reference to a person or description of person.
(13) Regulations under subsection (12) may not amend Schedule A1 so as to apply this section to—
(a) either House of Parliament or a person exercising functions in connection with proceedings in Parliament,
(b) the Scottish Parliament or a person exercising functions in connection with proceedings in the Scottish Parliament,
(c) the National Assembly for Wales or a person exercising functions in connection with proceedings in that Assembly, or
(d) the Northern Ireland Assembly or a person exercising functions in connection with proceedings in that Assembly.
(14) In this section “nationality document” means a document which might—
(a) establish a person’s identity, nationality or citizenship, or
(b) indicate the place from which a person has travelled to the United Kingdom or to which a person is proposing to go.”
(12) In section 166 of the Immigration and Asylum Act 1999 (regulations and orders)—
(a) after subsection (5) insert—
“(5A) No regulations under section 20A(12) which amend Schedule A1 so as to—
(a) add a reference to a person or description of person, or
(b) modify a reference to a person or description of person otherwise than in consequence of a change of name or transfer of functions,
are to be made unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.”, and
(b) in subsection (6), before the “or” at the end of paragraph (a) insert—
“(ab) under section 20A(12) and which falls within subsection (5A),”.’
(13) Before Schedule 1 to the Immigration and Asylum Act 1999 insert the Schedule A1 set out in Schedule (Duty to supply nationality documents to Secretary of State: persons to whom duty applies).”—(The Solicitor General.)
This amendment expands the information gateway in section 20 of the Immigration and Asylum Act 1999 for the voluntary supply of information to the Secretary of State for immigration purposes. It also places a duty on authorities listed in new Schedule A1 to that Act (see NS2) to supply nationality documents to the Secretary of State where directed to do so.
Brought up, and read the First time.
Sarah Champion
I will speak very briefly to the new clauses, because they seem logical and non-contentious. I am particularly pleased that they have been tabled in a cross-party manner and that they were developed from a cross-party inquiry by the all-party groups on refugees and on migration. They build on existing legislation, such the Modern Slavery Act 2015; that is particularly true of new clause 1.
We whizzed through all the new clauses and amendments, so I want to read the explanatory statement to new clause 1, which
“would provide that pregnant women, victims of trafficking, torture and sexual violence, and any other group prescribed by the Secretary of State, may not be detained pending an examination or decision by an immigration officer.”
I hope that the groups prescribed by the Secretary of State would include vulnerable adults, particularly those with a learning age that is deemed to be under 18.
I want to focus on women, pre-empting some of the arguments that Ministers might make against the measures, particularly new clause 1. The organisation Women For Refugee Women has said that 72% of asylum seekers have been raped as part of the persecution that they are fleeing, and almost all have been victims of gender-related persecution. I ask the Minister to consider that. The United Nations High Commissioner for Refugees detention guidelines state:
“Victims of torture and other serious physical, psychological or sexual violence also need special attention and should generally not be detained.”
I would also like to draw to the Committee’s attention the work of the Foreign and Commonwealth Office, which is working hard to end sexual violence in conflict by protecting survivors and actively prosecuting perpetrators. It seems to me irrational that while the FCO is working so hard and courageously, and receiving great commendation internationally for doing so, the Bill will effectively re-traumatise victims who have crossed borders to find safety in this country. It is also my understanding that the Home Office’s policy is to detain pregnant women only in exceptional circumstances. I therefore ask Ministers to give serious consideration to new clauses 1 and 3.
James Brokenshire
We have had a wide-ranging debate on an area of policy that is challenging and difficult. I say that because a significant proportion of those in immigration removal centres will be foreign national offenders. There has been a lot of discussion about asylum claimants, but if someone has made a claim for asylum, they should be receiving humanitarian protection. Hon. Members will equally know, for example, that we have suspended the detained fast track—a decision I took—to ensure that appropriate issues about vulnerability can be properly reflected in the arrangements.
There is a real challenge, about which I caution hon. Members, because if the official Opposition vote for new clause 3, they will be voting for a change of their policy. I note that exclusions were previously advanced for foreign national offenders and other groups, in recognition of some of the complexities and other challenges in this matter. People will seek to frustrate their removal at all costs. That is why, regrettably, there will always be a need for some level of immigration detention for when individuals fail to comply with requirements to leave the UK, seek to frustrate their removal or seek at times to use time limits as a means to string things out, because they know that they may gain advantage. Having said all of that, we are clear that detention should be used sparingly and only as a last resort.
We take our duty of care to those who are in detention seriously, for example, through healthcare and other provision. I recognise the reports on the issue of vulnerability to which I will come on, but there are many people working in immigration removal centres day in, day out, doing a tough and challenging job. In commenting on a number of the points made today, I put on the record my appreciation for those who are doing that tough job that supports our immigration centres and seeks to ensure that detainees are treated in a just, fair, appropriate and dignified way.
I underline that alternatives to detention should be used where possible, and I recognise that more can be done. The Bill and its new powers are part of the wider work to ensure that the Home Office has the right measures to manage individuals who are not detained and to ensure that they leave the UK when they no longer have any rights to be here. I continue to give great thought to ensuring that we provide an effective system that delivers value for money and seeks the departure or removal of increasing numbers of people who have no right to be here. There is the balance between enforced removal and encouraged or facilitated departure and we have already debated that broadly in respect of family groups.
New clause 1 would introduce a statutory prohibition on the detention of pregnant women and victims of torture, trafficking and sexual abuse. I note the generous way in which the hon. Member for Sheffield Central sought to recognise that it was my hon. Friend the Member for Bedford (Richard Fuller) who, on Second Reading, tabled an amendment on this issue. Along with many other Members of the House, he is tireless in his work on issues of immigration and detention and takes such matters seriously. I pay tribute to the former Member, Sarah Teather, who chaired the all-party group on refugees. While we did not always see eye to eye, I never doubted her focus and determination to ensure that the issues were considered by the House. I know that the hon. Member for Sheffield Central was part of that all-party group and continues that work.
I can tell the Committee that we take such issues extraordinarily seriously and they weigh heavily on Ministers when we seek to deprive people of their liberty. Therefore, in our approach we seek to ensure that detention is part of a removals process, which at times has to take into account issues of public protection as well. The issues of safeguarding and vulnerability are very much in our minds and that is why my right hon. Friend the Home Secretary commissioned Stephen Shaw, the former prisons and probation ombudsman, to undertake an in-depth review of how the Home Office treats vulnerable people who are detained. As I indicated, that is why I suspended the detained fast track, because I could not be satisfied that safeguards were operating effectively.
The Committee will be aware that we have received Mr Shaw’s report and are considering our response to that important issue. We are actively considering the report’s recommendations and we will come back to the House in due course to report on that.
I think that the hon. Member for Sheffield Central was seeking a timeframe from me. We are not seeking to delay; we are considering those issues carefully, but I want to get it right and come back to the House with an appropriate response that recognises the thorough work that Mr Shaw has undertaken.
James Brokenshire
I am making a technical point on the drafting of the new clause. There are issues of principle, but we believe that even if the principle were accepted, there are technical deficiencies in the drafting that Members might wish to reflect on, given that no amendments have been tabled.
Sarah Champion
I appreciate the open and generous way in which the Minister has approached the matter. I would like to build on what the hon. Member for Glasgow North East said. If the Committee supported the intention of the new clause, we would be very keen to work with the Minister to try to get the wording in such a state that the Home Office felt comfortable in taking it forward.
James Brokenshire
I do not support the new clause. I am certain that the intention behind it is not to undermine immigration control or to reward those who make spurious claims about being a victim of hideous events to avoid enforced removal when they refuse to leave the UK voluntarily. Sadly, those cases exist, which is why this is difficult territory and regrettably, that may be the practical effect of the new clause. However, I recognise that the issue of vulnerable people in detention is a major concern to MPs and to many people outside the House. I therefore ask that the Government are given time fully to consider Stephen Shaw’s review before the House legislates on a very complex issue.
New clause 3 would introduce a statutory time limit on detention unless the individual was listed in the regulations as being exempt from the time limit. There is a common misconception that detention under immigration powers is indefinite. I want to make it clear to the Committee that that is not the case. Although there is no fixed statutory time limit on the duration of detention under immigration powers, it is not the case that there is no time limit. It is limited by statutory measures, the European convention on human rights, the common law, including principles set out in domestic case law, and the legal obligations arising from the Home Office’s published policy, which states:
“Detention must be used sparingly, and for the shortest period necessary.”
Immigration Bill (Eleventh sitting)
Sarah Champion Excerpts(9 years ago)
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Sarah Champion (Rotherham) (Lab)
Thank you, Mr Owen. I appreciate being given the opportunity to speak.
I think it has become abundantly clear in the Committee that I am not a lawyer. What I am is someone who wants justice and the law to be robust. To that point, I will describe a real case that will be directly affected by the clause. The legal difficulties caused by denying in-country right of appeal of Home Office decisions were outlined both in submissions to the Committee and in the evidence sessions. I want to give a real, human, ongoing example.
I represent an urban constituency, and a significant amount of my casework is immigration based. When I read the clause, one case in particular was immediately brought to my mind. During a surgery, I met a constituent who was in the midst of an asylum claim. He had been a very senior lawyer in Brazil. He represented a client in a case involving corruption in the local police force, as a result of which a police officer was arrested. Following the arrest, my constituent began to receive death threats and his client was later murdered. My constituent was forced to enter the state witness protection programme, but it soon became clear that he remained easily locatable, whereupon he fled to Britain and claimed asylum, together with his wife and two young children, to escape the ongoing threats.
Previous comments have carried the implication that some people come here for lifestyle choices and that they are irresponsible parents for doing that—how could they bring their children into this situation? For my client—[Interruption.] Sorry, my constituent—I watch “The Good Wife” too much; it is starting to seep into my vocabulary. For my constituent, this was not a lifestyle choice. He was not coming for a better life. He had a fantastic life. He came here to save the lives of his wife and his children.
The facts of my constituent’s case were not in any doubt. He was able to provide information from Government agencies that verified his story and that the Brazilian authorities were unable to protect him. However, his claim was rejected, and because Brazil is on the Government’s white list of countries deemed to be safe, he was prevented from pursuing an appeal from within the UK. I had every reason to believe that to remove my constituent’s family from the UK would place them at serious risk, yet he was unable to challenge the Home Office’s decision. I have no doubt that, on his return, he will be murdered, as will his wife and children.
My constituent’s case illustrates the dangers of presumption of safety. The principle that a country should be deemed safe regardless of whether or not it is represents a grievous risk to extremely vulnerable people. The Bill seems to drafted on the presumption that a majority of appeals are without merit and that those forced to leave the UK who would later successfully appeal their refusal would be relatively few in number. On the contrary, however, the reality is that the proportion of successful appeals is extremely high. Statistics for April to June 2015 show that some 39% of appeals were allowed by the first-tier tribunal, and that is before even considering appeals that are denied at first tier but later allowed by the upper tribunal. Of course, concerns have been raised for many years about the quality of Home Office decisions. In light of these reservations, it is difficult to conclude that the Home Office certifications would be robust and accurate. Given the serious consequences of inaccurate certification and the practical obstacles to mounting a challenge, it is deeply wrong to continue to extend such provisions.
Furthermore, by denying an in-country right of appeal, the Bill fails to take account of the realities of the appeal process. As my hon. and learned Friend the Member for Holborn and St Pancras has said, most appeals take between six and 12 months to receive a hearing. That means that those people who are pursuing an application on the basis of article 8 are likely to be separated from their families for many months, or even years. A report commissioned by the Office of the Children’s Commissioner makes abundantly clear the serious, long-term impact on a child of separation from a parent, which will result from these changes. Separation has been shown to undermine the developmental, behavioural and emotional wellbeing of children, and even in some cases their physical health; some of those effects will probably never be reversed.
The withdrawal of in-country appeals also raises serious questions about access to justice. Removing an individual from the UK before they have the chance for a fair hearing in front of a judge is likely, in practice, to bar many people from exercising their rights and pursuing an appeal. Poor electronic communication, a lack of contacts in the UK to undertake work on an appeal and a lack of legal representation mean that, in practice, exercising appeal rights will be simply impossible. Effectively barring many people from pursuing their legal rights undermines the integrity of our immigration system.
The extension of the principle of limited in-country appeals must be seen as an attack on the legal rights of migrants. It represents a serious risk to vulnerable individuals, will divide families, potentially harms children and imposes serious barriers to justice. This process should be stopped and these provisions should be removed from the Bill.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
It is alarming that we are, yet again, debating provisions that make it harder to access the appeals process when the ink is barely dry on the last Immigration Act. As in previous debates, I must raise the concern that we are now in the position of accelerating through further changes to the appeal process without properly evaluating the impact that the last set of changes have had on the individuals affected by them. In my view, that just serves to highlight that we are developing policy without the appropriate and sufficient evidence base.
Before I discuss clause 31, it is only right that I speak to the changes that were made to the appeal process under the previous Act, as that will provide some insight into what the impact of the clause, if it is accepted, will be. The previous Act drastically reduced the number of appeals available, but this Bill removes them entirely for some people. Following a question that I submitted to the Minister on 9 October, I received a very helpful answer, indicating that from July 2014 to August 2015, 1,700 individuals had been removed under the deport first, appeal later power. In my speech on Second Reading of this Bill, I made the point that we should remember that appeal routes exist for a reason—to correct a wrongful decision—and it would be reasonable to suggest that the Home Office does not currently have a good record in decision making.
In addition, appeal routes can also help to improve governance, as they highlight areas of the Executive that are not operating as effectively as we might hope. However, the deport first, appeal later policy, introduced in the last Immigration Act and accelerated in this Bill, effectively removes—for the majority of applicants—the ability to appeal a decision that has been made on their application to continue to live and work here. Indeed, the answer that I received from the Minister points to the fact that only 23% of those forcibly removed from the UK later appealed that decision. I accept that there might be a number of reasons why someone might not appeal, but we cannot ignore the salient point that it is harder—in some cases, almost impossible—for someone to appeal the decision that led to their removal from the UK.
Were we to investigate further, I would expect us to find that the most vulnerable people who have been deported have less chance or opportunity than other people to appeal the decision that has gone against them. Justice quite helpfully expands on this point and suggests that the policy removes people from appropriate justice. Justice expands on some of the factors that may prevent or discourage people from appealing after being removed from the UK. They include: the difficulty of obtaining, translating and submitting evidence, including submitting medical evidence to the courts, particularly in countries without the same quality of infrastructure or services as we have in the UK; difficulties in arranging to give evidence; and the demoralising effect of being removed from the UK. In turn, all these factors make it unpleasant, harder and, in some cases, impossible for someone to access the justice to which they should be entitled. Those are serious points.
It is only right that we should try to gain a greater understanding of the policy before we accept the clause. Yesterday, I submitted a series of questions on the policy’s impact, ranging from appeals to cost and so on. Those questions are a good start to reviewing the policy. I request that the impact of deport first, appeal later be researched before going ahead with implementation.
Paul Blomfield
The debate focuses on an important principle, which we need to consider fully. The main drift of the Bill is aimed at illegal migrants, but legal migrants will be the group mainly affected by the removal of appeal rights. We received a lot of evidence on the issue. The Law Society said that it felt that it would be
“an unjustifiable incursion into Article 8 rights.”
Although the Immigration Act 2014 introduced the principle of deport now, appeal later, that was on deportation cases where people had appealed serious crimes. The Court of Appeal has determined that that regime was lawful. There are some caveats in the case of Kiarie, cited by the Solicitor General, including the caveat on the principle of real risk of serious irreversible harm. The Court of Appeal said
“the real risk of serious irreversible harm is not the overarching test”.
Nevertheless, that regime was determined as lawful under the 2014 Act, but this provision extends that regime to all migrants making human rights appeals, regardless of any illegality or criminality and whether it has been established or even suspected. That is a fairly fundamental step for this Parliament to take. The Law Society made the point, very strongly, in its evidence:
“Restrictions on Article 8 rights which may be deemed justifiable in one context (for example, national security) cannot be extended to other contexts without further justification.”
We have not really received that justification. The Government have not made the case for the additional rights.
Using the test of serious irreversible harm or a breach of human rights as the only exception to an out-of-country appeal sets an extraordinarily high bar for vulnerable appellants seeking to contest removal from the UK. I come back to the point about the 42% success rate, which we discussed. We can debate where the responsibility lies. My hon. and learned Friend the Member for Holborn and St Pancras made it clear that we are not suggesting that this is all the fault of the Home Office. It may be the result of incomplete documentation or down to lawyers, as the Solicitor General suggested. Nevertheless, a substantial number of people are successful. The effect of this provision is that people who have committed no offence, who would in fact be granted the right to stay in the UK, will be forced to leave for an indeterminate period. In some cases, that would expose them to significant risks and would mean separation from their families. We are not talking about short periods. I represent the multicultural heart of Sheffield, where we have people who owe their origins to 120 countries and speak 160 different languages, so I have a fair amount of casework in this area.
We know that immigration appeals are currently taking about six months; a year or more is not unusual. There is no significant indication that that will improve. With such delays, out-of-country appeals would cause real disruption to family life, with potential longer-term consequences, for people who will, in significant numbers, ultimately be given the right to remain. Apart from anything else, as the Law Society pointed out, if the current appeal success rate is maintained, this could be a very expensive measure for the Government, and the taxpayer, because successful appellants could seek compensation over the enforced separation from their families.
In addition, the provisions could have a perverse impact on UK nationals. The Law Society again pointed out that, ironically, the spouse of a national of an EEA member, except the UK, would retain a full in-country right of appeal, whereas the spouse of a UK national would have to leave the country. The Daily Mail has clearly not picked up on that one. There are some perverse impacts, which I am sure the Solicitor General will want to comment on.
I also want to touch on the specific area of trafficking in relation to labour exploitation, which we debated earlier. We received powerful evidence from the charity, the Anti-trafficking and Labour Exploitation Unit. It made the point of how difficult it would be for many of the clients it supports to challenge a negative human rights decision if the client was overseas. It said in written evidence:
“Our client group would be unlikely to have the resources or familiarity with modern technology to allow us to take instructions by skype or keep in regular contact with them. As many clients who fall into exploitation have little or no education they could not be expected to maintain any written communication with us or to draft any documents needed for an appeal themselves. Victims of trafficking are often submissive, frightened of authority figures and find it hard to establish relationships of trust.”
It goes on to say:
“Face to face relationships are essential when working with individuals who have been subject to abuse and exploitation.”
Across the House, Members are concerned about those individuals. That was the background to the Modern Slavery Act 2015 in which Members of the House across party were involved. That is a serious consideration we should take into account.
I draw attention to the point made by my hon. and learned Friend the Member for Holborn and St Pancras about the position of children. We again received powerful evidence from the Children’s Society, which made the point that even for those who are able to bring an appeal from abroad, notwithstanding all the difficulties and challenges, children will be subject to damaging and unnecessary disruption in their lives during the process. I am sure the Solicitor General will come back on how this will work in practice.
The Children’s Society expressed real concern that the Government have not protected unaccompanied children in this provision. In relation to unaccompanied children, we talked earlier about the age range. The Children’s Society made the point that
“This provision could see more cases involving unaccompanied children or young people over 18 who claimed asylum alone as children, being certified for an out-of-country appeal.”
Its next point relates to the age twilight zone that the Solicitor General referred to:
“According to Home Office statistics, of the young people who applied for asylum as unaccompanied asylum-seeking children and received an initial decision in 2014, 85 young people were refused and their claim was certified. 67 of those were over 18 at the time of the decision while 18 were minors at the time of the decision.”
Sarah Champion
We know from the extensive debate about age that we had in the Modern Slavery Bill Committee that some of those young people do not know how old they are, so there are all manner of loopholes that they can fall through.
Immigration Bill (Tenth sitting)
Sarah Champion Excerpts(9 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Part 3 of the Bill deals with the powers that will be handed over to immigration officers, members of the public, on-service police officers and detainee officers, amongst others. Their powers will be extended to an unparalleled level. With the aim of clamping down on illegal immigration, this part of the Bill will equip immigration officers with enhanced search-and-seizure powers to collect evidence that will, according to Government, help to secure more civil penalties and removals.
Before discussing the specific amendments tabled, we should take note of the points made by the organisations that have provided evidence during the passage of the Bill. Liberty, in particular, has voiced a number of concerns about the Bill, including the extension of powers to be handed over to immigration officials, a lack of training and accountability for immigration officers, the expectation that those officers will carry out police-like activities and the transformation of members of the public into the UK Government’s very own immigration agents.
We should be concerned about the impact that this part of the Bill will have on people. Regardless of our own views on illegal immigration, the Bill needs to deal with illegal immigration in a humane, respectable and appropriate manner. The amendments tabled by Scottish National party and Labour Members aim to capture that mood and, in doing so, reduce the damaging impact that some of the clauses may have on people.
The Bill aims to clamp down on illegal immigration, and we should accept that action must be taken on those who are here illegally. Being classified as an illegal immigrant, however, creates a number of difficulties. As we have heard in our discussions on illegal working, the status of illegal immigrant can push a person and their family into a serious and vulnerable position. We should still treat people who are here illegally with respect and dignity. In addition, although illegal migration exists in the UK, we should not tackle it in a way that damages the experience that other migrants have while here. Clause 19 highlights that point. Tackling illegal immigration will have an impact on those who are living here or enter the UK illegally, but we should equally be concerned about the impact that the clause will have on migrants who have been granted legal authorisation to live in the UK.
Sarah Champion (Rotherham) (Lab)
Does the hon. Gentleman share my concern that the clause and the Bill in general will make landlords and tenants, and employers and employees view each other with suspicion? It will create a hostile climate that I do not want to see in this country.
Gavin Newlands
Absolutely. As we heard in evidence from several experts, social cohesion will be affected by such measures.
Clause 19 further extends the powers of those who work at our airports and ports of entry. It will allow them to curtail leave, rather than simply determine whether leave has been given and act accordingly. It will create a nervous, unpleasant environment for those who have the correct paperwork and have gone through the correct process. Due to the new power, they will still have a nervous wait to find out whether they are able to pass through the gates and live and work here. Although this measure may affect only a small number of people, we need to be concerned about the effect that our fears about illegal migration have on people who have the right to live and work here.
Amendment 209, which is supported by Liberty, attempts to limit the speculative searches that are conducted by certain authorities to determine immigration status. As has been detailed and discussed, schedule 2, paragraph 2 of the 1971 Act sets out a power that is ostensibly to deal with individuals on arrival in the UK for the purpose of determining whether they have or should be given leave to enter or remain, but it has been used by the Home Office as justification for conducting speculative, in-country spot checks involving consensual interviews. The amendment would limit that power to examination at the point of entry.
The power to conduct stop-and-searches away from the confines of a point of entry derives from a decades-old case, Singh v. Hammond, when the Court of Appeal concluded that such a search can take place away from the place of entry if there is suspicion that the person is here illegally. That is all well and good, but the power has been somewhat abused. Home Office immigration officers have been conducting intrusive searches when they believe that a person of foreign origin is nervous about being in the presence of an immigration official. Such behaviour is detailed in the “Enforcement instructions and guidance” booklet. Chapter 31, in particular, highlights the need to curtail that sort of behaviour.
In considering the amendment, we should note that there is no free-standing right to stop and search people to establish their immigration status. I know the Government are keen to secure strong social cohesion in our communities, but such intrusive stop-and-searches have no regard for community relations. They should worry us all, and we should take action on them by passing the amendment.
The Solicitor General
I entirely agree. If their operations relate to other intelligence—for example, on organised fare dodging or some sort of illegal activity on the tube that was either antisocial or worse—then clearly, that joint working would be very important and would reflect the best intelligence-led operations. We are all keen to eliminate a random use of these powers that would be arbitrary and would not, in my judgment—and I am sure, in any reasonable person’s judgment—reflect the criteria set out in the Singh case and reflected in guidance ever since.
Sarah Champion
Opposition Members have real concerns about community cohesion and racial profiling, and it sounds as if the Minister too is concerned that the powers should not be used inappropriately. I appreciate what he said in relation to my hon. and learned Friend and the guidance notes. Would the Minister therefore commit to conducting a review to make sure that these powers are not overused, and that our concerns are just concerns and not reality?
The Solicitor General
I fully expect that any revised guidance notes published to reflect any changes passed in this Act will be a faithful reflection of the case law as we have outlined it today. I am absolutely sure that my colleagues in the Home Office will keep these matters under continuous review. If, indeed, a body of evidence emerges that challenges the position I have outlined today, I am sure that colleagues would look at that. It would perhaps be wrong of me to commit to anything specific today, but the hon. Lady has placed her concerns on the record for all to hear, and I am sure that the observations that we have made in this debate will be heard in another place and at other stages before the Bill, as we hope, eventually becomes law.
The final point I want to make is that I do not think that anybody wants to see the lawful and proportionate operations of our immigration authorities severely hampered. My genuine fear is that however well intentioned this amendment might be, it would lead to a hampering of those operations. Therefore, for those reasons, I urge Opposition Members to withdraw the amendment.
The Solicitor General
We have already dealt with some of the important provisions of clause 19, so I will try to be as brief as I can. In essence, clause 19 will amend schedule 2 to the Immigration Act 1971 to provide clear powers for immigration officers—when, for example, they are examining a person to see whether their leave should be curtailed—to search premises for evidence of such purposes. It would also update existing powers to seize documents to include those held in electronic form. As we know, immigration officers may examine a person to establish whether they require leave to be here in the UK and, where leave is required, whether they already have leave or if it should be given, including the period and conditions of leave. However, the current provisions are not explicit about establishing whether any existing leave should be cut short. Situations are encountered by immigration officers where it may be appropriate to curtail the migrant’s leave because that person was found to be working or claiming benefits illegally or, sadly, had obtained leave by deception. As a consequence, where leave is ended with immediate effect, that person becomes liable to removal.
If the House consents, we will add a power for immigration officers, where they are already lawfully on premises, to search for and seize documents which may support a decision to curtail leave. This does not include documents which are subject to a legal professional privilege. Immigration officers already have powers to search for evidence of the offences of breaching conditions of leave or obtaining leave by deception, but this of course is only for evidence that would support a criminal prosecution. However, in the vast majority of cases where migrants fail to comply with immigration law or do not depart voluntarily, our strategy is to remove them from the United Kingdom rather than pursue costly prosecution and possible imprisonment for minor immigration offences. We believe that to be a proportionate approach which is in the public interest.
We therefore believe that it is more appropriate for immigration officers to have specific administrative search powers where they are exercising administrative rather than criminal powers, and we already have the framework in schedule 2 of the Immigration Act 1971. I have already mentioned the importance of updating powers so that legislation moves with the times, which is why we now include documents that might be stored on electronic media or devices.
Sarah Champion
I am sorry to labour this point. I hear what the Minister is saying, and I do not disagree with the argument that he is making. However, does the Minister really think that the Home Affairs team, the immigration team, have the resources to go in and do this work? In my constituency, when we have people who are waiting to be deported, there simply are not the officers who can go in and carry out the work. Surely the Minister should be looking at that.
The Solicitor General
I beg to move amendment 95, in clause 22, page 27, line 36, after “If” insert “the immigration officer has reasonable grounds for believing that”
This amendment clarifies that where an immigration officer is not absolutely certain that an item which has been seized under clause 21 is also evidence of an immigration offence, the immigration officer still has discretion to retain it rather than being under a duty to pass it to another investigating authority.
Amendment 95 is a minor and technical amendment that clarifies that where an immigration officer is not absolutely certain that an item that he or she has seized under the power in clause 21 is also evidence of an immigration offence, they still retain a discretion to hold or retain it, rather than being under a duty to pass it to another investigating authority. This addresses the very fine line between some offences, where it may not be clear at the outset whether they are immigration offences or not. For example, immigration officers investigating facilitation of an illegal entry in breach of immigration law may encounter forged, counterfeit or improperly obtained passports but may not necessarily know without further investigation whether they are being used by the facilitator or are unconnected with this offence.
Sarah Champion
On a point of clarification, how long can an item be held? For example, if a student has their laptop taken, that will have a direct impact on them. Is there any form of compensation or support around that?
The Solicitor General
I am grateful to the hon. Lady. I am checking the subsection, but I do not think there is a specific timeframe. I will come back to her, if I may, once I have outlined the position regarding clause 22.
Amendment 95 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
The Solicitor General
The clause provides a duty for immigration officers to notify the relevant investigating authorities, normally the police or National Crime Agency, where they have seized anything under clause 21.
It also applies where immigration officers, working in criminal investigation teams, have seized anything using their powers in relation to specified crimes that are commonly encountered in the course of exercising a function under the Immigration Acts, such as bigamy, forgery and human trafficking.
It sets out the arrangements for: notifying the relevant authority of the items seized; whether or not the authority will accept the items; handing them over; or returning them if, for example, the relevant authority does not believe them to be evidence of an offence.
In response to the concerns of the hon. Member for Rotherham about length, as I thought, there is no specific timeframe. However, there is an expectation that the immigration authorities will act reasonably. There are obviously practical concerns about retention of items such as laptops by the authorities. I am sure that they would view it as being in their very strong interest either to return the item, if it discloses the commission of no offence, or to pass it on to the relevant authority, if it were connected with the commission of a criminal offence. Therefore, there is a strong utility argument that would prompt the immigration authorities to act more promptly rather than hold on to items in the way that she fears.
Sarah Champion
I should be grateful if the Solicitor General would issue a statement on that in the guidance notes. I know from the experience of my constituents who have had mobile phones taken that they just seem to disappear, and that seems almost as a punishment or intimidation rather than for a productive reason.
The Solicitor General
I am happy to reassure the hon. Lady in this way. The arrangements in clause 21 mirror the Police and Criminal Evidence Act 1984 arrangements, and that should reassure her at the very least that there is a framework. I accept that within that there will be occasions when individuals do end up waiting an inordinate time for items.
Of course, there are powers in relation to a criminal investigation under the Police (Property) Act 1897. Although I cannot give an undertaking, the points that the hon. Lady has put on the record are noted but I am satisfied that we have a framework mirroring PACE that acts as an exhortation to the authorities to act in a reasonable and prompt way. I am grateful to her for raising that point.
Question put and agreed to.
Clause 22, as amended, accordingly ordered to stand part of the Bill.
Clause 23
Retention of things seized under Part 3 of the Immigration Act 1971
Question proposed, That the clause stand part of the Bill.
Keir Starmer
I beg to move amendment 197, in clause 24, page 30, leave out lines 13 to 16
To remove the power to conduct a strip search from detainee custody officers.
We now move to an area of considerable concern. The amendment would remove the power to conduct a strip search from detainee custody officers. The context in which the amendment is put forward is one of considerable concern for some time about the exercise of powers over those in immigration detention—a concern that I believe is shared across the House.
Clause 24 (1) provides:
“The Secretary of State may direct a detainee custody officer, prison officer or prisoner custody officer to exercise any of the powers in subsection (6) in relation to—
(a) a detained person who is detained in a removal centre, prison or young offender institution, or
(b) a person who is detained in a short-term holding facility.”
Subsection (5) provides that the relevant officer must then comply with the direction, with subsection (4) providing that the Secretary of State must have reasonable grounds to believe that,
“a relevant nationality document will be found if a power in subsection (6) is exercised in relation to the person.”
If we press on through the clause, we find a point that ties in with amendment 198—that the definition of nationality document is very wide. Under subsection (15) “nationality document” means,
“a document which might—
(a) establish a person’s identity, nationality or citizenship”.
A document that might establish a person’s identify is a very wide class of documents for all of us. Many documents might establish or help to establish our identity. This gives the Secretary of State a wide power to make a direction in relation to a wide class of documents where the relevant officer must then comply, and the power to include strip search in an environment and a context where there has already been heightened concern about the exercise of powers within immigration detention.
Those are the reasons why these amendments will be pursued. They are pursued with real concern about how the powers will be exercised, based on many points that have already been raised and the reports that have been written about this area.
Sarah Champion
There is frequent reference to a young offender institute. Does my colleague share my concern that this means that the power to strip search will also be extended to children?
Keir Starmer
Unless the Minister assures me otherwise, that is precisely how far the strip search provisions will go and it heightens the concern about the exercise of these powers. In those circumstances, a powerful case has to be made for the power to exist at all and for it to be as wide as it is, bearing in mind the definition to which I have already referred.
Anne McLaughlin (Glasgow North East) (SNP)
I want to focus on Clauses 24 and 25, which hand power to detainee custody officers to perform strip searches. Women are in this country because they have experienced horrific sexual abuse in the countries they have come from. Whether or not they can prove it, does not take away from the fact that they have experienced it. All sexual abuse is horrific and we have all heard truly harrowing stories. I would like to share one with Members.
When I was a Member of the Scottish Parliament, I attended an event addressed by an academic from the Democratic Republic of the Congo, who had sought and been given asylum here. She was addressing a group of MSPs and talked about how on the day that she published her academic research into the sexual abuse of women in the DRC, she got a phone call from her family to say that by way of punishment the army had come to her family home, taken her teenage niece, and stood in a circle round her. One by one they raped that child and the rest of the family was forced to watch. It goes without saying that that is incredibly horrific. She hoped to be able to bring her niece over to this country. I do not know whether she ever did, because I never heard from her again, but let us say that she did and her niece ended up here. Her niece, like many women who have experienced such things, will no doubt have a lifelong terror of anyone in uniform—male and female soldiers conducted the abuse—and of people in authority. If it is absolutely necessary for anyone to undergo a strip search, it has to be conducted with professionalism and sensitivity and must meet the highest standards, which means extremely experienced, highly trained officers.
Anne McLaughlin
I will give way, although I have reached the last sentence of my speech.
Sarah Champion
Subsection (8) states:
“A strip search may…not be carried out in the presence of…a person of the opposite sex.”
Does the hon. Lady share my concern that the Bill does not detail whether the search itself may be carried out by someone of the opposite sex?
Anne McLaughlin
I am concerned. I see the Minister nodding, which I hope indicates agreement that we have to be exceptionally careful and carry out strip searches only if they are essential. We must bear in mind that, whether or not the Home Office believes that person, we do not know unless we were there—they may well have experienced such horrific abuses.
Sarah Champion
It is incredibly reassuring to hear that, but will the Solicitor General put it in the Bill?
The Solicitor General
My understanding of what I prefer to call “full searches”—full non-intimate searches is probably the correct term—is that they are never done to a male by a female or to a female by a male. That has been the case for a considerable period, and probably ever since PACE. I might be wrong, but that is certainly my understanding from years of using the code of practice in my work as a criminal practitioner, prior to my entry into the House.
I want to deal with the question of what precisely we mean here. My hon. Friend the Member for North Dorset adumbrated the point that this is not about an intimate search. This is not a search of body orifices—for example, the mouth. It is what we would describe as a non-intimate search. More importantly, it is not the rather horrific image that might be created in our minds of someone completely unclothed being searched. That is not what happens. The individual must not at any stage be completely naked, so searches have to, in effect, take place with regard to each item of clothing in turn. Of course, that involves looking between the clothing and the skin, because experience sadly teaches us that important documents can often be concealed there, but at no time is the individual humiliated to the extent that they are left without any clothes on at all.
The Solicitor General
We are going to provide additional guidance on the power to search under clause 24. That is for those who are directing the search on behalf of the Secretary of State and those who are conducting the search. Detainee custody officers, prison officers and prisoner custody officers are trained in the use of search powers, which includes strip searches. Detention services order 9/2012 provides instructions to detainee custody officers, and prison service instructions 67/2011 and 16/2014 provide instructions for searching persons in prisons and young offenders institutions respectively. We will build on those and ensure that the new provisions contain clear guidance.
The hon. Member for Rotherham made a point about the wording, “in the presence of”. We would say that the words are clear: it obviously means the person conducting the search as well. I hope that the explanation that I give as the Minister presenting the clause will be sufficient clarification to allay her fears on that point.
Sarah Champion
I thank the Minister for that clarification, and now that he has specifically put that on record, I am comfortable with that. I know that the Minister is always honourable in his intentions. Could I ask him to answer my point about youth offenders? At what age does he think it acceptable for young people and children to go through this search?
The Solicitor General
I was coming on to that very point. The power to search children in this way will only be used in exceptional circumstances. Let me explain the background. The Government’s policy is not to detain children in immigration and removal centres, so as part of the family removal process where children are held in a short-term holding facility a few days prior to removal, we believe that this search power will not be necessary because we will have the travel documents in place already.
Regarding young offender institutions, children under the age of 18 are exempt from the automatic deportation provisions for foreign national criminals, so one ground is already removed. Let me give me an example of exceptional circumstances. A 17-year-old male might be held in a young offender institution following a conviction of rape. He is facing deportation on conducive grounds because of this sentence and gang affiliations. If the Secretary of State has reasonable grounds to believe that he may have nationality documents in his possession, then it may be necessary for officers to conduct a full search in the way that we have described. I hope that gives the hon. Lady reassurance that we really are talking about exceptional circumstances, such as an older male who has perhaps been convicted of a very serious offence, where there is a clear public interest in making sure that all reasonable steps are taken before removal from the UK.
The Minister for Immigration (James Brokenshire)
I thank the hon. and learned Member for Holborn and St Pancras and the hon. Member for Paisley and Renfrewshire North for their contributions to this debate. As has already been alluded to, clause 29 simplifies the current complex legal framework contained in schedule 2 and schedule 3 to the Immigration Act 1971 that allows individuals to be released while liable to immigration detention. The clause brings into force schedule 5 to the Bill which replaces six separate existing bail, temporary admission and release on restriction powers with a single clear framework setting out who can be bailed under immigration powers; the conditions that can be imposed on individuals; and the consequences if an individual breaches bail conditions.
The administration of the system will be largely unaffected by the changes. Rather, it is the underlying power that is being modified. The role of the Home Office and the tribunal would be largely unchanged and processes will remain the same. In responding to the amendments, it is important to understand that we do not seek to change anything as a consequence of this in terms of the treatment of people. It is important to spell out that clause 29 and schedule 5 do not effect any change in policy. Our policy remains one under which there is a presumption of liberty.
As hon. Members have highlighted, the amendments essentially serve the same purpose. They rename immigration bail “temporary admission”. It has been said that the use of the term bail may give some criminal context to individuals. I reject that view. The concept of immigration bail is long established and there should not be any confusion with criminal bail, which is provided for under an entirely separate legislative framework. We heard in evidence to our Committee that Schedule 5 simplifies a number of these provisions. We believe it will make these structures and systems more understandable and easier to follow by having them in the one place and presented in the way that they are. Individuals will have a much better understanding of the system and of their position.
It has also been said that the reference to immigration law reflects a change in policy, perhaps indicating that there is some emphasis that is taking us in a different direction. That is absolutely not the case. There is no presumption for immigration detention. I want to be clear that that is not the case. Our policy remains as it is on the presumption of liberty with the use of detention only as a last resort.
I note the point on the terminology of immigration bail. We reflected on the language and determined to choose it, because we believe that it is already commonly understood among practitioners in the system and should therefore aid attempts to understand the system better. It is not in any sense an effort to give some sort of criminal context nor to change policy in any way. It is, rather, using a term that is already used in many contexts that would continue to be covered in respect of the provisions that clause 29 and schedule 5 seek to operate.
I recognise the extension that has been highlighted in the different forms of leave. In our judgment, it would make it more complex to try to self-categorise and we therefore, in drafting the Bill, felt that the term bail reflected the right approach and terminology. I take on board the genuine sentiment behind the amendments, but with the clarity that I have given on there being no change in emphasis, policy or the manner in which anyone would be viewed or treated under the provisions, I hope that Members will withdraw their amendment.
Sarah Champion
The Minister is extremely generous. I think the Minister understands where we are coming from. We have an international reputation for our human rights and for the progressive way in which we treat immigration issues. But there has been an undercurrent of language that has been used by the Government and has also been cropping up in this Committee. The language is more aggressive in tone and we have been told that it is about putting out statements to prevent people coming here. While I completely agree with the Minister’s logic, I think the use of the term “bail” has criminal connotations in the general population.
James Brokenshire
The tone the Committee has adopted towards the measures in the Bill has been that they should be firm but fair. That is the approach that I have sought to provide. Yes, this is about sending a clear message that those who have no right to be in the country should leave, and we will support and facilitate that. With regard to the specific provision, it is not a pejorative term. The term immigration bail is already used and I have sought to distinguish it from criminal bail. That is understood in respect of the differences in the system.
The hon. Member for Paisley and Renfrewshire North was right that people who might be subject to an Immigration Act might not have committed a criminal offence. Detention can be and is used properly for the removal of someone who does not have the right to be in the country to their home country. Bail may be appropriate if it is determined that the principles that underpin detention—often referred to as the Hardial Singh principles—are not adhered to. In such circumstances, bail or continued detention may not be appropriate.
It is understood in that context, rather than having any negative sense. I certainly would not wish to communicate to the Committee—and I do not think I have—any negative approach or term by the use of the word bail in the context of this provision. I do understand the sentiment and the point made by hon. Members across the Committee. With that clarity of intent and approach towards the provisions, I hope that the hon. and learned Member for Holborn and St Pancras will withdraw the amendment.
Sarah Champion
My hon. and learned Friend is making a strong case but, on the flip side, surely it is in no one’s interest to have people languishing in a detention centre, because the cost to the taxpayer will be enormous.
Keir Starmer
The flip side of this argument is important. It is right that we should not detain people who do not need to be detained, both for their own sake and because it is costly to do so. I raise this issue because often, since I have been here, we take up the case across the House of those with mental health issues and many Members readily pledge greater support. It is those who have mental health issues who are least likely to be able to operate under the current system with no automatic right of bail. When we sign those pledges, make those commitments and say what we say about mental health, there is an obligation to see it through in a practical context—where it makes a real difference to people with mental health issues. In that spirit we put forward the amendment for automatic bail hearings, to cure a defect in the system that has been picked up by the APPG, has been accepted by the House and goes to central issues about vulnerable people and their ability to access a review of the decision to detain them.
Sarah Champion
If I went into a situation such as this, it would put enormous pressures on my own mental health. My hon. and learned Friend is talking about people who go into detention centres with mental health issues, but I would also say that to be incarcerated in sometimes very extreme situations will bring on underlying mental health issues that perhaps no one knew about.
Keir Starmer
I am grateful for that intervention and I agree. I wait to hear the Minister’s response on the amendment. I conclude by asking what the Government response to the APPG inquiry and its recommendations is, in light of their acceptance by the House. Mr Owen, I do not know if it is convenient to go on to the other amendments at this stage as they move into different territory.
James Brokenshire
We have had a wide-ranging debate on this group of amendments. I say at the outset to the hon. and learned Member for Holborn and St Pancras, on the subject of the report of the all-party parliamentary group, I wrote to Sarah Teather, who chaired that group as a Member of this House prior to the election, with a formal response. On the issue of vulnerability and the use of detention, we have commissioned Stephen Shaw to review a number of the themes that the hon. and learned Gentleman on. We will be coming back to the House to publish Stephen Shaw’s review and to provide the Government’s response to his recommendations. There is ongoing work on and consideration of the issue of vulnerability and the appropriateness of detention in those circumstances.
I underline the importance that I attach to appropriate procedure and to issues of vulnerability being taken into account within the system. The hon. and learned Gentleman will know that I took the decision to suspend the detained fast track system so that I could be satisfied that the checks and balances and safeguards in the system were applied appropriately in the context of issues of vulnerability. I frame my opening comments in that way to give him a sense of the significance that I attach to these issues. Depriving someone of their liberty is a serious thing and needs to be allied to the issue of removal. Indeed, there should be the presumption of liberty, to which I think I have alluded to in a previous debate.
Before moving on to the amendments I will briefly touch on the question of mental health and the appropriateness of detention. I have given a clear indication of the most appropriate setting for someone with severe or significant mental health issues that cannot be addressed in a detention setting. I underline the Home Office policy on the detention of individuals suffering from mental illness: other than in very exceptional circumstances, those suffering from serious mental illness which cannot be satisfactorily managed in detention should not normally be detained. All cases are considered on the basis of particular circumstances, and all factors arguing both for and against detention must be considered when deciding whether to detain. Serious mental health problems are likely to be an argument against detention but do not automatically preclude it. There may be other factors, particularly the risks of absconding and of public harm, that argue in favour of detention, and equally I point to cases where detention may be appropriate. For example, it may be necessary and appropriate in exceptional circumstances to maintain a short period of immigration detention when an individual is to be transferred to local authority care where otherwise they would be released on to the streets with no support and care. It may also be necessary for safeguarding reasons; for example, if an unaccompanied child arrives at a port, especially late at night, and there is uncertainty over whether there are any complicating factors.
I underline—and this is something that I continue to discuss with colleagues in the Department of Health—the transfer from detention to a health setting. Someone with a severe mental health episode is likely to require some form of stay in, for example, a secure mental health unit. It is not appropriate to hold someone with an acute mental health problem in an immigration removal centre. There is guidance in place and we have to analyse the issue carefully on a case-by-case basis. If detention is not appropriate, someone should be dealt with under the Mental Health Acts and be taken to a place of safety such as a secure mental health unit. Equally, where a mental health condition may arise in detention, consideration would be given, particularly if it is a severe episode, to their transfer from an immigration removal centre to a health setting in order to treat them properly and appropriately.
Sarah Champion
On a point of order, Mr Owen. At the beginning of the Committee stage, the Minister said that he would outline the position of unaccompanied minors under the Bill. It would be incredibly helpful if we could have clarity on how it impacts on them, or where they are excluded, particularly in the forthcoming provisions, otherwise we will keep returning to this area. Would the Minister confirm that we will have that, ideally before Thursday?
The Chair
I am grateful to the hon. Lady. Points of order are for me, not for the Minister. I do not consider that to be a point of order; it is more a point of clarification and a reminder to the Minister that he has promised something. I am sure that he will do his best to deliver that.
The Chair
That is the position. It has been a long day and it was a complex group of amendments.
Sarah Champion
Further to that point of order, Mr Owen. The Clerks are raising their eyebrows, so may I check that that is the correct position?
The Chair
Yes. It is absolutely clear that the hon. and learned Gentleman has withdrawn the amendments that he named and will press amendment 207 at a later stage.
Sarah Champion
On a point of order, Mr Owen. the Minister confirmed during the witness stage that he would come back with clarity on the issue of unaccompanied minors and how they are impacted by the Bill. I asked the Minister for a point of clarification in the previous debate on when that would be forthcoming, but he did not respond. He just implied in his summation that it would be covered under the debate on schedule 6, but schedule 6 refers to asylum seekers as being people of
“at least 18 years old”.
May I ask for clarity on when we will get the confirmation on how the Bill impacts on unaccompanied minors?
The Chair
As I explained earlier on, there is a difference between a point of order and a point of frustration. I can see that the hon. Lady is frustrated by not getting an answer from the Minister, but that is a matter for him. He has heard what has been said. He may want to intervene now or to indicate that he will do so later. He is not indicating anything, so that is the position. It is not a point of order.
Serious Crime Bill [Lords]
Sarah Champion Excerpts(9 years, 9 months ago)
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Sarah Champion (Rotherham) (Lab)
Thank you for removing the time limit, Mr Speaker, not only because the voices of victims and survivors do not get enough air time in this place, but because, as those who have spoken before me have shown, there is a lot of passion about this topic and an awful lot of commitment to it.
I welcome new clauses 8 and 3 and Government amendments 13 to 17, which aim to remove the term “child prostitution” from legislation. Victims and survivors I have met say that the term makes them feel incredibly dirty and as though they colluded in the crime in some way. However, the amendments remove the term from only three of the 16 relevant pieces of legislation. If I pass the list to the Solicitor-General, will the Government make a serious, long-term commitment to remove the term from each of those pieces of legislation? I would be very grateful for that.
I want principally to speak to new clause 19 and follow on from the contribution of the hon. Member for Oxford West and Abingdon (Nicola Blackwood), who spoke eloquently and has done most of the preparatory work. I have met the Solicitor-General, spoken at Committee stage and exchanged letters with him. He has expressed the view that, if child abduction warning notices were to become statutory, that would cause an unnecessary replication of sexual risk orders, which are being introduced by the Anti-social Behaviour, Crime and Policing Act 2014. However, given that the legislation has not yet been enacted and guidance not yet published, I cannot be entirely satisfied that SROs will close the gap that has been identified in child protection.
One concern is that the application of SROs to low-level grooming activities seems to depend on an officer taking a very wide interpretation of an
“act of a sexual nature”.
Unless the guidance is very specific and the training given to police very thorough, I am not convinced that officers will feel confident to use SROs on, for instance, a 20-year-old who is hanging around with a 14-year-old.
My cross-party inquiry with Barnardo’s last year found that police officers were clearly familiar with the use of child abduction warning notices, and everyone we interviewed asked that they be made statutory. My fear is that, rather than reducing bureaucracy, the Solicitor-General will create more by having another power, as opposed to strengthening the existing one.