32: Clause 34, page 19, line 17, leave out “at a time chosen by the Secretary of State” and insert “as soon as possible following commencement of the person’s period of imprisonment and in any event within three months of that date”
The noble Lord said: My Lords, in Grand Committee I drew attention to the dangers of prolonged post-sentence immigration detention, which is potentially in breach of the right to liberty as laid down in Article 5 of the European Convention on Human Rights. My concern, reflecting that of the Joint Committee on Human Rights and Her Majesty’s Chief Inspector of Prisons, is that a number of foreign nationals have been held in prison and immigration removal centres at taxpayers’ not inconsiderable expense for periods of time far past their sentence expiry date, awaiting a decision on whether they will be deported. In Grand Committee my noble friend said that he was,
“entirely at one with the intention behind the amendment”.—[Official Report, 23/7/07; col. GC 147.]
I hope that my noble friend will forgive me for putting it this way, but he then went on with his characteristic Home Office brief, rationalising why the amendment was itself unacceptable. In responding to that debate, I challenged my noble friend: if he really agreed with the intention of the amendment, he should use all the expertise of the Home Office at his disposal to find a better formula for fulfilling it than the amendment I had proposed. By resubmitting my proposal, I am giving my noble friend the opportunity to meet that challenge.
To say that the numbers are small is never a satisfactory position. A human rights abuse can be a 100 per cent injustice for the individual concerned. That is obviously not acceptable, and a 100 per cent injustice for one person can be fomented into a useful political tool by extremist manipulators of the impressionable. I beg to move.
My Lords, the noble Lord, Lord Judd, is absolutely right to raise this matter yet again because there is evidence coming to light that the foreign prisoners who are being held in detention following the expiry of their sentences are clogging up the system and creating at least the possibility of serious unrest in detention centres. This matter was referred to in the Sunday Telegraph a couple of days ago under the headline “Asylum crisis getting worse, say officials”. This is the opinion not of the Opposition or of Back-Benchers such as the noble Lord, Lord Judd, who is always assiduous in raising any matters to do with immigration and detention, but comes from within the department itself, as I am sure the noble Lord, Lord Bassam, is aware.
In one paragraph, the writer of the article states:
“Since last year’s crisis, when it emerged that foreign prisoners had been released without being considered for deportation, many detention places have been occupied by former prisoners, adding to the unrest in the centres”.
Can the Minister tell the House the proportion of foreign prisoners to other kinds of detainees, and whether that has increased since the crisis of last year as the Sunday Telegraph alleges? It is important that we have these figures and know whether the Government have any plans for dealing with the matter. As we have said before—we will come on to the issue again, no doubt—there is great anxiety about the numbers of former criminals kept in some kind of detention well after the expiry of the sentence awarded by the court. If, as the article states, one of the consequences of that is to clog up the places needed for the effective administration of the ordinary asylum system, then your Lordships should know about it before it is too late to deal with the matter in the Bill.
My Lords, my name is on the amendment and I should like to say a word or two in support of it. I agree with the points made by my noble friend Lord Judd. I, too, am a member of the JCHR and support the position of that committee on this issue.
There are two or three other reasons that I would like to mention briefly. First, I am not in favour of extending the discretionary powers of Secretaries of State when they can perfectly easily be constrained, as they should be in this case. Secondly, the Home Office is not known for its expedition in dealing with these types of cases, and some kind of statutory requirement to move quickly in the terms set out in our amendment is a good incentive from within the administration of these processes. Thirdly, from the point of view of the person to be deported, surely it must be better if you are in that position to have some sense of the time limit on the kind of limbo that you are in, so that you can at least make some adjustment to the new situation that you are going to face.
For those additional reasons, as well as the ones spelt out with great power by my noble friend Lord Judd—I agree also with the noble Lord, Lord Avebury—I fully support the amendment.
My Lords, I support the amendment of the noble Lord, Lord Judd, the purpose of which is to prevent injustices to those who have already served their full sentence, and to avoid prisons and detention centres being clogged up by these people while the Secretary of State considers their cases and goes through the other motions connected with deportation. I can see, however, that the Government may object to the last line of the amendment, which says,
“and in any event within three months of that date”.
Their objection may be founded on the fact that a minority of such prisoners will have appeals still pending against either conviction or sentence, but surely the way to deal with that situation is to provide that those prisoners shall be released unless there is an appeal of the kind I have described. Even then it should be possible for most of them to be granted bail.
My Lords, my noble friend Lady Anelay supported this amendment in Committee and I am glad to continue to do so. One has to ask the Minister what possible reason there can be for delay. There is clearly nothing automatic about the Government’s proposals for automatic deportation in this situation. In Committee the Minister was in agreement on principle, but had objections that the amendment would create a loophole where criminals would not be able to leave as soon as possible due to outstanding asylum claims and so would escape the provisions. He might like to comment on that again today, as well as on the other matters that have been raised by noble Lords relating to the speed at which deportation seems not to happen.
My Lords, I am grateful to the noble Lord, Lord Judd, for raising the issue again. He will be somewhat disappointed at my response, but I feel I ought to go through some of our reasoning behind this. As I did in Committee, I sympathise with some of the intent behind the amendment.
In essence the amendment would take away the Secretary of State’s discretion to make a deportation order at the time of her choosing; instead, she would be obliged to make it within three months of the foreign national’s prison sentence commencing. It has to be understood that this would create some straitjacketing difficulties, though I understand the intention behind the amendment. There are many reasons why the Government should make a decision on deportation at the earliest point legally and practically possible, such as fairness to the individual and the need to minimise the use of the prison and detention estates, as well as the need to ensure that foreign criminals who qualify are deported as quickly as possible. However, making a deportation order just three months into every offender’s sentence would be inappropriate in practice.
If the offender was to be sentenced for a lengthy period of imprisonment, their circumstances could change significantly between the start and the end of the sentence. Where a foreign criminal has been sentenced to a long period of imprisonment, it is highly likely that their personal circumstances—or even the political situation in that prisoner’s home country—could change over time. Where that is the case, the Government could find themselves in a position where they have made a deportation order only to have to withdraw it at a later date. That practical reason militates against some of the logic of the amendment.
As a matter of routine, any deportation decision would have to be reviewed at the end of the offender’s sentence to ensure that it remained compatible with our international obligations. That places another constraint on our flexibility. As that review would need to take full account of personal circumstances many years on from the original decision, it would be a completely new decision, rendering the original decision completely irrelevant. For those reasons, although the amendment seems on the face of it to be practical and to apply pressure on authorities to consider how best to deal with the situation, it presents operational difficulties.
I understand the points made by the noble Lord, Lord Plant. The pressure point exists and it is understood. However, flexibility is important.
Some other questions were asked during this short debate. The noble Lord, Lord Hylton, said that it must be possible for foreign national prisoners to be granted bail. Bail may be granted in appropriate cases where foreign national prisoners are not to be removed imminently, and where there are no risks to the public and no risk that the person would abscond. In those circumstances, bail would make a lot of sense, because it would mean less pressure on the detention estate.
The noble Lord, Lord Avebury, asked what proportion of detainees is made up of foreign prisoners. The answer is approximately 50 per cent across the detention estate. There has been an increase because it is necessary to move former prisoners into immigration detention to ensure that prison places are not taken up while proper consideration is given to whether to deport foreign national prisoners in the public interest.
I think that I have answered most of the points that have been raised, but if I have missed some, I have no doubt that noble Lords will press me further on them. We need flexibility; practical problems militate against our adopting the understandable approach proposed by the amendment. For those reasons, we cannot find agreement with it.
My Lords, I thank my noble friend for his observations. I thank also noble Lords in all parts of the House who have contributed to this short but important debate. I ask my noble friend to reflect carefully on what he said and, when he lies in bed tonight, thinking about the wisdom that he shared with the House, to consider whether he really produced a convincing argument to refute the proposal that, on the one hand, liberty is being thwarted and, on the other, ammunition is being given to extremists, who will say, “There you are. Society claims to be based on human rights and all the rest, and see what they do”. I see my noble friend screw up his face.
My Lords, then my noble friend has my full sympathy.
As I have said on previous amendments, we are living in volatile times. Disaffection leads to alienation; alienation can be exploited. It is an accumulation of small experiences that are very real for the people and families involved which leads to the spread of a feeling of being aggrieved. It is in the smaller things that we really could do something to make sure that things are happening as they should and make a substantial contribution, in aggregate, to the battle for hearts and minds. I am always very despondent about the negation of human rights, for instance, but I find that as I deal with these issues I personally become more frustrated by what I see as the rule of bureaucratic counter-productivity—of inertia and refusing to act—which is in danger of accentuating the problems that we confront.
I am very disappointed that the Government have not moved on this so far, not least because of what my noble friend so encouragingly said in Grand Committee. However, I never give up my hope that not least my noble friend, and others who have sense, will prevail—and, as the noble Lord, Lord Avebury, suggested, there is an argument going on within the Home Office itself. In the hope that the voices of sanity will prevail in the Home Office at the right time, at this juncture I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 36 [Detention]:
33: Clause 36, leave out Clause 36
The noble Lord said: My Lords, before coming to the amendment, I shall briefly and I hope not too irregularly put to the Minister a question of which I have given him prior notice relating to one of the amendments that we dealt with last week on the points-based appeal system. The concern was that a person such as a student or work permit holder who was advised to make a fresh application when there had been an error on the form submitted in the first instance would be out of time and therefore ineligible for lodging the appeal. I am informed by the Minister’s department since our debate that there is an extra-statutory concession under which such a person may continue to submit an application for renewal of leave within 28 days. I would be most grateful if the Minister would put that on the record because those that we have consulted were unaware of it. It would be very useful to practitioners to know that their clients can do that and will not be prevented from continuing their studies or work in the United Kingdom.
As for Amendment No. 33, we discussed the clause on 23 July and, because we had some further doubts on consideration of the Minister’s reply on that occasion we seek this further opportunity for clarification. The clause gives the Secretary of State power to detain a person while she considers whether the automatic deportation provisions in Clause 32 apply. It may add to the concerns that the noble Lord, Lord Judd, has just expressed that we are giving the Secretary of State additional powers, contrary to the advice that we were given just now by the noble Lord, Lord Plant, which will increase the size of the detention estate, with all the consequences that that implies.
First, we seek confirmation that subsections (4) and (5) allow for electronic monitoring as an alternative to detention, by virtue of Section 36 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The Minister said so in the letter that he wrote to us after the fifth sitting on 26 July, but again it would be helpful to have that in the Official Report, where it would be accessible to immigration practitioners. If the decision to apply electronic monitoring is nominally that of the Secretary of State, who will make the decision on her behalf and will there be published guidance on how the decision is to be made?
The Minister quite properly observed, in col. 150, that a deportation order should not be made before an assessment of the safety of return could be made, but it does not follow that consideration of automatic deportation needs to be deferred until right at the end of the sentence. The BIA should identify as soon as possible—that is, when the person is charged—whether the offence is covered by the second condition in Clause 31 or would potentially attract a sentence of 12 months or more so that the offender can be put on notice to get legal advice on whether he qualifies under one or other of the exceptions before the case is heard. As soon as the person is convicted, he becomes a ‘foreign criminal’, and is liable to automatic deportation, although an order cannot be made at least until after any appeal is heard or the person has notified the Secretary of State that he does not intend to appeal under Clause 34(2) and (3). In cases where an appeal is to be heard, or the time available for an appeal to be lodged has not been exhausted, existing powers have to be used to continue the detention. Meanwhile, the Secretary of State could reconsider whether it is safe to return him and prepare the deportation order, which could be served on the offender in court immediately if he loses the appeal, or in custody if he signs a Clause 34(3)(b) statement.
The Minister gave as an example where it was likely to be impossible to consider the safety of automatic deportation, the person who is given a long sentence during which his circumstances or the political situation in his country of origin would have changed. The answer to that is that the person is a “foreign criminal” within the meaning of Clause 32 immediately he is convicted, and the Secretary of State should make arrangements to remind himself—say, three months before the end of the sentence—whether any of the exceptions in Clause 33 apply. Since there are now personal case-holders keeping track of offenders all the way through the criminal justice system, they should be responsible for keeping up-to-date records of any changes in the situations of offenders to whom the exceptions may apply, and could be instructed to give the current entries to the Secretary of State, as I say, three months before the release date, and to inform her of any changes which may occur in the last three months. The Secretary of State could issue a “minded to decide” notice at that point. If the sentence is a long one it is extremely unlikely that there would be unexpected last-minute changes in the offender’s personal circumstances under one of the exceptions, and it would be rare for the situation in the country of origin to change so radically in those last few weeks as to justify reversing the decision by the Secretary of State on the safety of return. But during the few weeks that remain she still has power to revoke a deportation order if, out of the blue, a Clause 33 exception arises, or if there is a technical error in the decision to make the order, or the decision that Clause 32(5) applies. If no such change occurs, the notice of automatic deportation could be issued immediately the appeal rights have been exhausted.
Where the offender’s nationality or country of origin are in doubt, nothing in the exceptions or elsewhere in the Bill prevents the Secretary of State making the deportation order, although obviously implementation would have to be delayed, as it is now, and as now, detention would be under existing powers, pending deportation, and not in consequence of the provisions of this Bill.
In the case of a last minute asylum application, in the unlikely event that it is accepted, the consequence would be that the Secretary of State finds it unsafe to return the person and, by virtue of Clause 33(2), she refrains from making an order. But where the application is considered to be unfounded, as it generally would be, again there is nothing in the Bill to stop the deportation order being made, though obviously it would be held in abeyance until any appeal was disposed of.
Therefore, having considered the scenarios presented by the Minister in Grand Committee, we are still not convinced that Clause 36 is necessary. We are concerned, moreover, that it may not be compliant with Article 5(1) of the ECHR, which allows for detention,
“of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”,
whereas detention under Clause 36 is for the purpose of deciding whether the person is liable to be deported—a matter which has to be settled before the actual decision to deport can be taken. I beg to move.
My Lords, earlier on Report, the right reverend Prelate the Bishop of Winchester reminded us that a high proportion of former foreign criminals are being held in detention and removal centres. The result is that people with convictions have been mixed in with people who are completely innocent of any crime. This has caused serious problems for the staff of the centres, and has generated considerable fears among the innocent detainees. The Home Office appears to have generally disregarded the advice that was offered to concentrate the former criminals in one or two particular centres, which might have avoided quite a lot of problems.
Therefore, I am asking the Minister to tell us what progress has been made on the subject since last summer. I know—because I read it—that there is a letter from a Minister in the Library, which sets out some positive news. Can the Minister go a little further and tell us what impact the very large increase of staff devoted to the question of who should be detained, whether they are due for deportation and related subjects is having on the situation?
My Lords, before I respond to the amendment, since the noble Lord, Lord Avebury, had the great courtesy to advise me in advance of his point about the points-based appeal system, I ought to respond to that. It was a very helpful question, which enables me to provide further elucidation.
A 28-day grace period will be included in the Immigration Rules as part of the tier 1 process in March 2008. I am sure that the noble Lord will welcome that. This will allow those who send their applications within 28 days of their leave expiring to continue with their application. That is a very helpful approach on our part, which will probably be welcomed, not least by immigration law practitioners.
On the amendment, the principal purpose of automatic deportation is to protect the United Kingdom public from harm by deporting foreign criminals. Our view is that the amendment would undermine that aim. I am not saying that that is the purpose behind the amendment, but it would have that effect. It would remove the Secretary of State’s power to detain foreign criminals while she considers whether automatic deportation applies and pending the making of a deportation order under that power. I fully realise that noble Lords feel queasy about what they view as an open-ended power to detain. Who would not? It is an understandable reaction, and I am no different in that regard. I can provide some reassurance that the provision is not designed to allow the Secretary of State to detain people indefinitely; that is not its objective. Deportation action will, whenever possible, be commenced while the criminal sentence is being served. In those circumstances, it will not be necessary to use these powers.
My guess is that that will cover the majority of circumstances. However, there will be cases where, for example, a person who appears to meet the criteria for automatic deportation is eligible for immediate release by the sentencing court because he has already served the sentence while on remand. That happens from time to time. In such circumstances, it is vital to have a power to detain while the Secretary of State considers whether automatic deportation applies. I am sure that noble Lords will understand why that might be the case. This will help to remove the risk of the offender absconding, thereby affording an extra level of public protection from potential harm. I am sure that we can imagine the sorts of cases where that would be especially important. Noble Lords might also note that Clause 36 applies the existing provisions on bail, arrest and restriction orders to automatic deportation cases. As such, it will be open to foreign nationals detained under these powers to apply for bail should they wish to.
The noble Lord, Lord Avebury, was, as ever, assiduous in asking about how other matters impact upon this issue. He asked whether electronic monitoring was an option for those detained under Clause 36. Yes, that is possible and officials will exercise these powers on behalf of the Secretary of State; existing guidance will be updated. The noble Lord asked whether Clause 36 was compliant with Article 5 of the ECHR. We are satisfied that Clause 36 is compliant with Article 5. A decision on whether a person may be liable to automatic deportation is action taken for the purposes of deportation and, therefore, is within the remit of Article 5.
The noble Lord, Lord Hylton, returned to the impact of foreign national prisoners on the deportation estate and asked about the impact of bringing in large numbers of staff to decide who should be deported and who should be detained. The Border and Immigration Agency’s Criminal Casework Directorate is now considering most foreign national prisoner cases 10 months from the end of their sentences. The Border and Immigration Agency expects to deport some 4,000 foreign national prisoners in 2007 as a result of the increase in staff and improved caseworking. Detention is based on a risk assessment and, as I have said on a number of occasions, primary consideration is related to ensuring the utmost protection of the public. I am sure that we can all subscribe to that principle.
We cannot accept the amendment for those reasons. I hope that some of the information that was asked for adds extra clarity, and I am happy to have answered the question on the points-based appeal system to the satisfaction of the noble Lord, Lord Avebury.
My Lords, I thank the noble Lord most sincerely for giving the information on appeals under the points-based system and for his undertaking that, when guidance is published in March next year, it will indicate that a person applying for an extension of leave will have a 28-day grace period following the expiry of the previous leave. As the Minister said, having that knowledge in advance will be extremely helpful to practitioners; otherwise, as we have said all along, a person who failed to lodge the application in time or who made a mistake on the application and had to resubmit it would no longer have been eligible for consideration to extend his leave. That would put an end to the careers of, for example, students in higher education and work permit holders who had hoped to continue their work or studies in the UK. It is also useful to have on record the Minister’s confirmation that electronic monitoring could be considered in such cases, as in others.
I asked the Minister a further question, which he did not have time to deal with. I am not going to pursue it here, but perhaps he will pick it up and write to noble Lords following these proceedings. The question was who, given that the decision to apply electronic monitoring is nominally that of the Secretary of State, will take it on her behalf and whether that person will have published guidance, which will be available to immigration practitioners.
I thought that I had carefully gone through the reasons why the noble Lord said that he could not accept our amendment, but perhaps I did not thoroughly deal with the case that he mentioned today, in which the person had already served the sentence and was eligible for immediate release on conviction by the court. It was implicitly to deal with that case that I suggested that the decision on whether the person was liable to these provisions should be made when they are being charged rather than, as the noble Lord suggested, waiting until 10 months before the expiry of the sentence.
If the decision had been made at the moment of charge, it could have been decided whether the offence fell into category 2 or whether, at the time of conviction, it was likely that a sentence of 12 months or more was going to be passed. There need be no delay between the decision by the court and the issue of the deportation notice under the automatic provisions of the Bill. But I can see that, unfortunately, we are not going to persuade the Minister this afternoon that these provisions are unnecessary, so I will for the moment beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 44 [Search for evidence of nationality]:
[Amendment No. 34 not moved.]
34A: After Clause 55, insert the following new Clause—
“Independent Police Complaints Commission
(1) Section 41 of the Police and Justice Act 2006 (c. 48) (Immigration and asylum enforcement functions; complaints and misconduct) is amended as follows.
(2) After subsection (1)(b) there is inserted—
“(c) the exercise by an individual or company contracted to provide services to the Secretary of State of specified enforcement functions relating to immigration or asylum”.”
The noble Lord said: My Lords, Amendment No. 34A is in my name and those of my noble friends Lord Avebury and Lord Roberts of Llandudno. It will come as no surprise to the Minister, as I have raised the issue of accountability in our consideration of almost all previous immigration and asylum legislation and legislation affecting policing; the UK Borders Bill will be no exception.
Our amendment would insert a new clause after Clause 55 to amend Section 41 of the Police and Justice Act 2006. We suggest that, after subsection (1)(b), a paragraph (c) be inserted to take into account,
“the exercise by an individual or company contracted to provide services to the Secretary of State of specified enforcement functions relating to immigration and asylum”.
By amending the Police and Justice Act 2006, we can meet the important need for accountability. To an extent, we can take it that today’s exercise is to probe the Minister’s intention on this matter and to tease out the Government’s stance. My purpose is to ensure that the Independent Police Complaints Commission has jurisdiction to entertain complaints against private contractors doing enforcement work for the Home Office.
Section 41 of the Police and Justice Act 2006 provides a power to extend the jurisdiction of the IPCC to cover scrutiny of the Border and Immigration Agency in its exercise of enforcement functions. The Border and Immigration Agency is currently consulting on the content of regulations made under this section.
We understand that—I trust that the Minister will confirm this—the Government have recognised the need for powers to cover private contractors and are seeking a suitable legislative vehicle. This Bill provides that vehicle and this amendment is designed to give the Border and Immigration Agency an opportunity to do what it states it intends to do. Should the Government decline to accept the amendment, we will, as I said, raise it during debate on the Criminal Justice and Immigration Bill, which I understand had its Second Reading in the House of Commons very recently.
The latter Bill is an opportunity for the Government to extend the IPCC’s jurisdiction to cover private contractors working for HMRC. This, too, we understand to be the Government’s intention. While waiting for such a legislative vehicle, HMRC is writing into its agreements with private contractors that they must co-operate with the investigations of the Independent Police Complaints Commission. Will the Minister give an assurance that the Border and Immigration Agency will do likewise, pending not the identification of a suitable legislative mechanism—of which we have identified two in this short briefing—but their taking any action?
I remind the Minister of the IPCC’s understanding of this matter. Its website confirms that,
“assurances had been received from IND [the Immigration and Nationality Directorate] that arrests would only ever be carried out by an authorised officer. Relevant legislation did not permit this function to be delegated to contractors. However, if the legislative position changed then the IPCC’s jurisdiction in relation to contractors would also need to be revisited”.
The position had changed by that time, although I am afraid that the Border and Immigration Agency does not appear to have communicated that to the IPCC. Section 40 of the Immigration, Asylum and Nationality Act 2006 came into force on 31 August 2006 permitting private contractors to exercise search powers and to hold people for up to three hours. There have been heated debates on this matter in the House, particularly on the questions of the protection of children and juxtaposed controls.
Perhaps I may give the Minister a way out. I ask him to take back the amendment to see what provision can be made before Third Reading. We ask only for an assurance that there will be transparency in the process and that those with powers of enforcement functions, however limited, be subject to proper independent accountability and scrutiny.
The Minister is aware that a certain airline recently refused to participate in a deportation exercise because it did not believe that the process treated deportees fairly. I could give many more examples, but all I want is that we do not forget the damage to community relations in the detention and death of Joy Gardiner in Tottenham some years ago. At this stage, I simply look forward to the Minister’s explanation. Either at Third Reading or possibly during the passage of the new Bill currently going through the Commons, we shall have an opportunity to suggest a suitable means of moving forward. I beg to move.
My Lords, I support the amendment. It gives us an opportunity to test the Minister a little more on the code of conduct that we talked about earlier, although I appreciate that this brings it into the complaints procedure. If the code of conduct or anything of relevance in this Bill is not to be extended to agencies and contractors, that will leave a very big gap in the matter of protection and the way that people operate as a result. I look forward to the Minister’s reply. This is an important amendment and I am happy to support it.
My Lords, it seems to me that, however good a code of conduct, mistakes will still be made and there will still be grounds for complaint. I have to plead ignorance because I do not know, as no doubt I should, whether there is an official channel for complaints from people in detention and removal centres. The noble Lord, Lord Dholakia, suggests that it should be the Independent Police Complaints Commission. If the Government are not satisfied that that is the appropriate body, surely it is incumbent on them to suggest another venue. We know that such complaints do arise, and organisations such as Bail for Immigration Detainees have provided chapter and verse on this subject.
My Lords, this is a very important matter. In speaking to the amendment, the noble Lord, Lord Avebury, took the actual wording of the amendment. In reply to this debate, can the Minister refer to Scotland? It seems to me that amending the Police and Justice Act 2006 would not be adequate. I may be wrong. Has the Minister considered that matter?
My Lords, I am very grateful to the noble Lord, Lord Dholakia, for the way in which he has moved the amendment. I recognise that it is very important and significant as regards accountability, oversight and so on. I am also grateful to him for providing me with a way out, as he put it. That was very generous of him, but I have come to expect that generosity from the noble Lord in such matters. I hope that my comments will give some encouragement to noble Lords on this issue. I suspect that, in the end, we will not be a million miles apart in what we seek to achieve. There can be little disagreement about the importance of the issue and the need for accountability and oversight in dealing with properly made complaints.
The Police and Justice Act 2006 gave the Secretary of State the power to make regulations in England and Wales, conferring functions on the IPCC in relation to the exercise by immigration officers of specified enforcement functions and the exercise by officials of the Secretary of State of specified enforcement functions relating to immigration and asylum. The 2006 Act did not confer a power with regard to private contractors exercising any of the enforcement functions listed within the Act, such as those carried out by contractors providing detention and escort services, as it was considered that robust oversight mechanisms for these contracts were already in place.
This amendment, as argued, would allow the IPCC jurisdiction in England and Wales to be extended to private contractors, with the exception of those exempted from the provisions in Section 41(3). We all recognise that contractors play a valuable role in delivering the objectives of the Border and Immigration Agency. Where they are used, it is right that appropriate oversight arrangements are in place. There is no disagreement about that. The enforcement roles currently performed by contractors include detention and custody officers, detainee escorting and accredited search officers for freight searching at ports. So there is already a degree of oversight in those areas.
In the case of detention functions, oversight is provided, of course, by the Prisons and Probation Ombudsman, who investigates deaths in detention and considers complaints where detainees are not content with the response they receive from either the agency or the contractor. So there is already a level of oversight provided through that mechanism. One could fairly argue that the Prison and Probation Ombudsman, first, does a very good job—I know the current office holder has engendered a great deal of respect; and, secondly, it may well be that, for the moment, that is the most appropriate route and mechanism.
The use of freight search contractors in border control is regulated by the Nationality, Immigration and Asylum Act 2006. Section 41(1) requires that a Crown servant be appointed to monitor the exercise of powers by the contractor, to inspect the way in which the powers are exercised and to investigate and to report to the Secretary of State about any allegations made against the contractor.
The agency is currently exploring the potential of using contractors more widely to add further value to how the Border Immigration Agency delivers its services. As is currently the case with detention custody officers and accredited search officers, the appropriate level of oversight depends on the nature of the function being performed. Once the future functions are fully understood, we will consult on the appropriate level of oversight. The current feeling within the Government is that, until that time, it would not be right to legislate on this issue, hence our caution. In the mean time, and pending completion of our exploratory work on widening the use of contractors, we will ensure that there is co-operation with the IPCC and other monitoring bodies, as built into contracts, so that the issue is covered.
The noble Lord, Lord Hylton, rightly and understandably asked about the method of complaint for detainees. There is a comprehensive complaints system modelled closely on that used in prisons, with complaints being required to be investigated and, importantly, resolved promptly. This includes confidential access for complaints about centre staff where the complaint goes direct to the BIA for investigation. The whole system, as I explained earlier, is overseen by the Prisons and Probation Ombudsman to whom complaints can be referred if a detainee remains unhappy with the outcome.
With the exception of the question of the noble Baroness, Lady Carnegy of Lour, I have answered the various points raised. I will have to defer to the noble Baroness and, I suspect, drop her a note on the issue she raises.
My Lords, I thank the Minister. I definitely have a soft spot for him, because both he and I started our political careers in Brighton. However, I sometimes wish that he would throw his briefing notes away, look at the strength of our case and say, “Yes, that is right and ought to be done”.
The Minister has used two arguments. First, he talked about the prison ombudsman. I remind him that there was substantial discussion in this House on corporate manslaughter, which did not accept that that was the right way to proceed on such a serious matter. Ultimately, the Home Office and the Minister for Justice gave way. Secondly, he talked about ensuring that the IPCC will receive co-operation, but there is a difference between co-operating with the IPCC and the IPCC having jurisdiction over contractors’ actions. That is the point we are trying to make.
I said before that I will look carefully at the consultation process taking place. There are other opportunities, but perhaps the Minister would look at whether there is anything more he can do on this issue before Third Reading. I am sure that the Government want to find a way out. If that is the case I will be able to help, but there certainly will be other opportunities for me to seek the opinion of the House.
My Lords, I certainly undertake to consider again the carefully phrased comments of the noble Lord, for whom I also have more than a soft spot.
I shall also use this opportunity to answer the point of the noble Baroness, Lady Carnegy of Lour: it is correct that Section 41 of the Police and Justice Act 2006 gives the IPCC oversight of immigration officers and officials in England and Wales. In Scotland, the role will be that of the procurator fiscal and the Police Complaints Commissioner for Scotland. As for private contactors, if their role is extended we will of course ensure—as I have said on several occasions—that adequate oversight arrangements are in place, not just England and Wales but in all the UK jurisdictions.
35: Before Clause 57, insert the following new Clause—
“Access to immigration advice in police custody
After paragraph 25C of Schedule 2 to the Immigration Act 1971 (c. 77) (administrative provisions as to control on entry etc.) insert—
“25CA (1) This paragraph applies if—
(a) a person has been detained under this Schedule; and(b) that person is in custody at a police station.(2) Persons to whom this paragraph applies shall have access to immigration advice on request.””
The noble Lord said: My Lords, since we last discussed the question of legal advice to persons detained in police stations, we have heard again from the Transport and General Workers Union, although it has not given us details of individual cases as we requested. It said that numerous cases have been reported to it in the past 12 months of members being arrested at their workplace, usually on the basis of a tip-off from the employer or from an agency providing temporary labour. The member is detained incommunicado in a police station without any of the PACE protections for up to five days. When the member fails to show up at the workplace and the union gets to hear of his absence, it has to telephone police stations at random because it is seldom possible to establish where an individual is detained or why. The union tries to arrange for a police-accredited solicitor to attend but, where the member is detained because of an alleged immigration offence, the police refuse to allow access on the grounds that a properly accredited immigration solicitor is required.
When union officials take these cases up with the police, they are told that the member is held pending the arrival of an immigration officer. It seems incongruous that when an immigration officer detains a person pending the arrival of the police, the limit is three hours, but when it is the other way round and the police are detaining somebody pending the arrival of an immigration officer, the limit is five days. When the immigration officer finally attends the police station, an in-depth interview may be conducted and sometimes the officer suggests that the detainee should not ask for an interpreter because the officer considers that the person’s English is good enough, or because if he asks for an interpreter his stay in the police station will be extended. In some cases the detainee is asked to sign a document agreeing to removal, and is warned that if he refuses the police will charge him with an immigration offence that may lead to a custodial sentence.
The TGWU tells us that this problem largely relates to undocumented migrant workers—such as those working unlawfully pending an immigration decision—asylum seekers, and students working in breach of their 16-hour conditions. Many of them will presumably be among the 450,000 legacy cases who would starve if they did not work. Employers are deliberately recruiting from these sectors, using fictitious self-employment or agency working arrangements. A recent TGWU-supported case, Kalwak and others v Consistent in the Employment Appeals Tribunal, exposed some of these practices.
We have also received information from the Poppy Project, which we have heard a lot about in other contexts. It is conducting research on 154 victims of trafficking who were its clients between March 2003 and July 2007. It says that 18.8 per cent of them had been in police custody on charges relating to immigration offences and 2 per cent had been given custodial sentences. I am not sure whether the research will show how long the women concerned were in police custody, but their experiences would presumably have been similar to that reported to us by the TGWU. Finally, I remind the Minister that Janipher Maseko, whose case aroused such widespread dismay because she was separated from her breast-feeding infant, was originally in the custody of the police before she was transferred to Yarl’s Wood.
There is enough evidence to show that the absence of access to legal advice for alleged immigration offenders in police stations is a matter for serious concern. I suggest that the Minister invites the relevant organisations, such as the police, ILPA, the TGWU, the Poppy Project, the JCWI and the Black Women’s Rape Action Project, to a round-table discussion to see how the problem can best be addressed. I beg to move.
My Lords, this amendment would impose a requirement to provide immigration detainees held in a police station with access to immigration advice on request. Noble Lords on the Liberal Democrat Benches tabled this amendment in Committee and we had a very full debate on it at that point. Although we could not accept the amendment, I had hoped that the reassurances I gave during the debate might have addressed some of their major concerns.
I explained in Committee why we did not consider this amendment necessary and, in essence, we have not changed our view. We agree, however, that it is entirely right for individuals detained under Immigration Act powers to be able to access competent and independent legal advice at an early stage. Those are two essentials. That includes individuals held at a police station. We acknowledge that in the past immigration detainees held initially at police stations, usually before transfer to an immigration removal centre, may not always have been able to gain easy access to immigration advice.
It would be fairly accepted that that was in large part due to the fact that duty solicitors, who would normally be contacted by the police on behalf of detainees, were unlikely to be able to provide advice to individuals on non-criminal immigration matters. To address this issue, the Legal Services Commission has been running a pilot scheme since June 2006 to provide independent immigration advice by telephone on non-criminal immigration matters to people detained at police stations.
I explained in Committee that the commission believes that telephone advice is, realistically, the most effective method of providing timely advice to individuals held at police stations, particularly as they will usually be held for very short periods before transfer to an immigration removal centre or release. Indeed, the commission has been piloting the provision of telephone advice for people held at police stations since October 2005. Under the Criminal Defence Services Direct pilot scheme, the commission evaluated the use of telephone advice for individuals detained at police stations and facing specific criminal charges. The pilot established that the provision of telephone advice provided clients with prompt access to legal advice and represented value for money in terms of public expenditure. In relation to the telephone pilot for immigration detainees, I understand that feedback received from advisers taking part in the scheme has suggested that the benefit to clients has been very positive, and that no significant problems with telephone advice as a method of delivery have been reported.
One of the concerns raised in Committee was how a telephone-based service could deal with the need for interpreters. The pilot scheme explored this issue. Under that scheme all advisers have to be able to set up three-way conversations between the police station, the interpreter and themselves. This is a contractual requirement—it is specified in the terms of the contract—for firms taking part in the pilot.
The commission has indicated that it will share its findings in relation to the evaluation of the scheme with representative bodies, and that the evaluation will be published on its website in November. I understand that the findings have been positive and that the commission will be tendering for new contracts later this year. The noble Lord has identified a genuine issue. We have taken steps to meet some of the pressures and demands that have arisen as a consequence of that issue. I think that we can fairly say that we have addressed those concerns through the pilots and, when the evaluation report is fully absorbed, we hope that it will be possible to see in the tendering process next year a wider adoption of the telephone advice service.
On the point raised in particular by the noble Lord about the need to meet organisations concerned about this which in one way or another provide advice and support, the department meets regularly with stakeholders including the Poppy Project and others that he referred to. No doubt they will use the opportunity of those discussions and meetings to reflect on the issue raised by the amendment. In any event, I give an undertaking that this is one issue that will be fairly considered when department officials next meet.
My Lords, that is a very satisfactory reply. My excuse for tabling this amendment again is that we heard further from representatives of the TGWU after the matter was raised in Grand Committee. At that point, their anxieties were not assuaged. However, what the Minister said this afternoon will go a long way towards satisfying them that adequate arrangements have been made and that their clients will not be left in the lurch for a whole five days without any access to advice.
I hope that the information that will be published in November—the Minister said that it would be given to practitioners in advance of being placed on the website—will be distributed to the TGWU, which is the main agent of concern over the question of access to advice in police custody. I am also grateful to the Minister for saying that he will ensure that other organisations that have raised the matter with us, particularly the Poppy Project, which mentioned this in its current research, are brought into the picture next time there is an opportunity to raise it with them. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
36: Before Clause 57, insert the following new Clause—
“Provision of information to immigrants from A8 countries
(1) Secretary of State may by order made by statutory instrument make provision for information to be provided at major ports of entry to persons entering the United Kingdom from A8 countries.
(2) The information provided under subsection (1) shall include information on—
(a) finding employment;(b) employment law, including rights and responsibilities and the worker registration scheme;(c) obtaining a national insurance number;(d) the provision for language training;(e) finding accommodation;(f) access to health care and education;(g) sources of further advice and support.(3) The information provided under subsection (1) shall be provided in a form determined by the Secretary of State.
(4) In this section the “A8 countries” are Poland, Lithuania, Latvia, Estonia, the Czech Republic, Hungary, Slovenia and Slovakia.”
The noble Lord said: My Lords, as we reach the last amendment I would like to say that it has been a great privilege to take part in this Bill. I have not won many of my arguments, but at least we have made our points and some arguments have had a response from the Minister, which has been encouraging. I am sure that someone else will be thanking all those concerned when we come to Third Reading, but I say, “Diolch yn fawr”, or “Thank you” in Welsh.
We are calling for information for those coming into the UK from the new countries of eastern Europe. They should have available information that is essential to anyone who is new to the United Kingdom. It should be in a format that they can access easily, that is attractive and readable and gives information gathered together from various sources into one comprehensive piece of literature, in the different languages of those new countries. That is what we are looking for.
The Minister rightly said when we last discussed this point that there were sources where nearly all this information could be obtained; it was available on the web or in different government briefings. I am sure that it is, but not in all the languages that I would like. However, I suggest that we need a welcome pack for those who come to the UK so that they know exactly where they can get health provision, where they register for work, and where to get help if they are finding it difficult to find homes or food. They should be able to have all that information in one piece of literature.
The information should be in hard copy as well as on the web because many of those who come here have no access to the web at the beginning. You need something at the port of entry so that you can go to the information desk and ask for comprehensive and co-ordinated information to help meet those various problems. I would like to see this guide—if I may call it that—made available in the consulates of the countries of origin of these people so that they will have this information in their hands before they come here. It might deter some from coming here. We know that 97 per cent of folk who come from eastern Europe are able to survive. They make arrangements for accommodation and jobs before they come. I am worried about the other 3 per cent—3 per cent of 400,000 is a substantial number. We are trying to prevent these folk from slipping totally into destitution—I use again the word that we have used many times during the passage of the UK Borders Bill.
The information could be printed in various languages; it could be available in the countries of origin and at the ports of entry into the UK. I have tried to find out whether any information is available. I visited the information counter at Victoria coach station, but there was nothing. There might have been another counter where this information could be found, but I could not find it. Is not Victoria coach station the sort of place where people could be guided and helped in their initial meeting with the folk of the United Kingdom?
There could be a government publication, but we are told that that would have cost implications. I was told, “No, no. You must not spend money, Rog. That money is not easily available”. Perhaps we could emulate the Canadian Newcomer Magazine, which includes part of the information that I would like to see. It is a commercial venture.
My Lords, in a way, I am quoting from it. This attractive, accessible, available magazine format might be what we need. The Minister may say, “We think that it is a great idea, but we cannot afford it” but perhaps some encouragement could be given for producing it commercially. It could be paid for by advertising. However it is produced, it would be in the hands of those who need it and could be a helpline for them. With those words, and accepting the rightly merited reprimand, I beg to move.
My Lords, this is an important amendment. We are all aware that there have been too many bad cases of exploitation of migrant workers. Complaints have usually ranged around sub-standard wages, poor accommodation and food provided, and excessive deductions from pay. Therefore, this amendment provides a useful list of the kind of information needed and would be of great value to citizens’ advice bureaux. There have been problems about access to healthcare and even education.
My only query is why not include Romania and Bulgaria as well because they are now members of the European Union? I realise that there have been some restrictions on migrant workers coming from those countries, but more may well come in the future. I look forward to the Government’s response.
My Lords, there is no doubt that we benefit enormously from the A8 countries and the great number of immigrants—if we can call them immigrants, because they are all part of the EU. People coming to this country are providing a lot of the talents and expertise which we do not seem to have at the moment. My noble friend Lady Anelay did not support this amendment previously on the basis that it would be centrally driven and that the information would be provided from central government. People coming here tend to cluster and keep together. There are a lot in London, as well as a lot who move further north. It really is not much use having a centrally produced leaflet when the information they need concerns local facilities close to where they have settled.
So yes, information should be provided, but information from central government is probably not very interesting, as well as probably being expensive and difficult to make available in the various languages. However, my experience of people from the A8 countries is that they can speak English almost better than we do. By and large, English works very well. Most important, though, is that local information is far more valuable than anything centrally produced.
My Lords, this has been a useful short debate. The noble Lord, Lord Roberts, has provided us with further thoughts on information provision by drawing on his personal experience and making a little promotion for Canada. We have all learnt something this afternoon. I certainly do not distance myself from the thought that this amendment is anything other than useful because it is always valuable to talk about these issues. I cannot accept the proposed new clause for a number of reasons, but cost is not the most significant of those so far as we are concerned. That is because much of what the noble Lord is talking about is already being done, as I tried to suggest to him before.
The benefits of migration from the A8 states are commonly agreed between most political parties in the United Kingdom. There is no doubt that workers from those states are contributing greatly to the economy and in supporting public services. I am sure that we could all provide a suitable anecdote to support that contention. Figures showing the growth in the economy make it clear as well. I agree that it is important that new migrants—not just those from the A8 states, to pick up on the point made by the noble Lord, Lord Hylton—understand what their rights and responsibilities are in the United Kingdom. The Home Office provides extensive information to all potential migrants. For A8 migrants, this includes specific advice on our websites produced in English and in all the A8 languages. This information is also provided overseas through the Foreign Office at our embassies and consulates. That is more important than providing information for migrants as they disembark at Victoria coach station, because by the time they arrive there, it is almost too late. They need information in advance of coming to the United Kingdom.
The European Union provides much by way of advice, and the EURES network provides detailed information and advertises jobs across Europe. It makes available a lot of the information that I think the noble Lord, Lord Roberts, is seeking to place in the hands of migrants who are quite legitimately coming here to work. Further, we do not believe that it is appropriate to legislate for the reasons alluded to by the noble Baroness, Lady Hanham. It would be excessively centralised and overly prescriptive. However, it is important that other agencies assist in this field, and they do. Indeed, the noble Baroness made the point that because the different groups tend to cluster, information is best provided locally as well as being accessible centrally.
Even if I were convinced that legislation is the way forward on this, I do not think that ports would be the best place to locate such information. People who take an active and positive decision to migrate investigate the opportunities before moving here. It is therefore much more important that the information is available before they come to the United Kingdom. For those reasons, I am not convinced by the arguments put forward by the noble Lord, Lord Roberts. It is in all our interests to ensure that those living here understand their rights and their obligations. However, the new clause does not really provide for that; it merely imposes what can fairly be described as a bureaucratic burden.
To sum up, the noble Lord has moved the amendment in the best spirit, but much of this information is already in the public domain. The Home Office provides it here and it is made available at our consulates and embassies, as well as through other agencies. I understand that the TUC provides a very good information pack for those coming to the UK to work. So the information is there and it is accessible. No doubt we will continue to improve that information as this issue becomes more important and significant in ensuring that those who come here fully understand their rights and their obligations.
I hope that the noble Lord will not feel too offended by our decision not to support the amendment and will dwell on the more positive observations that have been made during this short debate.
My Lords, I thank the noble Lord for that reassuring reply. I am glad about the various languages in which he says the information is available. I actually circulated Welsh local authorities and asked them what they were doing to let migrants into their areas know about what was happening there and in which language they published the information, and three answered, “Welsh and English”. I am not sure the Welsh helped but we certainly need a wider vision than that.
I hope that the various local authorities, like Cornwall—its handbook is a wonderful example of what can be done—will be able to make information on all these points readily available to all those who need it in their areas. I hope someone might be listening somewhere who will say that a venture such as the Newcomer magazine in Canada might be a commercial possibility.
I am grateful to the Minister. This matter will carry on in various ways but, because of the discussion we have had, which was very useful, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.