Committee (1st Day)
Relevant documents: 22nd Report from the Delegated Powers Committee, 8th Report from the Joint Committee on Human Rights.
Clause 1: Removal of persons unlawfully in the United Kingdom
1: Clause 1, page 1, line 10, at end insert “and the Secretary of State has given the person notice in writing of the date and approximate time of their removal”
My Lords, in moving Amendment 1, I shall speak also to Amendment 4. The group includes Amendments 2, 5, 6, 7 and 8 as well. This is a point at which I feel I should be instigating some sort of cabaret to retain your Lordships. Maybe a tea dance would be more appropriate for this company; I do not know.
Clause 1 provides for a new section to go into the 1999 Immigration and Asylum Act for the removal of persons unlawfully in the United Kingdom. It replaces the current Section 10 of that Act, which is headed, “Removal of certain persons”. That change is significant, and the new section would certainly give rather broader powers. Amendment 1, my first amendment, would require the Secretary of State to give notice of the removal, which should be in writing and give the date and time of the removal. At this stage, at any rate, I have referred to this as the “approximate” time in order to anticipate, and therefore not waste time on, an argument that a plane might be delayed. Talking about time without qualifying it was therefore inappropriate—that is not of course the point of this.
Amendment 4 is about notice to a family member, which new Section 10(6)(c) in effect makes optional. New Section 10 gives powers to remove the individual and family members who are not defined. None of the amendments in this group is about not removing persons who are unlawfully here, which is a different argument, but about who is to be removed and how. The Delegated Powers and Regulatory Reform Committee has expressed concerns about the provisions not being in the Bill. We have of course already seen draft regulations. They are in the pack that my noble friend has arranged for noble Lords to see, which contains a whole group of statements of intent, regulations, codes, statements of fact and so on. I thank him for that. I forgot to take it home with me on Friday but I read it, or the right bits, before tabling these amendments.
The Delegated Powers Committee found it,
“difficult to understand why operational experience should have any effect on who is to be treated as a family member”,
and recommended that the definition in the draft regulations be placed in the Bill. That seems to be an appropriate provision. Draft Regulation 4 requires notice to be given to a family member facing removal, which reflects what is currently in the 1999 Act, but the Bill provides only that regulations “may” provide for that notice. I hope that the Minister can explain to the Committee why this should not be a requirement. It seems an absolutely fundamental point and other noble Lords will have seen briefing to the effect that it has been made by the judiciary as well.
There is also a draft regulation providing that the giving of notice invalidates any leave to enter or remain, in the case of the family member previously held, that is currently in Section 10(8). Again, why should safeguards currently in primary legislation not be included in the Bill?
There are always provisions about service of notices in the draft regulations, although I do not know whether they are usual. It may not be a point for debate in Committee today but I could not help noticing that the draft regulations provide for recorded delivery of the notice that requires signing for, but there is deemed service. There must be a risk, for instance, that someone else in the house will sign for receipt of notice of something that is crucial to the person who may not actually receive it. There are deemed service provisions elsewhere in the regulations.
Less technically perhaps, there are directions for removal ceasing to have effect if the family member ceases to belong to the family. Again, that is a current provision and it would be absolutely appropriate for it to be in the legislation. In the Commons Committee, the Minister gave a number of assurances. Of course I accept them, but Governments change, as sometimes do regulations as well.
I cannot recall if the sword of Damocles fell at the end of the tale, but I am concerned about how long it may hang—perhaps for a very long time—and whether it may hang at all over a family member who has a right to leave, enter or remain in the country in his or her own right. This group extends further than these two amendments. Although we may appear to be starting the Bill almost half way through the journey—in the philosophical as well as the practical sense—that someone seeking to enter or remain in our country will make, these are very important issues. I beg to move.
My Lords, I wish to speak to Amendments 5, 6 and 7 in my name, and in that of the noble Baroness, Lady Lister. I speak as a member of the Joint Committee on Human Rights. These amendments were recommended in the eighth report of that committee on the legislative scrutiny of this Bill. Following the Government’s response to the committee, it produced a further legislative scrutiny report and again recommended these amendments.
The intention in Clause 1 is very simple: to simplify processes for removing people who are in the United Kingdom unlawfully and provide for removal of members of the person’s family, which provides a new Section 10 to the Immigration and Asylum Act 1999. The question of which member of an individual’s family can be removed following the removal or planned removal of an individual is to be decided in accordance with a number of policies. For example, a family member who has been a victim of domestic violence in accordance with the definition in the Immigration Rules will not be removed. Similarly, a member who is no longer in a family relationship will not be removed. There will undoubtedly be debate in your Lordships’ House about who can and cannot be removed under these provisions. Of course, the Government have stated that removals will be in accordance with existing immigration law and our international obligations.
New subsection (6) provides the Secretary of State with the power to make regulations about who is a family member and the period within which such a family member may be removed. New subsection (6)(c) provides that regulations may be made about,
“whether a family member to be removed is to be given notice and, if so … the effect that being given notice has on the person’s leave, and … how notice is to be served”.
The Government have stated that family members will always be notified if they are facing removal. In those circumstances, it is legitimate to ask why the Bill contains a provision enabling the Secretary of State to make regulations about whether notice should be given to such a person. As drafted, this clause indicates that regulations could provide for circumstances in which notice would not be given. Going by the Government’s response, that is not what they intend to do.
Amendments 5, 6 and 7 would remove the uncertainty about whether a person is to be given notice; they would provide that where a family member is to be removed, he or she is to be entitled to notice, and that regulations may then provide for the effect of being given notice and how notice is to be given. It is very simple: this would reflect the Government’s stated intention. It is profoundly important that people who are already in a state of some uncertainty are not left in unnecessary further uncertainty.
I will now refer to the report of the Delegated Powers and Regulatory Reform Committee, to which the noble Baroness, Lady Hamwee, referred. I am a member of that committee. In its 22nd report, the committee referred to the delegation of the power to make regulations about when a person is considered to be a member of a family. That power is delegated under new subsection (6) to the Secretary of State. The committee’s report notes that the Government “have helpfully produced” the draft regulations to which the noble Baroness, Lady Hamwee, referred, and that they contain a definition of family members for the purpose of Section 10 of the Immigration and Asylum Act. It is the view of the committee that it is “inappropriate” to delegate the power to define a family member in these circumstances. No case has been made to exclude from the Bill this very important provision. I therefore ask your Lordships to consider very seriously the report by the DPRRC and to contemplate why such a fundamental and basic provision does not appear in the Bill.
Finally, Amendment 8, in the names of the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, gives effect to the recommendation of the Delegated Powers and Regulatory Reform Committee that the broad powers contained in new Section 10(6) be subject to the affirmative procedure because the powers delegated are not merely in relation to procedural powers, when a negative procedure is appropriate, but are capable of very wide application. I support this amendment, which retains the necessary powers for your Lordships’ House.
My Lords, there are some very welcome amendments to this Bill, and I will speak shortly to Amendments 1 and 4.
As someone who owes his life to a country that was willing to provide sanctuary at a time of extreme danger, as my wife and I secretly left President Idi Amin’s regime in Uganda, I feel strongly about these matters. This is not to say that I do not recognise the need for proper border control. States have the right to guard their citizens from any real negative impact—social or economic—of excessive immigration. Nevertheless, Amendments 1 and 4 are actually very helpful in a number of ways.
First, I apologise that I was not in the House for the Second Reading on 10 February, but I was pleased to see the comments of the noble Lord, Lord Taylor, that day. He said:
“The Bill does not undermine individual rights; rather, it strengthens them. The arbitrariness of whether the family life threshold has been met is replaced by clarity and consistency”.
He went on to say:
“It streamlines the process of removing illegal migrants while protecting the vulnerable. … Families being removed will continue to benefit from the coalition’s commitment to end child detention. … We will protect the vulnerable”.—[Official Report, 10/2/14; cols. 416-18.]
However, undue haste is rarely in the interests of fairness, especially when people are disorientated, confused and fearful. While I can see the merits of bringing the decisions together, giving people only 72 hours to access the legal support and advice necessary to make an appeal is not helpful. What if someone is unwell or on holiday? I can hear those responsible having no answer to make other than, “'Tough luck”. It is only fair that if a person is to be removed they be given adequate notice. The amendment in the name of the noble Lord, Lord Avebury, would have it that the date of removal was given at that point. This is perhaps better than receiving a letter simply saying that you are liable to removal, although either makes it clear that preparations must be made, which is better all round. Of course, some will say that giving notice gives the opportunity to abscond, but, on balance, it is more humane to give notice. The determination is there for those who are regarded as at risk of absconding: they can be detained.
Amendment 4 is another vital amendment that is consistent with the earlier amendment. It would remove the possibility that a family member being removed might receive no notice. It seems to me that, if they did not receive notice, in a society like this that would be not good. I therefore support Amendments 1 and 4.
My Lords, I shall speak particularly to Amendments 1 and 2 but also to Amendments 4, 5, 6, 7 and 8, as I shall explain.
At Second Reading, I explained to the House that the whole business of enforced removals was by no means new as far as examination from outside was concerned. Indeed, in 2008, I handed the Home Secretary a document called Outsourcing Abuse, which referred to 78 cases where injuries or death had been inflicted on people who were being removed forcibly from this country. I was then a commissioner on the Independent Asylum Commission, which made some far-reaching recommendations about the whole process. In December 2012, I handed the Home Secretary the report of a commission on enforced removals, which made another series of recommendations relating to the Home Affairs Committee report published earlier that year.
Although Part 1 of the Bill has the sub-heading “Removal Directions”, what is lacking from the whole enforced removal process is overall direction. I was very grateful to the Minister, who was accompanied by the noble Earl, Lord Attlee, for meeting me last week with the Bill team, when I gave him what we had in effect drawn up in December 2012, which was a draft code of practice laying down precisely what should be done in the Home Office as well as by the contractors who are responsible for the removal. The draft also provided for oversight of the whole process, which is sadly lacking at the moment. I was grateful to the Minister for saying that he would take away the document and study it, having referred it to the Minister for Immigration, because it is further reaching in the whole enforced removals process than the content of the Bill. Therefore, I did not table it as an amendment.
However, I should like to inform the House about the content of that document, which is really three codes of practice. The first is all about the actual conduct and the preparation of the case. It refers to duties of the Home Office, which we suggested should establish a complex returns panel to deal with single returnees who refuse either a voluntary or an assisted return in the same way that the Independent Family Returns Panel deals with families. I am very glad that Amendments 4, 5, 6 and 7 deal particularly with the families, and the Independent Family Returns Panel has been a qualified success ever since it was appointed. However, I do not think that that is good enough for the whole process, because the vast majority of people taken back are single people, some of whom have very complex cases indeed.
The document also refers to a group of people who have suffered from totally inadequate supervision and direction for years: the case owners in the Home Office. Frankly, I reckon they are both inefficient and incompetent. I do not reckon that they have ever truthfully told Ministers exactly what has gone on. That has meant that Ministers have not been in possession of the facts. Therefore, we put in the code of practice a lot of things that must be done to oversee the case owners and make certain that they are competent to carry out their task, including having a detailed understanding of immigration law.
Then we come to staff in the immigration detention centre, because that is where the returnee is based. Frequently, the detention centre staff know quite a lot about the person being returned which is not passed on to the case owner and is therefore never taken into account. That causes some of the problems in returns. We believe that immigration detention centre staff must be brought into the process.
Finally come the contractors—the people who provide the detention custody officers taking the person back. Again, this is a sadly neglected part of oversight at present. The contractors have behaved appallingly badly, in public and in front of the Chief Inspector of Prisons when he was accompanying a flight. That they are prepared to do that in front of him suggests that for years they have got away with—literally—murder. It is time that that was stopped. We suggest what must happen to them.
The next part of the thing is oversight. We believe that the Home Office must establish a clearer description and direction of oversight. It has the ideal person to do that in the Independent Chief Inspector of Borders and Immigration. I have met the chief inspector on a number of occasions and know that he is very keen to improve on what he has done already. The difference he has made since he was appointed in 2007 is enormously marked, as I note from when I was Chief Inspector of Prisons and responsible for doing detention centres. If he is given oversight over the process, particularly the practicalities of it, Ministers will find that a lot of the problems that currently appear and are listed under their names will disappear because somebody is responsible and accountable for making certain that those problems do not arise.
I will not speak to the final part of the code of practice at this moment because it refers to the use of restraint, which comes under Clause 2 and Schedule 1. However, my purpose in all this is that underlying everything that has gone on for far too long in the whole conduct of immigration has been what we described in the Independent Asylum Commission as a “culture of disbelief”. It is time that that was eliminated. I find very worrying at the moment that, although the UK Border Agency has been eliminated, I do not detect in the Home Office the leadership of the three silos that have been appointed to take over those jobs. The intentions of this Bill will be achieved only with leadership and drive of the whole process, starting with a determined attack on the 500,000 backlog—it will be defeated only by a determined attack.
My Lords, I hesitate to follow such a powerful speech and will speak only briefly because important points have already been raised about the amendments. Briefly, I support Amendments 5, 6 and 7, tabled by the noble Baroness, Lady O’Loan, on behalf of the Joint Committee on Human Rights. As she pointed out, in their response to our eighth report—our first legislative scrutiny report on this Bill—the Government said that they would give consideration to the amendments suggested by the JCHR. That is about as good as it gets: the Government will give consideration. They gave away very little indeed in response to our report. We were optimistic that at least something would have happened on this, but nothing has happened. The case has been made as to why it is so important that this provision is placed in the Bill itself. It is not sufficient for it simply to be in regulations or for there to be the very welcome ministerial assurance. It should be in the Bill.
I simply ask the Minister whether he is still considering the case, or has he considered it and decided against it? If so, why? It seems such an eminently reasonable amendment that was proposed by the JCHR and had been supported in various ways by noble Lords.
My Lords, I am reminded in this debate of a conversation I had in Yarl’s Wood immigration removal centre several years ago with a mother—a black woman—who had been removed. Unfortunately, in the process of removal from her home for detention she was injured. Ten months on she was still suffering from the injury that she received. Her 16 year-old daughter—a child with a younger sister of eight years of age—spoke to me about her anger at the injury on her mother and her frustration at being detained for 10 months without trial.
Perhaps this is not the appropriate amendment to bring this in, for which I apologise, but listening to this discussion I commend the coalition Government for their decision early on to minimise as far as possible the detention of families prior to removal. I warmly congratulate them on taking that move.
My other point—again it is probably not the right place to ask about it—is that I am concerned about the training and development of those officers who go to homes to remove families with their children. I would be interested to know how far they have social childcare training akin to what a residential childcare social worker might have, and how far they are supervised by a child and family social worker. It might be helpful on a regular basis that they should be so.
I would be interested in the answers to that sort of question, perhaps not at this point but later in the course of the discussion.
My Lords, I support everything that has been said by the noble Baroness, Lady Lister, the noble Lord, Lord Ramsbotham, and the noble Earl, Lord Listowel. In particular, the words of the former Chief Inspector of Prisons must carry very serious weight in this particular discussion.
I am looking at what is happening to the outsourcing of many of these functions and thinking of the question asked by the noble Earl, Lord Listowel, just now. What are the qualifications and the development of those who are now involved in these private companies with this particular action? How do they exercise their duties?
The Minister made a statement last year concerning the call from Her Majesty’s Chief Inspector of Prisons not to use force against pregnant women. He told the House that:
“The recommendation in the report by HM Inspectorate of Prisons on Cedars pre-departure accommodation that force should never be used to effect the removal of pregnant women and children was rejected by the UK Border Agency”.—[Official Report, 10/4/13; col. WA 313.]
At the moment, the powers of forced removal—I hope I am not misinformed here—apply only to the immigration Acts of 1999 or 1971. Enlarging this and making it applicable to any immigration inquiry is a very dangerous move. I ask the Minister for his assurance on these matters.
Also, as mentioned already, the culture and the evidence we have of the methods used do not show any change. What are the Government doing to make sure that when this enforced departure has to be undertaken it is done in a humane way?
My Lords, I agree with what my noble friend has just been saying, particularly about the failure of the Home Office to deal with the serious criticisms of the case owners that were referred to earlier by the noble Lord, Lord Ramsbotham. The whole point about disbanding the UKBA and returning these functions to the control of the Home Office itself was that by common acknowledgement, including that of the Home Secretary herself, the UKBA had become dysfunctional and something had to be done. However, what has in fact been done since it was disbanded is that the case owners are not the same persons who were making decisions before and were manifestly incapable of doing the right thing, by reason of the fact that a very large number of the appeals against their decisions were upheld by the tribunal. It would be useful if we had an answer to both that question and the noble Lord’s further question about the consideration of Outsourcing Abuse, the report to which he referred, which never had the consideration that I believe it deserved in the Home Office but is crucial to the future health and efficiency of the people who are making these fundamental decisions, which affect the lives of so many people.
On these amendments, I agree with the Delegated Powers Committee that the definition of “family members” must be in the Bill and limited to those whose leave to enter or remain in the UK is expressly dependent on the principal’s leave to enter or remain. For example, a family member who came to the UK for work or study, not as the dependant of the principal, should not be included in the definition. That seems to be the effect of Regulation 3 of the draft Immigration (Removal of Family Members) Regulations 2014 but, as has been said, it should be in the Bill. As the Delegated Powers Committee found, the justification for placing both this and the time limits for removal in secondary legislation—that they may have to be amended from time to time—is not borne out by experience over many years and through a good many immigration Acts.
Draft Regulation 4 has the same effect as Section 10(1)(c) of the 1999 Act, providing that notice has to be given to any family member who is liable to removal, but the Bill provides only that notice “may” be given, as my noble friend Lady Hamwee pointed out in moving the amendment. This is partly covered by our Amendment 4, but the Minister may wish to consider placing the obligation to give notice firmly in the Bill. As ILPA makes clear in its briefing, quoting the noble and learned Lord, Lord Steyn, giving notice is vital for the legality of the decision to remove a person so as to give him the opportunity of challenging the decision before the courts. The Secretary of State’s attempt to remove certain persons without notice has been ruled unlawful by the High Court and the Court of Appeal. In short, the powers and safeguards dealing with the identification of family members who may be removed, the question of when the powers may be exercised and the notice to be given should all be in the Bill, as should the provisions of Section 10(5) of the 1999 Act, providing that removal directions should cease to have effect against a person who ceases to be a family member.
My Lords, I will not at this stage make any comments relating to the extension of enforcement powers but will wait until we discuss Amendments 12 and 13. We are not opposed to the principle of Clause 1 but we have questions to raise. We cannot see what the problems for the Government would be in accepting Amendments 5, 6 and 7, and we await the Minister’s response with interest.
We have Amendments 2 and 8 in this group. Amendment 2 is not dissimilar to that moved by the noble Baroness, Lady Hamwee, and provides that a person should be given written notice of their liability for removal. According to the Government, there are approximately 14,000 enforced removals a year, with people being arrested, detained and then removed, and about 29,000 people depart voluntarily to a greater or lesser degree. Apparently, an enforced removal costs about £15,000.
The Immigration Act 1971 requires written notice of decisions to give, refuse or vary leave to be in the United Kingdom. Currently, migrants are told if they are not allowed to be here, and they are then told separately about their removal. Under the Bill, the Government want to be in a position to serve only one decision that gives, refuses or varies leaves and, following that decision, where notice has been given, those who do not have leave to remain will be subject to removal without a separate removal decision or notice being required. It seems that the notice giving the decision on leave to remain will tell the immigrant of their destination for removal, advise them to seek early legal advice and place them under a duty to raise any asylum, human rights or European free movement issues with the Home Office. It is not clear why this is not stated in the Bill. No doubt the Minister will explain why and indicate what else will be required to be included in this decision notice. Apparently, the decision notice will be issued at least 72 hours before any removal is attempted, which is in line with the amount of notice given currently when a removal decision notice is issued. Will the decision notice make clear the individual’s liability to removal, and will it state when, where and how that removal will take place? I look to the Minister to give a response to that question when he replies. Will the minimum 72 hours apply to family members? The draft regulations refer to,
“at any time prior to … removal”.
I hope the Minister will respond to that question. Included in the decision notice will be options for voluntary departure and the consequences of not so departing. Will the Minister say what the consequences of not departing voluntarily will be that will be set out in the notice and, once again, why that should not be in the Bill?
Since financial reasons appear in part to be behind the provisions in Clause 1, will the Minister say what the Government anticipate those savings will be and what impact the change to not having a separate removal notice will have on the number of enforced removals and on the number of people departing voluntarily? Perhaps he will also say what impact the Government expect the change to having no separate removal notice will have on the net migration figure each year, since one assumes that one key purpose of the Bill, as far as the Government are concerned, is to have an impact on that overall figure. It seems unlikely that the current system will be strengthened if the time gap between an individual receiving notice that they do not have leave to be in the United Kingdom and the time they are removed if they do not leave voluntarily is longer than under the current arrangements, under which a separate notice of removal decision is issued. Will the Minister say how long it currently takes, on average, for an attempt to be made to remove a person following a refusal to grant or vary leave being made, how long it takes following the removal decision being sent, and how long the Government intend it should take under the proposed arrangements with only one decision notice being issued in the light of the intention that a decision notice will be issued at least 72 hours before a removal is attempted?
Amendment 8 provides that the regulations that the Secretary of Sate can make about the removal of family members under Clause 1(6) should not be made unless a draft has been made before and approved by resolution of each House of Parliament. The Bill does not provide for this to be the case in respect of regulations under Clause 1(6), which would not be subject to the affirmative procedure. Clause 1(6) enables the Secretary of State to enable regulations that, in effect, define who should be considered a “family member” and the period during which they may be removed. Surely legislation should be clear about the people who are subject to the powers it contains. The Secretary of State’s definition of a family member, which could be wide-ranging, should be subject to full discussion and affirmative approval by both Houses.
As has already been said, the Delegated Powers and Regulatory Reform Committee considers that this clause conferred an important power, enabling the removal of persons from the United Kingdom, and that it should, in the absence of very good reasons to the contrary, be clear in the primary legislation who is subject to it. That committee was not convinced by the Government’s argument for placing the definition of a family member in regulations.
The Government have stated that matters relating to family members are detailed and potentially require change in the light of operational experience. The committee commented that this purported justification is undermined by no such change having been needed over very many years during which there have been numerous immigration Acts and a litany of Immigration Rules changes. I have no doubt that the Minister will wish to comment on that.
The committee said that it found it difficult to understand why operational experience should have any effect on who is to be treated as a family member, and that it could see no reason why the draft regulations should not be set out in the Bill. Accordingly, the committee considered the delegation of the power to define a family member to be inappropriate, but accepted that it was appropriate for other matters relating to the removal of family members to be set out in regulations, particularly procedural matters relating to the exercise of the power of removal. However, since the powers in this clause are not limited to procedural matters but are expressed in very wide and general terms, the committee recommended that the broad scope of the powers conferred should be subject to the affirmative procedure, which is what Amendment 8 would achieve.
I can see no reason why that should not be the case and good reasons why it should. I hope that the Minister will reconsider the Government’s apparent stance on this point.
My Lords, this has been a welcome start to the Bill. Although we have strayed into some of the subsequent elements in discussing this, that is inevitable because the Bill knits elements together. It is proper that we see how the provisions of Clause 1 fit into the other aspects of the Bill.
I think that we can all agree that our current system for removal is too complex. It requires a number of decisions and notices to be made and served. Separate refusal and removal decisions can cause confusion to migrants as to when they need to leave the UK and lead to legal challenges being made later in the process
I start by considering the two amendments so ably moved by my noble friend Lady Hamwee. We know that she works assiduously on these Bills, whether or not she has taken home the guidance brochure this past weekend. Amendments 1 and 2 would ensure that a person must be given written notice of their removal. Amendment 1 also mandates setting out the date and approximate time of that removal. While I understand the broad intention behind Amendment 1, this would inadvertently reintroduce a layer of complexity, which the whole purpose of the clause is to reduce.
The intention behind Clause 1 is to move to a system where only one decision is made and served, giving, refusing or varying leave. Following that decision, those who require leave but do not have it will be removable.
I can confirm to my noble friend Lady Hamwee, and indeed to other noble Lords, that such people will all receive notice of the decision in writing, in accordance with Section 4 of the Immigration Act 1971, so it is unnecessary to place an additional notice requirement within this clause. This notice will inform them of the decision on leave, of their liability to be removed if they do not depart voluntarily, and the proposed destination for any enforced removal.
It would not be feasible to provide a date or approximate time of removal in this notice. Not all those who become liable to removal will be facing an enforced removal, as we—and, I think, all noble Lords—would always prefer that those who do not have valid leave to be in the country should return home voluntarily. This allows the migrant to depart on their own terms, is more cost-effective for the taxpayer, and, if the migrant leaves without the use of taxpayer resources, they can reduce the likelihood of, and possibly avoid, a re-entry ban.
I turn to the comments of my noble friend Lady Hamwee on the deemed service of the decision. She will be well aware that “deemed service” replicates the existing notice provisions, which have been shown to work effectively and are interpreted with a degree of flexibility, such that if the person can show that they received the notice at a later date, we will accept that as the date of service. There are established procedures on the delivery of notice and, indeed, they are set out in the regulations.
All migrants will be given the opportunity to raise with the Home Office any asylum, human rights or European free movement reasons why they believe they are entitled to stay in the UK. They will be informed that they are under a duty to do so at the earliest opportunity if their circumstances change, and will be advised to seek any legal advice as early as possible.
I hope I can reassure the most reverend Primate the Archbishop of York, who I am delighted is participating in our debates today, that the common law principles of access to justice mean that migrants will be given sufficient time—a minimum of 72 hours—to raise such grounds before any removal can be enforced. They will be reminded of the fact that they may be removed from the UK if they do not depart voluntarily during any contact management events. If the migrant’s removal is enforced but they are compliant with the process, they will be informed of when to check in to the port of departure. If the migrant is not compliant, they will first be detained, where they will be informed when removal is imminent.
The noble Lord, Lord Ramsbotham, mentioned our very productive meeting. Although I cannot share his view of the hard-working people we ask to handle this difficult task on our behalf, I note what he says about oversight. I should say that quality assurance checks are part and parcel of the process. However, we recognise that there is room for further improvement. As such, we have an ongoing programme of work to continue to monitor and progress our decision quality.
Amendments 4 to 7 seek to remove the discretion in the regulations as to whether we notify family members of removal. We have already stated our intention that family members will always be given notice where they are to be removed. I hope that it pleases the noble Baroness, Lady O’Loan, and my noble friends Lady Hamwee and Lord Avebury, that it is our intention to work out how to address the recommendations of the Joint Committee on Human Rights on Clause 1. We will amend the Bill on this subject. However, I remind noble Lords that it was only on 21 February that we received the report of the Delegated Powers and Regulatory Reform Committee, making some similar recommendations. We are working out how to address both issues on Report. I hope I will return on Report. I reiterate that we will amend the Bill to meet the issues raised by these reports.
I now turn to Amendment 8. I appreciate the concerns raised by the noble Lord, Lord Rosser, about the processes surrounding the removal of family members which have led to his tabling this amendment. At the risk of jumping ahead of ourselves, Clause 67 sets out the proposed parliamentary procedures in respect of various order and decision-making powers provided for in the Bill. It already specifies that any power to make an order or regulations is exercisable by statutory instrument and that, for this particular power, it is under the normal process of negative rather than affirmative procedure. The draft affirmative procedure is normally reserved for those orders or regulations that amend or repeal primary legislation, or develop policy in a way to require significant parliamentary debate, or where the intention behind the power to make them is not clearly set out in the Bill. This Bill is clear on the intent of the regulations. The scope for a Government to construct anything that would require significant debate in a statutory instrument deriving from it is limited.
The existing removal powers that are in force allow the removal of family members. Unlike in deportation cases, there is currently no statutory definition of what constitutes a family member. That is a matter left to the Home Office. By defining this in regulations—noble Lords have referred to the draft regulations that have appeared in the memorandum that has been circulated—the Bill will give new clarity to families so that they will know exactly who may be liable to removal. It will also provide further parliamentary oversight that has until now been absent. Following scrutiny of this clause in the House of Commons, and at the request of the right honourable Member Mr David Hanson, my honourable friend Mark Harper, the former Immigration Minister, arranged for a draft of these regulations to be published and a copy is placed in the Libraries of both Houses.
Perhaps I might ask the Minister a question. The Delegated Powers and Regulatory Reform Committee referred to the Government’s argument that these matters are best placed in regulations because the definition of “family member” or the time limits for removal may change within a limited extent. It commented that this purported justification is undermined by no such change having been needed over a period of very many years during which there have been numerous immigration Acts and a litany of immigration rules changes. Since the Delegated Powers and Regulatory Reform Committee, subject to what the Minister may say, appears to have shot the Government’s arguments to bits, why is the Minister still resisting ensuring that this is done by the affirmative process?
I think that I have made it clear that the affirmative process is used where there is an opportunity for the Government, in effect, to change policy through a statutory instrument, which then gives rise to a reasonable demand by Parliament for the opportunity to debate the measure. As I have said, we are going to bring forward more explicit changes to the Bill to reflect the concerns shown by the comments of the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee. It would probably be best if we waited until then to see what they say before we rush to change the procedure by which these matters have been considered in the past. It would be helpful to the House to wait until these changes are produced.
The draft regulations are designed to reflect the immigration rules. If a person can come to UK and be granted leave on the basis of a family relationship with another migrant, it is only right that such a person could be removed along with the lead person who has no leave to be in the UK. The Delegated Powers and Regulatory Reform Committee made recommendations about this clause that I am considering further. I will respond in detail on these recommendations before we consider the matter again on Report. That would be the right time, and I urge noble Lords to wait and see where these considerations lead us.
The noble Lord, Lord Rosser, asked a number of questions. If I do not cover them all now, I will certainly write to him. We will write to address his questions about the timescale of decision-making on removals and the carrying out of those decisions because I understand that this matter is of interest to a number of noble Lords. As to the impact on the number of removals, Clause 1 does not permit new categories of people to be removed; all those who can be removed under the clause can already be removed. It does not extend the powers to remove people but there is currently a more complicated set of procedures than will exist through the measures in the Bill. Clause 1 is about making removals more efficient.
Is the Minister saying that the provisions in Clause 1 about what the Government would regard as streamlining the procedure are not actually designed with the intention or hope that they will lead to more people who are not entitled to stay here and do not have leave to remain in the United Kingdom leaving the country than at present? Is that not the purpose of these changes?
No, the purpose of the changes is to make sure that people who are subject to removal leave voluntarily rather than through enforced removal. I am sure that the noble Lord and most noble Lords would agree with that proposal.
We will ensure that family members who have valid leave to remain in the UK in their own right will not be removed. We propose to remove only dependants of persons with no right to be in the UK. Where dependency is broken, such as when it involves a victim of domestic violence, the former dependant is expected to apply for leave to remain in their own right—and, if necessary, they will be removed if they were unsuccessful as a main applicant. We will also look at the best interests of the child in making any decision under our obligations—of which noble Lords are well aware—regarding victims of human trafficking.
This has been a helpful debate. I hope that I have been able to whet noble Lords’ appetite for a government response on this important clause before Report. I can reassure them that family members will always be notified if they are facing enforced removal. The draft regulations underscore this and make it clear how notice is to be given. In the light of those points, I hope that the noble Baroness will agree to withdraw the amendment.
I still have not understood the Minister’s logic. I appreciate and want to commend the removal of the two-stage approach—the fast-forward immigration decision and then the removal decision. That has caused difficulty to a lot of people whom I have been representing and the Secretary of State knows that because we have had wonderful conversations. Therefore, I applaud that. But if there are 72 hours in which you can appeal the decision, what is the problem of giving notice in writing of the date and approximate time of the removal? People could still appeal within 72 hours. Why not state that? I cannot understand the logic. Can the Minister please help me?
The purpose of the notice is not to put people under notice as to the exact timing of when they will go. It is intended that they should be informed of where they will be removed to because that might have a bearing on human rights considerations. But the actual timing of their removal is an administrative matter. To my mind, it would be a complication that might reduce the effectiveness of these measures if the actual timing of their removal also had to be part and parcel of that notice.
If experience shows that it is possible to be more precise in working this new arrangement, I have little doubt that we will come back to the House to seek ways in which that can be done. But for the time being, it is expecting too much to be able to be precise about the actual time and date of a person’s removal when serving this notice.
Is the Minister quite sure about that in the light of what the noble Lord, Lord Ramsbotham, said about the way that this thing will work—that it will not be very efficient and that people will not be very good at it? Now the Minister is saying that there will be an administrative decision by the Secretary of State. How can we be certain that the kind of problems that the noble Lord, Lord Ramsbotham, drew our attention to, which are real experiences that everyone knows about, will not affect the changes we are looking for?
I can be certain that when people get a decision about the refusal of their right to remain they will be removed if they do not make arrangements to go voluntarily. That is a step forward. I hope noble Lords will appreciate that much of what the Government are trying to do, including bringing Border Agency activities into the Home Office, is designed to make sure that as we develop better oversight of decision-making within the Home Office and within UKVI we will have a more efficient process in the detail that the most reverend Primate suggested.
How long will those who have been told that they no longer have leave to remain be given to make arrangements to leave voluntarily and how long will it be before a decision is made that they are not going to leave voluntarily and that enforced removal is required?
It will be for them to make arrangements with UKVI on the basis of the notice that they have been given. We are not looking for enforcement as being the primary objective of the policy. I think the noble Lord would agree that voluntary departures are what we would prefer to see happen.
Following what the most reverend Primate said, perhaps I may say how pleased I was to hear the use of the word “better” just now in terms of oversight. I ask the Minister to accept that, hard- working though they may be, case workers have not been very good at their task and neither has there been oversight. If they had been and there had been oversight there would not have been this endless history of problems and complaints for years and years, which have been ignored. The time has come for that ignoring to stop. Therefore, I am relieved to hear mention of better oversight.
My Lords, the critique of what happens in practice from someone experienced as an inspector has clearly resonated around the House. We have already talked during the passage of the Bill—and I am sure we will talk again—about the importance of practice. Whatever is on paper, whether in the Bill or in regulations, is a precaution against bad practice, but it is the good practice that is important. Given the Minister’s assurances about coming back at the next stage, more formally we hope, with responses in the form of amendments to the comments of two committees, it would obviously be inappropriate for me to spend very long at this stage responding to the points that have been made. However, I will say that, like others, I read between the lines: three days does not seem very long in which to decide what to do about a decision that has been handed down and to make arrangements. But there we are.
The Minister suggested that my first amendment would reintroduce complexity. I was actually seeking to provide more clarity. When he referred to there being a provision somewhere else in the raft of immigration legislation that deals with notice in writing, I could not help thinking that consolidating all this legislation has defeated Government after Government, but it is something that is sorely needed.
I make one perhaps tiny point just to clear the undergrowth before the next stage. The noble Lord referred to Clause 67 of the Bill as providing for the negative procedure. I would have thought that it was the regulations and orders section in the 1999 Act—which actually takes us to the same point as it being negative—that would apply as Clause 1 is replacing a section of the 1999 Act. It would be helpful if before Report we could understand what the relevant provision is so that those of us who might be minded to suggest amendments know that we are proposing amendments to the correct section or clause. However, I am glad that we will have amendments on regulations which the Minister talks about as changing policy. Regulations set policy before it gets changed by subsequent regulations. That is what many of us are concerned with. I beg leave to withdraw Amendment 1.
Amendment 1 withdrawn.
Amendment 2 not moved.
3: Clause 1, page 2, line 16, at end insert—
“( ) paragraph 18B (detention of unaccompanied children);”
I rise to move the amendment standing in the name of my noble friend Lord Taylor of Holbeach and will speak to the other amendments in the group. We believe that the Government have transformed the approach to returning families with children in line with their coalition agreement commitment to end the detention of children for immigration purposes. We now propose, through these amendments, to give legislative effect to our current policies on family returns by putting key elements of the new process into primary legislation.
Ending child detention was previously debated during Committee in the House of Commons as a result of amendments tabled by my honourable friend Julian Huppert MP. In Committee, the then Immigration Minister, my right honourable friend Mark Harper, agreed that the department would see whether it was possible, either in whole or in part, to put some or all of current government policy into primary legislation. On Report in the House of Commons, my right honourable friend the Home Secretary announced the proposal to reinforce the commitment to end the detention of children for immigration purposes by putting these four key elements into primary legislation.
The new family returns process was established in March 2011 after extensive consultation across government and with a wide range of children’s experts. It ensures that families with no right to be here are given every opportunity to leave without the need for enforcement action. Where families do not co-operate, it enables officials to take steps to ensure that they leave. This may include a short stay in pre-departure accommodation, but this would be as a last resort and always for the shortest possible time.
While we have transformed our approach to managing family cases, detention powers derived from immigration legislation are needed to place families in our new pre-departure accommodation. They are also needed to hold a family for a few hours at the border when they have arrived without the appropriate leave and are awaiting their return flight. Exceptionally, we may also need to hold unaccompanied children: for example, where it is in the public interest because of a risk of reoffending or a risk to national security. They may also be held for a very short period on arrival pending collection by social services.
We believe that the new process works well, but could be reversed through a simple policy change. These amendments provide for four statutory locks which guarantee that the fundamental elements of this approach cannot be changed without full parliamentary oversight and debate. I turn now to the four locks.
First, we will prevent families being removed for 28 days after any appeal against a refusal of leave has been completed. Currently, following the conclusion of an appeal, families are placed into the returns process, which gives them time to consider voluntary return. This 28-day restriction will ensure that these families will always have an opportunity to consider their options and avoid enforced return. We always seek to ensure that families remain together during their return, but in exceptional circumstances we may need to remove an adult family member during this 28-day period: for example, where there is a public protection concern or a risk to national security.
Secondly, we will place a statutory duty on the Secretary of State to appoint and consult the Independent Family Returns Panel for advice on how best to safeguard and promote the welfare of children in every family returns case where return is enforced. This will mean that the panel is never sidestepped. Thirdly, we will provide a separate legal basis for pre-departure accommodation independent of other removal centres. We will ensure that it can be used only for holding families with children and we will lock in the existing maximum time limits for holding families there.
Fourthly, we will provide specific legislative protection for unaccompanied children so that they are not held in immigration removal centres when we are trying to return them. Unaccompanied children may need to be held for short periods in transit to a port of departure or at the port awaiting departure, but in line with current policy we will provide that they are not held in these short-term holding facilities for more than 24 hours. These removals are fortunately rare, and, wherever possible and in line with existing policy, removals would always be carefully planned so that children are held for as short a time as possible.
It is possible that a removal attempt will be unsuccessful for reasons beyond our control: for example, if a plane develops a technical fault. Where this happens, children will not be held beyond 24 hours. It may be necessary, however, after a suitable period, to attempt removal again, which may require holding them for a further period. While it is vital that we enforce immigration decisions in these circumstances, we will not hold children for multiple 24-hour periods to achieve this. I beg to move.
My Lords, I welcome these amendments. There is frequently talk in this House, and rightly so, about caring for the interests of children, reference to Section 55, the paramountcy principle and so on—but sometimes it is easier to say it than to put it into practice. These amendments articulate the practice and are about more than just principle.
In 2009 I was refused a visit to Yarl’s Wood by the Home Office. I never discovered whether I was thought to be subversive or whether I was thought likely to be someone who might attempt to spring a detainee, but I have visited Cedars. Yes, it is for detention for the reasons we have heard, but it is also about caring for people and preparing them for return. Having seen the facilities there and talked about the work that goes on, I have to say that the Cedars centre is a great deal preferable to scooping up a child and putting them straight on a plane out of the country. The care that is given and the thought that goes into the preparation impressed me very much. When I was there, I asked about the boundary wire round the premises. Although it was quite inconspicuous, it seemed to give the feel of detention, and I had observed it going in. I was told that it was to keep out local troublemakers.
I have a number of questions. One is about allowing one parent to be returned within the 28-day period, which might mean that a family is split and a child is separated from one parent. Will my noble friend tell the House about the circumstances in which separation would occur? Secondly, subsection (2)(b) of proposed new Clause 78A talks about a single parent or a carer. Is a carer a local authority foster parent? What is a carer in this context?
As regards the family returns panel, will my noble friend give the Committee assurances about how its independence will be assured? Secondly, for reasons that I think will be obvious, will he give assurances about whether the individuals concerned will have a means of giving information or making representations to the family returns panel, or checking that the information that it receives from others is accurate? These are important provisions.
As regards unaccompanied children, other noble Lords may remember the very effective and impressive Member of this House who died some years ago, Baroness Faithfull—Lucy Faithfull. I recall her talking about meeting an unaccompanied child arriving from, I think, Somalia. She told the story of having gone to Heathrow to meet this child in a social work capacity with a bar of milk chocolate to give to the child as a present. This child had never encountered milk chocolate before and was really scared about what she was being asked to eat. That story has remained with me as an example of the cultural gulf that has to be crossed and the hard work needed in dealing with children who arrive here unaccompanied.
In what circumstances is this provision used and what change in policy does it indicate? We have had confirmation that multiple 24-hour periods will not be applied, but will my noble friend say something—I do not know whether I missed it—about monitoring the use of the provisions and publishing data on the number of occasions, the circumstances and the length of time an unaccompanied child is detained, and so on?
My Lords, I, too, pay tribute to government Amendments 10, 14 and 15; 10 because of the Independent Family Returns Panel about which the noble Baroness, Lady Hamwee, spoke. I agree with the importance of independence. There is no doubt that the Independent Family Returns Panel has made marked improvements to the process since it was formed, and that it is very well led and well worth listening to. I commend the coalition on the determination with which it has pursued the detention of children. Having served on the advisory board early in 2010, soon after the election, I am glad to see this clause in the Bill.
Finally, I am very glad to see the place of detention at Cedars, and I commend Barnardo’s for the way that it has conducted the care of families who have been in that place.
My Lords, I, too, welcome this amendment. The noble and right reverend Lord, Lord Williams of Oystermouth, and I visited Yarl’s Wood when he was Archbishop of Canterbury. We were quite surprised and shocked, and made very clear representations about this particular question of the detention of unaccompanied minors. I am very grateful for what is happening here but again, like the noble Baroness, Lady Hamwee, I want to know whether the Minister can give us an assurance that there will be monitoring of the 24-hours issue and that it will not turn into a norm that nobody can question, so that we can find out whether this is healing a very difficult problem. However, for all of that, I welcome this particular amendment.
My Lords, this amendment is certainly a move in the right direction, but the one anxiety I have is that it still leaves matters very much in terms of systems and the responsibilities for ensuring systems are running properly. If we put ourselves in the position of the unaccompanied child, who may be going through all sorts of mental turmoil and agony—bewildered, uncertain and desperately in need of friendship and help—it would be good to hear a little about the Government’s thinking on how these real psychological, and consequently very often physical, needs of the young person are being dealt with. We have debated the policy in this Bill in previous years and, ideally, the child in this situation needs a personal champion, who is there throughout the process, advising, talking to and consulting them—if you like, a counsellor, who is there to enable the child to make sense of what is happening and being proposed and to enable the child to start developing his or her own views about what they really want to take place.
My Lords, these amendments, which are all concerned with the detention and removal of children, either on their own or as part of families, are a reflection of existing government policy, which, in the absence of these amendments, could be reversed without parliamentary oversight, as the Home Secretary observes in her Factsheet: Ending the Detention of Children for Immigration Purposes, issued last month. In fact, children are still to be detained, but in places described as “pre-departure accommodation”. The only place identified as such so far is, as has been mentioned, Cedars near Heathrow, which has hitherto been included in the list of short-term holding facilities to be discussed in the next amendment. It appears to me that holding children in Cedars is still detention, as I think my noble friend Lady Hamwee remarked, because the families are still deprived of their liberty, albeit in far more congenial surroundings than in immigration removal centres and even though they are no doubt looked after far better by child-friendly Barnardo’s than the impersonal money-making subsidiary of Capita that runs the IRCs.
Amendment 9 allows for a 28-day grace period following the exhaustion of appeal rights before a child and the relevant carer may be removed, during which it is hoped that agreement can be reached on their voluntary departure. This system is already operating on a non-statutory basis, but it would be useful if my noble friend could say what statistics there are on voluntary, as compared with forced, departures up until this point. In addition, are any resettlement grants available to families who agree to voluntary departure and what are the details of the organisation through which the voluntary departures and any associated grants are organised? They used to be organised by the International Organisation for Migration, but I think that that has changed in recent years.
One assumes that, where Amendment 9 confers power on the Secretary of State to issue removal directions or a deportation order within the 28-day period, the directions or order will not come into effect before the expiry of the 28 days. However, should that not be made explicit in subsections (4)(a) and (4)(b) of the new clause?
The Independent Family Returns Panel, whose functions are defined in Amendment 10 and which has been referred to by my noble friend and others, advises the Home Office on how best to safeguard and promote the welfare of children in a family that is to be returned. We see, however, that the Secretary of State will appoint all the members and decide the status and constitution of the panel. Any other matters concerned with the panel’s operation will be determined by secondary legislation, which is also under the Secretary of State’s control. We have not received advice on how the label “independent” is to be made a reality, but perhaps my noble friend will have some suggestions when he replies.
We would also like to know whether, in the regulations, it is intended that means will be provided whereby families and their legal representatives can present information directly to the panel—a matter that was raised by my noble friend Lady Hamwee—or whether they can verify or challenge the information presented to the panel by the Home Office or others. We would like the family to be given copies of the Home Office’s immigration factual summary and family welfare form routinely, without having to make a subject access request. In fact, copies of all forms or documents connected to a case, and of the conclusions reached by the panel, should be made available to the family. I would like my noble friend to consider that point in his reply.
The new clause proposed in Amendment 14 is headed “Restrictions on detention of unaccompanied children”, which acknowledges that there are still circumstances in which children need to be detained. There is no way of avoiding detention pending the transfer of a child to social services or where there is a reasonable suspicion that the child is being trafficked. ILPA suggests that, in cases of that sort, the power in Section 46 of the Children Act 1989 for police to remove a child liable to suffer significant harm to suitable accommodation should be used, but I understand that that would require an immigration officer to explain the situation to a police officer rather than act on the information that he has. That would take time and cause delays.
We are told that returns of unaccompanied children are extremely rare and it would be useful again if my noble friend could tell your Lordships what the number in the latest convenient year for which the information is available was. Could he also tell the Committee what the Home Office is hoping to do as regards the return of unaccompanied minors to Afghanistan and Albania in particular, a matter that we understand is under consideration by the Home Office?
My Lords, it is a pleasure to follow the noble Lord, Lord Avebury, with whom I had the honour to sit on the House of Lords European Union Sub-Committee F, when we looked particularly at issues around immigration. He may have been with us when as a committee we visited Yarl’s Wood immigration removal centre to take evidence. I am interested in the answers to what the noble Lord, Lord Avebury, asked when referring to encouraging voluntary return and in having some detail about what incentives are being offered on that. I share his concern about gaining some reassurance about the independence of the Independent Family Returns Panel, and I am also interested in what he said about the need for figures on the detention of unaccompanied children in the past.
My chief wish at this point—using this as the right place this time—is to pay tribute to the coalition Government for this huge change in the safeguarding of children. It was harrowing to visit the Yarl’s Wood immigration removal centre both as a member of the House of Lords European Union Sub-Committee and on two previous occasions early in the centre’s existence. Yarl’s Wood immigration removal centre, which took these families, was based very much on a category C prison, so it was very familiar to me, having visited Feltham young offender institution. One would see a mother, with her young child, coming through the admission room—just like Feltham, with the barred gate—and what would a child be thinking, having that experience, walking through this prison?
I pay tribute to the first Children’s Commissioner, who produced a number of important reports, which highlighted, for instance, how in going from admissions to the family wing there might be seven or eight separate doors that had to be opened with keys by the warder. There were important improvements to the regime under the Labour Government. However, towards the very end, as I said, I met a 16 year-old girl. Can your Lordships imagine what any girl or young woman would feel who was detained for 10 months, through no fault of her own or any action that she did wrong, separated from the pleasure of being with her peers? What can that be like? Of course, one understands why she was so angry with me and with us for allowing this to happen to her and her family.
I express my heartfelt thanks to the coalition Government for improving this situation so greatly, and I welcome these amendments.
My Lords, there are many things that show exactly what the heart of a nation is. One is the way in which we treat children of all races and all different backgrounds.
I remember 30 years ago at the time of the Ethiopian famine being in Tel Aviv and then in the Galilee and receiving the children and the folk from Operation Solomon. They came with nothing at all: the adults in their white gowns and the labels on their foreheads indicating who they were, and the children—well, I held one or two of them in my arms and they were so different from my own grandchildren. I am so grateful that my grandchildren are robust and enjoy life; these little children had nothing to enjoy.
Children are children wherever they are, whatever their background, and they need to be treated with respect and kindness wherever they happen to be. One reason I supported the coalition when we had those votes in 2010 was that the declaration came that we as Liberal Democrats would end the detention of children for immigration purposes. I am not sure that I would be in the coalition if it was not for that promise. Now we are on the last lap, I think, of showing that we really believe that.
In 2009, 2,000 children were detained for immigration purposes. In December last year, 22 children were detained some time or other during the month—not for days but for hours. There is the last lap, as has already been mentioned, where no child should be detained, but we are on the right course. I do not often compliment the Minister—although I hope he is a very good friend—on what is happening with the end of detention of children for immigration purposes.
Imagine a child—one of my own or your Lordships’ grandchildren, whoever they might be—waiting with their parents. The stress that their parents feel, which of course is transmitted to them, is terror. We are removing that terror. There is more to be done. Looking at the measures proposed, is this still the last resort, as it was previously? How and where can we bring this to fruition, so that our nation—I should say four nations: Wales, Scotland, England and Northern Ireland—will be shown to be a nation with real heart and real concern? I will be so happy if that can be the case.
My Lords, I associate myself with the comments that have just been made on this important area by my noble friends Lord Avebury and Lord Roberts and by the noble Earl, Lord Listowel, who always speaks so eloquently on these matters. I apologise in advance if the points have already been covered, but I think that they need to be underlined further and made very clear.
We have had excellent briefings from Barnardo’s, which we know does so much work for these children. We know that unaccompanied children have been temporarily admitted to the United Kingdom, but they are not routinely detained prior to their return. There is concern, and government assurances have been sought, as to whether this situation could change in the future. It is worth making sure that unaccompanied children who are admitted temporarily will not start being routinely detained. I speak as somebody who in their previous role was a councillor in a local authority which had to deal with a fair number of unaccompanied children. All councils have responsibility as corporate parents to those children because they come into their care. My experience of those children who came into our care was always positive. I remember attending award ceremonies for children some of whom had come from worn-torn countries in a vulnerable and traumatised state but had gone on to become academically so proficient that they gained places in universities. They had turned their lives around with the right support. As the noble Lord, Lord Judd, said, when these children go before any panel that is to decide their future, it is important that councils in their role as corporate parents ensure that they are properly supported and represented, as any parents would do for their own children. They should get the right support and advice when it is being determined whether they remain or are returned, or whatever is best for their future. I would like an assurance on that.
My Lords, I always say that childhood lasts a lifetime, and all children need the best start in life. These amendments will give these children the best possible start and I congratulate the Government on putting them forward. I want to raise just one point on behalf of Barnardo’s—I speak as a vice-president of that organisation. I congratulate Barnardo’s on having made an important effort to make sure that all children are taken care of if they happen to come to this country in unfortunate circumstances. Although Barnardo’s welcomes the 28-day reflection period being enshrined in the law, it is concerned about the drafting of the clause, as it would allow one parent to be returned within the 28-day period as long as there is another parent to care for the child. This in effect allows any family to be split and for the child to be separated from one of their parents, with no restrictions on the circumstances in which it should happen. Barnardo’s believes that a child should be separated from their parent against their will only if it is in the best interest of the child; for example, if there are safeguarding concerns such as domestic violence. It wants appropriate safeguards to be put in place to prevent children being separated from their parents and traumatised in any way. I look forward to hearing the Minister’s response on this issue.
My Lords, I am not entirely sure that this is an appropriate intervention; if not, I apologise and I shall be very brief. I happen to live near Dover. My wife has chaired a considerably large housing association in the area. It received a frantic call one day from the county council, saying, “We simply can’t cope. We’ve got all these unaccompanied minors arriving”. Those children came and it got to know them and so on. The majority of them were absolutely intentionally unaccompanied immigrants. Having been put on a boat in Calais and told to throw their passport into the water as they went across, they came into this country and there was nothing that we could do to change it. Is that situation still the same and, if so, can the Minister perhaps comment on that aspect of it also?
We welcome the Government’s amendments, which lay down requirements in the Bill in relation to the removal of families with children and also unaccompanied children. We will consider the objectives of the Government’s amendments, which the Minister gave in moving Amendment 3. No doubt we will do so in more detail in response to the questions and points that have been raised today.
My Lords, I am grateful to all noble Lords who have taken part in this debate. I acknowledge the welcome that has been given to these particular moves. I assure your Lordships’ House that the Government take very seriously our duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to carry out our functions,
“having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”.
As I indicated in moving the amendment, the intention is to lock in, on a statutory basis, what has been an administrative change in policy. I assure my noble friend Lady Hussein-Ece that that is the purpose here; it is not to lay the pathway towards a change in policy. We believe that we have implemented a good policy, one that has commanded support from all quarters of your Lordships’ House. We wish to ensure that that cannot be undone in future except by a change to primary legislation.
Noble Lords commented on Cedars. I confess that I have not been there; that is something I maybe ought to do given what has been said about it in the course of this short debate. My understanding is that it could not be further in look or feel from an immigration removal centre such as Yarl’s Wood. It is important to emphasise, again, that families are held there only as a last report, for only a short period prior to their return and only after safeguarding advice has been sought from the independent family returns panel. Since Cedars was established, Barnardo’s has provided dedicated social work, welfare services and family support to children and their families there. I echo the compliments and praise paid to the work of Barnardo’s by a number of those who have contributed to this debate.
I will try and respond to a number of points. First, my noble friend Lord Avebury asked some questions about numbers. There are published data on voluntary returns, enforced returns and other outcomes in the family returns process. I will certainly send those data to my noble friend. I do not have details as to what the voluntary packages look like but if I can I will try to set out some of those, too. I think everyone would agree that if a voluntary arrangement can be made it is a far better outcome, not least for the dignity of the family. However, published statistics show that, under the old system, 1,119 children entered detention centres such as Yarl’s Wood in 2009, and 436 in 2010. By contrast, the latest statistics show that in the first three-quarters of 2013, seven children—at that time believed to be adults—were held in immigration removal centres and subsequently released following an age assessment. Some 64 children have been held briefly at the Tinsley House family unit after being stopped at the border and 68 children have been held at the new pre-departure accommodation for very short periods prior to leaving the United Kingdom.
On Amendment 9, my noble friend Lady Hamwee asked who a carer is in proposed new Section 78A(1)(b) and whether that included the local authority. No, the carer must be someone who has been living with the child and subject to removal as well. That rules out local authority carers but captures a situation where, for example, a child is part of a family unit with an aunt. In those circumstances, the family unit would benefit from the protection here.
My noble friends Lady Hamwee and Lady Benjamin raised the possibility of families being separated during the 28-day reflection period. As I sought to emphasise when moving the amendment, we will always seek to ensure that families remain together during the return. However, temporary separation may sometimes be necessary to safely ensure the family’s return. We would not separate a family solely for a compliance reason. It would always be where it was considered in the best interests of the child to be temporarily separated from their parent or where the presence of one of the parents or carers was not conducive to the public good. We would never separate a child from both adults for immigration purposes, or from one in the case of a single-parent family, if the consequence of that decision is that the child would be taken into care.
My noble friend Lord Avebury asked whether we can always give families a copy of the factual summary in the case. We have been working on making these documents more readily available. I am sure your Lordships’ House will readily appreciate the sensitivities involved in sharing these documents and the timings of the returns process. Indeed, one of the particular concerns is that individual members of a family may have provided information in confidence. There is a level of sensitivity around this, although as I indicated we have been working on making those documents more readily available.
My noble friends Lady Hamwee and Lord Avebury asked about the independence of the Independent Family Returns Panel. Appointments to the panel are made in accordance with the code of practice published on 1 April 2012 by the Commissioner for Public Appointments. This ensures that panel members are appointed on merit following a fair and open selection process, and the process does not compromise the panel’s independence. It includes an independent chair and other members with safeguarding and medical expertise, and provides independent advice to the Home Office on the method of return of individual families when an enforced return is necessary. The advice provided by the panel helps ensure that individual return plans take full account of the welfare of the children involved and that the Home Office will fulfil its responsibilities under Section 55 of the Borders, Citizenship and Immigration Act 2009.
I was also asked about the situation regarding the detention of unaccompanied children. I sought to make clear when moving the amendment that it is possible that a removal attempt will be unsuccessful for reasons that may be beyond the Government’s control. For example, a plane may develop a technical fault. When this happens, we accept that children should not continue to be held in a short-term holding facility for more than 24 hours. They should be released and given time to rest and recuperate. But the fact that a removal attempt is unsuccessful should not mean that such people are automatically entitled to stay in the UK. It should still be possible to enforce immigration decisions. It may therefore be necessary, after a suitable period, to attempt removal again and this may require a further, short, period of detention.
I reiterate what I said earlier. While it is vital that we enforce immigration decisions in these circumstances, we will not hold children for multiple 24-hour periods in order to achieve this.
One of the points raised by the noble Lord, Lord Northbourne, relates to holding unaccompanied children who arrive at the border. Where a child is travelling alone or is identified as a potential victim of trafficking, we may need to hold them for a very short period while we arrange for them to be taken into the care of local children’s services. I do not have figures as to how often this has happened, but all border force officers are given training on trafficking and child protection, so they know what to look out for. To support this we use a system of risk profiles, alerts, and intelligence tools to give officers the information they need to intervene in cases of suspected trafficking.
The noble Lord, Lord Judd, asked about a counsellor for unaccompanied children. It is the view of the Government that the child’s needs and interests are best protected by all the professionals already involved in the care-working. It is better that they do this together and that they each perform and fulfil their statutory responsibilities. Local authorities have a statutory duty to ensure that they safeguard and promote the welfare of children under Section 11 of the Children Act 2004 regardless of the immigration status of the children. I rather suspect that some of the valuable work done by Barnardo’s also helps support children, who I accept are at a very difficult time in their lives.
I think it has been recognised by those who have contributed to this debate that, in view of how difficult and sensitive this could be, the Government have taken great strides to try to put this on a proper basis. It is very different from what it was in the past. I recommend these amendments to your Lordships’ House.
I believe it is time for the amendment to be agreed.
My Lords, I am very grateful to the Minister for his response to my observations on unaccompanied children. I wonder whether it would be possible for the Government to make provision whereby it was required that every unaccompanied child subject to a removal process should have a qualified and transparently independent counsellor specifically allocated to them to guide them through what may be a nightmare situation.
My Lords, I hear the noble Lord’s point and I think I understand what lies behind it. I was trying to make a point about what our view has been. We should probably also recognise that unaccompanied children may arise in a number of different circumstances. For example, as I was indicating, some might potentially be the victims of child trafficking, which might raise a different set of considerations from others. If a professional team has already been involved in a case, we would not want to cut across that by bringing in someone new at that stage. I recognise the importance of what the noble Lord is saying; I will reflect on it and if there is more that I can add to the answer that I have given, I will write to him.
Amendment 3 agreed.
Amendments 4 to 8 not moved.
Clause 1, as amended, agreed.
Amendments 9 and 10
9: After Clause 1, insert the following new Clause—
“Restriction on removal of children and their parents etc
After section 78 of the Nationality, Immigration and Asylum Act 2002, insert—“78A Restriction on removal of children and their parents etc
(1) This section applies in a case where—
(a) a child is to be removed from or required to leave the United Kingdom, and(b) an individual who—is also to be removed from or required to leave the United Kingdom (a “relevant parent or carer”).(i) is a parent of the child or has care of the child, and(ii) is living in a household in the United Kingdom with the child,is also to be removed from or required to leave the United Kingdom (a “relevant parent or carer”).(2) During the period of 28 days beginning with the day on which the relevant appeal rights are exhausted—
(a) the child may not be removed from or required to leave the United Kingdom; and(b) a relevant parent or carer may not be removed from or required to leave the United Kingdom if, as a result, no relevant parent or carer would remain in the United Kingdom.(3) The relevant appeal rights are exhausted at the time when—
(a) neither the child, nor any relevant parent or carer, could bring an appeal under section 82 (ignoring any possibility of an appeal out of time with permission), and (b) no appeal brought by the child, or by any relevant parent or carer, is pending within the meaning of section 104.(4) Nothing in this section prevents any of the following during the period of 28 days mentioned in subsection (2)—
(a) the giving of a direction for the removal of a person from the United Kingdom,(b) the making of a deportation order in respect of a person, or(c) the taking of any other interim or preparatory action.(5) In this section—
“child” means a person who is aged under 18;
references to a person being removed from or required to leave the United Kingdom are to the person being removed or required to leave in accordance with a provision of the Immigration Acts.””
10: After Clause 1, insert the following new Clause—
“Independent Family Returns Panel
Before section 55 of the Borders, Citizenship and Immigration Act 2009, insert—“54A Independent Family Returns Panel
(1) The Independent Family Returns Panel is established.
(2) The Secretary of State must consult the Independent Family Returns Panel—
(a) in each family returns case, on how best to safeguard and promote the welfare of the children of the family, and(b) in each case where the Secretary of State proposes to detain a family in pre-departure accommodation, on the suitability of so doing, having particular regard to the need to safeguard and promote the welfare of the children of the family.(3) A family returns case is a case where—
(a) a child who is living in the United Kingdom is to be removed from or required to leave the United Kingdom, and(b) an individual who—is also to be removed from or required to leave the United Kingdom.(i) is a parent of the child or has care of the child, and(ii) is living in a household in the United Kingdom with the child,(4) The Secretary of State may by regulations make provision about—
(a) additional functions of the Independent Family Returns Panel,(b) its status and constitution,(c) the appointment of its members,(d) the payment of remuneration and allowances to its members, and(e) any other matters in connection with its establishment and operation.(5) Regulations under this section must be made by statutory instrument.
(6) An instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(7) In this section—
“child” means a person who is under the age of 18;
“pre-departure accommodation” has the same meaning as in Part 8 of the Immigration and Asylum Act 1999;
references to a person being removed from or required to leave the United Kingdom are to the person being removed or required to leave in accordance with a provision of the Immigration Acts.”.”
Amendments 9 and 10 agreed.
11: After Clause 1, insert the following new Clause—
“Short-term holding facilities rules
(1) Within six months of the passing of this Act, the Secretary of State must make rules for the regulation and management of facilities maintained for the purpose of the detention of a detainee for a period up to 7 days (“short-term holding facilities”).
(2) Short-term holding facilities rules may, among other things, make provision with respect to the safety, care, health, activities, discipline and control of detained persons.”
My Lords, as the Minister is aware, we have been concerned about the disgraceful conditions of the short-term holding facility at Heathrow Airport for some time. These facilities and others like them are not subject to any rules making provision for the health, safety, care, activities, discipline and control of the persons detained in them, unlike immigration removal centres, which have been subject to a set of rules of this kind since 2001.
The short-term holding facilities are defined in Section 147 of the Immigration and Asylum Act 1999 as places,
“used solely for the detention of detained persons for a period of not more than seven days or for such other period as may be prescribed”.
These facilities are needed for persons either arriving in the UK whose status is being investigated by an immigration officer or being returned to their country of origin, having exhausted their rights of appeal. All 36 of them are managed by contractors on behalf of the Home Office. The main provider used to be G4S but that role has now been taken over by another private contractor, Tascor, highlighting the fact that the Home Office itself no longer has the expertise in-house to resume the management of operations that have been privatised and are no longer effective.
Since 2006, when the UN’s optional protocol to the UN convention against torture came into effect, we have been required to provide inspections by an independent expert body to routinely visit and report on all places of immigration detention to prevent the inhuman and degrading treatment of detainees. This task is being performed both for immigration removal centres and for short-term holding facilities by the Chief Inspector of Prisons, whose remit extends well beyond that of the convention to detainee welfare, the need for a decent and respectful approach to detainees by staff and the physical conditions of detention. In the case of the IRCs, there are detailed rules governing such matters as welfare and privileges, religion, communications, healthcare, requests and complaints, and it has been the Government’s intention, ever since 1999, to publish an equivalent set of rules for short-term holding facilities. Drafts of the rules were published in 2006 and there was a consultation on them, but a final version was not presented to Parliament. In 2009, the same thing happened again: there was a draft followed by a consultation, but no sign of the finished product from that day to this. When inquiries were made of policy officials in the Home Office on my behalf, those officials said,
“the rules have been subject to various delays and as such have yet to be finalised”.
That was more or less the same as the answer the Minister gave when the noble Lord, Lord Ramsbotham, asked him about when the rules would appear.
In October 2010, the detention user group was told that a reason for the delay was that two of the five HMRC custody suites at Colnbrook and Gatwick would potentially be used to hold immigration detainees, and it was necessary to go through the draft rules to see which of them could or could not be applied to these suites. It was proposed to get the Minister’s agreement in principle the following month. Unfortunately, the detention stakeholder group was then disbanded by the UKBA early in 2011, and since then the DUG’s repeated requests for an update have been met with a wall of silence.
I expect my noble friend will agree that a delay of five years following two sets of consultations is unprecedented in the history of secondary legislation, and I wonder whether the reason for the delay is that at both Gatwick terminals the family room is not fit for purpose while at Heathrow the conditions under which children are being held are degrading and disgraceful, according to the independent monitoring board.
Taking all the STHFs at Heathrow together, I estimate that 17,400 people, including 1,300 children, were detained in the year ending 31 January 2014, an increase of 16% on the previous year, and a slight contrast with the figures given by the Minister in the previous debate when he was talking solely about children being detained in the IRCs. Unfortunately, none of the accommodation at the Heathrow terminals, Cayley House or the Cedars is residential, so detainees who are held overnight either have to sit up in hard chairs or be taken to Tinsley House near Gatwick and back again, a journey that can take the best part of two hours, depending on the time of day. The Cedars pre-departure family STHF near Heathrow is high-standard but little used, and I wonder whether it might be upgraded for overnight stays. I estimate that last year some 2,600 people were held at Heathrow for more than 12 hours, and it is profoundly unsatisfactory that we provide nowhere accessible where families can sleep.
Publication of the rules would expose the fact that the Immigration Control (Provisions of Facilities at Ports) Order does not require the provision of showers, family rooms or screened lavatories, and that airport authorities—Heathrow Airports Ltd in the case of Heathrow—have dragged their heels in providing the space for basic amenities. My noble friend now tells me that HAL’s budget for redevelopment of facilities at terminal 4 will be released on 1 April and that the best target date for completion of all the works recommended by the independent monitoring board is the end of the year.
My noble friend said that he could not let me have a copy of the plans because they were due to be revised, though I am aware that others have received copies, which presumably are only provisional. He also omitted to answer my question about whether the additional space needed for the expanded facilities had been secured. The Minister for Immigration visited Heathrow on 27 February, and I hope he was assured that the area occupied by the port medical inspector would be freed because arrangements are being made for TB screening overseas, and this means that the PMI will move to terminal 3, releasing the space for the short-term detainees. I would be grateful if my noble friend would confirm this agreement, and if he would place a copy of the plans in the Library of your Lordships’ House.
The Association of Visitors to Immigration Detainees is concerned that men and women are held together in STHFs; for example, at Pennine House near Manchester Airport. This is an issue which has been raised frequently by the chief inspector, and it may be another reason why the rules remain unpublished. AVID highlights three gaps in the protection regime arising from the absence of rules. There is no equivalent of rule 35, which applies in IRCs and is the mechanism which prohibits the detention of a person making a plausible claim to have been a victim of torture.
Rules 40 and 42, dealing with the removal from association and temporary confinement of a detainee, do not apply in the STHFs, and neither does rule 41 on the use of force, or rule 43 on special control and restraint. There is no statutory guidance on the provision of healthcare, on admissions and discharges, detainees’ property, welfare regime, clothing, food, hygiene and religion. There is no guidance on the role of the independent monitoring boards. Indeed, not all STHFs even have independent monitoring boards, Gatwick South being a glaring example.
The amendment is generous in allowing the Government yet another six months from the passing of the Bill to produce a set of rules which has been delayed for so long. I beg to move.
My Lords, I stand again to support this wonderful amendment with its mover. What is going on here? This makes sense to me. There are detention centre rules which govern immigration removal centres, but the short-term holding facilities in airports, as has already been mentioned, are very different. In some of them—for example, Pennine House in Manchester where, sadly, a Pakistani man died last July—people can be held for up to seven days. There need to be published rules to provide a sound governance structure. Without that, we will not be reassured. People can be held at times of great personal and familial stress. The intention behind the amendment is to make sure that these facilities make good provision, with clear rules, for safety, care, health, activities, discipline and control of detained persons. Who would argue against that?
My Lords, I support the amendment so ably moved by the noble Lord, Lord Avebury. When I took over as Chief Inspector of Prisons and was given the responsibility for immigration detention centres, I was horrified to find that all of them were geared only for the short term and had no long-term arrangements for people who were there for a long time. When I went into it, I discovered that the reason for this was the lack of direction from the Home Office. There was at that stage the Immigration and Nationality Directorate, which was meant to be running the centres, and they were all let out on contract, but there was no overall drive, no direction.
The fact that we have now been waiting for longer than World War II for this matter to be resolved suggests that that lack of direction and drive obtains across the whole immigration detention centre system anyway. I am still told by members of immigration monitoring boards that, in fact, the centres where people are held—sometimes for years, let alone months—are not geared to look after their needs in any more than the short term, about which I asked last October and which has been so ably described by the noble Lord, Lord Avebury. It is important not just that the Government do this in six months, but that they appoint someone responsible and accountable for overseeing these centres, and seeing that things actually happen.
My Lords, I appreciate the concerns of my noble friend Lord Avebury, the comments of the noble Lord, Lord Ramsbotham, and the concerns of the most reverend Primate the Archbishop of York. They have caused my noble friend to table the amendment, and caused us to debate not just the rules but the provision of facilities.
I start by reassuring the noble Lord, Lord Ramsbotham, that in the past year the Home Office has been in acute dialogue with Heathrow Airport Ltd about the Heathrow Airport facility to progress accommodation units. That is now bearing fruit. My noble friend Lord Avebury asked me if I could place information on the design of these facilities in the Library. I understand that HAL, the Border Force and, for that matter, the Home Office are in final discussions on the detailed design stage and, indeed, are going out to contractors for quotes in March of this year—that is, now. If that is the situation, I am sure that I will be in a position to satisfy my noble friend’s request to place a copy of the design in the House Library, and I will seek to do that for him.
I am aware that there has also been a lack of legislative framework governing the operation of the short-term holding facilities. As has been pointed out by noble Lords, this has been a matter of concern for years to a number of interested parties, including Her Majesty’s Chief Inspector of Prisons, who has responsibility for inspecting the UK’s detention facilities. The delay in introducing these rules is regretted, but it has been a case of unavoidable delay being caused by a number of different reasons, including, most recently, the discussions surrounding the legislative framework that should apply to Cedars, which we have just discussed, which initially had been classified as a short-term holding facility and, as such, would have been covered by these rules. We have just debated those amendments. Accordingly, today, I give my noble friend a commitment that separate sets of rules governing the management and operation of short-term holding facilities and the Cedars pre-departure accommodation will be introduced before the Summer Recess. With that, I hope that my noble friend will feel able to withdraw his amendment.
It remains only for me to thank the most reverend Primate the Archbishop of York and the noble Lord, Lord Ramsbotham, for their powerful support for this amendment. I also thank the Minister not only for the very welcome reply that he has given to this debate but for the close attention that he has paid to the correspondence that we have had over the past few months, particularly on the facilities at Heathrow. I am delighted to hear him give the assurance that we will have separate sets of rules for the short-term holding facilities and the pre-departure accommodation within a shorter space of time than I asked for in the amendment. It is rather an unusual experience to have a Minister grant something better than that for which the amendment asks—I think it is probably unique in my 52 years in one House or the other. I can only say how grateful I am to my noble friend and how much we look forward to the implementation of his kind undertakings. I beg leave to withdraw the amendment.
Amendment 11 withdrawn.
Clause 2: Enforcement powers
12: Clause 2, page 2, line 35, at end insert—
“(2) The enforcement powers provided for in Schedule 1 are subject to oversight by—
(a) the Chief Inspector of Borders and Immigration,(b) the Independent Police Complaints Commission, and(c) HM Inspector of Prisons.”
My Lords, Amendment 12 provides for the enforcement powers provided for in Schedule 1 to be subject to oversight by the Chief Inspector of Borders and Immigration, the Independent Police Complaints Commission and Her Majesty’s Inspector of Prisons. The powers introduced by Schedule 1 include escorting and searching detained persons and entering and searching premises. There is also provision for a wider interpretation of the general power to use reasonable force compared with that in previous immigration Acts, and the schedule increases the powers of immigration officers, including with regard to the power to use reasonable force.
This is an important issue, not least in the light of the inquest into death of Jimmy Mubenga in late 2010, following the restraint used as part of his deportation undertaken by a private sector company. In that case, the coroner determined that the cause of Mr Mubenga’s death was an unlawful killing under existing provisions of immigration law. The coroner highlighted several areas of concern, including lack of training in scenario planning in relation to the use of force by private sector companies, dangerous restraint techniques being used at that time and a lack of accreditation of particular officers.
As Schedule 1 now extends the powers regarding the use of reasonable force to previous immigration Acts and gives additional powers to immigration officers on escort, search and entry, we need at the very least some assurances that immigration officials will receive or are now receiving training on the use of restraint and reasonable force that is on a par with that given to police officers. We also need assurances that these increased enforcement powers will be subject to proper oversight, and by whom, and that that oversight will also apply to the private sector. Is it the Government’s intention to issue guidance on how the provisions of Schedule 1 should be enacted, not least the power to use reasonable force, or will it be left to each company and organisation involved to interpret as they see fit how and when to use the considerably enhanced powers that they are being given? Will it be left to each organisation affected to produce its own definition of reasonable force and the circumstances in which it can be used? I hope that that is not the case.
I hope that the Minister will recognise the concerns on this issue, already expressed earlier today, and that, in the light of the discussions that he has had with the noble Lord, Lord Ramsbotham, on a possible code of practice, he will feel able to offer more than a belief—although genuine, I am sure—that everything will be all right on the night. I beg to move.
My Lords, Amendment 12 provides what I believe to be a necessary safeguard to reassure the public that those responsible for enforcement are fully accountable. Accountability is at the heart of all of this. This is surely an improvement as it ensures independent oversight by Her Majesty’s Inspector of Prisons, the Independent Police Complaints Commission and the Chief Inspector of Borders and Immigration of enforcement powers, such as searching persons and premises as well as the general power to use reasonable force. If we are confident that such powers are always fairly and humanely exercised, there is nothing to fear from this amendment. If we are not, then this amendment is absolutely necessary.
My Lords, I will speak briefly on Amendment 12. I congratulate the noble Lord, Lord Rosser, and the noble Baroness, Lady Smith, on bringing it forward.
It is very striking that the positions of the people mentioned who should be involved in oversight are intended to be independent. That is clear with regard to the IPCC, but is also the case with the Inspector of Prisons, as is exemplified by the remarkable record of the noble Lord, Lord Ramsbotham, when he was Inspector of Prisons, and calls on an old tradition that rules will be enforced and kept in respect of the Prison Service, with a long and remarkable record among prison officers in terms of these expectations. I was a Minister of State in charge of prisons for a while and I was impressed by the level of responsibility shown, particularly by prison officers who had worked in prisons for a period of time. They often had a strong sense of responsibility for those with whom they worked, who were held in prisons in the ordinary criminal justice system. There has been nothing like the same level of expectation regarding rules or ethics within the immigration estate as we had in the Prison Service at its best.
Amendments 9 and 10 have already been discussed and I will not return to them, but I will say very loudly that they show how remarkably a concerned and responsible Minister can alter the culture and attitudes of those for whom he or she is responsible and over whom he or she has oversight. The problem, quite simply, is that the Home Office has not had that oversight, particularly in respect of the outsourcing of responsibility for people who are detained or who are held under the immigration provisions of many earlier Acts. That is only too clear in the complaints and concerns that arise over the handling and management of that estate. We are grateful for Amendments 9 and 10. They are very detailed and have been carefully worked out. However, I repeat the question of the noble Lord, Lord Rosser, about whether there is any training for immigration officers who now have the responsibility for enforcement. I will go further and ask whether the Home Office writes into its contracts with the private companies to which it extends the right to run these establishments a specific requirement that the practices that we hope to be embodied in the code will be upheld. Does it hold them responsible for reporting on any breaches of those rules and codes of practice? Does it hold them responsible for any accidents, injuries or deaths that occur in the establishments for which they are responsible? If the number of those is seen to be unusually high or if they are inexplicable, will real consideration be given to withdrawing the contracts as soon as possible? The contracts should clearly indicate that they are conditional on the proper running of those establishments.
I will speak to Amendment 13, in my name and that of the noble Lord, Lord Roberts.
I am very grateful to the noble Baroness, Lady Williams, for highlighting some of the points that were in the code of practice that I gave to the Minister, as I mentioned earlier. I did not read out all the points but I did mention that there were three codes that I had produced. One concerns the use of restraint. I will mention the three elements in that, which say that the Home Office must:
“Confirm the Independent Advisory Panel on Non-Compliance Management … as a permanent establishment”,
and that one member must have,
“experience of both the design and use of restraint techniques in a wide variety of settings, both custodial and non-custodial”.
The Home Office must also:
“Lay down precisely what safe and pain-free restraint techniques are acceptable in various situations such as vehicles transporting returnee to airport, transfer from vehicle to aircraft including in crowded airports, and in economy class on board commercial, passenger-carrying aircraft”.
Finally, the Home Office must “specify compulsory training requirements” for detainee custody officers,
“and other escorts, including compulsory continuation training”.
I repeat that because the amendment in the name of the noble Lord, Lord Roberts, and myself, refers particularly to the use of the word “reasonableness”. I am sure that the Minister will agree that it was not reasonable force that caused the unlawful killing of Jimmy Mubenga in an airport, and the 78 other cases that I presented to the Home Office, along with numerous others. I suggest that the problem is that the Home Office has delegated all use of force to the contracting companies without overseeing it or insisting that anyone do so. I suggest to the Minister that it would be a very good thing if the Home Office thought through and tried to define what “reasonable” is.
It seems to me that there is a mnemonic, “JPLANS”, which provides the circumstances that must be honoured in using force. The letters stand for six phrases. The first: is the force “justifiable”? It might be lawful, but that does not make it justifiable. All other options must be considered before it is used. Secondly, it must be “proportionate” to the behaviour and consequence it was intended to prevent. Any force used should always be the minimum necessary to achieve a lawful objective.
Thirdly, it must be “lawful” in all circumstances and, provided the person has done what he honestly or instinctively thought was necessary in all the circumstances, and no more, that would be good evidence that he has acted reasonably and lawfully. Force must never be used as a punishment to intentionally cause pain, injury or humiliation. Fourthly, use of force must also be “accountable”; one must always be prepared to account for any force used. Force should be used only as a last resort, and one must be able to demonstrate that this was the case.
Fifthly, force must be “necessary” in all circumstances, and consideration should be given to any other reasonable alternatives: could the situation have been resolved without the use of force? Were risk assessments properly carried out before the removal to reduce tension and any consequent need to use force? Could this have included a planned meeting between the escort and the person they were escorting in order to try to build up a relationship that might remove the tension?
Finally, was the force used “safe and supportive”? Techniques and procedures must be applied correctly and safely, and the person on whom they are applied must be monitored to ensure their safety. There are some techniques and facilities that are known to give rise to a foreseeable risk of injuries. They are permitted only in extreme circumstances and will have to be justified by the member of staff who uses them.
I do not think that anyone writing “reasonable” without thinking it through can have applied the JPLANS test. I therefore suggest that the Minister considers a definition of “reasonable” whereby any use of force must be necessary, reasonable and proportionate, and applied for the minimum period necessary to achieve the lawful objective. If that definition were in the Bill, rather than just the word “reasonable”, I would find it a great deal easier to accept. I suspect that it would be much more supportive of the regime that I hope the independent advisory panel will impose, which should not consist merely of repeating techniques designed for use in custody that are wholly inappropriate when removing a detainee.
My Lords, I wish to say a word or two in support of the amendment. Currently, the use of force by an immigration officer is licensed under the Immigration Act 1971 and the Immigration and Asylum Act 1999. Paragraph 5 of Schedule 1 amends this to license the use of force under eight other Acts passed since 1971, and any future legislation that may be included in the definition of “the Immigration Acts”. The Explanatory Notes wrongly claim that this “clarifies” that the power is not limited to the exercise of powers under the 1971 and 1999 Acts, which would mean that the power already exists. In fact, the use of force under any of the eight Acts not already covered would be unlawful until the Bill is passed, as I hope my noble friend will concede.
No justification is given for this extension of the power to use force. On the contrary, there have been huge concerns about the use of existing powers, as in the case of Jimmy Mubenga, and in the report of the chief inspector on the use of force to remove a pregnant woman and her child via Cedars. The former Immigration Minister gave an assurance that the power to use force was confined to immigration officers as distinct from workers employed by private contractors on detention and removal activities. However, private contractors do use force, as has been mentioned and as the noble Baroness, Lady O’Loan, found in her report of March 2010.
In the chief inspector’s report on an unannounced inspection of Harmondsworth in August last year, it was found that a wheelchair-bound, low-risk detainee who had suffered a stroke was handcuffed on a hospital visit, and other cases were noted in which the use of handcuffs was “grossly excessive”, including one case in which the individual was sedated and undergoing angioplasty, and another in which an 84 year-old man suffering from dementia died while still in handcuffs. It is clear that some immigration officers have no idea whatever about proportionality in the use of force—a matter that was referred to by the noble Lord Ramsbotham—and each and every extension of this power should be separately justified.
My Lords, I repeat what I said earlier about the need for proper training and assessment of those who are legally able to use force. I do not have a great deal of confidence in some of these private companies, which have already failed in different ways. The Home Secretary should take very much to heart the suggestion that we need people who are able to exercise their duties in a way that is humane and within the Act because, as the report of the Chief Inspector of Prisons regarding the use of force against pregnant women and children said, it must not be contemplated. We need a review of the whole procedure, which we can come out of with a feeling that at least the best that can be done is being done.
My Lords, I will speak to Amendment 13 of the noble Lords, Lord Roberts of Llandudno and Lord Ramsbotham. The trouble is that paragraph 5 of Schedule 1 widens the authorisation under which immigration officers can use “reasonable force” to cover all their powers in all immigration Acts, rather than just the specific powers of arrest, search and entry given in the 1971 and 1999 Acts. Such blanket permission for something as indefinable as “reasonable force”, as the noble Lord, Lord Ramsbotham, illustrated, is pretty unwise.
Surely it is important that any extension of use of force by agents of the state is justified in detail, rather than in this sweeping manner. For example, the use of force against pregnant women or children in a variety of contexts is problematic. I support Amendment 13 and hope that it will go in the direction of the definition given by the noble Lord, Lord Ramsbotham, of what could be included in the Bill about what we mean by the rather blanket word, “reasonable”. What is reasonable to me may be completely unreasonable to another person, unless it is defined.
My Lords, I will not take up much of your Lordships’ time because what I had wanted to say was said much better by the noble Lord, Lord Ramsbotham. In my reading of Schedule 1, I noted the words:
“The power to search … may be exercised only to the extent reasonably required”.
I do not know what “reasonably required” means; I do not know what “reasonably” means, and I do not know what “required” means. By whom is the power to be used and against what standard? I say to my noble friend on the Front Bench, who knows that I am supportive of this legislation, that the noble Lord, Lord Rosser, has done your Lordships’ House a favour by enabling this short debate to take place. I hope that my noble friend will listen to the variety of views that reflect a similar theme on all sides of the House, and perhaps at a later stage come back with something that is slightly more definitive in relation to “reasonably required”.
My Lords, many noble Lords have mentioned training for immigration officers. What training do they have on understanding the medical conditions such as sickle cell disorder that those with African and Caribbean heritage may have, which can occur under stressful circumstances and may require immediate attention because they can lead to fatal strokes and even death?
My Lords, it may be proper now to raise a point of detail on Amendment 12 in case the matter is taken any further. Noble Lords will know that the Bill applies to Scotland and Northern Ireland as well as to England and Wales. We see that in Clause 69, which applies to Schedule 1 as it does to most other provisions in the Bill. The problem with the amendment is that it refers to two people who have oversight of matters in England and Wales, but does not include their equivalents in Scotland and Northern Ireland. Certainly, so far as Scotland is concerned, there is a separate police complaints commissioner and there is a Scottish inspector of prisons. I am not sure of the details in Northern Ireland but they could no doubt be checked as well. My point is that if the oversight provisions are to be carried across all the jurisdictions, we should be careful to include and mention them in this particular clause.
There was a related point, which the Minister might like to confirm. I take it that the codes that have been referred to apply to Scotland and Northern Ireland as well as to England and Wales. It is very important that there should be uniform standards throughout the entire country in these important matters.
My Lords, this has been a useful debate because it has enabled me to address a number of issues, some of which are the subject of the Bill's provisions and some of which go a little broader to address the role of contractors. The Bill itself and the amendments address only the powers vested in immigration officers. I would like to reassure the noble Lord, Lord Rosser, that effective regulatory oversight of the way in which the new enforcement powers in Schedule 1—and indeed other immigration powers—will be exercised, is already in place.
In England and Wales, the Independent Police Complaints Commission, as the noble and learned Lord, Lord Hope of Craighead, pointed out, provides oversight of serious complaints, matters of conduct, and incidents involving immigration officers and officials of the Secretary of State exercising immigration and asylum enforcement powers. The IPCC’s remit also includes those officials exercising relevant customs and customs revenue functions within the UK Border Force. We should remember that this is UK-wide—there is no devolved power here. This is a reserved power for UK borders.
In relation to Scotland, the noble and learned Lord, Lord Hope of Craighead, is quite right to point out that the Crown Office and Procurator Fiscal Service has the remit to investigate deaths and allegations of criminality in respect of immigration and customs matters. In addition, all complaints about immigration officers and officials of the Secretary of State who are exercising immigration and asylum enforcement powers in Scotland may be investigated by the Police Investigations and Review Commissioner. That does not change under these provisions.
To ensure that this scrutiny is truly nationwide, we have included a provision in Clause 59, following agreement with the Northern Ireland Executive, to enable the Police Ombudsman for Northern Ireland to provide oversight of serious incidents, complaints and conduct matters in Northern Ireland where immigration and customs enforcement powers are exercised. Her Majesty’s Inspectorate of Prisons has a statutory responsibility to report on the conditions and treatment in all places of immigration detention in the United Kingdom. Furthermore, the UK’s border and immigration functions as a whole, including the use of enforcement powers such as those in Schedule 1, are subject to the independent scrutiny of the Chief Inspector of Borders and Immigration, Mr John Vine.
My noble friend Lord Mawhinney asked what was meant by “reasonably required” because that seemed to exercise a number of noble Lords. It means to the extent of finding the object of the search and no further. Indeed, noble Lords might be surprised to know that immigration officers have powers to search people who are being examined in ports for passports and other relevant documents, but they are not permitted to search those in detention for weapons or other dangerous articles that might cause harm to themselves or others. A protective search power is currently only available in respect of people who have actually been arrested. Immigration officers have a number of powers to enter and search premises for the purposes of finding material that would facilitate the investigation of current immigration offences. But the powers do not apply to illegal immigrants in immigration detention who have been arrested by immigration criminal investigators rather than the police.
A further example is that officers can search for relevant documents in the home of an arrested person or the premises at which they were arrested. They are not permitted to search the premises of a third party—for example, those of a relative or partner. The Government, quite rightly, are seeking to ensure that immigration officers have the powers that are currently available to contractors but not to immigration officers themselves.
I hope that my noble friend will excuse me because I readily acknowledge that he knows much more about this subject in detail than I do, but is he telling us that the words “reasonably required” relate only to the object of the search rather than to the way in which the search is carried out?
I set out earlier detail on those people who are responsible for oversight in this matter. Indeed, the training procedures and codes that apply in this area are designed especially to ensure that the people exercising these functions are properly aware of what is considered to be proportionate. I do not think that it is an unusual situation for anyone carrying out activity on behalf of a government agency. Reasonableness is perfectly well understood, which I think most noble Lords will know. I hope that I am being reasonable in the way in which I am answering my noble friend's question.
A number of noble Lords questioned the role of private contractors in this area. As I have explained, the amendments do not address private contractors. But detention staff are subject to a number of oversight and monitoring bodies. All complaints concerning the use of control and restraint are referred to the UKBA Professional Standards Unit, which passes all such allegations to the appropriate bodies such as the police or other oversight bodies where appropriate, and I have explained who they are.
In addition, independent monitoring boards, Her Majesty’s Inspectorate of Prisons and the Parliamentary and Health Service Ombudsman can conduct unannounced inspections of detention premises. Independent observers from Her Majesty's Inspectorate of Prisons and from independent monitoring boards also monitor a number of removal flights from the UK and I am intending to go on one such flight in a few weeks’ time.
Before the Minister concludes his extremely reasonable remarks, may I press him on one point? Those companies to whom the conduct of these issues is outsourced need more than simple reference on to the Chief Inspector of Prisons or the IPCC. Could I therefore press him, before he concludes, about whether we can build in serious incentives to the companies to which these activities are outsourced so that they recognise that their contracts will be at risk if they fail to carry out the expectations of the conduct and behaviour that we are laying upon them in this very sensitive area?
My noble friend Lady Williams of Crosby and the most reverend Primate the Archbishop of York joined the noble Lord, Lord Ramsbotham, in raising the question of the effectiveness of quality control in terms of outcomes, how we enforce contracts, and whether we hold contractors responsible. We do exactly that. We have contract monitoring teams at each detention facility and individual detention and escort contractors are certified by the Secretary of State, and this certification can be withdrawn. As the noble Lord, Lord Ramsbotham, will know, a new training programme is being undertaken by the Home Office in this area. I have invited him to come along and look at the programme and perhaps contribute to its development because we feel it is very important that at the heart of good practice in this area lies oversight on the one hand, good management on the other and, at the bottom of all of that, good training for the operatives. I think it would be the wish of the House and, indeed, the Home Office that that is provided for. My noble friend Lady Benjamin asked if there was particular training given to officers on medical conditions. I am not in a position to give that answer on the spot but I am happy to write to her.
I turn to Amendment 13. We should make it clear that the provision to extend the use of force affects only immigration officers and does not make any change to the powers of contractors, those detainee custody officers and escorts, who have separate statutory powers to use reasonable force in their functions. We believe that immigration officers should be able to use their powers to the fullest extent, where it is necessary. If paragraph 5 were to be removed, it would not affect the majority of immigration powers of examination, arrest, entry, search, detention and fingerprinting, where officers are able to use reasonable force if necessary, as most of these are contained within the Immigration Act 1971 and the Immigration and Asylum Act 1999, as my noble friend Lord Avebury pointed out.
However, there are a small number of coercive powers, which sit in later legislation, where there is no specific reference to the use of reasonable force. Although the use of force is currently implied, we intend that this should be set out explicitly in statute to ensure greater transparency. The use of force in these situations may be necessary for immigration officers to carry out their role effectively and safely, and I have given illustrations of that earlier in my response. I am sure noble Lords will agree that it would be hard to see, for example, how immigration officers could safely arrest a person for the offence of assaulting an immigration officer if they were unable to use reasonable force to restrain that person. It should be noted that the new enforcement powers proposed in the Bill make amendments to either the Immigration Act 1971 or the Immigration and Asylum Act 1999, so will already be covered by the existing provision for immigration officers to use reasonable force where necessary.
I can assure noble Lords that only immigration officers who are fully trained and accredited may use force. Arrest training is currently provided by the College of Policing, and training on the use of force, including control and restraint techniques, is in line with ACPO standards. Published guidance explains that the use of force must be proportionate, lawful, necessary, and age appropriate. It also sets out that force should be used for the shortest possible period, should be the minimum needed, should be used only when all other avenues of securing co-operation have been exhausted, and should be de-escalated as soon as possible.
Every instance where force is used is recorded in a comprehensive incident report. Out of 14,598 enforcement visits in the financial year 2012-13, force against the person was used in a little over 2% of cases. The issue of whether that use of force was reasonable must be justified on a case-by-case basis, as I have been explaining to my noble friend Lord Mawhinney. The extension of the power to use reasonable force will ensure that existing powers are able to be operated effectively, that they are in step with other law enforcement bodies’ powers, and that current enforcement practices are not at any risk of legal challenge on the grounds that the ability to use force is not explicitly set out in statute. Now I hope that I have been able to explain the context in which these provisions of the Bill are being proposed. In the light of these points, I hope that noble Lords will be reassured and feel able not to press their amendments.
I think I can reassure the noble Lord, Lord Rosser, by the actions I took following the meeting that I had with the noble Lord, Lord Ramsbotham. He gave me a copy of the code of practice that he had produced following his review and I was pleased to take it back to the Home Office and feed it into the department. I would like to believe that the points that the noble Lord, Lord Ramsbotham, has made are being reflected in the approach that the Home Office is taking at the moment. There is naturally great interest in what he is suggesting. As I said, we are looking forward to the opportunity to allow him engagement with us on the development of the training programme.
I am not entirely sure whether that means the code of practice will see the light of day in any schedule to the Bill or whether it simply—I do not use the word “simply” in a derogatory way—means that the Minister intends that the Home Office may take account of what is in that code of practice in the practices that the Home Office seeks to ensure are adopted. I think the answer I have had is the latter rather than the former. That is what the Minister’s response indicates. As I understand it, the Minister said in his reply that the oversight powers throughout the United Kingdom are already there through the relevant postholder or commission. I think he has said that the extension of powers under Schedule 1 apply only to immigration officers and not to private contractors, and that appropriate training is or will be given in relation to the extension of the powers on reasonable force. That is what I have understood from the replies the Minister has given.
I shall obviously want to read in Hansard the words the Minister has actually used since it is easy to gain an impression when it is not the correct one. However, I thank him for his detailed response and, if noble Lords will forgive me for not naming them all, I thank them for taking part in the debate on these amendments. I was particularly impressed by the noble Baroness, Lady Williams of Crosby, who indicated that my amendment should have gone further than it did. I am not often told that, but there we are. I have to say that the points she made were extremely relevant. In the light of what the Minister has said, and on the basis that I intend to read his words carefully in Hansard to make sure that I have understood them fully, I beg leave to withdraw the amendment.
Amendment 12 withdrawn.
Clause 2 agreed.
Schedule 1: Enforcement powers
Amendment 13 not moved.
Schedule 1 agreed.
Amendments 14 and 15
14: Before Clause 3, insert the following new Clause—
“Restrictions on detention of unaccompanied children
(1) Schedule 2 to the Immigration Act 1971 (administrative provisions as to control on entry etc) is amended as follows.
(2) In paragraph 16, after paragraph (2) insert—
“(2A) But the detention of an unaccompanied child under sub-paragraph (2) is subject to paragraph 18B.”
(3) In paragraph 18, after sub-paragraph (1) insert—
“(1A) But the detention of an unaccompanied child under paragraph 16(2) is subject to paragraph 18B.”
(4) After paragraph 18A (as inserted by paragraph 2 of Schedule 1) insert—
“18B (1) Where a person detained under paragraph 16(2) is an unaccompanied child, the only place where the child may be detained is a short-term holding facility, except where—
(a) the child is being transferred to or from a short-term holding facility, or(b) sub-paragraph (3) of paragraph 18 applies.(2) An unaccompanied child may be detained under paragraph 16(2) in a short-term holding facility for a maximum period of 24 hours, and only for so long as the following two conditions are met.
(3) The first condition is that—
(a) directions are in force that require the child to be removed from the short-term holding facility within the relevant 24 hour period, or(b) a decision on whether or not to give directions is likely to result in such directions.(4) The second condition is that the immigration officer under whose authority the child is being detained reasonably believes that the child will be removed from the short-term holding facility within the relevant 24 hour period in accordance with those directions.
(5) An unaccompanied child detained under paragraph 16(2) who has been removed from a short-term holding facility and detained elsewhere may be detained again in a short-term holding facility but only if, and for as long as, the relevant 24 hour period has not ended.
(6) An unaccompanied child who has been released following detention under paragraph 16(2) may be detained again in a short-term holding facility in accordance with this paragraph.
“(7) In this paragraph—
“relevant 24 hour period”, in relation to the detention of a child in a short-term holding facility, means the period of 24 hours starting when the child was detained (or, in a case falling within sub-paragraph (5), first detained) in a short-term holding facility;“short-term holding facility” has the same meaning as in Part 8 of the Immigration and Asylum Act 1999;“unaccompanied child” means a person—(a) who is under the age of 18, and(b) who is not accompanied (whilst in detention) by his or her parent or another individual who has care of him or her.”.”
15: Before Clause 3, insert the following new Clause—
“Pre-departure accommodation for families
(1) Part 8 of the Immigration and Asylum Act 1999 (removal centres and detained persons) is amended as follows.
(2) In section 147 (interpretation)—
(a) after the definition of “custodial functions” insert—““detained children” means detained persons who are under the age of 18;”;
(b) after the definition of “escort monitor” insert—““pre-departure accommodation” means a place used solely for the detention of detained children and their families for a period of—
(a) not more than 72 hours, or(b) not more than seven days in cases where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975);”;(c) in the definition of “removal centre”, after “facility,” insert “pre-departure accommodation,”;(d) in the definition of “short-term holding facility”, at the end insert—“but which is not pre-departure accommodation.”
(3) In section 155 (custodial functions and discipline), in subsection (2), at the end insert “and in pre-departure accommodation”.
(4) After section 157 insert—
“157A Pre-departure accommodation
(1) The following provisions of this Part apply to pre-departure accommodation as they apply to removal centres—
(a) section 149 (contracting out of certain removal centres);(b) section 150 (contracting out functions at directly managed removal centres);(c) section 151 (intervention by Secretary of State).(2) In the application of those provisions to pre-departure accommodation—
(a) references to a removal centre contract are to be read as a contract made under section 149(1) for the provision or running of pre-departure accommodation;(b) references to a contracted out removal centre are to be read as references to pre-departure accommodation in relation to which a contract under section 149(1) is in force;(c) references to a directly managed removal centre are to be read as references to pre-departure accommodation in relation to which there is no contract under section 149(1) in force;(d) references to removal centre rules are to be read as references to rules made under subsection (4).(3) The Secretary of State may by regulations extend to pre-departure accommodation any other provision made by or under this Part in relation to removal centres.
(4) The Secretary of State may make rules for the regulation and management of pre-departure accommodation.”.”
Amendments 14 and 15 agreed.
16: Before Clause 3, insert the following new Clause—
“Presumption of liberty
(1) In the event of an application for bail from detention, an immigration office or the First-tier Tribunal must release the detained person on bail unless the First-tier Tribunal is satisfied that there are substantial grounds for belief that if released the person would—
(a) fail to comply with one or more of the conditions of bail or of any recognisance or bond, or(b) while on bail commit an offence which is punishable by imprisonment.(2) In subsection (1), “detention” has the same meaning as in Schedules 2 and 3 to the Immigration Act 1971.”
In moving Amendment 16 I shall speak also to Amendments 20 and 21, and included in this group are Amendments 17, 18 and 19. The first of the amendments sets out a new clause headed, “Presumption of liberty”, which covers exactly what it says. I find the term “bail” quite difficult in this context, with its connotations of the criminal justice system. Detention—or imprisonment, to be blunt about it—should require a positive decision: the rebuttal of a presumption, if you like.
The amendment may read as if I am introducing a philosophical debate, which I suppose I am, but in a rather less high-minded way I am seeking to put into the legislation what is set out in chapter 55.1.1 of the Home Office manual, Enforcement Instructions and Guidance, which states:
“The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used”.
I hope that the Minister will not argue that this is invariably followed because, like other noble Lords, I am sure, I have been given a number of examples of detention where it would be hard to argue that that is so. We are told that the UK detains people for longer than any other European country. As of July last year, 27 people had been detained for between 18 and 24 months, 11 for between 24 and 36 months and one person for up to 48 months. In December last year, some 220 people had been detained for more than six months. Many people are now detained in prisons where detention tends to go on for longer periods.
There are also a number of examples of inappropriate detention. Here I turn to my second amendment, which concerns the detention of people with mental illness. I say “inappropriate detention” as being what might be called a commensurate judicial criticism of their treatment and findings that the detention of people who are mentally ill is unlawful and breaches their Article 3 rights. I do not doubt that there will have been cases we do not know about which were settled before a full hearing, as happens a good deal in this area.
Amendment 20 would remove the statutory provision in the 1971 Act which allows a tribunal to refuse to release on the grounds that the detainee is,
“suffering from mental disorder and continued detention is needed in his interests or for the protection of others”.
Detention can be continued solely because of mental illness. No doubt when the provision was designed it was about protection, but it now seems to assume a rather rosy view of the benefits of detention that is very far from the reality. While hindsight is a great thing, of course, I see no justification for keeping someone in detention on the grounds of their mental health where, were it not for mental illness, the applicant would be released. This is a matter which has been considered from time to time by the courts, and there is a framework for the detention of mentally ill people in the Mental Health Act 1983, where it is necessary in their interests or for the protection of others. This surely must apply to those who are under immigration control just as much as it does to other people. Detention, as I have indicated, does not provide the therapeutic environment that the drafters of the provision presumably envisaged.
One learns so much about new subjects when one starts on a Bill. There is in addition a lacuna in the legislation. Currently there is no power to make a transfer direction using Section 48 of the 1983 Act for immigration detainees held under the UK Borders Act 2007. The power compulsorily to admit such detainees to hospital exists only under Sections 2 or 3 of the 1983 Act. There is a power under Section 48 of that Act to transfer people detained under immigration powers other than Section 36 of the UK Borders Act 2007. The power arises where there is an urgent need for treatment. The lacuna which I have mentioned in Section 48 of the 1983 Act has been raised with the border agency by various NGOs, and the agency’s position is that in its view the lacuna, which it admits to and acknowledges, cannot be fixed quickly as it would require primary legislation. Here we have primary legislation and I hope that the Minister will consider addressing the matter as we have the opportunity to do so.
Amendment 21 would retain the status quo with regard to the Tribunal Procedure Rules, securing that where the First-tier Tribunal has decided not to release a person on bail, the decision is made during the 28-day period; in other words, to maintain the status quo unless there has been a material change in the circumstances, and it is about that that I would like to ask the Minister some questions. The decision would be taken under the new provision without a hearing. Does that mean that there would be a consideration of the issue on the papers, so that “without a hearing” does not mean that there would be no consideration? I think that is the position but I should like to hear it from the Dispatch Box.
What is a “material change in circumstances”? Does it mean that there is no new evidence, which I understand is the current guidance? I also understand that the Tribunal Procedure Committee does not find it a problem in being able to exercise discretion, although it would be wrong of me to try to put words into its mouth. So what is a “material change in circumstances” and how is it dealt with in this situation?
Finally, with regard to the efficiency of the provision, we are told—I have no doubt that we shall also be told on other points later in this Bill—that an application for judicial review to the High Court is not excluded. That would be more complicated and costly. Is it really the way to go about things, given that the Government are seeking to reduce the use of judicial review, which has grown enormously over the years?
There are other amendments in this group but I shall not attempt to deal with any of them now—it would be impertinent. I beg to move.
My Lords, although there are other speakers in this debate, I am rising early because I have a number of questions and I thought it would be helpful to give the noble Lord time to seek inspiration to respond to them.
As we have heard, Clause 3 amends the Immigration Act 1971 to ensure that in certain circumstances, that is, where removal is scheduled for the next 14 days, the Home Secretary must consent before a person is released on bail. It also amends the tribunal procedural rules to prevent repeat bail applications in the absence of a material change in circumstances, as we heard from the noble Baroness, Lady Hamwee. Our Amendment 18 is very specific. It specifies:
“In deciding whether to give consent to bail, the Home Secretary will consider whether the applicant is pregnant”.
Matters have not been very clear so this is a probing amendment. We chose the issue of pregnancy but we could have chosen anything else. The reason for tabling this amendment is more general. We are seeking clarification as to when the Home Secretary will approve bail, and what additional considerations will be taken into account.
Reading the clause and reading the debates that took place in the other place, it seems that there is a lack of clarity about what is intended by this clause. We understand that shortly before a person is due to be removed, there is a higher risk of absconding, and that it is right that in those circumstances bail should not be granted when the risk of absconding is high, unless—as the Government state at present and in the Bill—there are exceptional circumstances. The government statement of intent says:
“If the immigration judge considers that there are exceptional circumstances that mean an individual should be granted bail, despite removal being imminent, the Secretary of State will give serious consideration to release”.
Then it cites possible examples, including persons who are recently bereaved or have complex medical requirements.
It would be interesting to know what other circumstances the Government envisage here and to hear other examples of issues that should be considered by the Secretary of State when bail is being granted. We have proposed that one of them is being pregnant but I assume that the Government have other issues in mind. We have heard about mental health examples. That is one that came to mind, as well as primary care givers for young children or where somebody is dying. I appreciate that the pregnancy one is a narrow example. I am trying to understand how the government proposal works in practice and whether it will be effective or make any difference at all. For example, I should have thought that the risk of somebody absconding is something that the tribunal would take into account at the moment, as with bereavement and complex medical needs. What additional factors would then be taken into account by the Secretary of State that are not currently taken into account by the tribunal? If there are matters that should be taken into account by the tribunal but are currently ignored, should not the tribunal rules or the guidance be amended?
Under the Bill, the final decision would rest with the Secretary of State, so it is important to understand how and according to what factors and processes she—or perhaps in future, he—will make her decision. I found the debate in the other place in Committee quite helpful. The Minister there, when asked on the above point what other considerations would the Secretary of State take into account, said:
“The Secretary of State will consider the same factors as a tribunal, but she has ultimate responsibility for enforcing immigration action”.—[Official Report, Commons, Immigration Bill Committee, 5/11/13; col. 165.]
If no new factors are to be considered, why not leave the decision with the tribunal? It would be helpful to hear and understand the evidence showing that this measure is necessary, and showing how it would make a difference. Will the Home Secretary re-examine the evidence put before the tribunal, or will she exercise her power on other grounds even though that is not what the Minister, Norman Baker, said in the other place? It would also be helpful to understand the cost implications of any challenge to the Secretary of State’s decision. Again, the Government’s statement of intent says:
“Legality of detention will still be challengeable by way of judicial review or habeas corpus applications”.
However, given that the Secretary of State will exercise the power in this clause only when the immigration judge has said that there are exceptional circumstances that mean that an individual should be granted bail, if there is no clarity about the grounds on which the Home Secretary is making her decision, does that make a legal challenge more likely?
Further, given that a case of unlawful detention, if it were brought, would be heard in the High Court, is there not a danger of it becoming more expensive and more time-consuming, and causing more delays and imposing more costs to the taxpayer, than the fairly simple decision of whether to grant bail? The Government say that the current system costs money. That is one of the reasons for introducing the new measure. What consideration has been given to the possible costs of challenges under this system? My colleague Helen Jones asked this point in the Commons and the Minister, Norman Baker, did not really address the point, so it would be helpful if the Minister was able to respond today.
Leaving costs aside, what about those who cannot afford a judicial review claim? What will their recourse be if they believe a decision is wrong and the Home Secretary has overruled the immigration judge? Let us be clear: this matter goes to the Home Secretary to refuse an application for bail only if the immigration judge has said that there are exceptional circumstances in which bail should be granted. Therefore, I am still somewhat confused about whether the Home Secretary will take into account matters other than those considered by the tribunal and the immigration judge. Norman Baker says that she will not, but that raises the question about the evidence base for this change. From the response of Norman Baker in Committee in the other place, it appears that the Home Secretary could be making a political decision in overruling the immigration judge. There must be a concern that the decision-making process is therefore open to greater and more expensive legal challenge.
In trying to understand the clause, it would be helpful to clarify whether, when a bail applicant is told of a bail decision, they will be told whether the decision has been taken by an immigration judge or the Home Secretary. If they are not granted bail, will they know that in some circumstances that may have been a decision where the Home Secretary has overruled the immigration judge who has said that there are exceptional circumstances? Will the applicant know what the process is in that case? If, as Norman Baker has said, no new factors will be taken into account, the question will be whether the decision has been taken on the facts, or whether it has been taken on political grounds. Unless it is absolutely clear what criteria the Home Secretary has used, surely that could make it far more likely that those decisions will be legally challenged.
I am genuinely trying to fully understand why the Government are bringing forward the change. What difference will it make, if there is no difference in the criteria looked at, and what are the cost implications of what could be an increase in the number of judicial reviews? I have read the debate in the other place and the material that the Minister and the Government have provided, and these questions remain outstanding. It would be helpful if the Minister could provide some clarity on these points and the reason for this clause.
My Lords, I will speak to Amendments 17 and 19 about bail. The provisions in our amendments are modelled on Part 3 of the Immigration and Asylum Act 1999, which was never brought into force and repealed in 2002. We ask, first, what has changed since 1999 that the sense of gravity about the shortcomings of the system of immigration detention and the urgency of addressing them has gone so entirely? One thing is certain: they have not gone because things have got better. Things have got very much worse.
In these amendments, we propose automatic bail hearings after eight and 36 days. How long have we debated the need to provide for an effective automatic review of detention? Detention under Immigration Act powers is a matter, I am told, mainly of administrative convenience and, in the UK, is not subject to a maximum period. A detained person is not brought before a tribunal judge or a court unless he or she instigates this. The lack of any maximum period of detention, combined with the lack of regular and independent review of detention, may render this detention arbitrary. Amnesty International is one of those organisations that has powerfully advocated that every immigration detention decision should be automatically checked to see whether it is lawful, necessary and appropriate. Why should we do this? Because, at present, there are greater safeguards for criminal subjects than there are for immigration detainees and because people sometimes need reminding that those detained for immigration purposes are not criminals and have not committed any crime.
The group Bail for Immigration Detainees found that 23% of detainees surveyed had never had a solicitor while in detention. Of those who had, only one-third had ever had an application for release on bail made for them during their time in detention. When this is considered alongside the general length of immigration detention in the UK, and the possible indefinite nature of that detention, adequate bail provision is an absolute necessity. Automatic hearings would benefit all detainees but especially vulnerable and isolated detainees. Very recently, we heard the case here of Isa Muazu. I can speak to his pain as I went to see him. He was one among many who should not have been locked up with all the problems he had.
We must protect the rights of vulnerable groups such as the mentally ill, torture victims, victims of sexual violence and victims of trafficking. Currently, almost one in four detainees is held in the prison estate, where they face many practical and procedural barriers to accessing immigration advice and the immigration tribunals where they can try to obtain bail. They are not able to instigate applications in any meaningful way—it is a dreadful situation. Will, finally, this Bill include a provision that will remedy such a sorry situation?
I, too, will speak to Amendment 17. When I was the Bishop of Oxford, I had something to do with Campsfield House. What really concerned us at that time was the length of time for which people were held in detention. It is not at all encouraging that, some years later, this is still a major concern. As we know, around 220 people last year were held in detention for more than six months, without even taking into account the 936 who are held in prison. Why is this country so different from the rest of Europe in having no limit on the length of time that people can spend in detention? It is obvious, from so many of the facts and figures that are put before us, that a time limit helps you to achieve your purpose of removing people who have no legal right to be in the country. France, for example, has a time limit of 45 days for people in detention and it enforces 31% more removals of irregular immigrants and asylum seekers than the United Kingdom. We all know that if you do not have a deadline, things can slip and slip. Those of us who write are grateful that there is always a deadline, otherwise we would never get it done. If that applies with simple things such as writing, how much more are things liable to slip when trying to deal with a person’s case?
To reiterate the point, it has also been shown that the longer people are held in detention, the less chance they will be removed. Only 37% of those who were detained for more than a year were eventually removed, compared with 57% of those who were there for less than 28 days. Again, so many facts show that having a limit, such as 28 days, allows you to achieve what you want far more efficiently. That is, of course, without even taking into account the expense. It has been estimated that this amendment would save something like £87 million if it were accepted, because it is very expensive to keep people in detention.
There are alternatives. In Australia, for example, where there is an alternative based on case management, there is a compliance rate of something like 93%, of which 60% are voluntary removals. This is even without taking into account the human factor and the distress and extra suffering caused by allowing people to be detained. From the point of view of financial efficiency, and every other consideration, it is surely right that other alternatives should be looked at much more seriously than they are at the moment.
My Lords, I support these amendments. I should explain that at an earlier stage in my judicial career it was necessary for me to visit prisons so that I could see the conditions under which people were being held and understand the regimes that were being operated in these establishments. I recall very clearly visiting one of these places, where I came across people of the kind we are discussing this evening—detainees awaiting decisions about their immigration status. It struck me at the time that it was quite extraordinary to meet these individuals—who, after all, had either committed no offence or, if they had, had served their sentences—being held in prison conditions along with other prisoners. It is fair to say that a separate wing was set aside for them; nevertheless, the conditions in which they were being held were prison conditions. The noble Lord, Lord Roberts, said that it was a dreadful situation. I must say that I found it quite offensive to meet these people there when I spoke to them and discovered why they were there and what their problems were.
It seems that there is a great deal of force in Amendment 16, tabled by the noble Baroness, about the presumption of liberty, which takes us right back to the beginning of the exercise we are discussing. The points that are built into that amendment are those that would occur to any judge considering an application for bail in this situation. Most judges would, I think, see that the question to ask oneself is whether the individual would fail to comply with conditions or was likely to commit an offence. The value of having that set out in the Bill is that it will achieve some uniform standard throughout the system. The difficulty is that you have immigration officers and First-tier Tribunals up and down the country, and there will not be the same attention, uniformity of practice, application of presumptions and so on that one gets if the matter is set out in terms in the Bill. I would have thought that the matter was sufficiently important to do that, so that it would carry itself through the various steps that have been discussed by other noble Lords, with everybody knowing where they stand.
We are dealing here with people, many of whom will be held in prison conditions, who have either not committed an offence, or who have served their sentence and are being detained because time needs to go by for decisions about their status to be taken—that is all. It seems right that they should be given the benefit of the presumption of liberty.
My Lords, I cannot claim first-hand experience like other noble Lords, but I went to a meeting chaired by the noble Lord, Lord Roberts of Llandudno, where we heard from organisations that work with immigrants in detention. I thought that a powerful case was made—and has been made by other noble Lords—for the principles behind Amendments 16 and 17 in particular.
I will quote from a recent report by the Bingham Centre for the Rule of Law that emphasised as its cardinal principle the assumption of liberty. It stated another principle:
“The duration of detention must be within a prescribed applicable maximum duration, only invoked where justified”.
The report quotes a number of statements from the United Nations, in particular UNHCR detention guidelines that state:
“To guard against arbitrariness, maximum periods of detention should be set in national legislation. Without maximum periods, detention can become prolonged, and in some cases indefinite”.
It also quotes from a UNHCR global round table on alternatives to detention for asylum seekers, refugees, migrants and stateless persons, which states:
“Maximum time limits on ... administrative immigration detention in national legislation are an important step to avoiding prolonged or indefinite detention. Lack of knowledge about the end date of detention is seen as one of the most stressful aspects of immigration detention, in particular for stateless persons and migrants who cannot be removed for legal or practical reasons”.
I am sure that I do not have remind noble Lords that we will probably have rather more people in that position as a result of Clause 60 of the Bill.
Let us put ourselves in the shoes of people who are detained. What would it feel like not knowing how long you are going to be detained? I am not surprised that it is one of the most stressful things. I think that not having that knowledge could drive people over the edge, particularly when I hear about the conditions in which some people are being kept.
The UN Committee Against Torture urged the UK to introduce,
“a limit for immigration detention and take all necessary steps to prevent cases of de facto indefinite detention”.
We have already heard from other noble Lords that we are out of step with many other European countries and that there is no justification for it, not only on grounds of humanity but also of effectiveness. I hope that the Minister will listen to what is being said across the House and take it away to consider a possible amendment on Report.
My Lords, I will speak briefly on Amendments 17 and 19 in my name and that of the noble Lord, Lord Roberts. I agree with every word that my noble and right reverend friend Lord Harries said. Following my inspection of Campsfield after a riot there, I raised for the first time my concern about one group of people who were being held in prisons: they were to be deported at the end of their sentence.
We have been talking about enforced removals and people sentenced to be deported are enforced removals. It seems to be absolute nonsense not to process that deportation while those people are serving their prison sentences, so that at the end of their sentence they go straight to the airport and out. Instead, what happens at the moment is that they go from prison into a detention centre and then the deportation process starts. That is causing an intense clogging in the detention centres. Having disaffected prisoners awaiting deportation in a detention centre also causes unrest in the centre, which was the case at Campsfield.
I absolutely agree with my noble and right reverend friend that there must be a time limit, not least in order to give a deadline by which time officials must complete the case. We talked earlier today about case owners and the need to have direction for them. What further direction could they need other than a time by which they have to complete the case? With nothing there, it is small wonder that on 11 September 2013, in addition to the 220 people that my noble and right reverend friend mentioned who had been there for six months or more, 27 had been there for 18 to 24 months, 11 for 24 to 36 months and one from 36 to 48 months. For heaven’s sake, four years without anything happening is totally unacceptable anywhere, let alone in this country. We really should be ashamed of those figures.
Taking from Amendment 16 the new clause on the presumption of liberty, I recommend that there is a great deal that could be done to tighten up the way in which this is legislated and conducted. These two amendments, designed to put time limits on procedures that must be carried through, would play a great part in achieving that.
My Lords, last Thursday in the Moses Room we were debating terrorism. In the context of that debate some of us were raising the issues of immigration. This is a specific and good example of the danger that some of us foresee. Forgive me if I repeat a bit of what I said on Thursday. Extremists operate best in a climate of ambivalence, one in which a significant number of people—particularly young people but not only young people—are pursued by doubt. They may not like what the extremists do. They may actually abhor the actions themselves, but they sometimes wonder whether those extremists are perhaps acting on their side.
This does not create a climate in which everyone is busting a gut to co-operate with the security services. There are anxieties and doubts. Ruthless recruiters for extremism play on that kind of ambivalence. I can think of no area such as the one that we are debating that illustrates better the point that I am making. If it can be said that we have double standards of justice and that we do not live up to the ideals that we like to proclaim to the world as essential, and if it seems that freedom is not a complete but a relative principle—something that you like to apply when you can and when it is inconvenient you do not apply it—sometimes very intelligent people begin to raise queries. It does not take many people to be in such a state of anxiety and doubt for the extremists to make more recruits. It takes only a very few people in the age in which we live to do terrible things in the context of terrorist action. If we are going to win the cause of wooing people away from terrorism and extremism, it is a battle for hearts and minds. That kernel of toughness should be in all that we do. The battle for hearts and minds means that we should live up to the principles we proclaim and make them transparently clear in all the practice of policy throughout the penal system and, particularly because of the complications of international terrorism, in the sphere of migration.
I hope that when the Government consider their response to these issues they do some connective thinking and ensure that at the very time when we are desperately anxious about, for example, the implications of Syria in terms of accentuated terrorist activity, we are doing nothing that inadvertently even marginally plays into the hands of extremists.
My Lords, I very much agree with what has just been said by the noble Lord, Lord Judd, and what was said by the noble and right reverend Lord, Lord Harries of Pentregarth.
I will be very quick because the debate is going on. It is worth remembering that in 2008 the European Commission produced a directive which said that the maximum period for detention was normally six months and that in exceptional cases 12 months could be added to that, with an absolute limit of 18 months in every single case. It is not to the great credit of our dear country that the United Kingdom and the Republic of Ireland both decided to opt out of that directive. Consequently, we, as one of the world’s oldest and most stable democracies, have to our discredit the shame of having people detained in prison conditions month after month, as the noble and right reverend Lord, Lord Harries, pointed out. We should say that the time is well over when we can continue to try to justify this kind of thing.
We could have a limited period; for example, the Federal Republic of Germany has a maximum period of two months as normal practice. We have already heard that France has 45 days. Spain has a serious terrorism problem—as serious as ours, possibly more so—yet retains two months as its normal limit. It is beyond my understanding and belief how this country has continued to leave this issue without seriously addressing it and saying that the time has come for us to opt back in to the directive and ensure that we never exceed 18 months for any case at all.
My Lords, the contribution of my noble friend Lady Williams of Crosby is probably a good place to start. The deprivation of liberty is a very serious matter so I will first set out the safeguards that are currently in place to ensure that detention powers are used appropriately. Although there is a power to detain, the Home Office has a policy presumption in favour of temporary admission or release. Wherever possible, alternatives to detention are used. Detention must be used sparingly and for the shortest period necessary. I hope that that reassures the noble and learned Lord, Lord Hope of Craighead, and my noble friends Lady Hamwee and Lady Williams.
The noble and right reverend Lord, Lord Harries, asked why we do not have a time limit on detention. That was echoed by a number of subsequent speakers. The current system is derived from case law, specifically a case called Hardial Singh. The system works well, is understood by the tribunal and other judges, and has been authoritatively restated by the Supreme Court in a case called Lumba. The system affords appropriate protections to individuals and flexibility to the Government. It is not indefinite detention: every case is carefully and regularly considered to see whether detention continues to remain appropriate. Regular reviews of detention are required to be undertaken to ensure that detention remains lawful and proportionate, and individuals can apply for bail and challenge the legality of detention by judicial review, as has been stated.
I reassure noble Lords that these safeguards are also built into the provision already included in the Bill. Clause 3 will not prevent an individual from applying for bail immediately after being placed in immigration detention. Likewise, an individual can challenge the legality of their detention at any point by way of judicial review, and legal aid will remain in place for this. The existing internal formal reviews of detention will also remain. I reassure noble Lords that detainees will have full access to legal advice.
My noble friend Lady Hamwee wanted to know more about the requirement to decide on the papers. She asked what qualified as a “material change in circumstances”. It will vary on a case-to-case basis and the tribunal will decide whether that test is met. An example could be a significant deterioration in someone’s health over a short period. The provision will not apply where there are genuine reasons to seek a further hearing because there are materially different grounds to consider. If the tribunal concludes on the papers that there are material changes that need to be considered, it will proceed to a hearing and can grant bail if it thinks it right to do so.
Noble Lords should also be aware that the Tribunal Procedure Committee has consulted on placing a time limit on repeat bail applications. The committee may have proposed implementing the requirement through the Tribunal Rules rather than in primary legislation, as here, but it is clear that repeat applications on the same facts are a concern to the Tribunal Procedure Committee.
I want to highlight to noble Lords the context of the requirement for the Secretary of State to consent to the grant of bail where removal is 14 days or fewer away. Rather than introducing a new power, the Government are clarifying existing legislation to block immigration bail granted by the tribunal, defining an existing power. Under paragraph 30 of Schedule 2 to the Immigration Act 1971, the Secretary of State can prevent bail being granted while someone is pursuing their appeal at any stage,
“if directions for the removal of the appellant from the UK are for the time being in force or the power to give such directions is for the time being exercisable”.
The Government consider that the proposal in the Bill requiring the Secretary of State’s consent to release on bail 14 days prior to removal is a proportionate approach. As I have explained, this proposal actually represents a reduction in the powers available to prevent the grant of bail. In that context, I hope that noble Lords will not feel unduly concerned about this condition.
My noble friend Lady Hamwee asked whether exercising this veto would not just cause people to seek judicial review, thereby delaying removal and creating an expense. A judicial review would not have to be pursued in-country. Removal would therefore not need to be postponed. There are obvious savings from proceeding with removal and not allowing anyone to remain in the country either in detention or on bail with conditions.
We should try to get some of these figures in proportion. Admittedly some individuals have been detained for considerable periods of time but 62% have been in detention for fewer than 29 days, and the total number of people who have been in detention for more than a year is 199. In terms of proportion, this system is therefore dealing effectively with the vast majority of detainees.
The new clause proposed in Amendment 16 would introduce a statutory presumption of liberty which would direct a judge to release those held in immigration detention when a bail application had been made unless the judge had “substantial” grounds for believing that an applicant would fail to comply with one or more of their bail conditions or while on bail commit an offence that is punishable by imprisonment. I understand why noble Lords seek to include this safeguard. However, the Government consider that it is not necessary to legislate because their own published policy is for a presumption of liberty in immigration detention, that alternatives to detention should be used wherever possible, and that a person’s circumstances, including their mental health, are taken into account during the detention and removal process. There is no need to place the presumption of liberty on the statute book and bind judges in the way that the amendment would.
The proposed new clause would set the threshold for displacing the presumption in favour of liberty far too high. It would mean that bail should be granted even when a judge had substantial reasons for believing that the person concerned would offend on release, provided the offence being contemplated would not lead to a custodial sentence. It would mean that a perfectly lawful detention might have to be terminated even if the judge believed that the person concerned would go on to commit further criminal offences. I hope that noble Lords will agree that this cannot be right.
Amendment 17 would introduce mandatory release of any individual in immigration detention after 28 days of detention no matter how imminent removal was or the abscond risk that they posed. As I have said, the Government have a presumption of liberty. A majority of people leaving detention in 2013, 62%, had been in detention for fewer than 29 days. During the same period, less than 1% of individuals in the immigration detention estate had been detained for a year or more.
The immigration detention power is used proportionately and safeguards are in place. However, I am sure noble Lords will agree with me that detention under immigration powers is an important tool to ensure compliance from those who may otherwise abscond pending removal. Requiring release 28 days after initial detention is inflexible and would have unintended consequences. For example, if an illegal entrant did not have a passport and refused to co-operate with the redocumentation process, the Secretary of State would be required to release despite the fact that the reason that removal was not achieved was the non-compliance of the foreign national. The amendment may have the unintended consequence of causing an increase in non-compliance with the removal process.
Amendment 18 would include a new subsection in the provision whereby a person will not be released on bail without the consent of the Secretary of State if there are removal directions in place for within 14 days of the date of the decision to grant bail. The new subsection makes provision for the Secretary of State to consider whether the applicant was pregnant. The noble Baroness, Lady Smith, used this as an example in a number of questions that she went on subsequently to raise. I understand why noble Lords seek to include this safeguard. However, the Government consider that it is not necessary to legislate for it, because a person’s circumstances, including pregnancy and health, are taken into account during the detention and removal process, including when a bail application is received. I can assure the Committee that where a woman reaches the later stages of pregnancy and cannot travel to the country of return, imminent removal would not be considered and detention would normally not be appropriate, so the provision would not be relevant. I hope that this reassures the noble Baroness and other noble Lords on this point.
I am grateful to the Minister for addressing the amendment, but he will know that that was not the substance of the questions that I asked. It was used as an example to raise two issues, the first being the criteria that the Home Secretary would use and the second, significantly, whether an individual who had had bail denied would be told whether the Secretary of State had overruled the tribunal judge. The amendment was just probing. If the Minister could address the questions that I asked, I would be grateful.
I was about to go on to develop the theme based on the noble Baroness’s example. I cannot give an exhaustive list of the circumstances where the Secretary of State might consider it right to intervene, but examples which we have already given in the statement of intent are good ones. Mental health and family bereavement are examples of such circumstances which I hope the noble Baroness will understand. We expect the power to be exercised in a relatively small number of cases.
I think the Minister has missed the point that I made. I was probing not what the exact examples would be but the criteria that the Secretary of State would use given that she will have the ability to overturn a decision by a tribunal judge. In the other place, Norman Baker said that there were no other grounds that she would look at, yet that begs the question about it being a political decision. What grounds will the Secretary of State use if she decides to overturn the decision of a tribunal judge?
I hope that the examples I have given show that these are not trifling matters. Deterioration in a person’s mental health or a family bereavement are changes in the circumstances of the applicant which would mean that the Secretary of State was able to make an immediate decision without it having to go back to the tribunal for a bail hearing. This is the Secretary of State using her executive power to ensure that in circumstances where people are significantly disadvantaged by a change in their conditions the matter can be resolved. If the noble Baroness wishes me to elaborate further, I shall do my best to explain it to her in writing so that she has something more positive than just a few scattered notes from which I am addressing her.
Amendment 19 would have the effect of creating many unnecessary bail hearings in the tribunal, increasing the inefficiency and complexity of the system. An individual can still apply for immigration bail at any time or challenge the legality of their detention by way of judicial review. A significant number of individuals are released on bail by the Home Office without the need for a bail hearing—we have just heard examples of why that is so—and so to mandate a requirement in primary legislation to require bail hearings to take place will unnecessarily increase the number of hearings and will slow the system and add complexity.
Amendments 20 and 21 would make two changes. First, they would limit judicial discretion to maintain detention of those who are suffering from mental health concerns or of those who are under 17 where the judge considers immigration detention remains appropriate for their own or, in the case of those with mental health concerns, others’ protection. Secondly, the amendments would remove the requirement for repeat applications made within 28 days of a previous application where there has not been a material change in circumstances, made under the bail provisions in Schedule 2 to the Immigration Act 1971, to be decided without a hearing.
Published guidance provides that certain categories of people are considered unsuitable for detention in the first place unless there are very exceptional circumstances in play. Unaccompanied young people under the age of 18 and those suffering from serious mental illness which cannot be satisfactorily managed within detention are specifically listed as case types that should be detained only in very exceptional circumstances. However, there will always be cases with very exceptional circumstances which mean that detention is appropriate. An example may be when it is necessary for detention to continue while an individual is being or waiting to be assessed or awaiting transfer under the Mental Health Act. We may also need to hold unaccompanied children where, for example, it is in the public interest because of a risk of reoffending or a risk to national security. They may also be held for a very short period either on arrival pending collection by social services or when we are trying to remove them. In any decision to hold an unaccompanied child, we will consider our duty to safeguard and protect the welfare of children.
The noble Lords’ amendment would prevent a judge in a bail hearing from considering if very exceptional circumstances are in play and would require judges to release individuals even where there is the real possibility that this will put them into a more vulnerable situation or where they clearly pose a threat to themselves or others. Amendment 21 seeks to remove the requirement for the Tribunal Procedure Committee to change the rules to require repeat applications to be disposed of without a hearing, thus undermining the Government’s proposals. It would also allow the current inefficient bail processes to remain in place.
However, I have listened to the points made by noble Lords in this debate. It has been a good debate about a very important aspect of the provisions of the Bill. I will consider those points before we return on Report. In the mean time, I ask noble Lords not to press their amendments.
My Lords, other noble Lords have spoken very effectively about the impact of detention. I will just mention again the first of the amendments in this group, which is on the presumption of liberty. As we heard, a presumption of liberty is already something that judges would consider almost automatically as a matter of instinct. Of course, the drafting of the amendment could be tweaked but we are only at Committee stage. However, subject to reading Hansard and the Minister’s confirmation that the Government will consider the points before the next stage—I know he made no commitment and I would expect no less of him than that he would consider what has been said—I think that a presumption of liberty is so important that is should be in statute. Guidance can be changed. I would like to see the matter put absolutely beyond doubt. I appreciate that the amendment might have elephant traps in it—amateur amendments sometimes do. Of course, at this moment, I beg leave to withdraw the amendment.
Amendment 16 withdrawn.
Clause 3: Immigration bail: repeat applications and effect of removal directions
Amendments 17 to 21 not moved.
Clause 3 agreed.
Clause 4 agreed.
Clause 5: Identifying persons liable to detention
Debate on whether Clause 5 should stand part of the Bill.
Clause 5 amends Schedule 2 to the Immigration Act 1971 to include persons who are “liable to be detained” as being persons in respect of whom steps can be taken for the purposes of identification, such as fingerprinting and photographing. We put down this question on whether the clause should stand part and Amendments 22 and 25 to raise some questions about how this clause will be implemented and why it is considered necessary, not because we are opposed to the use of biometric information or its provision by various people.
It would be helpful if the Minister could indicate what individuals, circumstances or situations would be covered by the words “liable to be detained” that are not currently covered by the existing legislation, including the Immigration Act 1971. It is perfectly reasonable to verify the identity of someone who is detained. The law provides for that to enable us to address the issue of, for example, dealing with people suspected of being in this country illegally. In that situation, the immigration officer can, for example, check the person’s fingerprints either with that person’s consent or following their arrest.
When this Bill was considered in the other place, the Minister there said that the problem for an immigration officer was that when faced with somebody whom they did not want to arrest but whose information they wanted to check—either to ascertain that they were that person or to check the information suggesting that they might be an illegal immigrant—that officer would have either to let the person go if they did not consent or to arrest them. The Minister went on to say that the objective was to ensure that the immigration officer would be able to check the information and fingerprints to ascertain whether the person was who they thought or suspected they were. That, the Minister said, was the current gap in the legislation.
Frankly, I am still not sure what the gap is. If immigration officers have doubts about the status and identity of someone, they can ask them to have their fingerprints taken. If that person refuses, can they not be arrested and detained so that their fingerprints can be taken? Does that not also apply in the scenario referred to by the Minister in the Commons debate to which I just referred? Who are the people who immigration officers would not want to arrest if they declined to allow their fingerprints to be taken? Presumably the immigration officers would not just let them go, or is that what the Government say would happen? In which case, who or what comprise this select band and how does Clause 5 enable their fingerprints to be taken if they refuse?
It would also be helpful if the Minister could indicate what steps would be taken to ensure that Clause 5 and its definition “liable to be detained” will not be abused so that people are deemed to come under the terms of the clause who neither the Government nor Parliament intended. What is the definition of “liable to be detained”? How many cases have there been in the last 12 months of people who would have had their fingerprints taken if the “liable to be detained” provision in the Bill had been in force but who could not have their fingerprints taken under the current wording in the Immigration Act 1971? In other words, how significant a problem is this, even though I am not entirely sure what the problem is, and what is the evidence to support the change in legislation that the Government seek to introduce? “Liable to be detained” could potentially include a very wide range of people, including those who are perfectly innocent. The Government need to say what steps will be taken to ensure that this clause is used in only a very limited number of circumstances that will be clearly defined and set out, bearing in mind that the Minister in the Commons said that the gap in legislation was very small.
I turn to Amendments 22 and 25. Amendment 22 relates to Clause 6 and would provide for a photograph to be returned after three years. It is a probing amendment to question the length of time that a photograph can be retained. Clause 6 enables regulations to be made to require those applying to become British citizens to provide biometric information as part of their application. The Government’s fact sheet states:
“If British Citizenship is granted, the biometric record will be deleted”.
Nevertheless, new subsection (1ZD) provides for the person’s photograph to be retained even after they become a citizen and until that person acquires a passport. The Government’s fact sheet further states:
“This will ensure that biometric information is retained where it is likely to be of continued use for immigration or nationality purposes”.
As I said, our amendment is a probing amendment. It would provide that a photograph could not be retained longer than three years. The intention is to give the Government the opportunity to clarify their intention in retaining information for what appears to be an indefinite amount of time. When this was discussed in the Commons, the Minister concerned did not provide an answer. What happens, for example, when someone does not apply for a passport? The Government say, in their statement of intent, that 90% of those who apply for citizenship do, but what about the other 10%? I hope that the Minister when he replies will be able to clarify what the Government’s intentions are and why they have produced this new subsection (1ZD), which does not appear to provide any time limit for the retention of the photograph.
Amendment 25 relates to Clause 10, which provides a single regulation-making power to ensure consistency in how biometric information is used and retained by the Secretary of State. However, subsection (3) of the new section states that,
“the regulations may include provision permitting biometric information retained by virtue of subsection (2) also to be used … for such other purposes … as the regulations may specify”.
That is an all-embracing power. What kind of circumstances would this all-embracing subsection cover? Has it been put in with any “such other purposes” in mind? If so, what? Or has it just been included because it would avoid having to revise the regulations if another currently unknown “other purpose” arose? I hope that the Minister will be able to clarify the Government’s intentions on these issues.
My Lords, when I looked at Clause 5—“detained” or “liable to be detained”—the question that arose in my mind was, “How do you know someone’s liable to be detained unless all the processes including any appeal rights have actually been pursued?”. I have two amendments in this group. Amendment 23 would leave out the second part of the new subsection (1A) introduced by Clause 8. The provision in Clause 8 is that biometric information means,
“information about external characteristics (including in particular … )”.
Paragraph (b) then refers to,
“any other information about a person’s physical characteristics”.
Well, what could those be if they are not the external physical characteristics in subsection (1A)(a)? I cannot imagine that they are internal physical characteristics. I am quite confused about what subsection (1A)(b) might mean when read with subsection (1A)(a). That is quite apart from the fact that I have a rather natural and automatic dislike for not spelling out on the face of the Bill anything that could be spelled out.
Amendment 24 would take out of new Section 8(3)(c) introduced by Clause 10 the reference to “injury”. We are told in subsection (3) that the regulations may include provision to be used for certain purposes, of which paragraph (c) is,
“in connection with identifying persons who have died, or are suffering from illness or injury”.
I assume, and I hope the Minister can confirm this, that the reference to death or illness is because of public health considerations. Why then is it necessary to refer to injury? I would be interested to know what purpose this is to serve.
My Lords, Clause 5 amends paragraph 18 of Schedule 2 to the Immigration Act 1971 to include persons who are liable to be detained. This will allow immigration officers to check the fingerprints of persons they suspect to be illegal immigrants where there is a question about their identity. The existing power allows for fingerprints to be taken only from persons who have been detained under immigration powers.
The ability to establish an identity is an essential requirement for immigration officers when undertaking immigration enforcement operations. Unless identity is established it is not possible to remove or deport illegal immigrants. At present, where immigration officers encounter people whom they suspect to be illegal immigrants and have doubts about their identity, they can check the person’s fingerprints only with their consent or following the person’s arrest. In some instances this can lead to unnecessary arrests or result in illegal immigrants not being detected. In answer to the noble Lord, Lord Rosser, surely the Committee does not want innocent people going about their lawful business to be arrested. Secondly, if the suspect does not appear to understand English, how can they give informed consent to have their fingerprints taken?
This power is intended to reflect the conditions under which the police operate. Prior to the changes made to the Police and Criminal Evidence Act 1984 in 2005, the police also needed consent to check fingerprints where a person had not been arrested. The amendment has enabled the police to make fingerprint checks without the need to arrest individuals who are suspected of committing a criminal offence and whose identity might otherwise not be readily ascertained or verified.
This clause will bring immigration officers’ administrative enforcement powers more into line with police powers. The power to check fingerprints will be limited to the purpose of verifying identity as part of an immigration enforcement investigation. The fingerprints will not be retained but rather immediately electronically checked against the immigration biometric database. If there is an existing record, this will confirm the person’s identity and potentially assist the immigration officer to ascertain the person’s immigration status. This will help avoid unnecessary arrests, allowing those legitimately in the UK to go about their business, while quickly identifying illegal immigrants.
I want to assure noble Lords that this power does not mean that immigration officers will be able to stop anyone they encounter. The person required to provide fingerprints for checking must be liable to detention under the immigration Acts. In practice this means that the immigration officer must have reasonable grounds for suspecting that they might be liable for removal from the UK. There will not be any blanket testing of people just because they look foreign. I hope that answers the question from my noble friend Baroness Hamwee about the term “liable to detention”. As I understand it, it is not a new term.
Clause 6 is intended to improve the levels of assurance about persons naturalising or registering as British citizens and to ensure that the identity of British citizens who apply for their first UK passport can be properly identified. Amendment 22 would weaken these proposals.
The power is intended to protect new British citizens from having their identity stolen by impostors by enabling a photograph submitted as part of a passport application to be checked against the new citizen’s record. If we destroy new citizens’ photographs before they obtain a passport, HM Passport Office would be less capable of confirming their identity. It would also expose HM Passport Office to fraudulent applications for British passports.
As observed by the noble Lord, Lord Rosser, over 90% of new British citizens make a passport application within one year, so very few new citizens will have their photograph retained for more than a year. I accept that this will result in a small minority of new British citizens who decide against applying for a British passport having their photograph retained for a longer period as a consequence of these provisions. However, retaining the photograph will be useful to them in protecting their identities. In particular, new British citizens who retain their other nationalities may opt to have a certificate of entitlement affixed to their non-British passport instead of obtaining a British passport.
This document is a right of abode vignette—passport sticker—that can be issued to, in addition to British citizens, certain other categories of Commonwealth citizens who have a right of abode if they have not ceased to be Commonwealth citizens. It contains a photograph of the holder, which needs to be checked against the photographs that the person may have previously submitted as part of an immigration or nationality application. Holders of valid certificates of entitlement are not allowed to hold a British passport at the same time.
Other possible reasons for a new citizen not applying for a passport include the person not planning to travel outside the UK, or not wanting confirmation of their UK citizenship status through the naturalisation process. However, it may remain open to them to apply for a passport at some time in the future.
I turn to Amendment 23. Clause 8 is designed to standardise the definition of biometric information so that there is a consistent definition across the various immigration legislation provisions. It makes it clear that external features such as fingerprints, faces and features of the eye’s irises are forms of biometric information that can be taken from persons for immigration identification purposes.
The proposed amendment seeks to remove an order-making power to enable the Secretary of State to prescribe new types of biometric information. This would mean that the Secretary of State was not able to take advantage of new technologies that allowed for identifying information about a person to be taken from an external examination. However, the amendment as currently drafted does not work as there are further lines in the clause that the amendment would leave untouched that refer to the order-making power that the amendment seeks to remove.
I make it clear to the Committee that any such order to include a new biometric definition will require the authority of both Houses of Parliament before it can come into force. Furthermore, this provision specifically excludes DNA from being biometric information, either now or in the future. To do that would therefore require primary legislation. The order-making power will allow new types of biometric information to be included only where such information can be obtained from an external examination of the person. This will ensure that our powers to take biometric information from people for immigration identification purposes do not result in intrusive checks being carried out.
An example of the sort of information that could be prescribed by order in future would be information obtained from an examination of the sub-dermal layers of a person’s skin, or vein scans. Although this technology has not yet been adopted by the Home Office, we recognise its potential to be very useful when seeking to identify persons whose fingerprints cannot be easily recorded, such as elderly people and those with damaged fingerprints.
Amendments 24 and 25 to Clause 10 would reduce the flexibility of the Secretary of State to use the biometric information that she holds to protect the public. The clause provides a single regulation-making power to ensure consistency in the way that biometric information is used and retained by the Secretary of State. Clause 10 refines Section 8 of the UK Borders Act 2007, which was brought in by the previous Government, by including additional safeguards about how the biometric information held by the Secretary of State may be retained and used.
Amendment 24 would mean that the Secretary of State could not use biometric information to identify an injured person. This clause replicates a provision that is contained in Regulation 9(f) of the Immigration (Biometric Registration) Regulations 2008, made in November 2008. It was introduced using Section 8(2)(f) of the UK Borders Act 2007, which allows the Secretary of State to put into regulations additional purposes for which biometric information might be used. This provision was introduced by the previous Government. We have placed that measure in the Bill because it covers an important purpose for which biometric information is currently used. The measure is intended not to deny people medical treatment but to identify them so that families may be contacted, and to help ascertain facts about their medical records. We would anticipate that biometrics will be used only when it is not possible to identify the person through other means.
Amendment 25 would remove the existing flexibility that the Secretary of State has to prescribe in regulations new circumstances in relation to which biometric information could be used. It would mean that the Secretary of State could not readily respond to new situations that might not have been foreseen. This power is not new but replicates a provision already contained in Section 8 of the UK Borders Act, which has proved useful. As I mentioned, the Secretary of State has already made regulations to allow the use of biometric information that she holds in connection with identifying victims of an event or a situation that has caused loss of human life, or human illness or injury.
In addition, the Secretary of State has also made regulations for the purpose of ascertaining whether any person has failed to comply with the law or has gained, or sought to gain, a benefit or service, or has asserted an entitlement, to which they are not by law entitled. As with the existing provisions, any regulations introduced would in any event require the approval of both Houses of Parliament, and debate, before they came into force. I therefore hope that noble Lords will feel able not to press their amendments and will agree that Clause 5 should stand part of the Bill.
My Lords, with regard to Amendment 23, the Minister is of course right that there is a reference further on in the new subsection that refers back to what I was seeking to take out, so my amendment is not complete. However, by mentioning that, he has drawn my attention to something else that I would like to pursue. New subsection (1B) says that an order under paragraph (b), which is about other information subject to an order by the Secretary of State,
“may specify only information that can be obtained or recorded by … external examination”.
That raises the question of whether only external examination can be used for new subsection (1A)(a), concerning,
“information about a person’s external physical characteristics”.
Perhaps he can confirm that there can be only an external examination to obtain information about the first limb in (1A).
The Minister talked about new technology, which I assume comes within the word “information”. My concern was to understand what physical characteristics there might be that were not included in (1A)(a). I accept that technology will advance, but it is what the technology is being used to identify and gain information on that concerns me. This may sound tedious but it is actually quite important. I do not know whether he is able to take the matter any further tonight; if not, I would be glad to pursue it after this stage.
Perhaps I could add one or two comments. I thank the Minister for his reply and for the amount of information contained in it. I think that I recall him saying that “liable to be detained” was not a new phrase, but I am not sure how extensively it has been used before in immigration law.
I listened carefully to what he had to say about the situation of those whom immigration officers would not want to arrest. I will read his response carefully in Hansard, but at the moment I am not entirely clear what happens when someone whom they do not want to arrest declines to enable their fingerprints to be checked. I am not sure whether they will just be allowed to go or if in fact they will be arrested, which raises the question of why the existing powers are not adequate and why this new terminology is needed. As I say, I will read very carefully what he had to say.
Finally, I asked how many cases there have been in the past 12 months of people who would have had their fingerprints taken and checked if the “liable to be detained” provision in the Bill had been in force who could not have their fingerprints taken under the current wording in the Immigration Act 1971. I was not particularly expecting the Minister to come up with an instant response, but since that calculation is presumably the justification, at least in part, for this change in legislation that we are considering, I hope he will be able to provide me with an answer to that question later on.
My Lords, the main justification for Clause 5 is to avoid unnecessarily arresting people and to make it easier to carry out immigration checks. I described a situation where someone cannot speak English or pretends not to speak English. The noble Lord, Lord Rosser, asked what the definition of “liable to be detained” is and how many cases it will affect. If I have any information about how many cases, I will write to him. A person is liable to be detained if there are reasonable grounds for suspecting that removal directions may be given—that is, that the person requires leave to enter or remain but does not have it.
The noble Lord, Lord Rosser, also asked whether a person who refuses to give their prints can be arrested. They cannot be arrested solely for refusing to give fingerprints, as they can be taken only by consent. This may not give enough reasonable suspicion that a person may be an immigration offender.
The noble Baroness, Lady Hamwee, asked about the external examination. The whole point of these provisions is that the checks can be external examinations only.
Clause 5 agreed.
Clause 6: Provision of biometric information with citizenship applications
Amendment 22 not moved.
Clause 6 agreed.
Clause 7 agreed.
Clause 8: Meaning of “biometric information”
Amendment 23 not moved.
Clause 8 agreed.
Schedule 2 agreed.
Clause 9 agreed.
Clause 10: Use and retention of biometric information
Amendments 24 and 25 not moved.
Clause 10 agreed.
Clause 11: Right of appeal to First-tier Tribunal
26: Clause 11, page 8, line 30, at end insert—
“(d) P is registered in full time undergraduate or postgraduate study at a recognised higher education institution”
My Lords, Amendment 26 covers ground similar to that covered by an amendment much later in the proceedings, Amendment 49, which we will not be dealing with tonight. Amendment 26 is about appeals and seeks to remove from the scope of the Bill appeals by undergraduate or postgraduate students in full-time study at a recognised higher education institution.
Why am I moving this amendment? There is much common ground with the Government about the important role that the higher education sector plays in our economy and, above all, that our universities play in our economy. It is a massive benefit to this country. It accounted for £10.1 billion of invisible exports at the last time of asking, and that figure is rising and should continue to rise. It is also common ground with the Government and with those in the university sector—I declare an interest as I sit on the council of the University of Kent—that we want to see those student numbers increasing. Last July, the Government published a strategy for international students, and in it they foresaw a steady increase in the years ahead. They hoped for some 15% in the next few years.
There is also the less tangible aspect of the benefits to this country from postgraduate and undergraduate students, which is called “soft power”. When they have qualified, these students very frequently go back to their countries and retain very strong links with this country, often doing much business with our exporters, and are thus generally very positive. That is the good news.
The bad news is that the Government’s immigration policy is cumulatively hamstringing this vital invisible export industry. That is before the measures in the Bill, several of which are likely to be quite damaging, have taken effect. This cumulative effect is now under way, and if you ask me whether these concerns are well founded, the most recent figures produced by the Higher Education Statistics Agency in January 2014, which cover the last academic year for which there are figures—2012-13—are disturbing indeed. Those figures are before the cumulative effect that would come from this Bill because, of course, it is not yet in force.
I shall not go into too much detail on the figures, because there was a good deal of coverage of them at Second Reading, but some really stand out. The main one is that in the year 2012-13 overall numbers dropped for the first time since figures were produced in the early 1990s. They dropped by 1%. More seriously, perhaps, the figures for postgraduates—and postgraduates from countries outside the EU are extremely important for the future of our universities—dropped by 4%. Some of the figures for the countries of origin of large numbers of students coming to this country are really terrifying. The figure for India dropped by 49% in two years, and there are very substantial drops in the figures for those from Pakistan and other countries of the Indian subcontinent, Nigeria and so on. That is in a period when the figures for our main competitors—the United States and Australia—were going up, by 7% for the United States and 6.9% for Australia. The market is growing, we are losing market share, and that is not good news for this country.
In addition, I suggest that Ministers look at a recent study conducted by the National Union of Students, which it made available to those of us who are interested in this matter, and which was based on 3,000 students from outside the EU currently studying in this country. They were asked in January of this year about their reaction to certain matters. That, too, was not very comforting. The chilling effect that the Government’s immigration policies are having and are likely to have was very clear: 51% of those non-EU students found the UK Government’s attitude towards them “unwelcoming”. Has the Minister studied this survey by the National Union of Students? These people have no particular interest in the matter, because they are here already. However, they said in much larger numbers than that 51% that if they had been asked to undertake some of the burdens in the Bill, they probably would not have come; they would have gone somewhere else.
The question is: why not carve students out of the Bill? There is no requirement for the Government to include students in the Bill for public policy purposes. I accept that the Government have to make a return on economic migration to the UN, which has to include students as well as those who are more properly regarded as economic migrants. However, there is no need whatever for the Government to apply their immigration policy, these new measures, to students because they are economic migrants; of course, they are really not. These people bring to this country very large resources, to which I have already referred: £10.1 billion net in the course of the most recent year. They bring jobs to this country because they are creating employment in our universities. The study by the University of Sheffield, of which I am sure Ministers are well aware, shows just how much of a contribution they make to the economies of many of our university cities and towns.
Why are the Government not therefore prepared to listen to the views of four or five—I cannot remember the exact number now; it goes up all the time—Select Committees which have all said, “Please do not treat students, for public policy purposes, as economic migrants, because you are damaging a resource vital to this country”? I hope that the Government will reflect further on this and will see the advantages to them and to the whole country of simply removing them from the Bill. I hope we will then all be able to work together, which is what universities want to do. Those of us who work for universities want to see a buoyant, increasing number of students, undergraduates and postgraduates in full-time education, coming to this country and bringing huge benefits to us.
My Lords, as a member of the Joint Committee on Human Rights, I speak in particular to Amendment 27. At Second Reading, the Minister included in his list of myths surrounding the Bill that it undermines access to justice. The Joint Committee therefore looked again at this question. As the Minister may be aware, we published a second scrutiny report today. We write:
“We have considered carefully the Government’s argument that the right of effective access to a court or tribunal in immigration and asylum cases will be preserved by a combination of the continued availability of full appeals in cases concerning fundamental rights, the new system of administrative review, and the availability of judicial review, and its argument that the practical effectiveness of judicial review will not be affected by the proposed reforms to legal aid and judicial review itself. We do not share the Government’s confidence”.
We go on to say:
“We have already reported our concerns about the implications of the proposed residence test on effective access to justice. We have also inquired into the Government’s proposed reforms to judicial review and we will be reporting our conclusions in due course. For present purposes it is sufficient to say that, while we accept that it is a perfectly legitimate objective for the Government to seek to reduce the risk of unmeritorious claims being brought, we do have serious concerns about the effect of some of the Government’s proposed judicial review reforms on the practical ability to bring meritorious challenges to decisions, including in the immigration and asylum context … We also draw to Parliament’s attention the paradoxical fact that after years of seeking to reduce the number of immigration and asylum judicial review cases that have been causing backlogs in the High Court, including by transferring such cases from the High Court’s jurisdiction to the Upper Tribunal, the Government is now seeking to justify a significant reduction in appeal rights by reference to the continued availability of judicial review … In light of our concerns, we recommend that the removal of appeal rights for which the Bill provides should not be brought into force until Parliament is satisfied that the quality of first instance decision-making has improved sufficiently to remove the risk that meritorious appeals will be prevented from being brought”.
In other words, we express the spirit of Amendment 27.
Going beyond that, and speaking in a personal capacity, I also support my noble friends in their opposition to the question that Clause 11 should stand part of the Bill.
My Lords, I speak to our Amendments 27 to 29, and to the question that the clause stand part of the Bill. We have heard examples from the noble Lord, Lord Hannay, and my noble friend Lady Lister of why we consider this clause one of the most controversial in the Bill.
The Government have made it clear that the clause reduces the number of immigration decisions that can be appealed from the current 17 to just four. Only three types of decision will remain appealable: a decision to refuse a claim of asylum or humanitarian protection; a decision to refuse a human rights claim; or a decision to revoke asylum or humanitarian protection. A decision by the Home Office to refuse an application which does not involve one of these claims but is made, for example, on erroneous grounds or without reference to highly relevant information could not be challenged before a tribunal. Instead, the Government’s plans are that an administrative review system be set up to, according the Government’s fact sheet on the clause,
“provide a proportionate and less costly mechanism for resolving case working errors”.
We can all sign up to a process that gives timely, accurate decisions with a swift process to address any errors. However, taken in context, that is not what this clause does. We have therefore tabled a number of amendments, and have given notice of our opposition to the clause standing part of the Bill. Often, clause stand part debates are used as a kind of probing amendment, a technical way of ensuring discussion on the principle of the clause or an attempt to tease out the detail and address questions. We will be doing that with this clause. However, I also say to your Lordships’ Committee that removing the clause entirely would be our preference given the current position. Failing that, our Amendment 27 would ensure that appeal rights could not be abolished until the quality of Home Office decision-making for managed migration is deemed by the Independent Chief Inspector of Borders and Immigration and the Secretary of State to be efficient, effective and fair. That would require that the provision be introduced by order subject to affirmative procedure; that is also the position of the Joint Committee on Human Rights.
We have also tabled Amendments 28 and 29 to introduce two new clauses. Amendment 28 would require the Secretary of State to undertake an impact assessment before being able to commence the clause. The issue of students, as raised by the noble Lord, Lord Hannay, would be relevant to Amendment 28. Amendment 29 would require the Secretary of State to undertake a review of the number of people successfully deported within a calendar year of a decision under Clauses 11 to 14.
We have tabled those amendments because of deep concerns about the clause. Our country has one of the most highly respected judicial systems in the world, and the right to appeal is a fundamental principle of British law. There can be few decisions more important, or which have a greater impact on an individual or community, than who is able to live here. These are decisions of life and livelihood which affect families, communities and, potentially, businesses and employers.
The noble Lord, Lord Hannay, has highlighted the situation with students. Other noble Lords are concerned about the position of families and children. However, we are looking at the wider concerns and principles raised by the Bill. The evidence, and the impact on businesses and the economy, make it very important that we get these decisions right. It is right that such a decision should be challengeable and that recourse should be available.
A system that provides for appeals is even more essential given that we know how flawed the current system is. It is well documented, and we have heard today, that the department is already struggling to deliver a high-quality service, and that there are huge casework backlogs. Recent figures show that of the 4,102 ex-foreign national offenders living in the community while awaiting deportation, 65% of cases are more than two years old; the number of foreign national ex-offenders living in the community rose by 122; and there are 12,816 asylum cases awaiting an initial decision—a 17% increase on the previous quarter. Evidence placed before the Home Affairs Select Committee revealed a previously undisclosed new backlog in permanent and temporary migration decisions of 190,000, and the total immigration backlog at the end of 2012 stood at more than half a million—502,467.
These are very sobering figures, but more important than that is the quality of decision-making. The latest statistics reveal that 32% of deportation decisions, 49% of managed migration appeals—that is, work and student appeals—and 49% of entry clearance applications were successfully appealed last year. Shockingly, the Government acknowledged in a recent letter to me from the Minister that,
“neither the Home Office nor the Ministry of Justice collect data on why appeals are allowed”.
I find that surprising given that this is such a significant clause in the Bill. However, what the department did have was a sample exercise of, I understand, around 2% of cases, which showed that 60% of the volume of appeals allowed are due to casework errors. That would mean that almost 30% of all appeals—that is, 60% of the 49%—are allowed due to casework errors. When so many decisions are found to be flawed, should we really be trying to remove the current routes of appeal and replacing them with administrative reviews? It would be helpful if the Minister could tell me today—or write to me—when that sample exercise was undertaken and what period it relates to. That would be very useful information to have. However, should we not be focusing on improving the efficiency of these initial decisions and making sure that there is little need for appeals in the first place? It really cannot be right that the Home Office’s response to its own inefficiency is simply to stop people being able to challenge that inefficiency.
I am sure that the Minister will point to administrative reviews as the recourse. The Government have already made it clear that, as evidence of the appropriateness of this new system, they rely on the fact that it is already used overseas when people are refused entry clearance. I am sure the Minister will also tell me that, under this process, 21% of original decisions are overturned. I appreciate that we are not comparing exact like for like, but it has to be recognised that these are two very different figures—50% of appeals granted under the current system compared with 21% of administrative reviews overturning original decisions. Even accounting for appeals overturned on the basis of new evidence or Article 8 claims, this still leaves roughly 10% difference between appeals and administrative reviews.
The Government have said time and again that the person reviewing the decision will not be the person making the original decision, but it will still be a cohort of immigration staff drawn from those who already make the decisions, so there is a conflict. Given the very high proportion of appeals that are allowed, and given the reasons for those appeals, it is clear that there is a serious problem in the quality of decision-making. Therefore, should not any administrative review be completely independent so that there is confidence in the administrative process?
As we have heard from my noble friend Lady Lister, the Government have again relied on the availability of judicial review as a recourse. We have pointed out on previous amendments that reliance on judicial review is likely to be more costly for the taxpayer. In their impact assessment on appeals, the Government said that the displacement on to judicial review could not be quantified, and therefore could not be costed. However, the “sensitivity analysis” in the assessment models the effects of an extra 5,600 reviews being started, and of up to 1,000 being granted permission. That would be an extraordinary increase in the number of judicial reviews. In 2011, there were 8,711 immigration and asylum reviews and only 4,630 reached the stage of a decision on permission. Judicial reviews cost more than appeals, costs can be sought from the other party—and, of course, the Government will do that—and damages may be claimed.
As we heard from the noble Baroness, Lady Lister, the Joint Committee on Human Rights has criticised the Government’s reliance on the availability of judicial review as an effective remedy, pointing points out that it does not consider how it is,
“affected by the Government’s other proposals to reform both legal aid and judicial review itself”.
We have not seen the evidence for this clause. We do not believe that the evidence is there. It could leave a number of people with a right to be here without recourse against a wrong decision. It could also end up costing more if more people go down the judicial review route. It is ill thought out and unfair. I hope that the Minister will listen to what is said today and reconsider this proposal.
My Lords, I wish to support the arguments put forward by the noble Lord, Lord Hannay, by recalling two anecdotes. He very forcefully and persuasively deployed the arguments about students from abroad, external to the European Union, coming to this country. One anecdote is about when I visited Tanzania with the late George Thomson and met Julius Nyerere. He had studied in a university in Britain and had translated Shakespeare’s plays into Swahili. The ties with Tanzania were greatly fostered by that personal encounter at a particularly difficult time when we faced apartheid in South Africa.
The second anecdote relates to a visit I paid to Hong Kong some years later when I met the director of development and housing, who had also been to a British university. When I inquired about who were the construction engineers developing various important developments in Hong Kong, virtually every single one of them was British. I think that reflects the truth of the general principle that we should encourage people from overseas to come to this country as students not only because of the money they pump into our education system, but also because of the long-standing ties that they foster when they go back to their own countries.
My Lords, I support the first amendment in this group, in the name of the noble Lord, Lord Hannay, for the following reasons. Each Bill introduced into Parliament has an impact assessment. I have considered the methodology of the impact assessment for this Bill. It refers to costs and benefits, but I think there is a fallacy built into the methodology. The section on employment and monetised benefits states:
“There may be additional employment opportunities for UK residents”.
This must be based on an extraordinarily narrow focus, even if it is not economic sense, to say that employment opportunities will be opened up for UK residents. It sounds like a bit of UKIP propaganda to me; I cannot see how the rationale for it works.
Why is this important? It is important because it is a long way from the sort of impact assessment to which the noble Lord, Lord Hannay and others, including the noble Lord, Lord Maclennan, have alluded. If, for example, we were to see a catastrophic fall in the subcontinent, are we seriously suggesting that the impact assessment on UK plc national income over the next generation would be zero? Of course it would not be zero; it would be negative. It is unacceptable that the impact assessment can be framed as narrowly as this.
In this regard, I ask the Minister to do two things. One is to revisit the impact assessment and to at least have a go at the wider context. The analogy that crosses my mind is that 10 or 15 years ago we could have said that we did not need to spend any money on Heathrow Airport because aeroplanes could land there and if there were a few more in the next year that would be fine, failing to see that our market share in Europe, compared with Charles de Gaulle, Frankfurt and Schiphol, would now be in a state of crisis, unable to serve all the places in China, for example, that can be served by these other airports.
Secondly, I ask the Minister to do a survey, and to put it in the Library, of the situation in other EU countries. We are talking about a distinct group, non-EU students coming into the EU, and although we control our own borders, at least to some extent—obviously not with the EU—we are not covered by a common external immigration policy. I am not suggesting that we should be. I am suggesting that we do a benchmark study. Australia, the United States and possibly Canada are the only countries that have been mentioned so far: the “white Commonwealth”, as it was once called. However, it is important to know what the practice is on this question of students in the other EU countries. Do they have to deal with the fearful rigmarole that we are confronted with here? Is the damage to Britain’s reputation part of the cost-benefit analysis? Of course it is not. I have great sympathy for the civil servants trying to do these cost-benefit analyses in so many fields nowadays. With HS2, can you actually look at the cluster effect on Manchester and Leeds and so on in the north of England? Possibly not, because it is very hard to do. It is very hard to quantify the cost benefits for that, and civil servants would get no extra brownie points for introducing, alongside key monetised benefits, things where it is difficult to monetise their value.
In conclusion, will the Minister agree with me, and with the spirit of what has been said by many noble Lords, that one cannot look at an impact assessment in the narrow terms on this rather thin piece of paper that I have here, which it is probably obligatory on Whitehall to use? Will he agree to look into the two matters that I have specifically asked about? This involves our world market share in so many areas, and that concerns the future of our country. Some might say that this is missing the point and that the point is to reduce the number of overseas students. I ask the Minister if it is outrageous to suggest that the policy is to reduce the number of overseas students, the rationale being that statistically they pose more potential danger to the country. We must spell this out. Before Report, there is scope for these matters to be teased out a lot more than they have been so far.
My Lords, I have Amendment 80 in this group. I was prompted to table it following the discussions to which I have been party about the importance of students to this country.
While entirely agreeing with the thrust of what has been said so far, I have concerns about Amendment 26. It would have the effect of excluding—or including—a particular group that would retain a right of appeal. The new Section 82(1) would allow appeals by individuals in certain circumstances, but the noble Lord’s amendment would allow all those to whom he has referred—essentially all students—to retain the right of appeal. Students and universities are an obvious, vocal and important cohort. They have a voice that others affected by Clause 11 do not have. There will be individuals who are substantially affected as individuals, over a range of circumstances and issues. I would be concerned about picking out a single group for whom to retain a right, without considering carefully what that would say to all those other people who will be affected by this clause. There may also be practicalities which I shall not go into.
The noble Lord, Lord Hannay, said that many of our committees have said: “Please treat students not as economic migrants”. I do not doubt what he said but wonder whether we are being asked not to treat them as economic migrants or not to regard them as economic migrants. They may have slightly different meanings. However, I am absolutely convinced of the importance of the international links to which my noble friend Lord Maclennan referred. I am concerned about all the reputational issues for the UK that would flow from perceptions—we may be told that they are only perceptions but they are important—if we were thought not simply to accept students but to welcome them and seek for them to come here.
I am also concerned about what seems to be a lack of good marketing. We are told by the Government that students are welcome, but there is a problem in terms of promotion. Therefore, given that so much of the debate is actually about the number of immigrants and including students in total immigration figures, it would be right to pursue the issue regarding the number of students. We should seek not just to disaggregate the numbers, because I understand that that is done at the moment. However, that issue gets no coverage. We should be taking positive steps to make sure that it is understood how the numbers break down and that we do not prejudice ourselves by including student numbers in the total numbers and then finding that for whatever political reasons there is a target for reducing the total numbers, and the students get swept up in them.
I appreciate that there is the UN obligation and that the numbers are dealt with by the ONS and it is, in a sense, not up to the Government to publish separate figures. I know that those figures are there but they take a little seeking out and certainly do not get the promotion and exposure that they would if we were to have a debate based properly on numbers, rather than a debate that is based to a large extent on prejudices.
My Amendment 80, to which my noble friends Lord Clement-Jones, Lady Brinton and Lady Benjamin have put their names, would provide for an annual report by the Secretary of State on study-related immigration. I am sure that the amendment, which very much has amateur drafting, is riddled with technical flaws but its thrust is that we should be able to see annually,
“the number of applications to enter the United Kingdom on student visas”,
the number of applicants who actually come in on those visas, the number rejected, and an estimate of the number of people who have held a student visa who have left. We will, of course, be considering the issue of embarkation checks at the end of the Bill but one of the big holes in all the consideration of these issues is that we do not know who has gone. We also need comparative figures for other managed migration. We need this information in order to thoroughly understand what is going on. The lack of understanding is feeding a position that is entirely unhelpful.
The noble Baroness, Lady Smith, spoke to amendments regarding appeals and mentioned the proposal for an administrative review. I have an amendment on administrative reviews but it is not in this group and we will come to it on Wednesday.
My Lords, I very much agree with everything that the noble Lord, Lord Hannay, said and I am delighted that my name should be attached to his amendment. I shall not therefore repeat his powerful arguments but should like to add just one further thought.
As everyone in this House knows, the United Kingdom is second only to the United States in terms of the number of universities that it has in the top group of the world’s universities, not just in absolute terms but in all kinds of important subject areas such as engineering; figures last week showed that Cambridge, Imperial College and Oxford were still in the very top group. That was as much as the rest of Europe put together was able to provide.
There are many reasons why British universities are in the top group of world universities but one is that there is a free market in talent that enables them to attract it from all over the world, not only in the students but in the teaching staff. To some extent, there is a chicken and egg factor here. They are great universities partly because they can attract talent from all over the world, and because they can attract that talent they remain very good universities.
There is a similarity between the university world and financial markets. Neither of them is purely national. Both are totally international with seamless connections across the world. Therefore, if you try to turn us into an island and cut us off from this stream of talent that is crossing the world, you will do great damage to British universities. It will not show up in the short term, as the noble Lord, Lord Lea of Crondall, just pointed out. These things take a long time to show through. But it will very seriously damage over the long term the ability of the greatest British universities to remain in the top group—and not only them. For 15 years, I was chancellor of the University of Bath, a university that was founded less than 50 years ago. This has nothing to do with me because the outstanding vice-chancellors that it has had deserve the credit, but in the past 20 years the University of Bath has moved from obscurity not only into the top group in the United Kingdom but now into a number of world league tables as well. That is because it has both a student body and a faculty that are drawn from all over the world. In fact the previous vice-chancellor was American. It has had people from the Far East, North America, South America and all kinds of places.
I beg Ministers to consider the fact that clauses such as this one that we are seeking to amend have a deleterious effect on the ability of British universities to perform adequately on the world stage. We do not have so many institutions, so many industries and so many spheres of our national life that are indubitably regarded as absolutely among the best in the world. Universities are one and it would be extraordinary to kick them in the shins.
My Lords, I endorse what the noble Lord, Lord Tugendhat, just said and what the noble Lord, Lord Hannay, said earlier. My background is that I was for 17 years chancellor of the University of Strathclyde in Glasgow. Our experience has been that we are operating in a global market not only for teachers but for students—those coming to the university and those going out from the university to other countries to take on part-time study or study together with employment experience.
There are a number of aspects that I might very quickly mention one after the other. The first is the point that the noble Lord, Lord Hannay, made about the cumulative effect of policies that have been building up over the years. One of the most injurious in our experience has been the inability of foreign students to stay on after they have completed their degree courses. I know that there is strong feeling in government that we have a policy about people who stay on who should not do so. These are people who in the previous system were able to remain here for a given period. They used that time to gain work experience in some of our leading companies. Together with their academic work, they took that back to their own countries, developed their own expertise and thereby maintained a continuing link not only with the universities but with the companies with which they worked. That has gone. We are not talking about that in this Bill, but it is against that background that this has become a much more serious issue. The noble Baroness made the same point. We have reached a point where we are losing contact and the competitive edge that we must maintain if our universities are to remain as competitive as they are in the world.
The second point is about revenue, which the noble Lord, Lord Maclennan, made. Certainly, our experience when we were getting students from India and China was that they were paying substantial sums to come to the university, and we are losing that. I am told that there has been a 25% fall in students from these countries coming to Strathclyde for postgraduate degrees. That is a drop in numbers that is difficult to make up for in the market in which we work.
The other aspect is the exchange process whereby our students go away in the course of their studies for a year out. Because we are driving away international students from elsewhere, it is more difficult for us to get places for our students to go to.
The final point is that one of the essences of university is the ability of students to mix with each other, gain experience from what other people have done and make friends across the faculties and across the nations throughout the world. The opportunities for doing that will be diminished if we do not sustain our effort of attracting students from other countries from outside the EU who have so much to contribute. Therefore, I warmly endorse the amendment moved by the noble Lord, Lord Hannay.
I should add, in response to a point made by the noble Baroness, that I believe it is a very carefully crafted amendment because it is seeking to direct attention to a very particular category. Those are the categories described very precisely in the amendment, which is the point that I and, I suspect, the noble Lord, Lord Tugendhat, have addressed. It is a very particular category. It does not include language schools and all the other fringe elements, which might give rise to abuse. These are people who would be here for very good reasons, carefully monitored, and would take enormous benefits back to their own country if they were allowed to continue to come here.
My Lords, if I may, I will just add a brief comment on precisely that amendment. Some years ago I spent time in Malaysia and found myself meeting a number of barristers, all of whom had trained in this country. They spoke of how, when they had particular legal problems or needed advice, they would immediately turn to the people they had studied with back in this country. However, they were lamenting the fact that in recent years the next generation were all being trained in Australia and America and, of course, the place that they immediately contacted when they wanted help was their friends in those countries. They thought it was the most extraordinarily short-sighted approach compared with the way things had formerly been done.
I will add one other thing. Just three or four weeks ago, I paid a visit to one of the universities in my diocese, the University of Bedfordshire, and I met Bill Rammell, who had recently come there as the vice-chancellor. Immediately when we got talking, he lamented the very serious problem they have now of finding perfectly good students who want to come but are simply already unable to come. He was saying that this is something that is materially affecting Bedfordshire as one of our dynamic, thriving universities, which wants to be right at the forefront of forming, developing and, indeed, celebrating an international academic community, but it is finding that already it is difficult. Therefore, I want to add my support for the amendment.
My Lords, I rise to speak to Amendment 80, to which I have put my name, as I believe we need to find a sensible way forward to deal with the international student figures. International students make up less than 1% of the UK population, yet their spending power supports £80 billion-worth of UK economic output. International students support over 830,000 UK jobs across the country, including in Wales and Scotland. Interestingly, they are the most heavily regulated and monitored and are subject to strict visa controls. Yet there are proposed processes being considered here in this House that will deter many potential international students from choosing the UK as the place to study. This worries me greatly, as I speak as chancellor of the University of Exeter—I declare an interest.
This is why I support Amendment 80, which my noble friend Baroness Hamwee has spoken so eloquently on. I believe this is a common-sense way forward that deals with this important issue, and highlights international student numbers in a coherent and sensible way to show them that they are not perceived as the enemy and that they are wanted and welcome. It will ensure that the Government will know that, if there are any concerns detrimental to our country, they will know exactly where the problems are if there are any. Therefore, I hope that my noble friend the Minister will give careful consideration to Amendment 80. I look forward to his reply and will accept nothing less than a compromise.
My Lords, the hour is late and there is much to say, but I will be brief in my remarks. Let me begin by declaring an interest as a member of the court of the University of Hertfordshire, which is very like what the right reverend Prelate had to say about the University of Bedfordshire—a very young, growing but exciting and expanding university in a part of the world which, rather surprisingly, has not got as many universities as exist around Oxford and Cambridge and London.
Let me be quick and say the following. I would like first to add one other distinguished name to the list given by my noble friend Lord Maclennan. It is a name worth thinking about for a moment, and it is of course that of the new President of Iran. He holds a postgraduate degree from Glasgow Caledonian University, and one has to ask oneself whether his much more enlightened view of global relationships has nothing whatever to do with the fact that he is one of the very few senior figures in Iranian society who has spent substantial time outside his own country, speaks good English and is interested in what is happening elsewhere. That is the kind of benefit, one which cannot be listed economically, that a country like ours gets from the very wide spread of its students from all over the world who, over the last generation, have attended universities in this country. Out of that has grown an abiding affection both for their university and for the country in which it happens to be located.
Let us be honest: there is a profound division of opinion within the Government on this issue. We all know that the department for business enthusiastically supports the idea of a substantially greater expansion of British universities. That department includes some able Ministers with considerable knowledge of higher education, and it knows one important thing. The important thing that it knows is that you can grow out of a university relationship a whole range of relationships with other businesses, public services and so forth across the front. The noble Lord, Lord Tugendhat, pointed to the effect of this kind of relationship on global attitudes. It allows us to extend our acquaintances and friendships all over the world.
I shall put this very particularly because the noble Lord, Lord Hannay, said something less dramatic than I am about to say. He pointed out quite rightly that the National Union of Students study, based on a careful poll conducted at the end of last year of more than 3,000 students in this country, is the best figure that he could get; it is a figure showing what undergraduates think. Some 51% of undergraduates have said that they think that this country is not welcoming to overseas students. The more drastic figure—more drastic for the reasons given by my noble friends Lady Hamwee and Lady Benjamin—shows that 66% of postgraduate students, people who have spent some time studying here, take the view that this country is unwelcoming to overseas students. These are the very men and women to whom the noble Lord, Lord Tugendhat, was referring when he talked about relationships with scientific, medical and cultural groups in this country. They have a valuable contribution to make, but increasingly they are being somewhat frozen out.
One of the worst examples of this is the playing around with visas, which means that students suddenly find themselves without a visa a matter of months before they are due to start their course, and no one repays them for the work they have done to get that visa in the first place. British visas are among the most expensive to be found in any country offering higher education in the whole of Europe. Our visa expenses are something like three or four times higher than those of our major competitors. Now we are going to add to that cost health surcharges, decisions about tenancies and a whole range of things, all of which are off-putting and not welcoming. I agree with my noble friend Lady Hamwee that this country has to make a great effort to retain this huge asset value in one of the few areas in which we still lead the world. It is to my mind almost totally irrational to make it harder and harder for our most effective industry, that of higher education, to expand, grow, root itself and be there for the distant future.
The reason for all this is that we have become so obsessed with immigration numbers that we can no longer see the larger picture. The great bulk of students, over 95%, who come here to study go back to their own countries, having fostered friendships and relationships with us. I shall give only one example before I stop. In this country we suffer considerably from a long increase in waiting times for people getting into, for example, A&E to look after accidents and injuries that they have. We used to have a substantial number of junior doctors serving in A&E, particularly those who came from countries like India, but elsewhere as well, who gained great knowledge of medicine and of our hospitals and made a huge contribution to a National Health Service that ran smoothly. Increasingly, those numbers are no longer there. In two years’ time we shall see A&E waits rise, and we shall ask, “How did this come to happen?”. The answer is right here and now. It comes to happen if we turn off the young medics who would like to come here, who would like to learn about how we work and about how our health service works and then go back to their own countries and spread that knowledge more widely.
So I end simply by saying that we have a profound schizophrenia in this country on this issue. I do not understand why it is not clearly seen to be of such advantage to us, to our own people and to those who come. We do not recognise that we should have the strength to face up to looking again at this extraordinary conflict that we look at all the time between different departments, different people and different individual political attitudes. We should look at it and say to ourselves that this is something that we do very well, something for which we have been admired, something which benefits the world and benefits us, and decide to get on with it and make our universities the core of one of our most rapidly rising and highest reputation industries.
My Lords, I shall briefly add my support to both Amendment 26 and my noble friend’s Amendment 80. The fact is that overseas students are temporary migrants. They should be both treated and reported differently. These two amendments reflect that approach.
This debate is very timely. Last week, the net migration figures were published and none of the media coverage disaggregated the figures. I do not know what the Government’s original press release stated, but it seems that by publishing in that form they are simply creating a rod for their own back. Amendment 80 at least is an attempt to make sure that for some purposes, the student visa figures are clearly and publicly disaggregated.
The obsession with the original pledge to reduce net migration to tens of thousands seems to me and to many others in the university sector to be totally counterproductive in terms of its impact on our ability to attract foreign students. I and many others made clear on Second Reading that we are in danger of an adverse impact both in economic terms and in terms of the soft power to which the noble Lord, Lord Hannay, and my noble friend Lord Maclennan referred. As we heard from the noble Lord, Lord Hannay, the total number of international students coming to the UK fell for the first time last year.
The number of voices that we have heard over the past two years, not just in this House, has been legion in that respect. In 2012, 68 representatives of universities wrote to the Government urging that these figures should be disaggregated for public policy purposes. The Business, Innovation and Skills Select Committee did likewise. The noble Lord, Lord Hannay, referred to the five chairmen of Select Committees. All the aforementioned are powerful voices recommending that for domestic policy purposes, overseas students should not be counted against the overall limit on net migration.
Contrary to that, the Government’s response to the Business, Innovation and Skills Select Committee’s report stated that they were following the same practice as the US, Canada and Australia, our main higher education competitors. That is simply not the case. Those countries do exclude students, treating them as temporary migrants for domestic policy development. It is high time that we did likewise—failing which we are going to find that we are in grave difficulties over our ability to attract these students in future.
My Lords, this has been an important and interesting debate. It is really about appeals, but I understand why many noble Lords have also used the opportunity to talk about student issues. It is an issue which was well canvassed during your Lordships’ debate at Second Reading. I think the noble Lord, Lord Hannay, has amendments—or at least an amendment—down later in the Bill, where I am sure there will be an opportunity again to debate these matters.
I will of course try to respond to a number of the points that were made but it might be useful to put this into context—the noble Baroness, Lady Smith, spoke to the clause stand part debate and to other amendments with proposed new clauses—and to look at some of the issues regarding students in that context. The key point is that we believe that the present appeals system is complex and costly. The purpose of Clause 11 is to reform and streamline the appeals system so that appeals can be brought only where decisions engaging the fundamental rights of asylum, human rights or EU free movement are made. The clause will also set up an administrative review system to provide a proportionate and less costly mechanism for resolving casework errors.
Clause 11 changes the decisions that give rise to an appeal, the grounds on which that appeal can be brought and the jurisdiction of the tribunal to consider them. As I said, it is intended to simplify an overly complex appeals system. That complexity provides the opportunity for multiple appeals and allows removal to be delayed by the lodging of an appeal as of right where there is no arguable error or where there is a simple casework error that can be corrected more quickly and effectively by administrative review. I will come on to the wider points made by the noble Baroness, Lady Lister, which I am sure we will debate fully. The Joint Committee on Human Rights accepted that there was a legitimate objective to reduce unmeritorious claims, although I accept that other issues arise with that.
Clause 11(2) reduces to four the number of decisions that can be appealed. We recognise the importance of an appeal to an independent tribunal where a case involves fundamental rights such as asylum and human rights, and the provision preserves an appeal right in these cases. A right of appeal is also preserved where the decision was to refuse a claim based on European Union rights. That appeal right is established by secondary legislation under Section 109 of the Nationality, Immigration and Asylum Act 2002 and therefore does not form part of the Bill.
A right of appeal is not the most appropriate remedy for cases that do not involve fundamental rights. The noble Baroness, Lady Smith, mentioned that our internal sampling showed that 60% of allowed appeals against decisions under the points-based system are allowed because of casework error, and asked when that sampling was done. It was a 2% sample between April and June 2013. An appeal is a costly and time-consuming way to correct a casework error but it is not the case, as I think the noble Baroness said, that we are trying to stop a challenge where there is a casework error. There will be an administrative review system, which is what we have been debating and what we believe is the most appropriate remedy in these cases.
Subsection (3) repeals Sections 83 and 83A of the 2002 Act, which provide for a right of appeal on asylum grounds where asylum was refused or revoked but leave was granted on other grounds. They are no longer necessary, as subsection (2) provides for a right of appeal directly against the refusal of, or revocation of, asylum in all cases. Subsection (4) sets out the grounds on which an appeal can be brought. Clause 11 simplifies what is currently a complex system so that the only grounds on which an appeal can be brought reflect the decision under challenge. Subsection (5) restores the Secretary of State’s position as primary decision-maker on asylum and human rights claims and prevents appellants from raising new issues for the first time on appeal. Under the current appeals system, the tribunal has jurisdiction to decide such issues even though the Secretary of State has not had the chance to consider them. For example, a student appealing against the refusal of an application to study in the UK can currently raise asylum or their Article 8 rights, disclosing for example that they now have a family in the UK, which they can do under the present system for the very first time on appeal.
Making this change restores the role of primary decision-maker to the Secretary of State by providing that the tribunal cannot consider any reason that a person has for wanting to stay in the UK that has not already been considered by the Secretary of State, unless the Secretary of State consents to the tribunal considering the new matter. This provision does not prevent a person introducing new evidence about matters that the Secretary of State has already had a chance to consider. The tribunal will continue to be able to make its decision on the basis of all facts relevant to the matters that are before it, as required by case law. Reforming appeal rights will create a better process. Immigration judges at the tribunal will no longer need to consider caseworking errors. Applicants will have those errors considered faster and more cheaply, and those types of case will be removed from the tribunal system, which will reduce overall expense.
That is the context in which we are looking at the issue of students, although I accept and acknowledge the much wider issues that have been raised in this debate. I agree with my noble friend Lady Hamwee and with others. In fairness, the noble Lord, Lord Hannay, said as he opened the debate and moved his amendment that there was much common ground between what he was arguing for and the Government’s position.
We agree on the importance of students to the United Kingdom. My noble friend Lord Maclennan gave illustrations of the soft-power benefit that can come from that. Overseas students contribute a great deal to our economy and to the reputation of our academic institutions internationally. There is no limit to the number of genuine overseas students who may come here to study. As the Government have repeatedly said, this country welcomes the brightest and best. It is important to stress that.
On the specifics of the amendment of my noble friend Lady Benjamin, who said that she accepts nothing but compromise, I hope that I can perhaps give her more than compromise. Most of the data sought by my noble friend’s amendment is already published. Data on visa applications, grants, and refusals of tier 4 general visas, and on other visa categories, and corresponding admissions data for those entering the UK, are published quarterly by the Home Office. These statistics also show the number of visa applications made by students sponsored by higher education institutions as distinct from other types of education provider. In addition, the Office for National Statistics publishes quarterly reports on international migration statistics that now include estimates of the number of former students emigrating from the United Kingdom. The Higher Education Statistics Agency is responsible for publishing detailed data about non-EU students in the higher education system.
It might be useful to inform the debate with some statistics. I think that it was said by the noble Lord, Lord Hannay, and my noble friend Lord Clement-Jones mentioned it, too, that there had been a drop in the number of international students. To put it into some kind of perspective, in 2010-11 the number in the UK was 428,230; in 2012-13 it was 425,260, a drop of less than 3,000. Australia had a drop of 10,000 and France of 2,000. There were increases in the USA and Canada, but the drop in the UK was relatively small and much smaller than that in Australia. There was specific mention of Chinese students. Between 2010 and 2013, the number of Chinese students increased in the United Kingdom by 24.5%. Admittedly in the United States the figure was 49.5%, but the increase in Australia was only 1% and in France there was a drop of 4.4%. There is a good story to tell. We are still an attractive proposition for people wishing to come and study.
My Lords, disappointingly the figures for India have gone down and there may be some historical background to that. The figures have gone down from 39,000 to 22,000 over these three years. They also decreased in the United States from 103,000 to 96,000 and in Australia from 21,000 to 12,000. It is interesting that there were decreases in the UK, Australia and the United States, which suggests that there may have been other factors. As my noble friend Lord Taylor said, there had been a big increase at an earlier stage in students coming from India, but I will certainly look for more detail on that.
Does this not demonstrate the value of having some independent statistics on what you might call world market share? The figures for India, the United States, et cetera, have just demonstrated that you have to compare apples with apples on this and we are not necessarily doing that at the moment. It would be very useful, to inform the debate, if we had more data instead of anecdotal evidence on these matters.
The noble Lord is suggesting that these figures are anecdotal, but in respect of the countries I have just mentioned—the United States, Australia and the United Kingdom—they are genuine figures, as far as I am aware. There is no way that they are anecdotal. Those for the United Kingdom were produced by the Office for National Statistics.
I honestly think that we had better call the day on this selective quotation of statistics. Why cannot we all just use the Higher Education Statistics Agency’s figures for the most recent year? Just picking figures out or suggesting that two or three years before that there had been an enormous increase and so on will get nowhere. This is not a statistical matter. This is about a growing market in which we are losing market share.
I did not seek to dismiss this as a statistical matter. I sought to put it into some kind of context: that over the period we have been talking about the drop was less than 3,000, and other countries saw a drop as well. The important point, which I will repeat, is that this country welcomes the brightest and best and there is no limit on the number of overseas students who can come to study here.
My noble friend asked whether students who receive visas go on to use them. All genuine students who qualify will be issued with a visa for the United Kingdom but of course they may ultimately decide to study elsewhere. I know that it may be of interest to my noble friend how many students may go to the trouble of applying for a UK visa and then choose not to travel, but I regret that that information is not available to the Government. I am afraid we cannot meet all her requests but a substantial number of the things that she was seeking in her amendment are already there.
My Lords, I accept that and I knew that much of what I was seeking was already published. My amendment tried simply to paint the whole story. I accept that some of the painting by numbers cannot be filled in.
A few minutes ago my noble and learned friend said that there is a good story to tell. My short point is: we need to tell it. It seems that we are not telling it and I would like to find a mechanism to get it told. I passed my noble friend Lord Clement-Jones a copy of the Home Office press release that I printed off on Friday. If I were a journalist it would not tempt me to write the good story.
My noble friend makes a valid point. We collectively need to think about how to tell a good story better.
The noble and learned Lord, Lord Hope, asked about students staying and working after their studies. While studying, university students can work for up to 20 hours a week in term time and full-time during holidays; they can also undertake work placements. They get four months at the end of their course to gain work experience and after that they can stay if they get a graduate job earning £20,300 or more or are on one of our other postgraduate study work schemes. We have also expanded the post-study work opportunities available. PhD students can stay for a year to gain work experience and those who have a business idea to develop can do so under our graduate enterprise scheme, which I believe is the first of its kind in the world.
In trying to address the issue, the noble Lord, Lord Hannay, has moved an amendment which seeks to add decisions relating to higher education students to the types of decision that can be the subject of an appeal to the tribunal, as set out in Clause 11. The Bill already provides that anyone, including students, can appeal against one of the decisions listed in Clause 11(2): the refusal of a protection claim, the refusal of a human rights claim or the revocation of protection status. The amendment does not change that because it neither adds a new decision type to the list of decisions that attract a right of appeal nor adds to the grounds of appeal that could be raised at appeal. When I was in the other place, I used to cringe a bit when Ministers used to say, “Your amendment is technically deficient” when an important point was being made. Technical flaws aside, we believe the amendment is unnecessary. It is true that a student may no longer appeal against the refusal of an application for further leave to remain in the UK as a student under the Immigration Rules. We are doing that because the appeals system is slow and expensive for those with a genuine concern and presents too many opportunities to frustrate removal for those who seek to break the rules.
The Bill replaces the right of appeal with the administrative review process, which will provide a swifter and cheaper remedy for the majority of those students who would have been successful on appeal. For students who want to move on with their studies, I believe that a quick remedy is better than a drawn out one and that a cheaper remedy is better than a costly one. That relates to the issues which have been raised in this debate in relation to appeals.
Amendment 27 would impose three conditions which must be met before the appeals provisions in Clause 11 come into force. The first is that the Independent Chief Inspector of Borders and Immigration must report on decision-making in entry clearance and managed migration. The second is that the Secretary of State must be satisfied that decision-making for entry clearance and managed migration is efficient, effective and fair. The third is that only once those two requirements have been met can an order for commencement of Clause 11 be laid before Parliament and approved by both Houses.
I understand the reservations that have been expressed about decision-making in immigration cases. They were expressed in the report of the Joint Committee on Human Rights and by the noble Baroness today. However, these concerns must be seen from the perspective of the end-to-end immigration system. In 2012, 14,600 managed migration appeals were allowed by the tribunal. The total number of managed migration decisions taken in 2012 was 291,827. Only 5% of those decisions were overturned. Although our internal sampling indicated that 60% of the points-based system appeals that succeed do so because a case-working error has been made, this does not mean that the majority of decisions are affected by error—far from it. The great majority of applications are successful. Of decisions taken in the UK, only 10% were refused in 2012. Fifty-one per cent of those succeeded on appeal, of which 60%, as I referred to earlier, succeeded because an error was made. Looking at decisions as a whole, it is clear that only a small proportion is affected by the changes being made to the appeals system.
The Home Office has taken action to address historic problems with decision quality. I recognise that these concerns have been genuinely aired. It is why the old UK Border Agency was abolished and its functions brought back into the Home Office. That has made a real difference and work is continuing to improve decision quality. The chief inspector himself acknowledged that positive steps have been taken to improve the process by which decision-makers learn from appeals in his November 2012 report on tier 4 student visas, which in turn led to improvements in process and decision quality.
Administrative review will be a central part of the process to improve decision quality, as its function is to identify errors in decision-making. The administrative review process is being developed to incorporate an element of feedback to the original decision-maker. In this way, administrative review will support the ongoing work to improve decision quality. I can also confirm that those who do the review will not be the same as those who undertook the original decision.
The approach adopted overseas for feeding back administrative review outcomes to decision-makers and improving decision quality is recommended as the right approach by the chief inspector in his September 2013 report on tier 1 visas. In-country administrative review is modelled closely on the approach overseas.
Meeting the requirements that the amendments seek to impose before commencing Clause 11 will inevitably cause delay. That will mean that those migrants whose decisions are affected by case-working error will have to continue to challenge decisions by costly and time-consuming appeals rather than being able to take advantage of a swifter and cheaper administrative review process.
Amendment 28 also relates to the commencement of Clause 11. It would require an impact assessment to be laid before Parliament setting out the number of appeals that will be affected by the changes to appeal rights introduced in this Bill and the costs that these changes would cause the First-tier Tribunal to incur. However, as was referred to by the noble Lord, Lord Lea, an impact assessment has already been produced and was published prior to the introduction of the Bill. It contains the information that this amendment seeks to have laid before Parliament. Given the existence of the impact assessment, I hope that the noble Baroness will not press the amendment.
Amendment 29 would require the Secretary of State to produce a review within 12 months of Royal Assent of the numbers of persons deported under Clauses 11 to 14. I rather suspect that the amendment is based on a misapprehension as deportations do not take place under these clauses but rather under Section 5 of the Immigration Act 1971. However, I assume from what was said that the aim is to question what difference the changes in the Bill will make to our ability to deport those whose presence is not conducive to the public good, including foreign national offenders.
The changes made in the Bill are not about large increases in the number of foreign criminals we deport but about the principle that Parliament is rightfully the body to set out the public interest in the importance of seeing foreign criminals deported and that the tribunal is the right body to weigh the strong public interest in deporting foreign criminals against the specific Article 8 rights of the criminal and their family. Success will be seen as these deportation cases progress through the Immigration Tribunal with outcomes that clearly show that the tribunal decision has had particular regard to Parliament’s legitimate view on the public interest. Case law will take some time to develop and settle once these provisions are commenced. It is not sensible to have a set period on the face of legislation for when a report must be presented when we may well at that point have only a very partial picture of the impact of the changes.
The statement of intent published in relation to the Bill also indicated that:
“Within a year of the administrative review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan”.
It is certainly my understanding that, off his own bat, the chief inspector can also take up any issue at any time. The Government have committed to asking the independent chief inspector to include a review of the administrative review process established under this clause, with that to be done within a year of the process being established. On the basis of these reassurances, particularly with regard to appeals, I hope that the noble Lord will be willing to withdraw his amendment and that noble Lords will agree that Clause 11 should stand part of the Bill.
My Lords, I will be very brief because the noble Lord, Lord Singh, and others who are involved in the next debate have been sitting with mounting irritation, I seem to think. He has been very patient and I will not say much.
The point I am making here is that the cumulative effect on students and post-graduates is damaging. The evidence is there and we would be foolish to ignore it. I hope that Ministers will, between now and Report, look carefully at the cumulative issue. That is important. The noble and learned Lord, Lord Wallace of Tankerness, suggested that the drafting of my amendment is somewhat short of perfect. I asked someone who shall remain nameless about that earlier today. He said, “Don’t worry, Ministers always say the drafting is imperfect but, if the House’s views are made known to them, somewhere before Third Reading they will get it right. They have lots of lawyers who can get it right”. I do not wish to continue further now other than to say that we will have to come back to this issue both in the debate on Amendment 49 and on Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment 26 withdrawn.
Amendment 27 not moved.
Clause 11 agreed.
Amendments 28 and 29 not moved.