Question for Short Debate
To ask Her Majesty’s Government whether they plan routinely to publish statistical information on the detention of pregnant women under the Immigration Act 2014.
My Lords, I make no apology for returning to an issue that was discussed at length in this House earlier this year during consideration of the then Immigration Bill, now the 2016 Act, and which I raised again on 25 May, but I do regret having to do so. I feel that the Government have behaved badly here and I would like to hear an explanation. This is a vital issue that goes to the heart of the sort of nation we want to be and think ourselves to be. In the words of the Royal College of Midwives:
“Women who are pregnant are uniquely vulnerable in so far that they (and their babies) will always have specific, and sometimes serious healthcare needs which are time critical and may impact on health outcomes … Given these risks, and the fact that pregnant women are very rarely removed by means of immigration detention, there is simply no justification for detaining pregnant women in immigration facilities”.
To their credit, after more than a bit of nudging by this House, Ministers largely accepted that argument and Section 60 of the 2016 Act provides for a new 72-hour time limit on the detention of pregnant women. This can be extended to seven days if authorised by a Minister. In common with the Royal College of Midwives, the Royal College of Obstetricians and Gynaecologists, Maternity Action, Women for Refugee Women, Medical Justice and many members of this House, I believe that pregnant women should never be held in detention. I would have much preferred to see the Government agree to an absolute ban on such detention. In the words of Medical Justice:
“Even short-term detention can be harmful to pregnant women and their unborn babies”.
As I said, the 72-hour time limit, which came into force on 12 July, represents a significant and very welcome step forward. However, if we are going to have confidence in this time limit and its effectiveness, and in the Government’s stated intention to end the routine detention of pregnant women, it is essential that meaningful statistics on the detention of pregnant women be publicly available. On this, not only has there been disappointingly little progress since the noble and learned Lord, Lord Keen, told me on 25 May that the Government were considering how best to collate the information on detained women, but the Home Office has actually actively hindered efforts by Women for Refugee Women and others to monitor the use of detention and compliance with the new time limit. Since the Home Office started collecting information on the detention of pregnant women in August 2015, following a recommendation from Her Majesty’s Inspectorate of Prisons, Women for Refugee Women has asked to access that data through freedom of information requests.
The Home Office took almost five months to respond to the first request, which was made in February this year, and did so only after the Information Commissioner’s Office upheld Women for Refugee Women’s complaint that the Home Office had breached Sections 1(1) and 10(1) of the Freedom of Information Act 2000 by failing to respond substantively within 20 days. Women for Refugee Women put in a second freedom of information request at the Home Office on 23 August, but as of today it is still awaiting a response and has been forced to lodge a further complaint with the Information Commissioner’s Office. I find it a matter of concern that even after the upholding of a complaint by the Information Commissioner’s Office, the Home Office still does not appear to regard responding to such requests in a timely manner as at all important. Its failure to comply with the 20 working-day period specified in the Freedom of Information Act hinders scrutiny of the use of detention of pregnant women.
More generally, I find it astonishing that five months after the Minister told this House that the Government were busy considering the options for the collection of data on detained women, we are still awaiting a mechanism for making that data publicly available. After all, we are talking—at least, I hope we are—about a relatively small number of women, so I simply do not see how difficult it can be. Once they have said that they might be pregnant and they have been examined, surely it is easy to collate that information. Ministers have asked us to accept that they have committed themselves to a new policy to minimise the number of pregnant women in detention. I am willing to accept that, if the Home Office would only make the tiny effort necessary to allow proper scrutiny.
Data collection aside, in June the Home Office issued a draft detention services order on the care and management of pregnant women in detention. It sought comment on the draft and stated that a final DSO would be published over the summer, but as of today it has yet to release that—not to mention that in the view of the Royal College of Midwives, the Royal College of Obstetricians and Gynaecologists, Maternity Action and a host of others, the draft DSO was absolutely inadequate. Accordingly, I have some questions to which I would very much like answers. I understand that it may not be possible for the Minister to give them all today, but I hope I do not have to go through a freedom of information request because obviously, that will take a long time.
I would like to know how many pregnant women have been held in immigration detention since the implementation of the new time limit on 12 July. How many of those women were held for more than 72 hours? How many were removed from the country and how many were released back into the community? When will the Home Office start publishing these figures and other data on a regular basis, and when will it publish the final revised detention services order? On a day when we have heard that the Government have been forced to pay out £14 million to 573 people who were wrongly imprisoned under immigration powers, and earlier this year an inspector’s report said that Europe’s largest detention centre near Heathrow was “dirty and run down”, “overcrowded” and with “seriously insanitary” toilets and showers, it seems that something has to be done. If we are a nation of people who pride ourselves on our compassion and upholding our principles, this is something that we need to deal with, and quickly.
Finally, I hope that the Minister can give us an assurance today that any further freedom of information requests on the detention of pregnant women will be dealt with by the Home Office in a legal and timely manner, and certainly within the 20 working-day time limit.
My Lords, I thank the noble Baroness, Lady Jones of Moulescoomb, for securing this short debate on such an important question. It takes most of us back to not exactly happier times debating the Immigration Bill, which became the Immigration Act 2016. At that time, I and others called on the Government to commit to making the statistics on the detention of pregnant women regularly available for public scrutiny. This was partly in response to the noble and learned Lord, Lord Keen of Elie, promising that he would continue to reflect on how best to create greater transparency concerning procedures.
Yet in place of transparency, we have a disgraceful situation whereby the Home Office appears to have done its utmost to block FoI requests submitted by Women for Refugee Women, despite a successful complaint to the Information Commissioner’s Office. I, too, ask the Minister to explain why the Home Office is still failing to comply with requests in a timely manner, despite the ICO’s ruling. Will she give a commitment that any future requests will be dealt with in a timely manner—not that an FOI request should be necessary in the first place? Will she explain how the Government plan to monitor the very welcome commitment to reduce the number of survivors of sexual and gender-based violence in detention? Will she commit to publishing the findings so that it is possible to assess how well the new policy is working?
During the last gasp of our debates on the issue of pregnant women, having failed to achieve the recommendation of the Shaw report that there should be an absolute exclusion on their detention, I expressed the wish that our colleagues in the other place might read our debates and,
“think about how, within the constraints of the legislation as it is, we could make this a more humane process”.—[Official Report, 10/5/16; col. 1.]
I hope we will use the opportunity afforded by this debate to do that now. In particular, I want to go back to an underlying issue that I raised during the debate on the Bill, which got a bit lost in the niceties of the wording of amendments. It is how we best achieve the Government’s stated aim that the treatment of pregnant women should be:
“Similar to the arrangements put in place as part of ending routine detention for families with children”.
Indeed, it was claimed that the Government are using precisely that model, and yet my second amendment, designed to help achieve that aim, was rejected by the Government.
The family returns process to which Ministers referred has been successful in significantly reducing the number of children in detention. It is based on the principle of engagement. Evidence from countries such as Sweden indicates that where engagement is embedded throughout the asylum process, it can reduce the use of enforcement and detention. According to Women for Refugee Women, to which I am grateful for its briefing, engagement generally takes the form of a case-management approach. Through this, ongoing structured practical and emotional support is provided to migrants and asylum seekers while they are going through the immigration and asylum processes, so that they are able to understand what is happening and participate fully in the resolution of their case while based in the community.
The evidence suggests that such an approach improves decision-making, particularly as women may be more willing to disclose information about what has happened to them. It can also help those who receive a positive decision to rebuild their lives more easily, having had practical and emotional support throughout the asylum process, but it also ensures a more humane and dignified process for those whose claims are ultimately refused. Comparisons between the experience of the UK, which relies so heavily on detention, and Sweden, where detention is much rarer, suggest that those refused are more likely to leave through voluntary return programmes in which policy prioritises engagement over detention. It is suggested that this is because people are more likely to accept a negative decision if they feel it has been reached through a fair and humane process.
Women for Refugee Women argues that engagement is not only more humane but more cost-efficient than detention, because operational costs are lower and it avoids resorting to forced deportations and potential compensation claims in the event of unlawful detention. It believes that this approach should also be considered for asylum-seeking women more generally, given their vulnerabilities and that many are survivors of sexual or other gender-based forms of violence.
I understand that Women for Refugee Women met the Immigration Minister in September to discuss these issues, and I would welcome a commitment from the Minister to continuing these discussions in the hope that we can make this a more humane process for this uniquely vulnerable group, in the interests of not just their health but that of their unborn children—a point made by a number of noble Lords during the debates on the Immigration Bill. Then, we can start to discuss how such an approach might help asylum-seeking women more generally.
I understand that a new draft rule contains a paragraph that states:
“when medical advice is given that locating the detainee in Rule 40/42 accommodation”—
that is, removing them from association or putting them in solitary confinement—
“would be seriously detrimental to a detainee’s health or is life threatening, the multi-disciplinary team should urgently consider this advice”,
and that any decision to continue the use of rule 40 or 42 must be recorded, clearly stating the rationale. Surely, there can be no acceptable rationale for action that has been deemed potentially seriously detrimental to health or even life-threatening. I have not been able to find out the current status of this draft. Will the Minister reassure us that this guidance is not and will not be contained in the final draft? It appears to fly in the face of everything the Shaw inquiry was trying to achieve.
My Lords, I congratulate the noble Baroness, Lady Jones of Moulsecoomb, on obtaining this debate, and I thank her for it. I salute her persistent pursuit of the right course of action regarding the detention of pregnant women. I also thank the House of Lords Library for yet another comprehensive and helpful briefing pack.
My interest in the subject began in 1997, when as Chief Inspector of Prisons I was invited to take on the inspection of what were then called immigration detention centres. I immediately found that the detention of pregnant women was one of many issues demanding urgent attention. What was particularly disturbing was the lack of availability of reliable statistics with which to identify the scale of separate parts of various problems, and proper scrutiny was inhibited by a lack of information. Like the noble Baronesses, Lady Hamwee and Lady Lister, I was a member of the All-Party Parliamentary Group on Refugees that reported on the use of immigration detention in 2015 so, while not exactly having an interest to declare, I must admit to having form on the subject.
Like other noble Lords, I was very glad when in April this year the Government announced that a 72-hour time limit was to be placed on the detention of pregnant women, which could be extended up to a week. However, that this debate has been tabled so soon after that makes me wonder whether the Home Office is producing the required statistical information. That scepticism results from numerous examples of poor availability over the years, and is reinforced by the recent experiences of the charity Women for Refugee Women, which the noble Baroness, Lady Jones, has already spoken about. You would think that after being publicly castigated by the Commissioner for Information for having breached the conditions of the Act, any organisation would learn its lesson. Not the Home Office. I am sure the Minister will agree that this story is simply not good enough, and if the Home Office knows the facts it should be able to answer by return rather than having to be chased. This failure to produce data has been matched by the Home Office’s failure to produce its promised detention services order, which the noble Baroness has also mentioned.
That leads me on to two other issues, not solely about statistics but about which statistics should be available: the definition of torture and the short-term detention rules, both of which affect pregnant women in detention. On 12 September this year the Government issued draft guidance on adults at risk in immigration detention, which did not adopt the wider definition of “torture” previously used in detention policy but, rather, the rather narrower one in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which limits torture to acts involving a public official. This conflicts with Stephen Shaw’s findings and recommendations in his recent report, including that there should be a presumption against detention for victims of rape and other sexual or gender-based violence. Therefore I have to admit that I was rather surprised by the Minister’s assertion in answer to a Written Question from the noble Baroness, Lady Hamwee, that those most likely to be adversely affected by detention are those who have been harmed by the state. I ask the noble Baroness from where the evidence for this assertion comes and how it was gathered? The Government’s time limit was based on evidence that pregnant women are extremely likely to be adversely affected by detention, which pregnancy may well have resulted from rape. Her assertion explains why I am also concerned that Home Office caseworkers should have appropriate statistical information available when considering a recommendation that any pregnant woman should be detained for more than 72 hours.
I now come to the conditions in which pregnant women are detained. When, as Chief Inspector, I expressed concern about the lack of facilities in detention centres, particularly for those detained for months or even years, I was told that they had not been deemed necessary because they were essentially only short-term holding centres. However, as their regimes did not appear to be geared to quick assessment and turnaround, I began agitating for the production of short-term detention rules which have since been promised over and over again. I thought, in vain, that we were there following a consultation on a draft in 2006 and again following a similar consultation in 2009. Yet again my hopes were raised and dashed following ministerial assurances that publication was imminent in connection with the Immigration Acts of 2014 and 2016, the latter accompanied by yet another consultation. Surely it should not take longer than World Wars I and II combined to produce a set of rules based on existing rules, but then this is the Home Office. I have to say to the Minister that I simply do not believe that officials have been so snowed under by new responses that they cannot produce something that allegedly has been so near completion for so long. In the past their habit has been to ignore submissions from outside sources, such as the Immigration Lawyers’ Association. I therefore ask the Minister: how many responses were received?
Noble Lords will no doubt sense that I am a long-time critic of our current immigration system but, starting with my time as Chief Inspector of Prisons and repeated since in numerous reports and inquiries, I hope that I have been a constructive one. Currently, the system has a millstone of over 630,000 unresolved cases around its neck that prevents it being able to handle new applicants quickly, which situation is likely to get worse rather than better as numbers increase. Ministers can only make timely and accurate decisions if they are given timely and accurate facts which emphasises the importance of timely and accurate statistics. If the Home Office cannot even produce timely and accurate statistics about the small number of pregnant women in detention, what chance is there of Ministers being given the facts about larger problems? I therefore suggest to the Minister that it is Home Office Ministers rather than Members of this House who should be pressing for the regular publication of accurate statistical information on the detention of pregnant women, thus ending the stream of very valid complaints from the many organisations that are trying to help the Government look after immigration and asylum seekers, including pregnant women, with the decency and humanity on which this country has always prided itself.
My Lords, I, too, thank the noble Baroness for raising the subject and the House of Lords Library for its briefings, which are wonderful. I hope I do not lose this one because it has so many helpful references in it. Like the noble Lord and the noble Baroness, Lady Lister, I, too, was a member of the All-Party Inquiry into Immigration Detention. Before I start my rant, I want to say that I am sorry that the layout of this room somehow seems to support an adversarial process when actually I suspect that everyone here would rather be sitting round in a circle, trying to find a solution.
One of the frustrations of the job that we all do—this must apply to Ministers most of all—is having a continual, nagging anxiety that practice differs from the theory that we discuss in such detail, and that the formal position is a world away from lived experience. It sometimes seems that a Minister’s briefing is a different reality and that we are working in parallel universes. Statistical information would help with this. It would not be the complete answer. There would always be comments that the criteria were poorly chosen and that such and such should have been measured, but statistics are a necessary component for judging practice and, of course, they are necessary for an open society. Statistical information may sometimes dispel myths; it may confirm one’s suspicions or even prejudices, but it always should tell us—this is a point that the noble Baroness made—what sort of society we are living in, as well as the one we hope to live in.
How pregnant women are dealt with for the purposes of immigration detention is not the only example of a concession given by the Government to get a piece of legislation through. Many of us, led valiantly by the noble Baroness, Lady Lister, wanted to see better protection than Section 60 of the Immigration Act, but the Government convinced parliamentarians of the validity of the provision. It is now a matter of good faith for the Home Office to demonstrate how Section 60 is operating. I am conscious of other matters that will be coming across the Minister’s desk—indeed, one of them has just been mentioned. Some noble Lords may have heard the programme on Radio 4 a couple of nights ago about the protection of overseas domestic workers, in which the Independent Anti-slavery Commissioner, Kevin Hyland, and James Ewins, who reported to the Government with recommendations, both expressed the view that that protection is not working as it should.
The guidance on adults at risk in immigration detention, on which the Minister recently answered Written Questions from me, to which the noble Lord referred, distinguishes between torture by the state and by non-state actors. I recognise that this is not the subject of this short debate but it illustrates a failure to see matters from the point of view of the individual affected. In the case of torture victims, are the numbers so great that the system would be overwhelmed if those were treated as two categories? Is there some issue of comparative fairness? I am really quite puzzled by this. Will it be another frustration for the doctors from whom our inquiry heard about the operation of rule 35? There is no doubt they were very frustrated.
In the case of pregnant detainees, we understand that in 2014 the great majority were released to pursue their applications in the community. Again, what is the point in holding any of them? I am not sure that the more humane and effective approach taken in Sweden, which supports immigrants whose applications are unsuccessful and which we were told we were edging slowly towards, is actually happening to any extent at all. This leaves us with the same old question: what purpose does it serve to lock up pregnant women, not as a punishment but in administrative detention?
We may be told that these are nuanced issues, and that is inherent in Section 60 with its reference to “exceptional circumstances”—although of course Stephen Shaw said that it was a statement of the obvious that,
“detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children”.
For the purposes of this debate, and given the wording of Section 60, I accept that. One has to wonder, without the information, how the Home Office can know whether its policy is working and whether it is even meeting its own objectives. If the Home Office does not know, how can the rest of us?
Of course, the collection of statistics is not the same as publication and in May the Minister then dealing with the matter told the House:
“The Government are considering how best to collate the information and whether it will be necessary to actually publish it”.—[Official Report, 25/5/16; col. 388.]
It is necessary. The Home Office itself says so. The guidance includes, in paragraph 6, one of the principles underpinning the guidance:
“There will be a clearer understanding of how the government defines, ‘at risk’ and how those considerations are weighed against legitimate immigration control factors to ensure greater transparency about who is detained and why”.
I think that that makes the case.
First, I join other noble Lords who have spoken in thanking the noble Baroness, Lady Jones of Moulsecoomb, for introducing this Question for Short Debate today. I very much agree with what she said. She raises a very serious matter that should be of concern to the whole House. By the publishing of regular statistical information, we are able to assess what the Government are actually doing on a whole range of matters, compared with policy objectives and pronouncements, and this is an area of both policy and action that requires a very detailed level of scrutiny.
It is my understanding that Section 60 of the Immigration Act 2016 provides for a 72-hour time limit for the detention of women known to be pregnant, and this may be extended for up to seven days only if authorised by a Minister. This policy, we have heard, was a compromise following a defeat in the House of Lords earlier this year on an absolute exclusion. A woman should be detained only if she will shortly be removed from the UK or if there are “exceptional circumstances”—I think that these exceptional circumstances are listed as public harm and/or national security. The reason mainly given for detention, of course, is to ensure a person’s removal from the United Kingdom.
It is my understanding that a pregnant woman needs an assessment of her fitness to fly if she is 37 weeks or more into her pregnancy and it is uncomplicated. I understand also that there are international air travel criteria that have to be complied with for any pregnant woman, not just those in detention. I hope we can all agree that having a reliable assessment in less than 72 hours in what can be described only as difficult circumstances will be a challenge, to say the least. My understanding is that matters such as prior medical history would ideally be considered and additional medical tests might also be required. I am aware of the review on vulnerable people in immigration detention, and the comments of the former prisons ombudsman, Stephen Shaw, to which other noble Lords have referred, on the damaging effect on the health of pregnant women and their unborn children.
It would be useful if the Minister could tell the Committee, as the noble Baroness, Lady Jones of Moulsecoomb, has asked, in the years for which figures are available, how many pregnant women held in immigration detention were deported direct from that detention and how many were released back into the community to pursue their cases there. I find it puzzling that the Home Office has been collecting data on the detention of pregnant women since August 2015, following a recommendation from Her Majesty’s Inspectorate of Prisons, but that it has no plans to actually start publishing this information. The reason given is that it has not been assured to the standard of official statistics, which I find to be a very weak reason indeed. Will the Minister tell the Grand Committee what needs to be done to get this information to the standard of official statistics? Have the Home Office started doing that, and if not, why not?
Would the Minister also like to comment on the remarks of the noble and learned Lord, Lord Keen, when he told your Lordships’ House earlier this year that the Government were considering,
“whether it will be necessary to actually publish”,—[Official Report, 25/5/16; col. 388.]
the information at all. As I said earlier, Governments can come up with all sorts of policy announcements, objectives, plans and procedures, but unless we have some evidence as to what they are actually doing in specific areas, they cannot be held to account. As we have heard, FoI requests have been put into the Home Office and I think it is fair to say that the response times have fallen well below the expected standards for promptness of replies. As the noble Baroness, Lady Jones, has told us, the first FoI was complied with only following a complaint to the Information Commissioner and the complaint being upheld. We have also heard that the second one has still not been complied with. It feels like the Government are very reluctant to publish this information, and perhaps the Minister can tell us why. We need to know why these FoI requests have not been dealt with in a timely manner because it is not acceptable. Is it due to staff shortages or some other reason? What is going to be done to get this information released in the expected timeframe?
The detention of vulnerable pregnant women should be something that never happens, and I think the Government would agree with that as a policy aim. So I say to the Minister that if that was achieved by the Home Office, the Government will receive only praise for having delivered on it. The present situation appears to be clouded in mystery and there is a reluctance to provide information. That leads to people thinking that the policy aim and pronouncements and the actual situation are miles apart, with little chance of ever being brought together, which is why the Government are so reluctant to release the information as it would confirm what the situation really is. That is a bad place for the Government to find themselves in and they would be better advised to allow the maximum amount of light to shine on where we actually are. We can then debate how we can get to a place where I think we all want to be.
I was very impressed by the contribution of the noble Lord, Lord Ramsbotham. He made a devastating critique, highlighting the policy failures at the Home Office. I await with particular interest the Minister’s response to the noble Lord’s points. I do not expect her to respond to everything I have raised, of course, but I hope that she can give a commitment to note any points that require a response in writing to noble Lords.
My Lords, I thank all noble Lords who spoke in this debate, in particular the noble Baroness, Lady Jones, who secured it. The issue of pregnant women in detention is a delicate one and understandably it is often quite emotive. Perhaps I may be clear on behalf of the Government that the decision to detain any individual under immigration powers is never taken lightly. As published Home Office policy already makes clear, detention must only ever be used sparingly and for the shortest period necessary. There is a presumption of liberty for any individual and our preference will always be that those who have no right to remain in the UK should leave the country of their own volition, but unfortunately that does not always happen. Where that is the case, regrettably detention may be necessary to enforce an individual’s removal.
Where we decide that detention is the appropriate course of action, it is important that the individual is treated with respect and dignity for as long as they remain in our care. To underline this commitment, in February 2015 my right honourable friend the Prime Minister, when she was still Home Secretary, announced that she was asking the former Prisons and Probation Ombudsman, Stephen Shaw, to undertake a review of the welfare of those in detention, to which the noble Baroness, Lady Lister, referred. Mr Shaw’s comprehensive Review of the Welfare in Detention of Vulnerable Persons was published under cover of a Written Ministerial Statement in January. It made a number of recommendations addressing detainee welfare and vulnerability, including in relation to pregnant women.
The Government accepted the general thrust of Mr Shaw’s recommendations. We were not, however, persuaded by his recommendation to completely exclude pregnant women from detention in future. Home Office detention policy has never been based on excluding entirely any particular group of persons, including pregnant women, from detention. There will be occasions in which it is both appropriate and justified to detain a person, even if they are vulnerable in some way. For example, a pregnant woman might pose a risk to the public which would make her detention in the public interest and outweigh the fact of her pregnancy. There is a need to keep the capability to detain at the border, pending removal, if entry is refused.
The Government listened to concerns about the detention of pregnant women. During the passage of the Immigration Act 2016, to which many noble Lords referred, we introduced statutory limits on periods of detention of any woman who we are satisfied is pregnant. Section 60, which came into force on 12 July, restricted the circumstances in which a pregnant woman who is being removed or deported from the UK may be detained. Detention of pregnant women is limited to a maximum of 72 hours, although there is provision—as the noble Lord, Lord Kennedy, pointed out—for this to be extended to an absolute statutory maximum of one week in total, only in exceptional circumstances. Ministerial authorisation must be obtained for any extension beyond the 72-hour point, to ensure that periods of detention are kept to a minimum and to provide an effective safeguard against the risk of the longer period of detention being used inappropriately.
Most noble Lords asked about the numbers of women in detention. There are no women in immigration detention today recorded as being pregnant. Since July, when the Immigration Act came into force, the total number of women recorded as being pregnant while in detention is 15. None of them were detained beyond the statutory limit bar one, where there was ministerial authority. That means obviously that 14 were detained up to 72 hours.
We do not propose to publish statistical information routinely on the detention of pregnant women. Such information would be limited by caveats as to scope and accuracy, given that it could relate only to those women known to be pregnant. In addition, any statistical information would not in itself provide a fully accurate, rounded picture unless it was accompanied by a detailed narrative on the circumstances of the individual cases, which would not be appropriate, not least given the risk of identifying particular individuals. For the same reasons, the Government do not propose to provide a running commentary on the numbers involved.
The legislation, as I have just discussed, also imposes a duty to have regard to the pregnant woman’s welfare in deciding whether or not to detain. This might include matters such as whether there have been complications with the woman’s pregnancy. The Home Office published comprehensive guidance for its caseworkers on the detention of pregnant women. That covers the general principles to be considered in deciding whether to detain a pregnant woman, consideration of the duty to have regard to the pregnant woman’s welfare, the operation of the detention time limit, and the procedures in exceptional cases for seeking ministerial authority to extend detention beyond 72 hours.
There will be occasions, particularly where a woman is in the early stages of pregnancy and not visibly pregnant, when it is possible that her pregnancy will come to light only after she has been detained. That might be because she does not want to disclose her pregnancy, or she might not even be aware yet that she is pregnant. The Section 60 restrictions still apply in such cases, with the 72-hour time limit being calculated from the point at which the Home Office accepts that the woman is pregnant.
To support the new statutory arrangements, we published a new operational instruction on the management of pregnant women in detention. All staff working in immigration removal centres, including healthcare staff, must follow this. It covers matters such as the woman’s welfare during her transfer to her place of detention, her care while in detention and the arrangements for her removal.
The Home Office has now introduced its new adults at risk policy for the detention of vulnerable persons, in direct response to Stephen Shaw’s recommendations. Under Section 59 of the Immigration Act 2016, the Government laid before Parliament draft statutory guidance on the policy in July. This guidance came into force on 12 September. Although the policy applies to all detainees considered vulnerable, it provides additional safeguards for pregnant women, beyond those set out in the 2016 Act. The starting point of the policy will be that an individual considered to be at risk in the context of the new policy should not be detained. This builds on the general presumption against detention and will be displaced only when the immigration factors outweigh the contention that the individual in question is at risk. The underlying principle is that the greater the weight of evidence of risk, the weightier the immigration factors need to be to justify detention.
Under the adults at risk policy, individuals are considered to be at a particular level of risk depending on the type and quality of the evidence available in their particular case. The mere existence of a woman’s established or accepted pregnancy will place her automatically at the highest level of risk. As a result, the pregnancy will be afforded significant weight when assessing the risk of harm in detention and require weightier immigration factors to be present to justify authorising or maintaining detention. The position of pregnant women in the context of immigration detention has changed. The combined effect of the statutory restrictions on the detention of pregnant women and the introduction of the adults at risk policy, with its specific protections for pregnant women, ensures that pregnant women will be detained only in very limited circumstances, for very short periods, and only when such action is justified, taking full account of the likelihood of risk to the woman in question. This strikes the right balance between recognising the inherent vulnerability of pregnant women, particularly in relation to detention, and the need to secure our borders and maintain effective immigration control.
The Home Office has never detained pregnant women in large numbers. Previous Home Office detention policy was clear that pregnant women should be detained only in very exceptional circumstances. Although the Home Office began collating data on the detention of pregnant women only comparatively recently, anecdotally, numbers have always been small. We expect the statutory restrictions introduced in July and the more recent implementation of the adults at risk policy to reduce those numbers still further.
The noble Baroness, Lady Jones, asked about the publication of the DSO. It will be published in November, which is some time from next onwards for four weeks. The noble Baroness, Lady Lister, asked about FoIs. We take our responsibility under the FoI Act seriously. FoIs are being dealt with as a matter of priority. On 29 September, we answered an FoI on pregnant women statistics that we had received from Medical Justice.
The noble Baroness also asked about the Family Returns Panel, which has proved so efficient and effective, and how lessons can be learned from that in detaining and removing pregnant women. In addition to the time limit that now applies to the detention of pregnant women, we are putting in place a robust package of safeguards, including: the duty to have regard to the welfare of the woman; detaining only if removal is due to happen shortly or, if there are exceptional circumstances; the adults at risk policy, which I have talked about; and improvements to the caseworking process when managing vulnerable persons. Taken together, those developments will ensure that detention is used sparingly and for the shortest period of time when it becomes absolutely necessary to detain pregnant women who will not leave voluntarily. We do not believe that oversight by the Family Returns Panel would add any further safeguard, although I accept that it has been a very effective process.
The noble Lord, Lord Ramsbotham, asked why we limited the definition of torture for adults at risk to that set out in the UN Convention against Torture. The Government adopted that definition as it most accurately reflects the need to protect those who are the most likely to be adversely affected by detention, which is those who have been harmed by the state or by an organisation exercising similar control and for whom detention is most likely to be redolent of the harm that they suffered.
The noble Lord also asked why the STHF rules have still not been made. The Home Office undertook a targeted consultation of detention stakeholders on the draft set of short-term holding facility rules earlier in the year, and the responses received were extremely detailed and will take some time to go through. However, that process is almost complete. He asked how many responses there were to the consultation exercise. There were 10.
The noble Lord, Lord Kennedy, asked at what stage of pregnancy the Home Office considers flying to be inappropriate. A pregnant woman’s fitness to travel by air, and therefore whether it is likely to be possible to remove or deport her, is assessed on a case-by-case basis using guidance from the IATA. The guidance states that for a single uncomplicated pregnancy, travel would be appropriate without a medical certificate up to 37 weeks.
My time has run out by a minute. If I have not answered any questions, and I suspect there might be a couple from the noble Lord, Lord Kennedy, I will do so in due course. I thank all noble Lords who have taken part in the debate.