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Immigration Detention: Shaw Review

Volume 792: debated on Tuesday 24 July 2018


My Lords, with the leave of the House, I will repeat a Statement made in the other place by my right honourable friend the Home Secretary.

“With permission Mr Speaker, I would like to make a Statement on immigration detention. As the House knows, our immigration system is made up of many different and interconnected parts. Immigration detention is an important part of that system. It encourages compliance with our Immigration Rules; protects the public from the consequences of illegal migration; and ensures that people who are here illegally or are foreign criminals can be removed from this country when all else fails.

Detention is not a decision that is taken lightly. When we make the decision to detain someone, their welfare is an absolute priority. The Windrush revelations have shown that our immigration system as a whole is not perfect and that some elements need much closer attention, and there are lessons we must learn. That is why I welcome the second independent review by Stephen Shaw into immigration detention, commissioned by this Government, which I am laying before the House today. Copies are available from the Vote Office and on GOV.UK. I am very grateful to Mr Shaw for his comprehensive and thoughtful report. It recognises the progress this Government have made in reforming immigration detention since his last report in 2016, but it also challenges us to go even further.

As the review notes, we have made significant changes to detention in the UK in recent years. Over the past three years, we have reduced the number of places in removal centres by a quarter. We detained 8% fewer people last year than the year before. Last year, 64% of those detained left detention within a month, and 91% left within four; and 95% of people liable for removal at any one time are not in detention at all, but are carefully risk-assessed and managed in the community instead.

In his report, Stephen Shaw commends the ‘energetic way’ in which his 2016 recommendations have been taken forward. He notes that conditions across immigration removal centres have ‘improved’ since his last review three years ago. We now have in place the adults at risk in immigration detention policy to identify vulnerable adults more effectively and make better-balanced decisions about the appropriateness of their detention. We have also strengthened the checks and balances in the system, setting up a team of special detention gatekeepers to ensure decisions to detain are reviewed. We have also created panels to challenge the progress on detainees’ cases and their continuing detention. We have taken steps to improve mental health care in immigration removal centres and we have also changed the rules on bail hearings. Anyone can apply for bail at any time during detention. In January, we further changed the rules so that detainees are automatically referred for a bail hearing once they have been detained for four months. All of this is good work.

However, I agree with Stephen Shaw that these reforms are still bedding in and that there have been cases and processes that we have not always got right. Now I want to pick up the pace of reform and commit today to four priorities going forward.

First, let me be absolutely clear that the Government’s starting point, as always, is that immigration detention is only for those for whom we are confident that other approaches to removal will not work. Encouraging and supporting people to leave voluntarily is of course preferable. I have asked the Home Office to do more to explore alternatives to detention with faith groups, NGOs and within communities. As a first step, I can announce today that we intend to pilot a scheme to manage vulnerable women in the community who would otherwise be detained at Yarl’s Wood. My officials have been working with the UNHCR to develop this pilot, which will mean that rather than receiving support and care in an immigration removal centre, the women will get a programme of support and care in the community instead.

Secondly, the Shaw review recommends how this Government can improve the support available for vulnerable detainees. Mr Shaw describes the adults at risk policy as ‘a work in progress’. We will continue that progress, ensuring that the most vulnerable and complex cases get the attention that they need. We will look again at how we can improve the consideration of Rule 35 reports on possible cases of torture, while avoiding abuses of these processes, and we will pilot an additional bail referral at the two-month point, halving the time in detention before a first bail referral. We will also look at staff training and support to make sure that the people working in our immigration system are well equipped to work with vulnerable detainees, and we will increase the number of Home Office staff in immigration removal centres.

Thirdly, in his report Stephen Shaw also rightly focuses on the need for greater transparency around immigration detention. I will publish more data on immigration detention, and today I have commissioned the Independent Chief Inspector of Borders and Immigration to report each year on whether and how the adults at risk policy is making a difference.

Fourthly and finally, I also want to see a new drive on dignity in detention. I want to see an improvement to the basic provision available to detainees. The practice in some immigration removal centres of having three detainees in rooms designed for two will stop immediately. I have also commissioned an urgent action plan for modernising toilet facilities and we will also pilot the use of Skype, so that detainees can contact their families overseas.

I am aware of the arguments made on time limits for immigration detention. However, as Mr Shaw’s review finds, the debate on this issue currently rests more on slogans than on evidence. That is why I have asked my officials to review how time limits work in other countries and how they relate to any other protections within their detention systems, so that we can all have a better-informed debate and ensure our detention policy is based on what works to tackle illegal migration, but is also one that is humane for those who are detained. Once this review is complete, I will further consider the issue of time limits on immigration detention.

The Shaw review confirms that we are on the right track in our reforms of immigration detention and that we should maintain a steady course. But Stephen Shaw also identifies areas where we could and should do better. My goal is to ensure that our immigration system, including our approach to immigration detention, is fair and humane. This is rightly what the public expect; they want rules which are firmly enforced, but in a way which treats people with the dignity they deserve. The changes that I have announced today will help to make sure this is the case. I commend this Statement to the House”.

My Lords, that concludes the Statement.

I thank the Minister for repeating the Statement. I cannot say that I have read the Shaw report. I was probably in a very similar situation to the Minister, in that I received it only an hour or so ago. Inevitably, that rather restricts what one can say about it. One thing that I have noticed is that, under the acknowledgements at the beginning and in the foreword by Stephen Shaw, there is a date: April 2018. Why is this report being brought to Parliament only in July 2018 and on the last day, effectively the last afternoon, before the Summer Recess? What exactly has been going on since then, if I am correct in thinking that he submitted his report in April 2018, which has prevented the report being published?

The report that we have—this second Stephen Shaw report into immigration detention—does not say that everything is right. It simply says that the situation is better than it was, which is a very different thing. The report is not quite the supportive document that the Statement seems to suggest. Let us look at one or two of the points made in the report.

Last year, it seems that 64% of those detained left detention within a month, and 91% left within four months. It depends on what one’s definition is, but detention was meant to be only for a short period of time, pending removal. Last year it was found that over half of those in immigration detention were released back into the community—a point made by Stephen Shaw in this report. So if more than half in immigration detention were released back into the community, why was their detention needed at all? The Government’s Statement says that,

“immigration detention is only for those for whom we are confident that other approaches to removal will not work”.

We are talking about large numbers of people who are detained and not removed but are released back into the community. A number of people seem to be detained who should not be, which is a point made by Stephen Shaw in this report.

Stephen Shaw comments on the issue of indefinite detention and time limits, saying:

“I have not directly considered the case for a time limit on detention”,

so we do not actually know what his view is on that issue. But he says in his foreword that,

“the number of people held for over six months has actually increased. The time that many people spend in detention remains deeply troubling”.

That is a point that I do not think was highlighted in the Government’s Statement on the report. Why has the number of people held for over six months increased? Do the Government agree with Stephen Shaw that the time that many people spend in detention remains deeply troubling?

Virtually all the population reduction in immigration detention has been on the male side, while the number of women in detention has fallen by a much smaller percentage. Yet there is a high level of vulnerability among women detainees—the very people one would have thought should not have been detained. Can the Minister say why that has happened?

The report deals at some length with the adults at risk policy. It was introduced by the Home Office and does not appear to be working properly in its objective of reducing the numbers of vulnerable people in detention. In his visits to immigration removal centres, Stephen Shaw found many people who he felt should not be there, and he comments in his report that,

“every one of the centre managers told me that they had seen no difference in the number of vulnerable detainees”,

and that in some cases the numbers had gone up. He also calls for,

“a more joined-up approach between the Home Office and its partners across Government”,

which, he says,

“applies particularly to the Ministry of Justice”.

In the section in the report on alternatives to detention, Stephen Shaw draws attention to some of the consequences of the policies restricting access to services that go under the umbrella of the hostile environment, which I believe has now been rebranded as the compliant environment. While he says in his foreword:

“Some of what I say in the pages that follow reflects very well upon the Home Office, the Department of Health and Social Care, and NHS England”,

he goes on to say that:

“I have found a gap between the laudable intentions of policymakers and actual practice on the ground”.

He also comments that,

“the Home Office’s strategy of expanding capacity by adding extra beds into existing rooms had exacerbated overcrowding and created unacceptable conditions”.

Why has the Home Office’s strategy led to the arising of that situation, upon which Mr Shaw has commented adversely? He repeats again in his report his concern that,

“more needs to be done to ensure that individuals who are at risk are not detained”.

I conclude by raising three questions for the Government in addition to those I have already asked. We are in a situation where the Chief Inspector of Prisons, the all-party parliamentary groups on migration and on refugees, the Bar Council, the British Medical Association and NGOs have all called for an end to indefinite detention. Do I take it from the Statement that the Government are still not prepared to commit to that objective? Perhaps the Minister could confirm that one way or the other.

I think I am also right in saying that the previous review called for an absolute exclusion on pregnant women in detention. But as I understand it, in 2017, 53 pregnant women were detained, almost all of them entirely unnecessarily, and were subsequently released into the community. If pregnant women are still being detained, will the Government commit now to an absolute exclusion of pregnant women and children from immigration detention? There is also currently no proactive screening process so that survivors of sexual and gender-based violence and others who are recognised as vulnerable under the adults at risk policy are identified before they are detained. Will the Government commit to introduce a proactive screening process to achieve this objective?

Finally, now that we have had the follow-up Shaw review, how will the Government ensure that the detention estate continues to be reviewed and assessed? I note that the Statement made reference to the review of the adults at risk policy, but there is more to it than simply that policy, vital and important though it is, so I ask that question once again—bearing in mind that the Shaw review has once again said that the situation is far from what it should be.

My Lords, I thank the Minister for repeating the Statement regarding adults at risk and vulnerable people in the detention system. I have always thought that it would take someone very resilient not to become at risk or vulnerable to the effects of detention once detained, however they started that process. That applies even to definite detention, and far more to indefinite detention, when the absence of hope is added to the other conditions experienced. I was grateful to the Minister’s colleague Caroline Nokes, the Immigration Minister, whom I met with the noble Lord, Lord Hylton, the other day, for confirming the Home Office’s aspiration of a humane system. I welcome the direction in which the Government are going on this.

I will mention again a report to which I have referred before in your Lordships’ House—the recent report by the Red Cross on the long-lasting impact on mental health of everyone surveilled after release from detention; in other words, release from physical detention is not the end of the experience.

There is always talk of numbers and percentages, which is helpful, but it is worth remembering that each person detained is an individual. The silver lining to the Windrush experience was that it rather confirmed that; that is certainly how they were seen by the public during the Windrush reports.

A number that I find shocking is the standard number of days to which the Home Office works in dealing with asylum claims. Also, if someone does not go when he is told to leave the country, he is automatically regarded as a flight risk, to the extent that even when he reports to the Home Office he is picked up from there and put into detention.

I am a member of the Joint Committee on Human Rights, which this morning announced a new inquiry into immigration detention, because human rights—particularly Article 5 of the convention—are engaged. The committee was planning this inquiry anyway, but the evidence that we heard in an inquiry into the Windrush generation’s experience particularly drew our attention to issues including access to legal advice, the possibility of challenge to detention and accountability.

Policy is always only a part of the story. Implementation and practice are the other very important side of the coin and, of course, that is very much what Stephen Shaw has focused on. He and Mary Bosworth deserve our thanks for all the work that has gone into this report. I have not been able to read this door-stopper yet—it is about half the size of the last door-stopper, but even so—but I will. It seems to me that the reasons for detention given in the Statement rather illustrate that detention is not, as we are so often told, treated as the last resort, although I believe that it should be the very last resort.

I want to pick up a number of points made by the Minister. She mentioned that the team of special detention gatekeepers has been set up—this is part of the recent history—but the gatekeeper process does not seem to have been working as well as planned. The Statement refers to ensuring that decisions to detain are reviewed. What about the initial decision? Should there not be investigations prior to detention to confirm that there are no indicators of vulnerability?

The Statement also refers to immigration bail, described as all being “good work”. Of course, it has been very welcome, but it has not been unfailing. The Minister will recall our exchanges about the problems that detainees have in accessing education. Importantly, it is clear that detainees do not all know that they can apply for bail at any time.

With regard to alternatives to detention, we have heard the organisations that the Home Office is going to work with, but can the Minister assure us that work will go on with other jurisdictions where there are very different practices and that the subject will be not just those whom the Home Office regards as vulnerable but much wider? Mr Shaw comments rather delicately that he is not certain that there has been significant investment in this since the first report.

I must leave time for the Minister to respond—

But I will go on for the moment.

A pilot of additional bail referral is mentioned. Could we have more details of that? Could we also know the timescale that is anticipated for the review of how time limits work in other countries? I want also to mention prisons. What work do the Government anticipate as a result of this with regard to those who are held in immigration detention in prison?

I have said that I welcome the direction that this takes, but the Minister would expect me to be keen for more and faster work. However, I end by saying that I particularly welcome recommendation 1—unlike the noble Lord, I started at the end rather than the beginning of the report—which deals with promoting voluntary returns. It strikes me that that should have been very much part of the strategic plan for detention, which was the first recommendation in Mr Shaw’s first report.

I will end on a gentler note: I wish all colleagues a happy holiday, however long or short that may be.

That sounds ominous —I am having my holiday.

I will go first to the noble Lord, Lord Rosser, who asked why there was a delay in publishing. I have probably trailed this on several occasions, when I said that Stephen Shaw had published his report and we were considering it and would respond in due course. We have rightly considered what is, as noble Lords have said, a big tome, before responding to it today. I hope that the noble Lord and the House do not see any conspiracy in the fact that it has been responded to on the last day.

The noble Lord said that the Government’s efforts had no impact on vulnerability. Stephen Shaw acknowledges real progress and said that it would be folly to abandon our reforms now. The adults at risk policy has certainly strengthened our focus on vulnerability and on the existing presumption against the detention of those who are particularly vulnerable to harm. However, I agree, as does my right honourable friend the Home Secretary, that we need to do more. That is why we will differentiate more strongly between vulnerable cases to ensure that the most complex get the attention that they need, building on the progress that has been made, to provide greater protection for the most vulnerable.

The noble Lord made the point that half the people detained are released and asked whether detention was therefore right in the first place. We would all like the proportion of detainees who are removed to be higher and we are tackling barriers to that. However, people may be released from detention for a wide range of reasons: by the courts, by appeal or by other legal proceedings, or there might have been a material change in their circumstances. That does not necessarily mean that the original decision to detain was inappropriate or wrong.

The noble Lord talked about time in detention being over six months. The Government totally agree that we should detain people for the minimum amount of time, consistent with their removal. Continuing challenges on documenting individuals and late appeals are an issue. The issues of foreign national offenders and public protection also remain important considerations.

I shall have to gallop through my replies. The noble Lord, Lord Rosser, referred to problems with additional beds. He will have heard today that my right honourable friend the Home Secretary has announced that there will be no more than two beds to a room. He also talked about the detention of pregnant women. Decisions on whether or not to detain individuals have never been predicated on absolute exclusions for any particular group. Being pregnant is not of itself a vulnerability, but I understand where the noble Lord is coming from on that. He mentioned indefinite detention. The Government are committed to getting more evidence on this issue into the debate. He will have heard what I said about my right honourable friend the Home Secretary carrying out a review into that and publishing its findings.

The time has run out extremely quickly. I do not know whether that is because noble Lords spoke for too long or because I did, but I have a number of unanswered questions, to which I will reply in writing and place a copy in the Library.

My Lords, I return to the issue of pregnant women, which was of particular concern to your Lordships’ House when we considered these matters during the Immigration Bill—indeed, we voted for an absolute exclusion following Stephen Shaw’s original recommendation. In his report he quite mildly said that it would “assist” decision-making if the default position were to be an absolute exclusion of pregnant women from detention. The figures show that between July 2016 and January to November 2017 there were still 73 pregnant women detained, of whom 60 were released. For only 15 was there any case for detention. Will the Government look again at the question of an absolute exclusion?

On vulnerability, I am not quite sure I understand the Minister’s reply—I appreciate that she has had to move quickly. Have the Government accepted the specific recommendations 11, 12 and 13 in the report on adults at risk? In particular, will they consider the merit of the UNHCR vulnerability screening tool, which a number of voluntary organisations have recommended?

I am glad that I have got some more time because the noble Baroness, Lady Lister, has nicely segued into some points I was going to make.

On pregnant women—I have made this point many times before—being pregnant does not of itself make you vulnerable. However, I understand where she is coming from.

On vulnerable detainees in general, the noble Lord, Lord Rosser, made the point that the policy was not working. In fact, Stephen Shaw described the adults at risk policy as a work in progress. We all agree that there is more to be done to make sure that the most vulnerable and complex cases get the attention that they need. As to rule 35, which reports on possible cases of torture and which noble Lords have criticised in the past, we will look again at how we can improve on it while avoiding abuse of these processes. We will pilot an additional bail referral at the two-month period—which comes back to the point made by the noble Baroness, Lady Hamwee.

The adults at risk policy requires a case-by-case assessment of the appropriateness of the detention of each individual. The policy means that vulnerable people are detained only when the vulnerability factors are outweighed by immigration considerations. So I do not agree with the noble Lord’s point that the policy is not working, but we need to continue with the progress that has been made so as to ensure that vulnerable people get the help that they need.

Will the noble Baroness tell me whether recommendations 11, 12 and 13 in the Shaw report have been accepted, because it is not clear from the Statement that they have? In particular, will the Government consider the merits of the UNHCR vulnerability assessment tool?

Perhaps I might come back to the noble Baroness on this, because obviously I have pulled out some of the highlights of the report and I would not want to give her any details from the Dispatch Box that I am not certain about. So I will write to her on that point.

My Lords, the Minister has been clear about what the Home Secretary is going to do. However, one of our worries about this report and indeed about the Statement is that it is a work in progress as if we are moving to a position where it will be very much easier to solve these problems. We actually live in a world in which it is going to become very much more difficult. The pressures on immigration will grow not just because of disorder elsewhere in the world but because of such major issues—I say this advisedly—as climate change. We are seeing more and more disruption which will mean that more and more people are being pressed to find somewhere else to be. What worries me about the Statement is that I do not believe that we have yet grasped the magnitude of the problem—the fact that it will get worse and worse and that we ought to be addressing it on a much longer-term basis if we are going to resolve this very serious issue.

I should say to my noble friend that 95% of people are not held in detention at all. It is used only as a last resort where all the other possible mechanisms for removing people who should not be here have failed. On his point about climate change, I have heard various debates on that. I do not disagree with him that climate change will create more migration effects. However, the weather here over the past few weeks has made me think that people might not want to come here, either, because it is so hot.

My Lords, I recommend all noble Lords to go on a skim-reading course, because I got to page 100. Stephen Shaw gets to the crux of this issue on page 100. It is not about individual items but about the culture of the estate and the culture of the Home Office that needs to change. In particular, he asks across the estate, whether it be private or public sector employees who are involved, whether we will move to a position where, rather than just using a competency-based approach, we could adopt a values-based one when dealing with vulnerable people. That would help to solve the problems in a much more systematic way than just talking about individual programmes or training.

The noble Lord frequently brings up this issue. I hope that he will derive some comfort from the fact that my right honourable friend the Home Secretary has made several Statements which to me underline the fact that he thinks that the Home Office should take a much more humane approach. We had this during the Windrush episode, which really threw into stark relief the fact that the Home Office is dealing with human beings, not cases. Today he has talked about some of the changes that he wants to make immediately, such as no more than two people to a room. I am also looking at lengths of detention. All of that says to me that he is taking a very human approach to this. I agree with the noble Lord and I presume that my right honourable friend the Home Secretary will agree with him as well. As I say, this is work in progress.

My Lords, for some time there has been widespread concern about the detention of victims of torture—indeed to the point where people who have been tortured should surely not be detained under any circumstances. Is there anything the Government can do to speed up the process of looking at rule 35 and in the meantime alleviating the position for people who have been tortured and releasing them if that is at all possible?

My Lords, I agree with the noble Lord. I have an updated position on torture. The vulnerable state in which victims of torture will present themselves has to be sensitively dealt with. That goes to what the noble Lord, Lord Scriven, said: we must treat people with humanity. It is paramount that any of the problems from their experience will be picked up immediately in the risk assessment that people enter into when they arrive in a detention centre. They will be dealt with sensitively and accordingly.

I will quickly follow up the point made by my noble friend Lord Deben. The Statement says that,

“we will increase the number of Home Office staff in immigration removal centres”.

What is the present size of the staff? How many people are in the centres of the moment? How many illegal immigrants are there who are not in the centres?

I have a feeling that we do not release the number of staff that we have in our detention estate, but I will double check. If we do I will get those figures to the noble Lord.

My Lords, with the greatest respect, we should be looking for outcomes, not outputs. We should be looking for results, not activity. So why is the number of people being detained for more than six months still increasing? I accept what the noble Lord, Lord Deben, said about this potentially being an increasing problem, but can the Minister tell the House what percentage of people are being detained, as opposed to those who are not? Is that percentage increasing or decreasing?

The overall percentage being detained is decreasing—it is down by 25%—but I accept that there is an increase in those detained for more than six months. I hope that I explained that adequately earlier to the noble Lord, Lord Rosser, but it is not a satisfactory state of affairs.