Immigration Bill — House of Lords, 2016-04-26
Topic: Immigration
Richard Keen (Conservative, Centre-right): My Lords, I shall also speak to my Motion D It is clear that both the Government and noble Lords who supported this House’s amendment in respect of a time limit on immigration detention have a common purpose—to prevent the detention of individuals for any longer than is absolutely necessary. As the Government have stated previously during the passage of this Bill, I can reassure the House that individuals who are removed will be detained only for that purpose and only where there is a realistic prospect of removal within a reasonable time We all also agree on the need to ensure that any decision to deprive someone of their liberty must be subject to careful consideration and scrutiny, taking into account an individual’s circumstances. Work on a wide package of reform, which was announced in the response to the review by Stephen Shaw of the welfare of vulnerable people in detention, is already under way. This reflects the seriousness with which the Government regard these issues The Government have made clear previously their rationale for opposing general time limits on immigration detention—that they would be arbitrary, that they would not take account of individual circumstances, and that they would encourage individuals to seek to frustrate the removals process until the time limit is reached. I fully respect the views of those noble Lords who voted in favour of a time limit but the Government’s strong view remains that a time limit would have a negative impact on their ability to enforce immigration control and, consequently, to maintain public safety However, the Government have considered the views expressed by many noble Lords that there should be a greater level of judicial oversight over detention. That is why the Government tabled a Motion in the other place, the effect of which would be that individuals would be automatically referred to the tribunal for a bail hearing six months after their detention began or, if the tribunal has already considered whether to release them within the first six months, six months after that consideration. The individual would then receive further referrals at six-monthly intervals calculated from the point of the last consideration. This referral requirement will ensure that individuals who do not make an application themselves, for whatever reason, will have independent judicial oversight of their ongoing detention Individuals will still be able to make an application themselves at any time. They will be made aware of and have access to legal advice to support them in making challenges to immigration detention and in making applications for bail. This will be another important safeguard which will complement the wider reforms that the Government are putting in place in response to Stephen Shaw’s report The adults at risk policy will strengthen the existing presumption against detention of those particularly vulnerable to harm in detention. A new gatekeeper function will provide additional oversight and scrutiny to ensure that detention is the appropriate option for those entering the detention estate. Furthermore, a new approach to case management with a clear focus on removal plans and panel reviews on at least a quarterly basis will ensure that only those who should be detained remain detained. As the Government have already made clear, they fully expect these reforms to result in fewer people being detained and for a shorter period. Six months is a proportionate approach. It will ensure that an adequate safeguard is in place to protect individuals who have been detained for an extended period and have not made their own application for bail, while not imposing unreasonable burdens on the tribunal and on the Home Office. Earlier referrals might result in mandatory work for the tribunal and the Home Office whereby individuals would be referred for bail hearings at the very time when their removal from the country is planned and imminent. This is not a good use of taxpayers’ money or of the tribunal’s time. Together with other reforms—the gatekeeper role, the adults at risk policy and the new casework management system with frequent internal reviews—this amendment will provide adequate oversight of detention Amendment 85A requires the Government to issue guidance to those making decisions on the detention of individuals for the purpose of immigration control where issues of vulnerability are raised. This relates directly to the adults at risk policy announced in a Written Ministerial Statement on 14 January as part of the Government’s response to Stephen Shaw’s report. The amendment reinstates the clauses as agreed in this House on Report. The reinstatement removes the amendment agreed to by this House at Third Reading, the effect of which would be to place an absolute exclusion on the detention of pregnant women The Government have been considering this matter since they received Stephen Shaw’s review and have also listened carefully to the views of the noble Baroness, Lady Lister, who tabled the amendment, and those of Peers who voted in favour of it. As the House will be aware, the Home Secretary announced just last week that the Government plan to end the routine detention of pregnant women. This would be similar to the arrangements put in place as part of the ending of routine detention for families with children in 2014, a reform which demonstrates the Government’s commitment to balancing proportionate immigration controls with safeguarding vulnerable people. The Government have listened carefully to the concerns expressed on this issue in both this House and the other place The Motion agreed in the other place yesterday would put in place a statutory time limit on the detention of pregnant women for the purposes of removal. The effect would be that pregnant women could be detained only for up to 72 hours, for example, immediately prior to a managed return or to prevent illegal entry at the border where a return can be arranged quickly. This could be extended up to a maximum of seven days in total, but only with ministerial approval. That could be appropriate where, for example, a removal has failed due to a cancelled flight and where arrangements can be made for a new flight within the seven-day period. Finally, as a further demonstration of how seriously the Government take these matters, we plan to invite Stephen Shaw to carry out a further short review to assess progress in relation to key actions identified in his original review in the context of these new measures. I am sure that we are all in agreement that our focus should be on striking the right balance between protecting pregnant women and maintaining effective immigration control, and we believe that this amendment achieves that. Motion D1 seeks to place a statutory requirement that detention powers should be used only in the most exceptional circumstances. Current policy is that pregnant women may be detained in very limited circumstances where there is a clear prospect of early removal or otherwise in very exceptional circumstances. Motions D1 and D2 would restrict that even further to only the most exceptional circumstances, which would almost certainly prevent detention to support removal, including immediately following arrival at the border and foreign criminals facing deportation. This would also require the Home Office to set out what the most exceptional circumstances are. This would be overly prescriptive and would not allow officers to respond to the individual circumstances presented by a varied group of people. Placing such a prescription in statute would provide no further safeguards. Courts can and do hold the Home Office to account based on published policy and guidelines, as well as the facts of individual cases The amendment also seeks to set the clock on the time limit running from the point of detention rather than the point at which the Secretary of State is satisfied that a woman is pregnant. The amendment is unworkable for a number of reasons. While there are circumstances where it is obvious that a woman is pregnant, there may be many instances where it is not immediately apparent, and the woman may not inform immigration officers of her condition. This is of particular concern where women are detained at borders without the facilities to conduct pregnancy tests, unlike at immigration removal centres. That could lead to instances where the Home Office becomes liable for unlawful detention because it was not aware that the woman in question was pregnant and the time limit has already expired. It could also prevent removal of pregnant women, as the Home Office would have to release a woman if she was found to be pregnant and had already been detained for 72 hours. This, in turn, could disrupt travel and removal plans.