Nationality and Borders Bill — House of Lords, 2022-02-08
Topic: Immigration
Susan Williams (Conservative, Centre-right): My Lords, first, in answer to the question from the noble Lord, Lord Coaker, I am sure that the figures that my honourable friend gave in the other place must be correct I will start with Amendments 137A and 137B. I am grateful to the noble Baroness, Lady Hamwee, for drawing attention to the framework on destination and route for removing migrants who do not have required leave to remain in the UK. Under Clause 45, the migrant must be given a written notice called the "notice of intention to remove", which informs the migrant of their five working days’ minimum notice period, during which they cannot be removed from the UK, and the destination to which they are to be removed Prior to the migrant’s removal, we must also give them a written "notice of departure details", which informs them of the date of removal to the destination stated in the notice of intention to remove. Where the destination differs, or there is a change in route that involves a stopover in a country that is not designated as safe, we must give the migrant a further notice period so that they have time to seek legal advice regarding this new information. It seems that the goal of Amendments 137A and 137B is to ensure that the destination stated in the two notices is the same. Clause 45 already provides a safeguard to ensure that applicable changes to destination or route require a separate notice period, and therefore the amendments will not make any difference to the status quo Turning to Amendments 137C and 137D: the sole purpose of the notice period is to give migrants time to seek justice. But we must balance the common law right to access justice with the need to be able to operate an effective immigration control that involves the enforced removal of migrants who have been found to be in the UK unlawfully and have not departed voluntarily. The current position on notice periods is that most migrants are given a minimum of 72 hours, although some get five working days. We want to make the system simpler and more straightforward so that migrants and their legal advisers know what to expect and so as to reduce any confusion over whether the migrant is given the correct amount of time The impact of Clause 45 is that some people will get more time to access justice than is currently the case. It should be noted that this is a minimum timeframe. The current timeframe has not been directly challenged in the courts, and the courts have not found a minimum period of 72 hours to access justice to be unlawful. But it is clear that sufficient time to access justice must be provided, and the Secretary of State therefore has discretion to extend this on a case-by-case basis if justified by the circumstances We must also keep in mind the impact of the notice period on the length of time a migrant might spend in immigration detention. At present, in most scenarios, the migrant is in detention during the notice period. The justification for the detention is often based on the imminence of the migrant’s removal and hence the heightened risk of their absconding. Of course, each case is considered on its own merits and a decision to maintain detention takes into account numerous factors, such as vulnerability, family ties, et cetera I do not think that many in the Committee would be in favour of increasing the time a migrant spends in detention, especially taking into account the cost to the taxpayer and the potentially adverse effects of continued detention on the migrant. Five working days strikes the right balance and provides more protection to migrants as compared with the status quo On Amendment 137D, I understand that the noble Baroness, Lady Hamwee, may be concerned that this process will be open-ended—that a removal date may be pushed back so that the migrant may be left in no man’s land indefinitely and detained for a long period, having no regard for access to justice for any changes of circumstances in that time. That is not the Government’s intention. If a removal date is deliberately moved back, and not within the provisions of proposed new Sections 10B, 10D or 10E, we will give the migrant a fresh notice period. This will be set out in our policy guidance published on GOV.UK Clause 47, as it stands, does not change our powers of detention. We will not detain indefinitely, and this will not mean that people will be detained solely due of non-compliance. For detention to be lawful for the purpose of removal, there must always be a realistic prospect of removal within a reasonable timescale. Nor does it mean that bail will automatically be refused for all people who are non-compliant with immigration and removal processes without reasonable excuse. It is just one of several factors that we think should be considered when deciding whether to grant immigration bail The current system incentivises non-compliant behaviour: a person can deliberately create obstacles to their removal in order to significantly improve the likelihood that they will be granted bail. It is not right that a person’s non-compliance enables their release, and it should be taken into account as a factor when considering whether to grant immigration bail. We are aware that the tribunal may already consider a person’s compliance with immigration processes when deciding whether to grant bail, but there is nothing currently in place that ensures that this behaviour is considered consistently or indeed given focus equal to the factors already particularised and considered in every case.