Immigration Bill

Lord Keen of Elie Excerpts

Tuesday 10th May 2016 Lords Chamber

Motion A

[Lord Keen of Elie]

That this House do not insist on its Amendment 84 and do agree with the Commons in their Amendment 84C in lieu.

84C: After Clause 30, page 108, line 7, at end insert—
“Duty to arrange consideration of bail
(1) Subject as follows, the Secretary of State must arrange a reference to the First-tier Tribunal for the Tribunal to decide whether to grant bail to a person if—
(a) the person is being detained under a provision mentioned in paragraph 1(1)(a) or (c), and
(b) the period of four months beginning with the relevant date has elapsed.
(2) In sub-paragraph (1)(b) “the relevant date” means—
(a) the date on which the person’s detention began, or
(b) if a relevant event has occurred in relation to the person since that date, the last date on which such an event has occurred in relation to the person.
(3) The following are relevant events in relation to a person for the purposes of sub-paragraph (2)(b)—
(a) consideration by the First-tier Tribunal of whether to grant immigration bail to the person;
(b) withdrawal by the person of an application for immigration bail treated as made by the person as the result of a reference under this paragraph;
(c) withdrawal by the person of a notice given under sub-paragraph (6)(b).
(4) The reference in sub-paragraph (3)(a) to consideration of whether to grant immigration bail to a person—
(a) includes such consideration regardless of whether there is a hearing or the First-tier Tribunal makes a determination in the case in question;
(b) includes the dismissal of an application by virtue of provision made under paragraph 9(2).
(5) The reference in sub-paragraph (3)(a) to consideration of whether to grant immigration bail to a person does not include such consideration in a case where—
(a) the person has made an application for bail, other than one treated as made by the person as the result of a reference under this paragraph, and
(b) the First-tier Tribunal is prevented from granting bail to the person by paragraph 3(4) (requirement for Secretary of State’s consent to bail).
(6) The duty in sub-paragraph (1) to arrange a reference does not apply if—
(a) section 3(2) of the Special Immigration Appeals Commission Act 1997 (persons detained in interests of national security etc) applies to the person, or
(b) the person has given to the Secretary of State, and has not withdrawn, written notice that the person does not wish the person’s case to be referred to the First-tier Tribunal under this paragraph.
(7) A reference to the First-tier Tribunal under this paragraph in relation to a person is to be treated for all purposes as an application by that person for the grant of bail under paragraph 1(3).”

--- Later in debate ---

[Lord Ramsbotham]

Leave out from “House” to end and insert “do disagree with the Commons in their Amendment 84C, and do insist on its Amendment 84”.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

I beg to move that this House do not insist on its Amendment 84 and do agree with the Commons in their Amendment 84C in lieu and disagree with Motion A1 in the name of the noble Lord, Lord Ramsbotham, which seeks to reinstate Amendment 84. I shall speak also to Motion A2 in the name of the noble Baroness, Lady Hamwee, which would amend Amendment 84C to reduce the time limit for automatic bail referrals from four months to two months.

I start by reminding the House of what it has already achieved in its role as a reviewing and revising Chamber. There can be no doubt that the spirited debate in this House has added considerably to the quality of this legislation. This House has done its job, and more. This is indisputably a better Bill for it and, particularly, it does more to protect the interests of the most vulnerable. However, we must now make sure that we deliver what the British public voted for last May and pass this Bill into law.

The Immigration Bill delivers important reforms to our laws, and it is right that we ensure that there is proper consideration and debate of its content. The House’s achievement includes ensuring that the detail of the important reforms in the labour market and illegal working provide an effective mechanism to enable us to clamp down on those who exploit vulnerable migrants. The House has delivered improvements to the provisions on the criminal offences and ensured that the duty to have regard to the need to safeguard the welfare of children underpins all the provisions in the Bill. It has pressed the Government for the amendment tabled by the noble Lord, Lord Dubs, to do more to help refugee children, and the Commons yesterday accepted that amendment.

On detention, the Government recognise the strength of feeling on this issue, the need to ensure that detention is for the shortest period possible and that, in particular, there is proper provision to ensure that those who are vulnerable are detained only when necessary and for the shortest period possible.

On time limits on detention, while we do not agree that those are appropriate, we have listened to the concerns expressed in this House. We have listened to the concern that some people may be unaware of their ability to apply for bail or are unable to make such an application. That is why we have proposed our Amendment 84C, which ensures that, unless the detainee has already had a bail hearing, there will be a bail hearing after four months and every four months thereafter. That is an important safeguard, and this House deserves credit for it.

Amendment 84 places an upper limit on detention for all those who are not being deported of a maximum of 28 days in total, which may be extended by the tribunal only on the basis of exceptional circumstances. It might be helpful to remind noble Lords that we will seek to detain and enforce the removal of only those migrants with no basis to remain in the UK who are unwilling to depart of their own volition or who are non-compliant.

As I have stated before, this arbitrary time limit is frankly unworkable and would provide non-compliant migrants with an easy target to aim for in order to secure their release from detention and frustrate their removal. It would lead to meritless asylum claims being made, meritless judicial reviews being lodged and individuals refusing to co-operate with the documentation process. The aggregate limit of 28 days would cause difficulties if we need to redetain a person when a travel document is delayed or where a person disrupts their removal and needs to be taken back into detention until new removal arrangements are put in place.

It may help the House’s understanding if I illustrate this with some real examples. Mr R’s student visa was curtailed when he failed to enrol at university. He was encountered when giving notice of marriage to a British citizen, which was found to be a sham, and he was detained. The day before he was first due to be removed, he submitted a humans rights claim. He was subsequently removed after 30 days in detention. Mr M was encountered by the police and subsequently detained after his visa had expired. An emergency travel document was applied for, but when he lodged a judicial review he was released on bail. Once the judicial review was resolved he was redetained for removal. He disrupted the first attempt to remove him, so removal had to be rescheduled for a charter flight. Mr M’s two periods of detention totalled 130 days. Neither of these examples is likely to qualify as “exceptional circumstances” which would allow the Secretary of State to apply for extended detention.

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

My Lords, I will not repeat all the arguments but, as a member of the all-party inquiry, I support Amendments A1 and A2. The Commons had only an hour yesterday. Quite understandably, most of it was spent teasing out the practical implications of my noble friend Lord Dubs’ amendment. I do not think we should read too much into the fact that not much was said about these amendments.

[Lord Keen of Elie]

My Lords, I am obliged to noble Lords for their contributions to this debate. I acknowledge the work done in the past by the noble Lord, Lord Ramsbotham, on detention and on the revising of the immigration and detention rules. I must, however, take issue with the suggestion that access to bail is merely theoretical and that there is an absence of judicial oversight.

The access to bail arises immediately on detention and a tribunal must be persuaded that there are substantial grounds for believing that detention should be maintained. This is not a theoretical right; it is an obligation on the part of the Home Office to persuade a tribunal that detention should be maintained. So far as the period of detention is concerned, I can confirm to the noble Lord, Lord Rosser, that, after a period extending to four months—which is highly unusual—there will be an automatic bail hearing. In these circumstances, I renew my Motion to the House.

[Lord Ramsbotham (CB)]

My Lords, I am grateful to all those who have spoken, not least to my noble and learned friend Lord Brown of Eaton-under-Heywood and my noble friend Lord Pannick. It is rare for me to find myself in disagreement with them and I bow to their superior legal knowledge in this case. We have probably gone as far as we are able. I am pleased that, during the passage of the Bill, we have been able to raise so many issues. I sincerely hope that the Home Secretary and her officials will focus on these, not least when they concentrate on the reports that they have commissioned from Stephen Shaw and the report on the mental health arrangements commissioned by NHS England. I fear that the writing is on the wall for my hope of progressing further with this amendment during the passage of the Bill. With a heavy heart, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

That this House do agree with the Commons in their Amendments 85D, 85E, 85F, 85G, 85H and 85I.

Commons Amendments to Lords Amendment 85C

85D: Line 3, leave out subsection (1)

--- Later in debate ---

85I: Line 96, leave out subsection (15)

[Lord Keen of Elie]

My Lords, the Government have continued to listen carefully to the concerns expressed in both Houses on the issue of detaining pregnant women.

Last night, the other place agreed amendments which will make it clear that pregnant women will be detained for the purposes of removal only if they are to be shortly removed from the United Kingdom or if there are exceptional circumstances which justify the detention and which place an additional duty on those making detention decisions in respect of pregnant women to have due regard to their welfare.

The additional measures we are putting in place, alongside the 72-hour time limit on the detention of pregnant women, will act as extra statutory safeguards which will complement the Government’s wider package of reform in the area of the detention of vulnerable people. This includes the new adults at risk policy, which is given a statutory basis in this Bill. It includes a new cross-cutting gatekeeper function to help provide consistency in decision-making across the business. It includes new safeguarding teams which will provide an extra level of scrutiny of the cases of detained vulnerable people. As we have previously announced, we also intend to ask Stephen Shaw to carry out a short review in order to assess progress against the key actions from his previous report.

I hope that noble Lords will accept this suite of measures as a clear and positive demonstration of the Government’s absolute commitment and desire to ensure that pregnant women are detained only when it is absolutely necessary and as a last resort, with their health and welfare being a foremost consideration whenever a decision is made in respect of their detention. These are solid measures which will have a practical impact but which will also give life to the Government’s desire to end the routine detention of pregnant women, as was set out in the Written Ministerial Statement on 18 April. The 72-hour time limit announced in that Statement was a clear exposition of the Government’s intent, moving to a position in which in no circumstances will a pregnant woman be knowingly detained for longer than a week. That is a major shift from a position in which, theoretically at least and occasionally in practice, detention could persist for a longer period. This will be backed up with the new duty, the clear statement that pregnant women will be detained only for the purposes of quick removal or in exceptional circumstances. I reiterate that, even when there are exceptional circumstances, detention will still be for only the limited period set out in the Bill. It will also be backed up with other measures as I have described. All this represents a new level of safeguarding for pregnant women which, while not going as far as providing an absolute exclusion from detention, ensures that it will occur sparingly and only when it is absolutely necessary.

I turn specifically to Amendment 85J, tabled by the noble Baroness, Lady Lister of Burtersett. The adults at risk policy will effectively replace Chapter 55.10 of the Home Office Enforcement Instructions and Guidance, which is where the existing policy is set out, and will represent a different, and better, way of assessing the circumstances that apply in any given case of a vulnerable person, including cases of pregnant women. The amendments tabled in the other place automatically place pregnant women on a separate footing, making it clear that particular consideration needs to be taken in those cases.

The 72-hour time limit, by virtue of its brevity, will ensure that detention is used as a last resort. On that basis, I am of the view that the current formulation in the Bill, combined with the other measures we are putting in place, provides a high level of safeguard for pregnant women. I beg to move Motion B.

Motion B1 (as an amendment to Motion B)

Moved by

--- Later in debate ---

[Lord Rosser]

Perhaps I could add to the point just made and express the hope that the noble and learned Lord will not only respond to questions raised in this short debate in this House but be doubly determined to do so. I find it extraordinary that when our amendments were discussed in the Commons last night, although they have the not surprising procedure that a Minister opens the debate, there was no reply by a Minister at the end of the debate. So all the legitimate questions raised in that debate after the Minister had finished speaking were not answered at all by the Government. I know very little about House of Commons procedures —that is quite obvious—but it is certainly a fairly remarkable procedure to have a debate where questions are asked of the Government but there is no Minister replying at the end. I hope that that is a defect that the noble and learned Lord will be able to rectify when he replies to this debate.

We accept that the Government have moved on this issue to a position of not allowing the detention of pregnant women beyond 72 hours—or up to a week with the Secretary of State’s approval. This House of course wanted the Government to go further and provide additional safeguards, which were reflected in the amendments sent to the Commons. In the Commons last night, the Minister said that the Government had tabled amendments that made it clear that,

“pregnant women will be detained for the purpose of removal only if they are shortly to be removed from the UK or if there are exceptional circumstances that justify the detention”.—[Official Report, Commons, 9/5/16; col. 486.]

As has been said, the Minister went on to say that the guidance will also make it clear that the guidance would also make it clear that the power to detain should be used only in very exceptional circumstances. Why does the government amendment passed last night in the Commons refer to “exceptional circumstances” and not to “very exceptional circumstances”, which is and will continue to be used in the guidance?

What in the Government’s view is the difference in this context between “exceptional circumstances” and “very exceptional circumstances”, since it is they who have decided not to use the same wording in the Bill as is and will continue to be used in the guidelines? Through her amendment, my noble friend Lady Lister of Burtersett seeks a credible and reassuring answer to that question, and I hope that the Government can provide it.

[Lord Keen of Elie]

My Lords, I will begin by answering the question just posed by the noble Lord, Lord Rosser. The provision does refer to “exceptional circumstances”. The guidance as it exists talks of only “very exceptional circumstances” applying for the detention of pregnant women, and that will continue to be the policy that is applied in the context of the provision. I reiterate what was said in the other place last night: it is only in very exceptional circumstances that it will be considered appropriate for this provision on detention to be employed.

[Baroness Lister of Burtersett]

I am sorry to interrupt, but there was a specific question there: if that is the case, why is “very exceptional circumstances” not put in the Bill?

[Lord Keen of Elie]

In the context of drafting statutory provision, it was not considered that the addition of such words as “most”, “much” or “very” would add anything to the proper construction of the provision. However, the policy guidance is there. It is absolutely clear, and both in this place and the other place it has been said that the policy will apply in the context of “very exceptional circumstances”.

[Lord Williams of Elvel (Lab)]

With respect to the noble and learned Lord, as a matter of English language, there is a word “exceptional”, which is perfectly clear. What is the difference in his mind between “exceptional” and “very exceptional”?

--- Later in debate ---

[Lord Keen of Elie]

With respect, the noble Lord makes my point for me. It is questionable whether there is any distinction to be drawn between exceptional, properly understood, and very exceptional or most exceptional. That is what lies behind the manner in which this provision has been drafted. Nevertheless, to dispel doubt in the minds of others, it has been said in the guidance that, as a matter of policy, the term “very exceptional” may be applied when approaching the application of this provision to the detention of pregnant women.

[Baroness Hamwee]

My Lords, with the leave of the House, I wish to pursue this issue. There must be a difference, otherwise it would not be necessary to use the word or the distinct phrases. Are the Government not in danger of falling foul of their own legislation by applying guidance that is different from the legislation?

[Lord Keen of Elie]

I do not accept that. The purpose of the policy guidance is to lend emphasis to the test that is being applied, and that is what is happening here.

I shall move on to address a point raised by the noble Baronesses, Lady Lister and Lady Hamwee, which concerned the reference to the welfare of the pregnant woman. I emphasise that this provision is there as an additional safeguard. I will not claim that the draftsmanship of this clause is distinguished by its elegance, but its effect ultimately is clear.

In circumstances where it is thought that a pregnant woman may be detained, the party who may be exercising the right to detain will also have to have regard to the welfare of that pregnant woman before a final decision is made. For example, in circumstances where the pregnant woman has arrived at a remote port and there is nowhere in the vicinity that could properly be utilised to detain her when she is in a state of pregnancy, that factor must be taken into account—indeed, it must be a determining factor—in deciding whether to detain her. Somebody in a state of pregnancy arriving, say, at Heathrow can and should be detained because the circumstances are very exceptional and there are facilities to detain her in her state of pregnancy. However, if somebody arrived at a remote port where it was felt that there were very exceptional circumstances that would justify detention but where there was no suitable place for her detention, having regard to her welfare would mean that detention would not take place. I hope that that assists in explaining the purpose of the provision. It is an additional safeguard.

I turn to the question of and/or, which was raised in the context of whether or not detention should take place. Of course, the intended effect of these provisions, so far as pregnant women are concerned, is that they will, like all detainees, be detained only for the purposes of removal. Because there will be a time limit on the detention of pregnant women, all cases of detention of pregnant women will be necessarily short. Some of these cases will have exceptional circumstances attached but, by definition, not many. For example, cases at the border are quite likely not to have exceptional features. The clause as drafted therefore allows for the detention of pregnant women only when they can be removed quickly, or when they can be removed and exceptional circumstances pertain. It is merely to allow for the two circumstances—namely, that they can be quickly removed, or that they can be quickly removed and exceptional circumstances pertain. I hope that that explains the way in which that particular provision is drafted.

The noble Baroness, Lady Lister, asked about a further review. With respect, we have already had the review from Stephen Shaw, and he will be instructed to carry out a further short review about the implementation of these provisions. No additional or alternative review is being contemplated. Of course, the policy guidance that we have has been addressed already. The noble Baroness also referred to an FoI request. I cannot reply directly with respect to that request for the relevant statistics. But, of course, there is a process that can be followed through to a conclusion to determine that the FoI request is responded to in due time and in appropriate terms.

The noble Lord, Lord Winston, raised a point echoed by the noble Lord, Lord Alton, on the treatment of pregnant women and the effect of stress on them. Who can doubt how stressful it will be for a person who travels unlawfully to the United Kingdom in a state of pregnancy and then attempts unlawfully to secure entry to the United Kingdom? That alone is a source of stress. The question is how we deal sympathetically and effectively with such persons, particularly when we find that they are either vulnerable or pregnant. What we have developed here is a rational and reasonable approach to that very difficult question.

Finally, I address the question of facilities in the context of a planned departure. Our continuing view is that immigration removal centres remain the most appropriate places to detain pregnant women. Yarl’s Wood provides a high level of care for pregnant women. NHS midwives are available; general practitioners and nurses can be accessed seven days a week; there are strong links with local maternity services; and support is provided by a pregnancy liaison officer. In addition, there is a new care suite, staffed by a dedicated female member of staff, to attend to women in the state of pregnancy. Very few pregnant women are detained in these circumstances, but suitable and sufficient facilities are available and, as I observed earlier, where they are not for some reason available the welfare of the pregnant woman will be paramount.

[Lord Alton of Liverpool]

I am grateful to the Minister. He will recall that he has been asked by three of us about those words that appear in the final section, in the penultimate line of the amendment, “apart from this section”. I wondered whether he could tell us why they had been included and what they add.

[Lord Keen of Elie]

I did say that the relevant provision was not distinguished by its elegance. However, if noble Lords read the clause as a whole, it is intended to refer back to the person with the power of detention in terms of the Bill. How it is drafted at that point is dictated by how that is described in an earlier clause of the Bill.

[Lord Winston]

Forgive me for intervening once more, but I do not feel at all confident about the question of incarceration. Arriving on these shores, perhaps illegally, and then being incarcerated, is very different from arriving on these shores with hope. What the evidence of the model shows in Canada is that it is the incarceration—in their own houses, even—that caused the stress to these women that resulted in the changes to the foetus that were subsequently inherited. I beg the Minister to consider that point when he finally sums up.

[Lord Keen of Elie]

I had rather summed up, but I can say to the noble Lord, Lord Winston, that of course there are elements in the journey of such a person that will cause stress. Detention may be a factor in that but, in the round, we have to come to a reasoned conclusion as to how we deal with unlawful entry into the United Kingdom.

[Baroness Hamwee]

Can I make the Minister an offer? He is obviously as uncomfortable as I am with the drafting of this clause. Can we find a way in which to get it to mean what—whether we like it or not—he is telling us that we ought to understand it to mean early in the next Session? Let us tack it on to something that will come to us fairly shortly.

[Lord Keen of Elie]

With respect to the noble Baroness, “It means what I say—it does not say what I mean” may be her line, but that is one that we shall take into consideration.

[Baroness Lister of Burtersett]

My Lords, I am very grateful to everyone who has spoken, and particularly to my noble friend Lord Winston, who made a very powerful point. It has reinforced the sense that this House is very concerned about this issue and not convinced that the welfare of pregnant women and the foetus inside them is being protected by the concessions that the Government have made.

I am grateful to the Minister for addressing all the questions that were asked. I do not think that it is just a question of elegance; it is a question of comprehensibility. I have to say that I did not understand a word of one of his answers, but that is probably me, and I shall put a towel over my head and finally understand it when I read it in Hansard. It does have resonances of Humpty Dumpty and words saying what I say they mean, and the,

“question is … which is to be master—that’s all”.

Unfortunately, it is the Government who are master and who have the power to decide these issues. The answers that I did understand from the noble and learned Lord were very disappointing. I have still not heard a good or proper reason as to why, if it is good enough for the guidance and it means something in the guidance, it is not good enough to be in the legislation. I am still worried that someone looking at both of them will think, “With regard to the legislation, the Government have actually gone backwards”.

I was not asking for a whole new review: I was asking for a very focused review of the process by which a woman is taken from her home into detention. As I understand it, there has already been a commitment to look at transport; I am just asking for that to be broadened out to the whole process. It is not a big thing, and I have still not heard any explanation as to how this is going to be modelled on the family returns process. The noble and learned Lord said there was not going to be any further guidance on this, so it is just an empty claim unless someone can show us otherwise.

I hope that the noble and learned Lord, the Immigration Minister and the Home Secretary will take this away and read what has been said in this House. My noble friend Lord Rosser pointed out the really strange Commons procedures that do not allow the Minister to respond to perfectly good questions, but we at least have a chance to do that in this House. I hope that the people in the other place will all read what has been said in this House and will think about how, within the constraints of the legislation as it is, we could make this a more humane process. As we have heard, there is a lot at stake here. My noble friend Lord Winston said that it could be responsible for a heritable effect on the child. That is very serious, so I hope that this will be looked at further, even if it cannot be in the context of actual legislation. That said, like the noble Lord, Lord Ramsbotham, I recognise when we are coming to the end of the road. Therefore, like him, with a very heavy heart indeed, I beg leave to withdraw the amendment.