Lord Taylor of Holbeach
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“(2) Where a person (“P”) is liable to be or has been removed from the United Kingdom under subsection (1), a member of P’s family who meets the following three conditions may also be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer, provided that the Secretary of State or immigration officer has given the family member written notice of the intention to remove him or her.
(2A) The first condition is that the family member is—
(a) P’s partner,(b) P’s child, or a child living in the same household as P in circumstances where P has care of the child,(c) in a case where P is a child, P’s parent, or(d) an adult dependent relative of P.(2B) The second condition is that—
(a) in a case where the family member has leave to enter or remain in the United Kingdom, that leave was granted on the basis of his or her family life with P;(b) in a case where the family member does not have leave to enter or remain in the United Kingdom, in the opinion of the Secretary of State or immigration officer the family member—(i) would not, on making an application for such leave, be granted leave in his or her own right, but(ii) would be granted leave on the basis of his or her family life with P, if P had leave to enter or remain.(2C) The third condition is that the family member is neither a British citizen, nor is he or she entitled to enter or remain in the United Kingdom by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972.
(2D) A notice given to a family member under subsection (2) invalidates any leave to enter or remain in the United Kingdom previously given to the family member.”
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, in Committee I gave a commitment to give consideration to amendments tabled by a number of noble Lords and to the recommendations made by the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee regarding the definition of family members and the regulation-making power in Clause 1, and to return to it on Report.
Amendment 1 removes the discretion that was previously set out in the regulation-making power as to whether we notify family members of removal. We previously stated our intention that family members will always be given notice when they are to be removed but, in recognition of the arguments so eloquently made in Committee, we have now placed this firmly in the Bill.
We have accepted the recommendation of the Delegated Powers and Regulatory Reform Committee that it was “inappropriate” to delegate the power to define a family member for the purpose of administrative removal within the regulations. We have therefore defined in Clause 1 those family members who might be removed because of their dependency on the principal.
The first condition of the definition sets out the relationship of the family member to the principal. I am grateful for the point made by my noble friend Lord Avebury during our previous debate on this issue that the definition of family member should be dependent on the principal’s leave to enter or remain, and this is what we have sought to achieve within the second condition. The third condition is that the family member is neither a British citizen nor a person entitled to be in the United Kingdom by virtue of an EU treaty right. As I have previously stated, our aim is to give new clarity to families so that they will know exactly who may be liable to removal.
My noble friend Lady Hamwee noted in Committee that the draft regulations contained a provision that the giving of notice to family members acted to invalidate any leave to enter or remain previously held, and asked why this was not included in the Bill itself. We have taken on board her concern and moved this provision out of the regulations and added it to Clause 1.
In Amendment 2 we have sought to reduce the power to make regulations about the removal of family members to matters such as time periods and the service of notice. Further to the DPRRC’s 24th report, published yesterday, we will make a further amendment at Third Reading to take out the reference to “in particular” from line 27 so that it will be completely clear that the scope of the regulations cannot extend beyond these two provisions. This limits them to procedural matters that should be subject to the negative resolution procedure by virtue of Section 166 of the Immigration and Asylum Act 1999. Amendment 3 simply clarifies the definition of a child in this context as someone under the age of 18.
Other amendments in this group, tabled by the noble Lord, Lord Judd, concern the return of families and children to their country of origin. This Government have transformed the approach to returning families with children, in line with their commitment to end child detention for immigration purposes. I hope that I will be able to explain any further issues as we debate the amendments in this group. Meanwhile, I beg to move.
Lord Avebury (LD)
My Lords, I hope I will be forgiven for returning to a point that we discussed in Committee, on the basis that the noble Lord, Lord Judd, has tabled a number of amendments that deal with the position of women and children. My noble friend referred to the undertaking that the Minister gave in Committee concerning the facilities at Heathrow. That is not the subject of a particular amendment, but I am aware of delays that have occurred in implementing the improvements at the short-term holding facilities, particularly at terminal 4, which are the worst in the whole airport.
In view of that fact, will my noble friend take this opportunity to give us an update on where we have got to? None of the facilities has any showers for the children and families who are detained in them. The shortage of accommodation is acute and the facilities have been thoroughly condemned by the independent monitoring board that deals with Heathrow. It would be helpful if the Minister, when he comes to reply, would give us an update on where we have got to on the improvement of those facilities.
Lord Taylor of Holbeach
My Lords, as noble Lords will know, the Bill gives legislative effect to our current policies on family returns by putting key elements of the new process into primary legislation. Noble Lords have spoken of the Government’s record and our policies towards children, and mentioned them in favourable terms. I think it is a shared opinion across this House that we take policies towards children seriously. I hope to demonstrate that we are doing that in the passage of this Bill.
Amendments 4 and 6, in the name of the noble Lord, Lord Judd, would narrow the definition of a family return case. It is important that families where children are being looked after by someone other than the parents, such as an older sibling in some cases, a grandparent or another adult member of their extended family, are included in the family returns process so that their cases can be resolved together and so that they benefit from the intensive support provided by the new process. Under our definition of “family”, a parent must be living with their children to benefit from the family returns process. That is a reasonable definition. Other than in exceptional cases, where common sense would prevail, if a parent is living apart from the child they may be removed separately.
With regards to Amendment 5, and separating children from their parents, I assure noble Lords that we will always seek to ensure that families remain together during their return. I am sympathetic to the amendment, but there are exceptional cases. The noble Lord, Lord Judd, referred, I think, to the comments of my noble and learned friend Lord Wallace of Tankerness in previous debates on the Bill. Splitting families would never be done for tactical reasons to achieve compliance. However, in exceptional circumstances, we may need to remove an adult family member separately, even during the 28-day grace period which Clause 2 will establish. This may be, for example, where there is a public protection concern or a risk to national security.
The noble Lord, Lord Judd, also asked what the criminality threshold is over which we might separate families. He wanted a stronger definition than perhaps my words just now have offered, but there can be no fixed threshold. Each case will be considered on its merits, based on an assessment of whether an adult poses a threat of offending that cannot be satisfactorily managed without removal. That is the only fair answer that I can give the noble Lord.
Amendment 8 seeks to ensure that children are detained only as a last resort and for the shortest possible time. That is already, as noble Lords will know, government policy. Clause 5 will, in effect, ensure that detention is for the shortest possible time, while reflecting the operational reality that, in very exceptional circumstances, unaccompanied children may need to be held for short periods in transit to a port of departure or at the port awaiting departure. If we do not hold children safely while they are coming in and out of the UK unaccompanied, we increase the risk that they may fall prey to traffickers or, indeed, abscond.
Later this afternoon, we will be considering an amendment concerning children tabled by the noble Earl, Lord Listowel, to which I have added my name. I mention this because it is important to consider our approach to children in the Bill in the round. That amendment will confirm that the important statutory duty towards children in immigration decisions applies to every matter in the Bill. It will of course apply to this part of the Bill, further underlining that when families and children are being returned, we must have regard to those children’s best interests.
I will address the questions posed by my noble friend Lady Hamwee, whose help on this matter and on the Bill in general has been very positive.
Lord Judd
I am very grateful to the Minister for what he is saying and the way he is saying it. Will he re-emphasise his position on two points? First, is there an understanding within the Government that sometimes the emotional relationship between children and someone who may be in prison can be very strong indeed, and that that needs to be taken fully into account when dealing with the interests of the child? Secondly, will he confirm that he agrees with me—if I may put it that way—that what will always matter most is the ethos, the spirit and the way in which the policy is being operated by everyone in the operation, and that sometimes therefore it is terribly important to have clearly in the legislation the overriding objective, purpose and value so that these cannot be lost in the niceties and legalities of the various parts of the legislation? That is why some of us argue for a firm, clear statement in the Bill.
Lord Taylor of Holbeach
My Lords, I would like to think that by our signing up to the amendment in the name of the noble Earl, Lord Listowel, there is a clear expression of those objectives across the Bill as a whole, not just in one section. If the noble Lord doubts our commitment in this regard, he should look at the number of children now held in detention compared with in the past. That has been supported by all noble Lords. It is not something that the Government have done on their own; it has been done because this House and others who care for children and families have been prepared to act in the interests of children and families. Nobody has done more so than the noble Lord. I hope that I have reassured the noble Lord with my statements, and I hope that the Government have reassured noble Lords by their deeds in this regard.
I was asked a number of questions by my noble friend. I do not want to take too long on the issue. My noble friend asked whether removal would not happen where dependency was broken when the former dependant was a victim of domestic violence, and asked me to confirm that proposed new subsection (2B)(b) covers this. I can give that assurance. Removal as a family member will not happen where the dependency is broken, because this scenario would not be covered by proposed new subsection (2B)(b). If there is a breakdown in a relationship such that a partnership no longer exists, the former dependant falls outside the definition in proposed new subsection (2A) and would be dealt with separately. I hope that that helps. I can give a fuller answer to my noble friend in correspondence, if she wishes.
My noble friend asked whether there was anything I could say about how proposed new subsection (2B)(b) will operate, and what the procedure is. In making a decision on whether to serve notice of removal on a family member, having already established the family relationship, an immigration officer or a case worker acting on behalf of the Secretary of State would next have to check whether the family members had leave on the basis of a family life with P. In cases where a family member has no leave, either because they never had any or because previous leave has expired, the immigration officer or case worker would look at whether they would be able to be granted leave in their own right because of their immigration status as an illegal entrant or overstayer, but they might be granted leave on the basis of their family life with P if P otherwise had leave.
My noble friend also asked how,
“where P has care of the child”,
differed from “parental responsibility”? I think that lies in the fact that we were talking about draft regulations when we were discussing the early draft. That is not necessarily the final wording. The wording prepared by parliamentary draftsmen is designed to include where children are being looked after by someone other than a parent, such as an older sibling, a grandparent or another adult family member. I think that my noble friend kindly answered her own question about “last resort”, so I shall not go into that.
In answer to the noble Lord, Lord Rosser, I can confirm that family members will be given a minimum of 72 hours between receiving notice of removal and any enforced removal, as per current requirements as endorsed by the courts.
My noble friend Lord Avebury has asked me before about the facilities at Heathrow. Unfortunately, the plans for those have been delayed. He is quite right to draw attention to that. I responded to him in those terms. I remain committed to providing him and the House with information on that issue when those facilities are finalised, but at the moment, that is not the case, so I cannot advance our knowledge on that issue any further.
I think that I have covered most of the questions, although I worry that I may not have addressed the issue raised by the noble Lord, Lord Hylton. I promise to read the record and come back to him on that.
I am entirely sympathetic to the intention behind the amendments proposed by the noble Lord, Lord Judd. I hope that I have been able to show how what he seeks to achieve is expressed in the Bill, so I hope that he will be prepared not to move his amendments and, meanwhile, I beg to move mine.
“( ) the time period during which a family member may be removed under subsection (2);( ) the service of a notice under subsection (2).”
Lord Rosser
My Lords, the noble Lord, Lord Ramsbotham, has spoken with his considerable knowledge of the enforced removal process and of restraint techniques. It is fair to say that his criticism is not confined to what he thinks is going on at the moment but extends to what has gone on under previous Governments as well. I do not think that his comments are geared to a particular Government; I think that they are geared to what has been happening over a period of years.
We are aware of what the noble Lord has proposed about a code of practice, and I have to say that there seem to us to be some fairly strong arguments for seeking to have such a code, in view of some of the terrible difficulties and events that there have been and to which the noble Lord has referred. He has referred today to the redrafting of paragraph 5, as I understand it from the closing words of his speech.
We on these Benches have sympathy with the arguments that he is putting forward, which are clearly addressed to trying to resolve the significant difficulties that have arisen, and may well continue to arise, with the current process and techniques. We very much hope that we will hear a helpful response from the Minister to the quite powerful points that the noble Lord has just made.
Lord Taylor of Holbeach
My Lords, I do not think that there is going to be any marked division in this House on this issue, to the extent that I think we are agreed that whatever is done in our name should be done in a civilised and proper fashion. I am grateful to the noble Lord for bringing this issue to the House’s attention through Amendment 7, but perhaps I might start by repeating what I previously said in Committee. The provision in Schedule 1 to extend the use of force affects only those powers exercised by immigration officers. It does not make any change to the separate statutory powers of detainee custody officers and escorts, who are private contractors, to use reasonable force in the exercise of their particular functions.
As the noble Lord kindly mentioned, last week the Minister for Immigration and Security, my honourable friend James Brokenshire, and I had a very helpful and thoughtful meeting with the noble Lord where we discussed the proposals in his draft codes of practice for enforced removals and where I believe we agreed that there are a number of areas of common ground where the Home Office is making improvements. I think the noble Lord will know that my honourable friend Mr Brokenshire and I share an interest in this matter. He kindly mentioned my trip on a removals flight, which I found extremely interesting. I feel much better informed through having made that journey.
The noble Lord has proposed in the draft code of practice on use of restraint that any use of force must be justifiable, proportionate, accountable, necessary, safe and supportive and must be applied for only the minimum period necessary to achieve the lawful objective. Published enforcement instructions and guidance explain that the use of force must be proportionate, lawful and necessary in the particular circumstances, and also set out that force should be used for the shortest possible period, be the minimum needed, be used only when all other avenues of securing co-operation have been exhausted and should be de-escalated as soon as possible. Whether that use of force was reasonable must be justified by individual officers on a case-by-case basis. I can assure noble Lords that only those immigration officers who are fully trained and accredited may use force. Arrest training is currently provided by the College of Policing, and training on the use of force, including control and restraint techniques, is in line with ACPO standards.
If we were to accept this amendment, although it would maintain the status quo, there are half a dozen coercive powers which sit in the 2004 and 2007 immigration Acts, where there is no specific reference to the use of reasonable force. Although the use of force is currently implied in these arrest and entry powers, it is our intention that this should be set out explicitly in statute to ensure that there is greater transparency. I previously gave noble Lords the example of an immigration officer trying to safely arrest a person for the specific offence of assaulting him or her, under Section 23 of the UK Borders Act 2007, where it is not expressly stated in the legislation that an immigration officer can use reasonable force to restrain that person in doing so. The extension of the power for immigration officers to use reasonable force beyond that contained in the 1971 and 1999 immigration Acts will ensure that existing powers can be operated effectively and are in step with other law enforcement bodies’ powers and that current enforcement practices are not at risk of legal challenge on the grounds that the ability to use force is not explicitly set out in statute.
The noble Lord asked whether the Home Office monitored the restraint techniques used at Colnbrook removal centre in 2004, which led to the tragic death of a 16 year-old. I cannot answer that question at the Dispatch Box but will write to him and copy the letter to other noble Lords who have spoken in this debate.
With the assurance that we in the Home Office very much value the noble Lord’s input in this area, which reinforces our interest in making sure that these jobs are done in a proper fashion, I hope the noble Lord, Lord Ramsbotham, will fell able to withdraw his amendment.
Lord Ramsbotham
My Lords, I am extremely grateful to the Minister for his considered reply and, indeed, for the meetings we have had. I admit that I was seeking an opportunity to raise this issue because it has gone on for too long. The procedures being exercised in our name have gone unchecked and unsupervised in a way that has allowed bad procedures to be passed from one contracted company to another contracted company over the years, which really ought to have been checked.
I like to think that the exercise that the Minister has outlined means that this will at last be put to an end. The people who have actually been served worst by this are Ministers, who have been put into embarrassing positions which they really should not have been. I am happy to withdraw the amendment because I think that the point has been made fully, and I am grateful to the Minister for doing so. I beg leave to withdraw the amendment.
Baroness Smith of Basildon (Lab)
My Lords, we have heard some extremely powerful speeches in today's debate, especially on the concerns about overlong detention. Some of the individual cases that we have heard about strike the humanity of all noble Lords—to take a phrase from my noble friend Lord Judd. We certainly understand the reasons for the amendment and agree that it should always be the objective to reduce the length of time that any individual is in detention. I would hope that in the vast majority of cases it is possible to deal quickly with the process for individuals or find alternatives to detention. As we have heard, that is in the interests of the individuals detained—we have heard that there are 30,000 detainees each year—and in the interests of the taxpayer.
The comments of the noble Lord, Lord Ramsbotham, and my noble friends Lord Judd and Lady Lister, led to a greater concern about the regime of detention centres and the way in which rules are enforced. We agree that immigration rules must always be enforced, but the responsibility of government is to ensure that all detainees are treated humanely, with high standards and safeguards in place. As this amendment seeks to draw attention to, the process of administrating and assessing claims or arranging deportation should be undertaken as quickly and as fairly as possible.
Long delays and long periods of detention bring with them other problems. I am sure that the Minister is aware of the research undertaken by Women for Refugee Women which illustrates concerns about access to healthcare and support for physical and mental health. Only this week, we heard the extremely sad and distressing account of a woman of 40 who died at Yarl’s Wood detention centre. I was pleased that yesterday the Minister announced an investigation and review into that sad and tragic death.
Will the Minister also confirm that there will be a full investigation into the reports of sexual abuse of vulnerable women at Yarl’s Wood by Serco employees? What action has been taken as a result of the report of the inspector who said that abused and trafficked women are being held at Yarl’s Wood? The chairman of the Home Affairs Select Committee in the other place said yesterday that Serco has confirmed to him that in the past few years seven employees had been dismissed for inappropriate behaviour. The Minister will also be aware that there are ongoing police investigations and criminal proceedings, although Nick Hardwick, in his most recent inspection report, said that—I paraphrase—good progress was being made but more needs to be done. There are real concerns that have been illustrated across the House today.
However, that is not the amendment before us today. This is specifically about the length of time an individual can be held, and we heard examples of overlong detention from the noble Baroness, Lady Williams, and the noble and learned Lord, Lord Lloyd. My concern about the amendment is that it is slightly clumsily worded and does not necessarily achieve what it sets out to do. It has an arbitrary time limit of 60 days. Within that, there is no risk assessment of the issues of whether or not someone is likely to abscond or any assessment of the reasons for the delay.
More importantly, and this gives us the most concern, foreign criminals who have completed their sentences may be detained while they await deportation. That may take a little longer than 60 days to resolve—to get all the paperwork in place, ensure that they are treated properly and make an assessment of where they can be deported to. We would then be faced with the prospect of releasing those who do not have a legal right to be in the UK and who have become convicted offenders who have received a custodial sentence. That could lead to complications in the paperwork or the complex nature of the deportation. If the amendment were passed today as it stands, we could have a difficulty with former offenders who have been held in detention prior to deportation.
Unless I have missed something, there is no process in the amendment to allow for any extension in any circumstances, whether for a genuine risk of absconding or because of deportation for previous criminal offences. There is no qualification at all in the amendment as it stands. Having said that, I think it was my noble friend Lord Judd who used a phrase—which is well worth this House returning to on a number of occasions—about the humanity and the principle of the issue. The noble Lord, Lord Ramsbotham, referred to the amendment being a “stimulus”, because the Government should be aiming to achieve far shorter detention periods.
I fully appreciate that this amendment could focus the Government’s attention on being far more efficient in dealing with cases but there is a risk here, as I have outlined, and I am not convinced that the Government would necessarily take note in that way. I would like to hear some assurances from the Minister that action will be taken to deal with any abuses of the rules and regime in any detention centre. I hope that he will not dismiss the objectives of the amendment before us today because, whatever flaws there may be in the detail, this amendment raises issues of serious concern across your Lordships’ House, as he has heard, that have to be addressed. Although we cannot support this amendment as it stands, we would hope for a very sympathetic and helpful response from the Minister.
Lord Taylor of Holbeach
My Lords, I am very grateful to the noble Baroness for that contribution. I think she recognises the burdens on the Government in dealing with this matter. I also say to her that, clearly, if there is evidence of wrong-doing at a detention centre, it will be investigated. However, I would like to write to the noble Baroness in more detail on that because I cannot address from the Dispatch Box the particular issues that she raises.
However, as to the general principle, we have had a really good debate today on detention. The truth of the matter is that no Government want to detain people more than they have to. I think the figure was quoted of £36,000 per annum for each detainee, which is enough incentive for any Government, not just on humanitarian grounds but on hard-nosed business terms. We do not want people detained, but these are difficult issues and we have vested, quite rightly in my view, the determination of these matters in the courts. It is the courts that determine the period of detention. Although the noble and learned Lord, Lord Lloyd of Berwick, has talked about the legal background to these issues, this is a case where that balance between the Executive and the court system determines outcomes.
I will now try to address the issues in the amendment, which my noble friend Lady Williams characteristically presented with the passion that has driven her through a most distinguished political career. Amendment 9 would require the release of any individual in immigration detention subject to a removal decision after 60 days’ detention, no matter how imminent their removal was. Removal might be due after 62, 64 or 70 days, but 60 days would be the effective limit. There is an absconding risk in that, which I think noble Lords will recognise. Having a finite limit would give people an incentive not to co-operate with removal. Much of what we have been discussing here has been discussed in very high-minded terms, but there are people in detention who will do everything that they can to ensure that they are not removed. If an individual refused to co-operate with arrangements for their removal—for example, in obtaining a travel document, which requires the co-operation of the detainee—they would be able to benefit from their non-compliance when making a bail application after 60 days of detention, even if the sole reason for their detention and for their not being removed was their lack of compliance. Even if a limit were to be imposed, 60 days is not the right limit, and I hope I can convince noble Lords of that. The Government’s view is that it is not appropriate to legislate to set a time limit for immigration detention.
“Report by Chief Inspector on administrative review
(1) Before the end of the period of 12 months beginning on the day on which section 15 comes into force, the Secretary of State must commission from the Chief Inspector a report that addresses the following matters—
(a) the effectiveness of administrative review in identifying case working errors;(b) the effectiveness of administrative review in correcting case working errors;(c) the independence of persons conducting administrative review (in terms of their separation from the original decision-maker).(2) On completion of the report, the Chief Inspector must send it to the Secretary of State.
(3) The Secretary of State must lay before Parliament a copy of the report received under subsection (2).
(4) In this section—
“administrative review” means review conducted under the immigration rules;
“case working error” has the meaning given in the immigration rules;
the “Chief Inspector” means the Chief Inspector established under section 48 of the UK Borders Act 2007;
“immigration rules” has the same meaning as in the Immigration Act 1971.”