Immigration Bill

Public Bill Committee, 5 November 2013.

Roger Gale (Conservative, North Thanet)

Good morning, ladies and gentlemen. Members may remove their jackets if they wish. Before we start line-by-line consideration, I shall run over the ground rules for the benefit of those who are long in the tooth and have forgotten and those who are short in the tooth and never knew.

The selection list, as always, is available on the table in the room. It shows the amendments that have been grouped together for debate. The grouping is on the basis of amendments being on the same issue and does not reflect where they arise in the Bill. The Member who has tabled the lead amendment in a group—we shall come to grouped amendments later—is called first. Other Members on both sides of the Committee are then free to catch my eye and speak on any of the amendments in the group. You will understand that here, as in evidence sessions, a Member is entitled to speak more than once in a debate.

At the end of the debate on a group, we call for a decision only the amendment that has been moved. There is an assumption that all the amendments in a group are moved; they are not. Only the lead amendment is decided upon. If any Members wishes to move an amendment that is not the lead amendment, they need to let either me or my co-Chair Ms Clark know, otherwise it will not be called. That mistake is often made.

Finally, decisions on grouped amendments are not taken there and then. They are taken when the appropriate point in the Bill is reached. So we may have a group of amendments that are debated together, and a colleague is likely to leap up and say, “I want that one”. The answer is, “No, that comes 10 pages later; we will get to it, and it will be called if you have indicated that you wish it to be.” I hope that is okay.

We now begin the formal proceedings on the Bill. I gently remind members that there are rules relating to conduct and Members’ interests, so hon. Members may feel inclined to declare any interests at the start of their first speech, but not every time.

Clause 1 - Removal and other powers

David Hanson (Labour, Delyn)

I beg to move amendment 15, in clause 1, page 1, line 10, after ‘it’, insert

‘and the Secretary of State has given the person written notice of his liability to removal’.

Good morning, Sir Roger. May I welcome you to the Chair, and, in her absence, welcome your co-Chair, Katy Clark? I am sure that we will have a fruitful Committee. I beg your indulgence for a moment, Sir Roger, to welcome the right hon. Member for Mid Sussex to the Committee. Last week he was absent, but I shall place on record the reason. He was paying tribute to his grandfather in the United States. I certainly followed his progress in America, and I hope that he followed ours in Portcullis House. I am sure that he did. I pay tribute to him for the efforts that he made. I know that this is not in order, but it is important that we recognise the service that his grandfather gave and pay tribute to the United States Government for recognising it as well.

Moving away from that consensual note, I turn to amendment 15. Let me say at the outset that I have no objection to people who have exhausted their rights being removed from the United Kingdom, nor to people who are here illegally being removed. In practice, clause 1 will give the Government the opportunity to remove persons who are unlawfully in the United Kingdom by replacing section 10 of the Immigration and Asylum Act 1999 with a new section 10, headed: “Removal of persons unlawfully in the United Kingdom”. That is perfectly reasonable, and I do not object to the general principle of the clause.

However—speaking through my cold, which will permeate the room and which I hope not to share with the rest of the Committee—I hope that the Committee will notice that the amendment would insert the simple words

“and the Secretary of State has given the person written notice of his liability to removal”.

By “his”, of course I also mean “her” liability to removal. As I have said, clause 1 makes new provision for administrative removal from the United Kingdom. Unlike deportation, which is used for those who have committed a criminal offence or whose presence is deemed not conducive to the public good, administrative removal is used for those who are required to have leave but do not have it. That may be because an extension of leave has been refused or leave has been curtailed, because they are overstayers or because they never had leave in the first place.

The proposal in the Bill, as set out in the Government factsheet of October 2013, is that a single decision will be made, so that a person is told that they have no leave and effectively advised to seek advice from a member of Her Majesty’s legal profession as a matter of urgency. That in itself is not unfair and not unreasonable. However, the Bill simply renders a person liable to removal if they require leave but do not have it. I think it is a matter of fairness that when removal is due to take place, the person in question is at the very least given notice of their liability to removal and given details of when, where and how that removal will take place. Amendment 15 will hopefully allow that. I do not think that that is unreasonable, and I am not clear why the Government are changing the provisions so as not to allow that notice to be given. In my view, without that we will not bring either efficiency or certainty to the removal process, and there will not be fairness for the individual being removed, who is in a difficult situation.

The Immigration Law Practitioners’ Association sent us a number of briefings, for which I thank it, and has raised concerns about this matter. The principle I want to establish, and on which I want to test the Government and the Minister, is whether any decision to remove a person should include a notice being served upon that individual. Should that be left to guidance or the assessment of the Home Office, or should it be specified in the Bill, as the amendment suggests?

This is not a new issue; it has been considered and discussed before. As the Minister knows, in the case of R. v. the Secretary of State for the Home Department in 2003, in House of Lords judgment 36, the noble Lord Steyn said:

“Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system”.

I am aware that if later clauses are agreed, the potential to appeal will be changed. We will come on to that later. However, under clause 1 as it is currently constituted, if a decision is taken to remove a person, they will therefore be removed. That is simply my interpretation, and I would welcome the Minister’s interpretation, but I believe that no further communication would take place with that person, and that there would be a removal. The Committee needs to decide whether that is fair and equitable or whether that individual should have the right to a notice giving such information as is, for example, currently prescribed under section 105 of the Nationality, Immigration and Asylum Act 2002 and under the Immigration (Notices) Regulations 2003.

As I understand it—again, I would welcome clarification from the Minister—under the current regulations a notice has to be given that states the reasons for which the removal is being undertaken; the state, country or territory that the person will be removed to; the decision maker in the event that an individual could be removed to one or more countries; whether they are to be accompanied by any individual; the reasons for the rejection of any particular claim; and any right of appeal. I accept that under the Bill the right of appeal to a tribunal is being removed, but there is still potentially the right to claim asylum or the right to a judicial review. Those issues are not covered by the clause as it currently stands.

If a notice is given, what will happen to individuals? I ask that genuinely, to give the Minister the chance to provide the Committee with clarification. If the Committee accepts the clause as currently drafted, my reading is that a person could be removed from the United Kingdom without being told, in a language that they understand, to which country they are going, when they are going to be removed, what recourse they have to judicial review, if any, and what their rights of appeal are on asylum or human rights grounds.

It may be that the Government do not want to make provision for any of those things, or it may be that I have misunderstood the clause. I will be open about that, because I want to hear the Government’s understanding of how the process will operate if clause 1 is accepted as it currently stands. There are a range of considerations. In certain cases in the past, removal without notice was indeed Home Office practice. That was declared unlawful by the Court of Appeal in R (Medical Justice) v. Secretary of State for the Home Department in 2011. The court said that

“to have effective access to the courts, the person served with removal directions…needs to have a reasonable opportunity to obtain legal advice and assistance.”

In that case, the Secretary of State’s policy was quashed as unlawful because it

“abrogated the constitutional right of access to justice”.

Will the Minister clarify his position on that with regard to the clause as it is currently drafted?

Members will have received a briefing from Liberty. Liberty and I do not always see eye to eye, and during discussions on a previous Bill I was critical of some the points it made. On this occasion, I want to put some of Liberty’s concerns on the record and ask the Minister to address them in his response to the debate. In its briefing, for example, Liberty asked:

“Will the Home Office take any steps to ensure that those earmarked for removal do not have legitimate pending applications?”

Having to serve a notice telling someone that they will be removed on a certain date at a certain time would at least give the Home Office the opportunity to check those facts. Supporting the points I have just made, Liberty also asked:

“If individuals are to be removed, how is the fact, time, date, destination of removal (all information currently provided in removal directions) to be communicated to an individual? Will an individual be informed about the fact and details of removal at a time which would allow them to seek legal advice?”

The Minister might be able to clarify that point and so satisfy my concerns about clause 1. However, my reading, and that of outside organisations, is that clause 1 in its current form does not allow for such information to be given to individuals.

I would like clarity on some further points. For example, if a person who requires leave to enter or remain but does not have it is given a notice under clause 1, but that notice is not specific—it does not say, for example, “We intend to remove you at 6 pm on 5 November”—does that person simply have to wait until the Home Office turns up one day and removes them? What process will be in place for removals? Are people to expect a knock on the door at a particular time, or do they wait for it? The purpose of the amendment is to give the Government an opportunity to clarify the process.

The Opposition are not the Home Office; we do not have draftspeople galore to draft our amendments. We draft amendments to create a discussion. If the principle of a removal notice is accepted by the Minister, I am happy to withdraw the amendment to allow him to reflect on the issue and ensure that it is addressed in primary legislation.

My questions to the Minister in our opening gambit are as follows. How and when will an individual know about their removal? How will they be removed? Will they have access to legal advice? Will they be able to judicially review the decision? What will be the process after clause 1 is enacted? None of those decisions seems to have been taken at the moment. The Bill should provide for notices to include information about available remedies, particularly judicial review, and it should ensure that individuals have independent information on when the removal is to take place. Those issues are worthy of debate.

As I have said, I am not against clause 1 in principle. If people have exhausted their right of residence in the United Kingdom, if they do not have such a right, or if they are here illegally, clause 1 introduces a proper and right way to ensure that they are removed. However, it is in the interests of natural justice, and is also a matter of Home Office practice and legal precedent, that some notice is given to individuals.

Mark Harper (Conservative, Forest of Dean)

It is a great pleasure to serve under your chairmanship, Sir Roger. I will echo what the right hon. Gentleman said about my right hon. Friend the Member for Mid Sussex; I absolutely agree with him. It is good to see my right hon. Friend here. I am sure that he was following the progress of our Committee in last week’s evidence sessions, and I look forward to hearing from him later.

We always prefer people who have no right or valid leave to be in the United Kingdom to return home voluntarily. However, if they do not do so, it is right that they can be removed quickly and easily. The amendment is intended to ensure that a person must be given written notice of their removal. I hope that after I have finished, the right hon. Member for Delyn will accept that his initial reading is neither our intention nor what the Bill says. At the moment, migrants are told that they are not allowed to be here, and we have to tell them separately about their removal.

The right hon. Gentleman was clear that he wanted to ensure that the need to tell someone in writing about a decision was not purely left up to the Government. Section 4 of the Immigration Act 1971 sets out the requirement to give written notice of decisions to give, refuse or vary leave. With clause 1, we want to move to a system whereby we serve only one decision that gives, refuses or vary leave. Following that decision, where notice has been given, those who require leave but who do not have it will be removable without a separate removal decision or notice being required. People have to have notice that they do not have the right to be here in accordance with section 4.

I will spell out what will be in the notice, which should answer the right hon. Gentleman’s question. If not, I will of course take his interventions, because I know that he has some concerns. The decision notice will refuse the application, or curtail or revoke any leave where applicable. It will inform the migrant of their destination for removal; advise them to seek early legal advice; and place them under a duty to raise with the Home Office any asylum, human rights or European free movement reasons as to why they believe they are entitled to stay.

The notice will warn the migrant that they will receive no further notification of removal if they do not leave voluntarily. It will set out the options for voluntary departure and the consequences of not doing so.

Pat McFadden (Labour, Wolverhampton South East)

Can I ask the Minister about some of the numbers involved here? How many removals are carried out every year? Can he relate that to the number of people who are told that they have no right to be in the country? It is my impression that those numbers do not tally. A number of people are told that they do not have a right to be in the country but are nevertheless left to linger and are not removed. That is not in the public interest. It would inform this debate and the debate on Report if we knew the numbers we were talking about.

Mark Harper (Conservative, Forest of Dean)

The right hon. Gentleman makes a good point about those who have no right to be here and the mechanism by which they are removed from the country. There are approximately 14,000 enforced removals a year whereby people are arrested, detained and then removed. Sometimes it involves hiring escorts and is an expensive process. About 29,000 people depart voluntarily. There are different levels of voluntariness; some go completely voluntarily, others we assist in their departure from the United Kingdom but without having to enforce it.

The right hon. Gentleman is right. It could be argued that the first thing we should do with all those whose extension of leave is refused or who have no right to be here is arrest them, detain them and remove them. I would argue that that would not be a sensible use of taxpayer resources, because an enforced removal can cost about £15,000. That does not include the incredibly expensive cases where escorts have to be hired.

When someone is refused leave to be in the United Kingdom or their leave is curtailed and they are told that they have no right to be here, the first option should be for them to leave voluntarily. A significant number do, and we have seen quite a lot of success in encouraging more people to leave the United Kingdom voluntarily. That is much better for them. It saves them having to go through the process of being arrested, detained and removed. It also means that they are much more likely in future to be able to return to the United Kingdom legally. If we have to use taxpayer resources to enforce their removal, we will put in place a 10-year re-entry ban. The limits are much lower if they remove themselves voluntarily.

The right hon. Gentleman makes a good point. Part of what we are trying to do in the Bill is to make it more difficult to remain in the UK voluntarily, so that people who have no right to be here, of whom a significant number come here lawfully and then overstay, choose to leave voluntarily and we do not have to use enormous sums of money, which we get from hard-working families, to remove them.

The final question raised by the right hon. Member for Delyn was about the decision notice. It will be issued at least 72 hours before any removal is attempted, which is the amount of notice we have to give at the moment when we issue a removal decision, a length of time that is calculated to ensure that people can seek legal advice. The right hon. Gentleman will know that we have agreed a procedure with the legal community, which is set out clearly depending on which day of the week the decision is issued to ensure that there is a sufficient period of working days when someone can seek legal advice. We do not propose to change that aspect of the procedure.

Our current system is too complex, requiring a number of separate decisions and notices. It can leave migrants unclear as to when they need to leave the UK—that echoes the point made by the right hon. Member for Wolverhampton South East. People get a notice saying that they have no right to be here, but it is not necessarily as clear as it should be that they should then take steps to leave the United Kingdom. We should make it clear that they are expected to do so and what the consequences are if they do not.

I think I have dealt with the points raised by the right hon. Member for Delyn. The law is clear that people have to receive notice in writing. The decision notice will cover all of the pieces of information that he and others are keen for people to receive. At the point when they receive that notice, they are under an obligation to leave the United Kingdom.

Our proposal will streamline the system. It will make the situation clearer for people, and it will encourage them to leave voluntarily. When they do not, it will be possible, with all the appropriate safeguards, for us to remove them and ensure that people are obeying the law.

David Hanson (Labour, Delyn)

I am grateful for the Minister’s clarification of those points. As I indicated, the concerns about the clarity of the notice were not just mine but those of organisations outside the House that had scrutinised the legislation and wanted the assurances that the Minister has given.

As I understand what the Minister has said, under clause 1, a notice will be given 72 hours in advance of removal and will contain information that will help an individual to plan their enforced removal. Carrying on the consensus that began with discussion of the right hon. Member for Mid Sussex’s grandfather, I beg to ask leave to withdraw the amendment.

David Hanson (Labour, Delyn)

I beg to move amendment 16, in clause 1, page 2, line 32, at end add—

‘(7) Regulations under subsection (6)—

(a) shall be made by statutory instrument, and

(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.’.

The amendment is intended to change the way in which the Secretary of State, under clause 1, will make regulations about further provision. If Members look at page 2 of the Bill, at proposed section 10(6) of the Immigration and Asylum Act 1999, they will see that as currently drafted:

“The Secretary of State may by regulations make further provision about the removal of family members under this section or any other provision of the Immigration Acts, and in particular about—

(a) when a person is considered to be a family member;

(b) the time period during which a family member may be removed;

(c) whether a family member to be removed is to be given notice, and, if so—

(i) the effect that being given notice has on the person’s leave, and

(ii) how notice is to be served.”

In that aspect of clause 1, we are touching on the same issues as those in the previous amendment. Except that, as drafted, proposed section 10(6) says that the Secretary of State may “by regulation” make further provision. The amendment would provide that regulations under this section

“(a) shall be made by statutory instrument, and

(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.”

It would be helpful for the Minister to address two aspects in response to amendment 16. The first would be to give some detail of his thinking, if he has yet thought, about what he intends to do with the regulations under proposed section 10(6), as set out in clause 1. These are quite serious powers for removal of family members, associated with individuals, who will face enforcement under clause 1.

It will be interesting to hear from the Minister if he has given some thought to his definition of a family member. Has he thought through that definition? It would be helpful for him to indicate the time period during which a family member may be removed. I am interested to know if the Home Office has thought about the notices to be served, and how they are to be given for family members, under clause 1.

We are not being asked today to approve the detail of those areas and concerns. We are being asked to approve that the Secretary of State can make those regulations without further reference to Parliament, except by Parliament questioning or discussing those matters. The amendment seeks to ensure that those regulations are subject to statutory instrument, are considered in a Committee, can be scrutinised, accepted or rejected by the Government and Opposition of the day and approved by both Houses of Parliament—and not just the elected House but another place. That will mean there is an opportunity to scrutinise the regulations.

Why does that matter? It matters because the powers under proposed section 10(6) are important for the family member. Under the powers, a family member could face removal from the United Kingdom because their relationship with an individual has been removed under clause 1. “Family member” is a wide definition. Is my uncle a family member? Is my grandfather a family member? Is my cousin a family member? If people live in the same property as me, are they “family members”? What is the definition? If we do not have the opportunity to scrutinise the regulations in an SI considered by both Houses of Parliament, the Minister could under the legislation determine the definition of “family member” without any further reference to Parliament. That may or may not be a good thing and I am not arguing about his right to do so; I am simply saying that the decisions he makes under that right should be scrutinised formally by both Houses of Parliament.

Proposed section 10(6) will allow the Minister to make provision about

“whether a family member to be removed is to be given notice”

and about

“the effect that being given notice has on the person’s leave”

and

“how that notice is to be served.”

The Minister may be able to clarify completely his intentions and the principles behind the regulations and he may share those regulations for scrutiny so that we can discuss the ins and outs and the impact. It is insufficient, however, for us to say today that we are happy with proposed section 10(6) and that we trust him implicitly to draft regulations and make decisions without further consideration by the House unless we go through torturous procedures, rather than using a procedure by which the Minister must bring regulations to the House for approval.

Legislation should be clear about the people who are subject to the powers it contains. At the moment, the clause does not indicate in any way, shape or form the impact of proposed section 10(6) on the individuals in question. I am willing to give the Minister the benefit of the doubt and to allow him to help the Committee to understand his intentions, but it is important that he determines today his view on “family members”, on the relationships that apply and on whether a person is given notice, as mentioned in the discussion on amendment 15. In the evidence sessions, the Minister helpfully indicated that clause 1, as a whole, would not apply to British or EU citizens. It would be helpful for him to indicate today that the regulations in proposed section 10(6) will not allow for a British citizen or a citizen of the EU with the right of abode in the UK to be removed simply because they happen to be in a family relationship with somebody who is eligible for removal from the UK under clause 1. He has said that previously, but a reiteration of that point would be helpful for future interpretation now that we are formally scrutinising the Bill

That is my pitch on amendment 16. I welcome the Minister’s comments and reserve my right to return to the matter depending on what he says.

Mark Harper (Conservative, Forest of Dean)

As the right hon. Gentleman set out, amendment 16 seeks to change the parliamentary process for the removal of family members, but I hope that after I have outlined the Government’s intentions, he will agree that clause 63 sets out the parliamentary procedure in respect of various order and decision-making powers and specifies that the power

“to make an order or regulations…is exercisable by statutory instrument”

under the normal process, rather than the affirmative procedure.

It is worth saying that the details of what constitutes a family member for the purposes of removal are not currently defined in primary legislation. We are attempting to make the definition of family members for removal purposes the same as for incoming purposes, which of course we define in the immigration rules. Let me set out our intention. The definition of family members will not include—I am happy to repeat this—family members who are British citizens or EEA nationals. It would include people such as fiancés, civil partners, spouses, proposed civil partners, unmarried partners, same-sex partners, children or other dependent relatives—in other words, the same categories of relationship that could allow people to get leave to remain under the immigration rules.

So what we seek is a set of regulations which is analogous to the immigration rules. If someone is able to get leave to remain in the United Kingdom as a dependant of somebody, it is right that if the lead individual is removed from the United Kingdom, so are the dependent family members.

Family members will always be notified if they face an enforced removal, in the same way that the notice would be given to the lead individual. Picking up the right hon. Gentleman’s point about his either real or mythical uncle, we will also ensure that people will not be removed if they are no longer in a family relationship, so long as they have valid leave to remain in the UK in their own right. If someone has valid leave to remain here in their own right, just because they happen to be in a family relationship with somebody who no longer has leave to be in the United Kingdom, that does not mean that we would expect them to leave the country.

We would also not seek to remove a family member, if they meet the criteria laid out in the immigration rules, who was a victim of domestic violence. We would also follow our statutory obligations to look to the best interests of the child in making a decision, also our obligations regarding victims of human trafficking. So in terms of our intention, it is clear that the immigration rules that set out who can come to the United Kingdom, and the relevant dependants, are set out in an analogous way to what we have proposed in the Bill. In the light of that, I would ask the right hon. Gentleman—

David Hanson (Labour, Delyn)

Before the Minister finishes, I am grateful for his clarification. Part of the process of scrutiny is to clarify Government intentions and at the moment he has helpfully indicated some of the intentions on that. But why will he not allow it to be an affirmative procedure rather than the negative procedure currently proposed?

Mark Harper (Conservative, Forest of Dean)

We normally reserve the affirmative procedure to those orders or regulations that amend or repeal primary legislation, require significant parliamentary debate or where the intention of what the Government are trying to do is not entirely clear. In effect, we are setting out here those people who are able to be removed analogous to the immigration rules. It seems reasonable to me that we go through the same sort of parliamentary process.

There is a parliamentary process here. If people object to any statutory instrument that we make, it is subject to people praying against it and insisting on a debate and a vote in Parliament. I am not asking the right hon. Gentleman to trust me or any future Minister if he is not satisfied with what is proposed. That, of course, applies to the immigration rules.

David Hanson (Labour, Delyn)

I have been a Minister and the hon. Gentleman has been in opposition. He will know that part of the process of government and opposition is to ensure that there is scrutiny. Part of the problem of opposition is knowing when these matters have been laid and keeping on top of that information. First and foremost, we have to determine that an order has been laid and that it is something we need to consider and pray against. That is something that Oppositions can miss. This has been done in the past on his side and on our side. A substantive, affirmative resolution on such important issues as who is being removed from this country as a family member and other matters, could potentially be subject to affirmative resolution, which would ensure that they were considered formally, without the need to pray against them.

Mark Harper (Conservative, Forest of Dean)

I take the right hon. Gentleman’s point, although I never had any trouble going through the Order Paper and looking at the list of things that had been laid by the Government. It is not as though we could do it secretly. We do have to notify the House that we have laid regulations. The analogous position, and the best way to think about it, is that we are proposing to remove people allowed leave by the immigration rules to be in the UK as dependants. It seems perfectly sensible to go about it in the way we propose. He is overdoing the belt and braces. Either the belt or the braces is appropriate; we do not need both.

Helen Jones (Labour, Warrington North)

I want to ask about victims of trafficking. The Minister has made it clear that there is no intention to remove people who are trafficked. However, if one is dealing with a family member, it is often difficult for them to make the case that they have been trafficked since they are by definition under someone else’s control at the time. That is why, like my right hon. Friend the Member for Delyn, I am concerned that we will not be using the affirmative procedure for the regulations, because we are not going to be allowed fully to debate that kind of issue. Will the Minister comment on how the Government intend to deal with victims of trafficking in that instance?

Mark Harper (Conservative, Forest of Dean)

It is worth saying that, even if one were setting out the types of family members who could be removed in the way proposed by the right hon. Member for Delyn, it would still not deal with the issue raised by the hon. Member for Warrington North.

We have set out our position on dealing with victims of trafficking. For example, the hon. Lady will know that front-line officers are trained to know if someone is a victim of trafficking. We are not perfect but we are getting better at that. The Crown Prosecution Service has guidance to ensure that someone who has been trafficked and then used for a criminal enterprise is treated as a victim and not an offender. I think we are getting better at recognising that and the CPS has some robust guidance in place.

We also ensure that someone who has been trafficked to the UK, and recognised as such, is given an opportunity to be supported before their future is determined. It is not the case, as the hon. Lady said, that someone who is trafficked to the UK is automatically given leave to remain for ever. They are given a period of care and support and then a decision will be made in all the circumstances about whether it is appropriate for them to remain in the UK. For example, if the person is involved as a witness in a criminal case they may be given leave to remain for the duration of the case, so that they can give evidence against the traffickers.

It may be better for someone who has been trafficked to be returned to their country of origin, if that can be done safely and does not put them in harm’s way. The Government are working with a number of source countries for trafficking to ensure that there is appropriate support in those countries for victims of trafficking to ensure that people are not returned to their country of origin and then re-trafficked. That is a perfectly sensible debate but it takes us slightly off the point of the amendment and clause. I am happy to have a debate about trafficking but I do not think it raises issues about the clause, so I ask the right hon. Member for Delyn to withdraw the amendment on that basis.

David Hanson (Labour, Delyn)

I wish to test the Minister a little further. For the assistance of the Committee and the House, would it be practicable for the Minister, prior to final consideration of the Bill in another place, to produce the draft regulations that he intends to make under proposed section 10(6) in clause 1, so that Members can examine them? Under clause 63 there is no time limit on when those regulations are to be put in place.

If the Bill achieves Royal Assent the Minister could the following day produce some regulations. We are being asked today to agree that the Minister has the power to make those regulations. He has helpfully indicated some of the parameters within which those regulations shall be drawn. However, we do not know. We are allowing him to draw up those regulations post-Royal Assent, and to table them subject to negative procedure, though I accept they could be prayed against. However, they are of such importance it would be helpful for the Minister—he has been helpful elsewhere in the Bill by producing guidance notes beforehand—to consider during the passage of the Bill what the detail means in proposed section 10(6) in clause 1.

Mark Harper (Conservative, Forest of Dean)

I will not give the right hon. Gentleman an immediate response because if I make a commitment I want to ensure that I can follow it through. I am sure that in his previous guise as a Minister he was never guilty of publishing statutory instruments and draft regulations only after Bills had had Royal Assent. The same cannot be said of all of his colleagues. I frequently looked at Bills where we never saw a whiff of a regulation until they had received Royal Assent. Let me take away the very sensible point and reflect on it. I would like to be able to do so, but I hesitate to make a firm commitment and then be unable to follow it through. If it is humanly possible to produce a set of draft regulations before the provisions are debated further I will endeavour to do so.

David Hanson (Labour, Delyn)

I am pleased that the Minister is following my lead from when I was a Minister, in trying to be helpful on matters of principle. Sometimes we published things beforehand; sometimes we did not. Usually I trusted my judgment on these matters, but I now have to trust the Government’s judgment. As I am not the Government, I have a role in scrutinising what they do. Self-evidently, under proposed section 10(6) in clause 1, the Secretary of State can make regulations on a number of key areas. It is important to get some indication from the Minister of his thinking on these issues, which we have done this morning. We do not give him carte blanche. I welcome his commitment at least to examine the principle of publishing a draft set of regulations—not the final version—so that individuals outside the House can also comment on the impact of proposed section 10(6) on family members. That is a reasonable question to ask; the Minister has given us a reasonable response. Therefore, I beg to ask leave to withdraw the amendment.

Julian Huppert (Liberal Democrat, Cambridge)

I beg to move amendment 39, in clause 1, page 2, line 32, at end add—

‘(7) The Secretary of State shall by order—

(a) ensure that children are not detained for immigration purposes; and

(b) ensure that if a child requires accommodation prior to departure for—

(i) a minimal pre-departure period with their family, or

(ii) the period until they can leave the country, where a child arrives at a port of entry without a required visa, and makes no claim for visa or asylum on arrival,

such accommodation must be provided.

(8) Accommodation set out in subsection (7) should be—

(a) suitable so as to ensure the child’s welfare needs can be met, and

(b) for the least amount of time practicably possible.

(9) Where subsection (7)(b) applies, the officer responsible must ensure that children are only separated from their parents and carers for the purposes of child protection.’.

It is a pleasure to serve under your chairmanship, Sir Roger. The amendment aims to ensure that we can write into legislation the success already achieved by the coalition Government in ending the routine detention of children for immigration purposes. That was written into the coalition agreement and is something for which Liberal Democrats fought for many years. It was in our manifesto in 2010, which is why I was delighted that it made it into the coalition agreement and then into reality. The intention is not to go beyond what the Government are already doing with the rules. I accept that the wording does not capture the full complexity and the full details—I do not have access to parliamentary draftsmen to get this right. I hope the Minister can look seriously at this and come up with something that fleshes out the full details rather better. The amendment tries to capture what we have.

Why is the amendment needed? Why do we need to put what is already Government policy and Government actions on to the statute book? My concern is that a future Government could bring child detention back, through the back door as it were, given that that was done in any case, without legislation to support it. We just have to look at the record of the previous Government to see why such an amendment is necessary and why a safeguard and protection are needed. In the last five years of the previous Government, a total of 7,075 children were detained. The UN convention on the rights of the child says that when detention happens, it should be for the shortest time possible, but some of those children were held for many months—I think the record was 190 days. In the last year of that Government, more than 1,000 children were locked up in frankly pretty poor conditions.

John Robertson (Labour, Glasgow North West)

Although I have great sympathy with the line the hon. Gentleman is taking, there are occasions when children cannot be separated from their parents due to their age. I imagine that would apply to some of the cases he is quoting. What does he propose doing under those circumstances? Would he take the child away and put them into care?

Julian Huppert (Liberal Democrat, Cambridge)

If the hon. Gentleman looks at my amendment, he will see that that is specifically dealt in the case of immediate pre-departure. There is frankly no reason to detain adults for 190 days waiting for a detention to be arranged. That seems wholly inappropriate. He should reflect on the fact that the Government have managed to resolve the problems.

We had huge international criticism. The Council of Europe’s commissioner for human rights repeatedly warned the previous Government that the detention of children was worryingly frequent and that there was a lack of transparency. There was official criticism about scant regard for basic welfare needs, serious child protection risks and routine detention that was harmful to children and young people. That is why I am so pleased that that has ended.

The hon. Gentleman is absolutely right that there are a few special cases. I have picked up two of them, which I wrote into the amendment. The first is where there is a minimal pre-departure period with family, to which I will return. We obviously need to ensure that people leave at the end of the process, but we want to ensure that that is a short time spent in appropriate accommodation.

The other special case is where a child arrives in the country with no visa or asylum claim, and the next flight or ship back to where they have come from does not appear in the next few hours. If someone has to wait overnight or a couple of days before they leave, that is a different sort of accommodation. We should look after children in that situation. It would not make sense to say that any child who arrives with no visa or asylum claim can simply come into the country, but we need to ensure that their circumstances are good. Those are the two principal exceptions that I have written into the amendment.

The minimal pre-departure period is a complex issue. The Government’s approach has been extremely successful and a huge improvement on what we had previously, not only on the scale and numbers of people, but on time periods, which are limited, except in exceptional circumstances, to 72 hours. The conditions are totally different from what we saw previously at Yarl’s Wood. There is a completely different intent. The involvement of Barnardo’s has been particularly strong.

It is not just me or the Government saying that the conditions have changed. The independent inspector published a report in 2012 looking at Cedars. It said:

“Most of what we saw from the point of arrival at the centre was good and it was clear that it had been designed around the needs of children and families. Families were welcomed and their immediate needs were met. Children were well occupied and told us they enjoyed the care and stimulation they received at the centre. The physical environment was clean, well maintained and attractive, and the level of care provided by the enthusiastic staff group was exceptional. Health care staff were accessible, though specialist provision for those with mental health problems was limited. Families told us they felt safe in the centre and had confidence in staff. Barnardo’s staff played an important role in the centre and their involvement was a major factor in securing the safety and wellbeing of children while they were held.”

That is a glowing comment. There are a few criticisms elsewhere in the report, and I am sure that the Government have already looked at the point on mental care. One of the most interesting comments in the report was:

“The circumstances of detention and removal were clearly traumatic for parents and their children but, unlike our consistent finding at Yarl’s Wood, the conditions and length of detention at Cedars could not be said to cause distress to children and parents. In fact, parents told us that if they were to be removed forcibly, they would rather be held in Cedars for a short time, both to provide time for applications for judicial review, and to help them settle and prepare their children.”

That is an astonishingly glowing report for something that is never going to be a nice or easy situation.

I have outlined what the Government have already done, and I am pleased to see that we have been able to implement the change. I have also outlined what happened before, and why it is important that we find a way of writing the provisions into legislation, so that no future Government will drag us back to the old days of detaining thousands of children for long periods.

Meg Hillier (Labour, Hackney South and Shoreditch)

I want to speak to the amendment, because I have quite a long-standing interest in the matter. I represent one of the youngest constituencies in the country, where many families with children do not wish to leave at the end of the line and are therefore subject to some of the issues that we are discussing today.

What we have heard from the hon. Gentleman is some serious grandstanding—he was having his cake and eating it to the greatest degree. I am disappointed that he has chosen to make politics out of a serious issue, which, if we do not get it right, can lead to serious implications for trafficked children in particular, to whom I will come on.

The previous Government’s record has been mentioned. Several changes were introduced—it is not appropriate to discuss them in detail now—to ensure that named local authorities provided support for unaccompanied asylum-seeking children, and to consider the most appropriate action to take when a parent says that they will not leave the country. On my watch, under the previous Government, we did not want to see children forcibly separated from their parents, except in the most extreme circumstances, such as where the parent was an abuser. The hon. Gentleman has somewhat reassured me that he agrees with that view. It is an important basic principle that children remain with their parents in such difficult circumstances.

I have also seen, close to, difficult cases of parents who wilfully refused to acknowledge that they had reached the end of the line in legal terms and that there was a prospect of detention. Some of them were, frankly, using their children as pawns in that game. I had to deal with cases of children who had been detained for 28 days. Some of those were the most distressing social services cases that I have dealt with in my nearly 20-year career as a politician—a career in which I have dealt with cases of children who died at the hands of abusers and children who were neglected. Some of the children who had been detained were among the most traumatised children I have ever encountered, as a result of how their parents had behaved. I do not mean to say that that was true in every case, but that group of people contained some of the most distressing cases I have ever dealt with.

It is extremely important to ensure that we have transparency—I hope the Minister will comment on that. Child protection must be at the heart of the approach. In addition, however, we need to see what alternatives there are. On that topic, the hon. Member for Cambridge has been grandstanding without any knowledge, because we looked intensively at alternative options. A model in Kent, in which people were asked to stay in accommodation that was not entirely secure, did not work, so we moved on to a model in Glasgow, whereby two social workers worked intensively with four families to try to persuade them that they had reached the end of the line and there was no alternative. They tried to help those families to find a way to return home, perhaps with financial support to set up a business, to educate the children or to get a new home. One of my last acts as a Minister dealing with the matter was to authorise the removal of a family who had received more than five months’ intense support, after previous intense support in that setting.

Many of my constituents who are here legally—and, indeed, some who are not, but who are going through the process—have great need of intensive social services support, but they do not get the same level of support as somebody who wilfully refuses to leave the country, despite all their legal appeals having been refused. In this country we have, quite rightly, separation of powers so that judges ultimately decide whether someone has a right to stay here. As constituency MPs, we might not always agree with the judges’ decisions, but we respect the law, and the law will decide the outcome of a case.

John Robertson (Labour, Glasgow North West)

My hon. Friend makes a powerful case. Does she agree that children in many of these cases are tools? They are often used, for whatever reason, as excuses to remain in the country. My fear is that they are the same children who are abused, but that is very difficult to prove. I appreciate the work done in Glasgow to get rid of people under those circumstances who had every option to go, but it is very difficult when children are involved.

Meg Hillier (Labour, Hackney South and Shoreditch)

As a Glasgow MP, my hon. Friend speaks knowledgeably about the experiment and the challenges that were faced. I plead with the Minister and the Government to be robust. Children must not become a ticket to more lenient treatment for immigration offenders, because if that happens, we will see a rise in trafficking. I am the chairman of the all-party group on Nigeria and I represent a constituency with one of the largest Nigerian diasporas in the country. The Minister does not need me to tell him that trafficking from Nigeria and, in particular, Benin is a significant problem. I was out there in July looking at the issue and talking to the trafficking unit there, and it is a real problem. Week in, week out, I see young people in my surgeries who were trafficked as children—a fact that does not emerge until they need some sort of paperwork to prove that they are who they say they are and that they have a right to stay in the country. They tell me that they were brought in by an auntie or a friend. Some of them been abused in different ways. Some have been domestic slaves.

I may well not have seen the worst cases, and I have also seen adults who have been trafficked, but we must make sure that children are not a ticket to special treatment, because if they are, as we know, there are bad people in every country in the world who will try to use them as a way of getting immigration status. We must stand robust, and I would like the Minister to be clear about the Government’s position on that issue.

We also need to be clear about when accommodation is accommodation and not detention. That is what really riles me about the amendment tabled by the hon. Member for Cambridge. It talks about requiring “accommodation prior to departure”. It is sophistry, is it not? Accommodation that someone cannot leave is detention by another name. He is trying to sit on the fence. In difficult cases when a family refuses to leave, there is sometimes the need for detention.

When I was looking at this issue I held a couple of round tables, working with a number of community groups and also with the hon. Member for North East Bedfordshire (Alistair Burt), as Yarl’s Wood is in his constituency, to look at what the barriers to people leaving were. My conclusion was that the problem came much earlier in the process. I hope to discuss this point in greater detail later in Committee, but we need better legal advice up front so that families are not kidding themselves and are not kidded by bad legal advisers in the early stages into thinking that there is a really strong change of getting leave to remain. From the work I do in Hackney and through my personal contacts, I know how many people think, “Oh, if I just hang on a long while and keep bumbling through the system, I will get to stay eventually.”

Pat McFadden (Labour, Wolverhampton South East)

My hon. Friend has a lot of experience on this issue both as a constituency MP and from her time as a Minister. I want to reinforce her point about repeated applications. We have been talking this morning about removals, but there is a stage before that during which, as a lot of us know from experience, people make repeated applications and are repeatedly refused. That is not in the public interest. Those people are often getting bad advice from the legal world. They are told that if they just put in another application or apply on different grounds, they can spin out the process and keep it going. In the end, the system should be fair both to applicants and to taxpayers and the general public. A system that allows repeated applications on a whole range of different grounds, going on often for a decade or more, is not working efficiently or fairly.

Meg Hillier (Labour, Hackney South and Shoreditch)

I thank my right hon. Friend for making that point. The situation is not fair, either, on those of my constituents who are bounced through the system. Their children settle and get established, and then suddenly they have to be removed. No wonder it is distressing, and no wonder families fight hard to stay once their children have established family relationships and so on.

Another area we looked at in government was ensuring that there was better support from community groups. There were some good examples of cases in which people who had been given bad advice were then supported by community groups so that when they eventually came to the point of departure, the church that they had belonged to or that had worked with them in the UK made a connection with a church in the country that those people were going to be returned to. There was a farewell event, and a link in the country they were going to, so that those people were received better, felt safer and felt welcomed. Often, that occurred with financial support from the Government. Let us not misunderstand the situation: anyone who has sought asylum gets a substantial amount of money per family member for resettlement in the country they are returned to if they go voluntarily. Deportation should be thought about in that context as well.

We need swifter decisions, because the current system is not fair. We also need fair decisions, and there will be complicated cases that last longer than the average for good reason. Will the Minister tell us the speed at which decisions for initial applications are currently being made? Some progress had been made on that, but I am not up to date with the latest figures.

The key question is what we do when a family refuses to leave. I would say that we should not separate the children from the family. There needs, of course, to be a minimum period for cases, but if there are repeated legal challenges there has to be a judgment about how many times we bounce a child and a family in and out of an accommodation setting, given what that does to a child. Some centres are a long way from where an individual was living, which could mean that children are put in a van and shipped backwards and forwards overnight or during the day on a journey of several hours, only to be put back into pre-deportation detention if the latest legal application is refused. There needs to be much better streamlining; to pretend that all is rosy in the garden is not reasonable or accurate.

We must remember that no matter who runs a centre where children are detained, whether Barnardo’s or a Government centre, it is still a detention centre. I visited Yarl’s Wood and while many of my constituents who live in less good circumstances would be to some degree envious of the facilities, they were behind locked doors. That is the case whether Barnardo’s, Yarl’s Wood, Cedars or wherever.

I am aware that I have spoken at some length, but we need to be clear that better legal advice up front is important to ensure that families understand reality. We must do everything we can to guard against trafficking, particularly of children. I seek the Minister’s reassurance that that is foremost in his mind and that on his watch he will not allow children to become a ticket for people at the end of the legal process who want to stay in this country.

Mark Harper (Conservative, Forest of Dean)

We have had a good debate, begun by my hon. Friend the Member for Cambridge on the back of his amendment. I welcome much of what he said. The hon. Member for Hackney South and Shoreditch also made sensible points, which I will deal with.

My hon. Friend the Member for Cambridge is right to say that the Government have delivered on their commitment to end the widespread detention of children for immigration purposes. We have seen a significant drop in the number of children being held for long periods of time. The latest figures show that some children are still being held, but most of those are being held with their families for a short period at the port where they were refused entry before being put on a flight. We also have some cases—this is an important point—of unaccompanied children and it would not be right to let those children wander off. We hold them until they can be put into the safe hands of social workers and given the proper support.

Our UK Border Force officers at the ports take seriously human trafficking, which is the point the hon. Member for Hackney South and Shoreditch quite rightly raised. We are always alert to such issues.

Meg Hillier (Labour, Hackney South and Shoreditch)

The Minister might not be able to answer this at the moment, but will he update us on how Operation Paladin is working and whether that will be extended beyond Gatwick airport to other airports and ports?

Mark Harper (Conservative, Forest of Dean)

I will see whether inspiration strikes me on the extent of that, but that process continues in co-operation with the Metropolitan Police Service. To pick up on the point made by my hon. Friend the Member for Cambridge, we have significantly reduced the number of children held routinely and the number held before deportation is now small.

I agree with the hon. Member for Hackney South and Shoreditch, though, that children should not become a trump card. I hesitate to use this word because of its other context, but it borders on abuse when parents use their children as pawns specifically to frustrate a legal process. In those cases, section 55 of the UK Borders Act 2007 gives the state the right to look after the child’s best interests. It is a shame that in many cases I saw and, it would sound, those that she saw, the parents did not have their children’s best interests at heart when they were using them as a mechanism to try to delay their removal from the United Kingdom. We must not allow people to abuse children in that way. Parents, as well as the state, should have the children’s best interests at heart.

Meg Hillier (Labour, Hackney South and Shoreditch)

The Minister talks about the number of children detained. When inspiration strikes, will he provide us with figures on families with children who have been detained repeatedly? Perhaps such families could have been in detention, let out for a legal application and then put back in again. Figures can mask that yo-yoing.

Mark Harper (Conservative, Forest of Dean)

I have in front of me a pretty graph indicating what my hon. Friend the Member for Cambridge and I said, but as the pretty graph does not have numbers on it, it is rather difficult to convert into a form that Hansard can report. Given that the hon. Member for Hackney South and Shoreditch has asked a specific question about families who have effectively frustrated their removal and gone through the process a number of times, and given that I know I do not have those statistics to hand, let me see what I can lay my hands on. Perhaps I can then circulate that information to all Committee members to help them as we continue our considerations, because the issue of removal will come up as we debate appeals and other parts of the Bill. Even if we cannot consider it this morning, it will come up later.

To return to the objective of my hon. Friend the Member for Cambridge, he referred to the new family returns process set up by the Government in March 2011. We set it up in order to recognise the fact that even if the parents in such families are engaged in trying to frustrate the rule of law, their children did not make that decision. It tries to get the balance right between dealing robustly with parents who have no right to be in the United Kingdom and are refusing to leave voluntarily, which I argue would almost certainly be in their children’s best interests, and recognising that if we treated such parents exactly the same as we treat all other immigration offenders, it would affect their children, who are not willing participants in the process, particularly if they are very young.

That was the thinking behind the Government’s policy. It was implemented after extensive consultation across Government and with a wide range of experts on children’s issues. It gives families with no right to be in the UK every opportunity to leave without the need for enforcement action, which, as the hon. Member for Hackney South and Shoreditch said, involves extensive work involving legal advice and social workers. I have met some of the immigration officers involved in such work, and I am sure that in a previous life she did too. They are skilled in and used to dealing with families and children, and they try to make the process of removal from the United Kingdom and return to the country of origin unthreatening for the children and as untraumatic, if that is a word, as possible. Some of the points that she made about the involvement of community groups at both ends of the process are welcome.

The hon. Lady rightly said that we therefore encourage families to co-operate, but where they do not, as she said and my hon. Friend the Member for Cambridge acknowledges—he has tried to reflect it in his amendment, and I will say a little more about the drafting and how we might proceed—there are cases where we must enforce removal. We have an independent family returns panel comprising safeguarding and medical experts, which then carefully considers their history—the hon. Member for Hackney South and Shoreditch is right that sometimes it is a long history—and makes recommendations about how we will seek the family’s removal.

In the final analysis, the return plan may include a stay in the pre-departure accommodation at Cedars. There are restrictions: the stay can last only up to 72 hours. If it is longer than that, it must be authorised personally by a Minister, usually the Immigration Minister. When I look at such cases, I look carefully at the history and the thought processes of the returns panel to ensure that I am satisfied that it is necessary to hold the family there. As my hon. Friend the Member for Cambridge mentioned, we work in partnership with Barnardo’s in running Cedars to ensure that the welfare and support provided to the family, and most particularly to the children, make the process as smooth as possible, and to consider how the children will integrate into the country to which we are removing them.

Both the hon. Member for Hackney South and Shoreditch and the right hon. Member for Wolverhampton South East mentioned the use of repeated applications to frustrate the process. Part of what we are doing more widely in the Bill is ensuring—this is one of the things that we will say in the notice that we give people—that they are under an obligation. What happens at the moment is that they make an application, get an appeal and then throw in all sorts of new issues at the appeal stage about human rights and so on. Sometimes if a migration decision has been refused people then decide that they should be asking for asylum. We have said that if there are human rights reasons why someone should not be moved from the UK, they will have to make an application on that basis and the Secretary of State can then make a decision. It is not for the courts to become the first-instance decision makers when people dream up human rights or asylum claims which they did not make in the first place.

I must say that often decisions are made quite quickly, but because people then make subsequent decisions or, in the case of asylum, make repeated applications, they frustrate decision making and the cases become very complicated. There was some talk about how long people spend in detention. I am slightly off the point here, but most people who are in detention for significant periods are there because they themselves are trying to frustrate removal. They are not complying in identifying their nationality or in getting travel documents and they are not complying with their country of origin. They themselves could actually leave the United Kingdom and be out of detention at a moment’s notice if they chose to depart voluntarily.

Meg Hillier (Labour, Hackney South and Shoreditch)

The Minister referred to decisions being made more quickly. I wonder if he could furnish the Committee with the full set of figures, including decisions made on new arrivals and on reapplications, including European spouse applications. In our surgeries we see that every time one bit of decision making improves slightly, another bit goes way beyond the scale. Perhaps the Minister could supply this information for the period that he has been in government.

Mark Harper (Conservative, Forest of Dean)

I know that the hon. Lady has a fairly heavy immigration caseload in her constituency. It is worth saying—as I have said in the House, although perhaps not in her presence—that in the financial year 2012-13 our out-of-country entry clearance performance has remained consistently good. However, in the 2012-13 financial year our in-country performance on both temporary and permanent migration across—frankly—most of the routes fell below what was required. We had a backlog in decision making. That has been raised in the House and I have been very frank about it.

We have put a lot of work into fixing that across almost all of the routes, and we are now consistently back within service standard for cases where we are able to make decisions. Of course, there are cases which are put on hold because we are awaiting further information from the applicant or their embassy. However, in cases where we are able to make decisions, we are back within our service standards in most areas. I will look at what information we have for the most recent period, which I may be able to circulate to the Committee.

The hon. Lady is absolutely right that she has constituents who have waited for too long over the last year. This links very closely to what was said by the right hon. Member for Wolverhampton South East. In family cases, for example where someone applied for a spousal visa, they were dealt with by the same team which also dealt with family cases in which people were using complex arguments about human rights. Effectively, people had reached the end of their ability to stay in the United Kingdom and were using their last-ditch throw of the dice on a human rights application. Those cases were gumming up the works, and this meant that people making quite straightforward applications for spousal visas were being held up.

We have now split those out. Spousal visa decisions are being made more quickly and complex cases are being worked through in a determined way, while recognising that they are complex because they are sometimes the culmination of a rather complex set of circumstances in which someone has made a managed migration decision. For example, someone may have been here as a student or to work and has failed to have their leave applications renewed. They finally resort to making an application on some human rights grounds, and they do so in order to frustrate the process. The right hon. Gentleman is quite right to warn about that.

Returning to the amendment from my hon. Friend the Member for Cambridge, I finish by paying tribute to the work of Barnardo’s. It is worth saying that I am grateful for its work, because it has made a real difference to our provision of a better environment for families and children. It was not without some challenges for Barnardo’s. It was criticised by others for working with us to try to produce a better environment, but I want to pay tribute to it. There are many organisations that often criticise what the Government do. They criticise us and they criticised the Government of which the hon. Member for Hackney South and Shoreditch was a member, but when you actually challenge them to roll up their sleeves and help improve the process not all organisations are prepared to do that.

Barnardo’s should be congratulated. It is an organisation for improving the welfare of children. It was prepared to roll up its sleeves and work with us on putting in place a process that I think everybody agrees is better for the welfare of the children involved. We should therefore thank Barnardo’s for the fact that, unlike many organisations, it was prepared to roll up its sleeves and try to improve the process practically, rather than carping from the sidelines.

As will come as no surprise to the hon. Member for Cambridge—the usual caveat applies that those who are not members of the Government do not have the same access to skilled parliamentary draftsmen—the amendment, as drafted, does not correctly turn our current policy into law. As currently drafted, it would have unintended consequences in not allowing us to detain children. The famous lawyers we are all so keen about—some provide excellent immigration advice and some do not—could argue in ways that might, for example, mean we could not keep children correctly in detention to stop their falling into the hands of traffickers.

The hon. Member for Hackney South and Shoreditch is quite right to say that some people do not look at children as children, but as potential traffickees whom they can traffick either to abuse—for forced labour and servitude, or for sexual purposes—or as mechanisms for changing the legal basis on which they or other adults can enter or remain in the United Kingdom. We must absolutely be vigilant to make sure that children are not used for that purpose. They may be parents’ own children or, as she said, children sent here from another country, perhaps with family members, and there have been tragic cases of such children subsequently being abused. Those children are not seen as children, but as methods of getting benefits or of changing somebody’s legal ability to remain in the country.

It is very important for the benefit of children that we protect them properly, and do not allow them to be misused by people. I give the hon. Lady that assurance. As she will know from what my right hon. Friend the Home Secretary has said about our publishing a draft Bill on modern slavery, the Government want to strengthen some of our legal tools for dealing with trafficking.

It is sometimes necessary to detain a young offender approaching the age of 18 when they are coming towards the period in which they are due to be deported, although they are technically children. We do our best to get right the age assessment of children, but that is another issue because there are adults who say they are children to frustrate the process. The proper procedure is for the local authority to conduct an age assessment, and if it determines that the person detained, who was thought to be an adult, is a child, they will normally be released. It would not of course have been known that such a person was a child, but they would have been detained, and the way the amendment is drafted might leave the Government open for legal action for having unintentionally detained a child.

The Government policy is clear, so I undertake to consider whether it is possible to come back with alternative drafting that will implement our current policy in law, but also deal with the complexities rightly flagged up by the hon. Member for Hackney South and Shoreditch, although that may not be straightforward. It is not always as easy to put such things in primary legislation, given that the area is very litigious and will be leaped on by lawyers looking for loopholes either for the best of motives or, as she counselled us, sometimes not for the best of motives.

Let me go away and see whether it is possible, either in whole or in part, to put some or all of current Government policy into primary legislation in a way that gives my hon. Friend the Member for Cambridge the comfort he seeks. We must, however, be mindful, as I said to the hon. Member for Hackney South and Shoreditch, that we do nothing that leads to children—after all, this debate is about their protection—becoming more vulnerable to abuse by those who do not have their best interests at heart.

Julian Huppert (Liberal Democrat, Cambridge)

I thank the Minister for his comments, particularly for undertaking to consider whether the Bill can better reflect my concerns. I totally accept that my drafting is not perfect. I intended the issue of trafficking, which we all take very seriously, to be covered in relation to child protection, but I accept that a better way can be found. I am sure that the Minister and his team will be able to rise to the challenge of capturing Government policy extremely well in this legislation. I thank him for that and look forward to seeing the outcome on Report. It is important to get something into primary legislation, because there is the risk of drift. I heard nothing in the debate that justifies locking up over 1,000 children a year, in particular not for periods of more than a month, as we have seen. I look forward to progress being made. I beg to ask leave to withdraw the amendment.

Roger Gale (Conservative, North Thanet)

I am satisfied that the matters arising from the clause have been satisfactorily debated, so I do not propose to permit a stand part debate.

Roger Gale (Conservative, North Thanet)

Before we proceed, I should perhaps have said at the start that I take a relaxed view on stand part debates. It is sometimes helpful to have a broad debate on a clause at the start of its consideration rather than at the end, but please do not think that it can happen twice.

Clause 2 - Enforcement powers

David Hanson (Labour, Delyn)

I beg to move amendment 40, in clause 2, page 2, line 35, at end add—

‘(2) The enforcement powers provided for in Schedule 1 are subject to oversight by—

(a) the Chief Inspector of Borders and Immigration,

(b) the Independent Police Complaints Commission, and

(c) HM Inspector of Prisons.’.

I hope, Sir Roger, that you will allow me leeway to drift into the principles of schedule 1 during our discussion of clause 2 because, although the clause gives effect to it, schedule 1 is scheduled for a separate debate later on.

Roger Gale (Conservative, North Thanet)

Order. I have just told the right hon. Gentleman the ground rules. He knows better than I that it is either/or, but not both.

David Hanson (Labour, Delyn)

Thank you, Sir Roger. I will attempt to achieve a mutually acceptable conclusion.

Amendment 40 would provide that the principles and powers in schedule 1, which we will discuss later, are subject to oversight by three bodies: the chief inspector of borders and immigration; the Independent Police Complaints Commission; and Her Majesty’s inspectorate of prisons. I expect the Minister to say that the powers are indeed subject to oversight by those bodies, but I want to explore a couple of related areas, because it is important that we test some aspects of the enforcement powers.

The powers introduced by schedule 1 include escorting and searching detained persons, and entering and searching premises. Importantly, there is a wider interpretation of the general power to use reasonable force compared with that in not only previous immigration Acts, but clause 1. The purpose of amendment 40 is to get the Minister to guarantee that the exercise of the powers in schedule 1 by immigration officers is subject to the three statutory oversight bodies. I have no principled objection to the powers in schedule 1, which we will endorse or otherwise shortly, but we need to explore how they will be regulated, because the schedule adds significant powers to the armoury of immigration officers, including, most importantly, with regard to the power to use reasonable force.

I am willing to be corrected by the Minister, but my interpretation and that of others outside the Committee is that the powers in the schedule are broader than what is permissible regarding the use of force by police, who are subject to higher levels of training and accountability. From time to time, however, incidents sadly do occur where things go wrong.

We need to examine the oversight of these matters carefully—[Interruption.]May I say to the hon. Member for Hexham: “Bless you”? I thought he was making an urgent intervention, but it turns out that during the hour and 30 minutes in which we have considered the Bill, I have transmitted my cold from this side of the Committee to the Parliamentary Private Secretary. The hon. Gentleman made a semi-intervention, if not a deliberate one.

The powers in schedule 1 are important. I accept that the use of reasonable force is necessary and proportionate in relation to some of the immigration powers, but we need to hear from the Minister about several key areas, the first of which is what training and support will be given to the immigration officers who exercise them to ensure that standards are met.

I pray in aid the recent inquest into the death of Jimmy Mubenga in October 2010, following his restraint. When an eight-week inquest completed its consideration in August 2013, the coroner determined that Mr Mubenga’s death was an unlawful killing. I do not wish to go into too much detail about the particulars of the case, but the coroner agreed that the killing was unlawful under existing provisions of immigration law. Paragraph 5 of schedule 1 extends the powers on the use of reasonable force to previous immigration Acts. The schedule also gives additional powers to immigration officers on escort, search and entry.

What efforts are being made to ensure that the new powers of schedule 1 are understood by the chiefs of the Independent Police Complaints Commission and of HM inspectorate of prisons? What liaison is the Minister having with those bodies to ensure that the powers in schedule 1 come under their oversight? What training will he offer current and future immigration officers if the schedule becomes law? I would welcome clarity from the Minister about whether the private sector, on behalf of the state, will be covered by the chief inspectors of borders and immigration, the Independent Police Complaints Commission and HM inspectorate of prisons when it exercises powers?

In the case of Jimmy Mubenga, the restraint methods used as part of his deportation were undertaken by a private sector company. The coroner in that case highlighted several areas of concern: a lack of training in scenario planning in relation to the use of force by private sector companies; her view that dangerous restraint techniques were used at that time; a lack of accreditation of particular officers; and a range of other concerns that the Minister at least needs to consider in the context of the schedule. Given that schedule 1 extends the powers of immigration officers, it is important that we are clear that those three bodies, which regulate a range of things and have powers of inspection, can at least be still responsible for such matters under the Bill.

I say that because, in our evidence session on 31 October, Rachel Robinson from Liberty responded to my question about reasonable force by saying:

“Our concern is that while police officers get rigorous training and have safeguards on the use of reasonable force, we have seen many high-profile examples with immigration officials of the use of force going seriously wrong. Before a blanket, open-ended power is added to the statute book—we know that the rate of immigration powers being added to the statute book has been high in recent years—that makes it okay for immigration officers to use reasonable force, we need serious scrutiny of how things are working in practice at the moment…It is irresponsible to put such an open-ended provision on the statute book at this stage. I hope that that deals with our position on reasonable force.”––[Official Report, Immigration Public Bill Committee, 31 October 2013; c. 94, Q202.]

I do not agree with everything she said, but the important point is that if the schedule is to work effectively, the Minister needs to indicate that there is judicial oversight by the three bodies cited in amendment 40. He needs to say how he intends to implement the additional powers under schedule 1, and that there will be training and organisation, so that we can be assured that when immigration officers exercise the powers on our behalf, they do so under the scrutiny of those three bodies. Moreover, the Home Office must say whether it is satisfied with the extent of training. Will the Minister outline the relationship between the three bodies and the Home Office’s proposals for ensuring that standards are met?

We will come on to debate schedule 1, albeit perhaps not in great detail, but given that it adds such substantial powers to the existing powers of immigration officers, I want to ensure that as we give those powers, to which we do not object, there will be oversight and independent scrutiny so that standards are regulated, monitored and met.

Mark Harper (Conservative, Forest of Dean)

Given the right hon. Gentleman’s comments about transmitting his cold across the room, I am pleased and grateful that my Parliamentary Private Secretary went above and beyond his duty by grabbing those germs and making sure that they missed me.

I listened carefully to what you said, Sir Roger, about a stand part debate. The debate is specifically about amendment 40, although we have gambolled on to schedule 1. The right hon. Gentleman did not mention amendment 29, which has been tabled to schedule 1—

Roger Gale (Conservative, North Thanet)

Order. It might be helpful if I clarify this. I gave my permission for that approach, but in view of the ground that has already been covered, although clearly amendment 29 will be moved separately, we had better treat this as a general stand part debate on clause 2 and schedule 1, if both sides of the Committee are happy with that—I suspect that they are.

Mark Harper (Conservative, Forest of Dean)

I am grateful to you, Sir Roger; that was where I was going. As the right hon. Member for Delyn spent quite a lot of time talking about schedule 1, I thought I would cover his points, and then we would probably have dealt with most of it.

Amendment 40 would ensure that the enforcements powers given to immigration officers under schedule 1 were subject to a number of existing oversight bodies, namely the Independent Police Complaints Commission, Her Majesty’s inspectorate of prisons and the chief inspector of borders and immigration. The schedule makes several amendments to schedule 2 to the Immigration Act 1971 regarding immigration officers’ powers to take enforcement action against persons illegally in the UK. Our proposals will amend existing powers to escort a detained person and give immigration officers the power to search a detained person for items that might cause physical harm to themselves or others. They will extend existing powers to search for passports and travel documents to include premises belonging to a third party, with a warrant, and will allow the power to use reasonable force to apply to immigration legislation enacted after 1999. I can reassure the right hon. Gentleman that there is already effective regulatory oversight of the way in which the powers are exercised. The amendment is therefore unnecessary, although I think he tabled it to ensure that point was on record.

Since February 2008, the Independent Police Complaints Commission has provided oversight of serious complaints, conduct matters and incidents involving immigration officers and officials of the Secretary of State when exercising immigration and asylum enforcement powers in England and Wales.

Julian Huppert (Liberal Democrat, Cambridge)

The Minister is right to highlight the role of the IPCC, but it has said regarding several cases that it is not sure that it has sufficient resource to do everything it should be doing. Has the Minister had any conversations with the IPCC about whether it needs more resources to do this work properly?

Mark Harper (Conservative, Forest of Dean)

Without turning this into a debate about the IPCC, the hon. Gentleman will know—with his Select Committee on Home Affairs hat on, he has focused on this recently—that my right hon. Friend the Home Secretary has made more resources and powers available to the IPCC so that it can properly carry out its role and improve the scrutiny of the police. We obviously have regular conversations with the IPCC and I am not aware of any areas in which it requires more resources to carry out its work. Knowing the IPCC as I and the Home Office do, I am sure that if it felt it needed more resources to carry out its proper oversight work, it would ask for them, and we would take such a request seriously. The IPCC’s remit was extended to officials exercising relevant customs and customs revenue functions from the date when those officials transferred from Her Majesty’s Revenue and Customs to the then UK Border Agency in 2009.

On Scotland, the Crown Office and Procurator Fiscal Service have the remit to investigate deaths and allegations of criminality in respect of immigration and customs matters. That is also supplemented by the Police Investigations and Review Commissioner, which has the power to investigate all complaints about immigration officers and officials of the Secretary of State exercising immigration and asylum enforcement powers in Scotland.

The one lacuna that Members may have spotted relates to Northern Ireland. We have tabled an amendment to the Bill to enable the Police Ombudsman for Northern Ireland to provide oversight of serious incidents, complaints and conduct matters in Northern Ireland when immigration and customs enforcement powers are exercised. We tabled an amendment rather than including the provision in the original Bill because we wanted to agree our plans with the Northern Ireland Executive, given that justice matters are devolved, as it was important to go forward with agreement. It is helpful to know that the proposal has the support of the Executive across the community in Northern Ireland.

In all parts of the UK, there is therefore proper oversight of the operation of our immigration enforcement officers. The chief inspector of borders and immigration already provides independent scrutiny of our border and immigration functions. Members will know that, although a couple of his more recent reports had good things to say about processes, some of them do not always make happy reading. We welcome that independent challenge, however, because it will be known that when he produces a report, he will have properly looked at an issue and then been frank about what we are doing well and what we are not. That makes for good independent scrutiny of our border and immigration functions. A main area of his inspection includes the use of enforcement powers and that will automatically extend to those set out in schedule 1. Her Majesty’s inspectorate of prisons has a statutory responsibility to report on the conditions and treatment in all places of immigration detention in the UK. I therefore think that measures are in place to address all the concerns raised by the right hon. Member for Delyn, so I urge him to withdraw the amendment.

David Hanson (Labour, Delyn)

I am grateful for the Minister’s clarification. As he said, the purpose of the amendment was to cover that base. However, will he respond to my point about private sector companies working on behalf of the Home Office, as opposed to immigration officers?

Mark Harper (Conservative, Forest of Dean)

I am grateful to the right hon. Gentleman, because I suppose it could be argued that that was not covered. To be clear, I did mention officials of the Secretary of State exercising immigration and asylum enforcement powers, so anybody acting on behalf of the Secretary of State would be covered. The schedule is distinct from the powers available to private contractors who are responsible for immigration detention—it is about the powers of immigration officers—but the chief inspector covers contractors who are exercising powers on behalf of the Secretary of State. For example, the chief inspector carries out investigations into how immigration detention, escorts and removals are carried out, while HMIP has responsibility for anything relating to immigration detention.

It is therefore not possible to evade the oversight bodies purely by virtue of the fact that a particular role may be carried out by a private contractor. If such roles are being carried out on behalf of the Secretary of State, they are covered by the various scrutiny mechanisms in place, as is right and proper. Private contractors running our immigration removal centres fall under the oversight of HMIP, which has responsibility for detention, rather than the chief inspector, but the oversight bodies between them cover the waterfront and do not leave any gaps.

The right hon. Gentleman specifically asked whether the powers on the use of force were broader than those for the police. Such a point was also raised during our oral evidence sessions, but I do not think that that is the case. The police have the power to use reasonable force when exercising any of their powers under the Police and Criminal Evidence Act 1984. The measure effectively provides the same power in respect of all relevant immigration legislation to make sure there are no gaps; I do not think it provides extra powers.

The right hon. Gentleman raised a sensible point about training. There is guidance on the use of force in the enforcement instructions that makes it clear that the use of force must be proportionate, lawful, and necessary. Immigration officers are trained in the use of their powers, including the use of force, and they have to pass a refresher training course every year to continue being able to use those coercive powers. Any use of force must be according to an approved technique taught during officer safety training, or something that can be shown in some other way to be reasonable. Specialist training is available in methods of entry techniques. The practice requires separate certification and is subject to a requirement to recertify through attendance at an authorised refresher training course.

Any use of force and its justification must be recorded, and that record must be kept for seven years in case of complaint or legal proceedings. There is also an internal regime to monitor the use of force. Complaints may be raised locally to a senior officer within our immigration enforcement and compliance teams. Complaints about serious misconduct are allocated and investigated by a central professional standards unit. Individuals can obviously raise complaints via their Members of Parliament, and if a complaint relates to the exercise of a coercive power, the case can be referred to the Independent Police Complaints Commission. The exercise of enforcement powers generally is subject to the inspection role of the independent chief inspector of borders and immigration.

The right hon. Gentleman mentioned the Mubenga case. The inquest has now concluded and we will respond to the coroner’s points. The general weakness highlighted in that case, which we acknowledge, was about the training provided for safely removing someone on an aircraft. There is no authorised training package for removing someone on an aircraft. Members who think of their own experience on an aircraft will realise that that particular environment makes the use of existing techniques challenging. We have accepted that we need to develop a better training package for officers who have to remove people on an aircraft. We have asked the National Offender Management Service to work with us on that, but we have also set up an independent panel of experts to consider the training package and to advise me and the Home Secretary on whether it adequately reflects risk, whether it is useful and whether it gives officers confidence that they are properly trained in the exercise of their powers.

I will circulate to figures on the use of force to members of the Committee, as they are not available to me now. The right hon. Gentleman’s quote from Liberty implied that there is a significant number of incidents involving the inappropriate use of force, but I do not think that that is the case. I looked at the matter carefully when Citizens UK came to see me about the Mubenga case. The data show that we do not have to use force in many cases. When force is used, there are very few complaints and, when there are complaints, very few are upheld. Thankfully, cases in which the use of force leads to a death are incredibly rare, tragic though the Mubenga case was.

The evidence shows that when our officers have to use force, whether for removal or in exercising another aspect of their powers, they do so proportionately, lawfully and reasonably. We see very few problems, but I will furnish the Committee with the relevant requirements. In light of my response, I hope that the right hon. Gentleman will withdraw his amendment.

David Hanson (Labour, Delyn)

The purpose of amendment 40 was to test the premise that the three bodies will retain the ability to consider the additional enforcement powers given to immigration officers by schedule 1. The Minister’s response has addressed my concerns, for which I am grateful. I am also pleased that the Minister has reached agreement on the key issue of the Police Ombudsman for Northern Ireland. That is in stark contrast to situation during our consideration of the Crime and Courts Act 2013 and the Anti-social Behaviour, Crime and Policing Bill, on which we discussed the power of asset recovery and the operation of the National Crime Agency in Northern Ireland, although agreement on those points has not yet been reached. I am pleased the Executive in Northern Ireland have agreed on that point, and I beg to ask leave to withdraw the amendment.

Schedule 1 - Enforcement powers

David Hanson (Labour, Delyn)

I beg to move amendment 29, page 51, line 23, after ‘premises’, insert

‘within 24 hours of application.’.

Again, this is a simple probing amendment that seeks clarity on one aspect of schedule 1. Paragraph 3, which addresses entry and search of premises, allows immigration officers to apply to a justice of the peace for a warrant to enter and search premises if a number of conditions are met. That is perfectly reasonable.

The amendment is not perfectly drafted, but I have moved it for a number of reasons: to test the period for which a warrant agreed by a justice of the peace is applicable; to test whether a warrant may be exercised speedily; and to test whether it has a definitive lifespan. I have used the words

“within 24 hours of application”

because, again, I would imagine that, if an immigration officer is making an entry request, they would want to gain entry speedily. The purpose of the amendment is to test when, how and under what circumstances the immigration officer would exercise that power.

Although this is not specifically addressed by the amendment, I also want to test what happens and how available a justice of the peace might be to agree an immigration officer’s request. What are the time constraints on the said justice of the peace and the said immigration officer? For example, an immigration officer might want a power of entry on a Saturday, Sunday or bank holiday, over Christmas, on new year’s day or at Easter. What is the Minister’s understanding of the ability of justices of the peace to deliver that entry warrant? Does schedule 1 or previous legislation apply to such circumstances?

Those, then, are my two queries, which I hope will be answered quickly. Is there any time limit on the exercise of the application, once it is agreed? Does the availability of justices of the peace place any constraint on the approval of a warrant?

Mark Harper (Conservative, Forest of Dean)

I hope I can be relatively brief. On the right hon. Gentleman’s first question, about time limits, there is already a statutory safeguard for the application and execution of immigration warrants in the Immigration Act 1971, which sets the time limit for executing a warrant at a month from the date of issue. That is a reasonable period, whereas the 24 hours that he has proposed in what I accept is a probing amendment would not be practicable, given the way in which immigration enforcement officers carry out their work.

I should say, by the way, that a month is rather shorter than the period available to the police. Under the Police and Criminal Evidence Act 1984, entry and searches by warrant must be made within three months of the date of issue, rather than one month. As regards a 24-hour limit, I know from my experience of going out with immigration enforcement officers that they have a range of addresses they hope to visit, but individual jobs sometimes take longer than expected, so officers want to be able to carry them over to a subsequent date.

On the availability of magistrates to issue warrants, magistrates are always available, if necessary. Clearly, we are mindful of the urgency of the requirement. In most cases, we will be able to seek a warrant during the normal sitting hours of a court, and there would not be a particular sense of urgency. However, in the same way that the police sometimes need to seek an urgent warrant, there is a process whereby we can apply to a magistrate out of hours for a warrant if there is good reason for doing so. That would rather depend on the circumstances of the case.

It is worth saying that we often operate in concert with other public bodies. In some operations to enforce our immigration laws, we might work with a local authority, which might apply to a magistrate for a warrant under its powers under the Housing Act 2004. There might also be some criminality involved in an immigration offence, and it might be the police who are seeking a warrant.

I hope I have answered the right hon. Gentleman’s questions and that he will therefore withdraw amendment 29.

David Hanson (Labour, Delyn)

Again, this was a probing amendment to test two premises, and we have discussed them with the Minister. On that basis, I beg to ask leave to withdraw the amendment.

Clause 3 - Penalty notices: landlords

Helen Jones (Labour, Warrington North)

I beg to move amendment 18, in clause 3, page 3, line 6, at end insert—

‘(5) In deciding whether to give consent to bail the Secretary of State will consider whether the applicant is pregnant.”.’.

It is a pleasure to be here under your chairmanship, Sir Roger. Amendment 18, in the names of my right hon. Friend the Member for Delyn, my hon. Friend the Member for Sedgefield and myself, is a probing amendment to test the Government’s intentions with regard to when the Home Secretary will and will not approve bail. We could have listed a lot of other factors that should be, and indeed are, taken into consideration by the tribunal, but one will suffice for us to try to tease out the Government’s intentions.

The Opposition do not want people to abscond when they should be removed from the UK. However, we are unsure why the Government need to make this change, given that the risk of a person absconding is already a factor the tribunal would consider when deciding whether to grant bail. Of course, bail can be granted subject to conditions: a surety, living at a certain address or even electronic tagging. Considering some of the recent problems with tags, that is perhaps not the best example to cite. However, what concerns us is that allowing a politician—any politician—to decide on bail is quite a fundamental change to make. Bail has always been a matter of judicial process, rather than a political decision, and we want to test the Government’s case for changing that.

Clause 3 amends the Immigration Act 1971 to ensure that in certain circumstances—very limited circumstances, I accept—the Home Secretary must consent before a person is released on bail. Those provisions would apply when directions for a person’s removal had been made and they were required to be removed within 14 days. What I want to hear from the Minister in response to what I am saying is whether it is common for bail even to be granted in those circumstances, because we would suggest that it is granted only when particular exceptions apply.

I have read the Government’s statement of intent, but it is not clear to me—or, I suspect, to many other people—in what circumstances the Home Secretary’s power of veto will be used. We want some clarification on that and on what factors would be taken into account before use of the veto. The Government’s statement of intent says that

“the Secretary of State considers that bail should not normally be granted in such cases because removal is imminent and the risk of absconding is therefore increased.”

I do not disagree with the position that bail should not normally be granted in those circumstances, and the risk of absconding is something that the tribunal, as it exists, must take into account.

However, the Government go on to give examples of exceptional circumstances in which the Secretary of State might consent to a release. The statement refers to

“persons who are recently bereaved, or have complex medical requirements.”

We give in our amendment another factor—pregnancy. I do not think that anyone here believes that keeping pregnant women in detention is desirable, and Government policy as it stands is not to detain pregnant women or people with serious medical conditions or mental health problems, except in exceptional circumstances. There are, of course, exceptional circumstances in which it is necessary to keep such people in detention. We accept that, but during our evidence sessions we heard from Mr Adrian Berry of the Immigration Law Practitioners’ Association, who believed that the use of such a power by the Home Secretary, rather than by a judge, could constitute an unlawful detention and result in a case being brought in the High Court.

Such applications would obviously be expensive and time consuming, in effect displacing bail hearings from the first-tier tribunal to the High Court, so I would like to hear from the Minister whether the Government have thought about that and what legal advice they have been given on it. We want a system that works, and our fear with this proposal is that we may be in danger of getting to a system that causes more delays and imposes more cost on the taxpayer, because bail applications would in effect be displaced. The Government themselves say that the legality will be

“challengeable by way of judicial review or habeas corpus applications.”

I am not sure that we really want to get to that on a simple decision of whether to grant bail.

If the Minister’s argument is that people are being granted bail in these circumstances when they should not be and are absconding as a result, we need to hear some figures from him; we need to have that demonstrated. However, what follows from that is another question. If the Government think that bail is being granted when it should not be, what are the factors that they believe the tribunal should be taking into account that are not being taken into account now? Why have the Government not changed the rules for the tribunals, rather than going for political involvement in the process? There is already guidance for immigration judges by the first-tier tribunal. If the Government believe that guidance is wrong or is leading to people being granted bail when they should not be, surely it would have been possible to discuss changing that guidance?

Given that, under the Bill, the final decision will be taken by the Home Secretary, we want to know how that decision will be taken and exactly what the Home Secretary will be looking at. We have listed one possible consideration in our amendment but there will obviously be others. The drafting of the Bill raises some serious questions. Are the factors that the Home Secretary will take into account the same as those that the tribunal would consider? Is the Home Secretary, in effect, going to reassess the evidence put to the tribunal and reach a different decision? Or will national security considerations or the risk of absconding come into play here? We would support making those considerations an important factor in any decision, but although schedule 8 provides for similar changes to bail hearings in the Special Immigration Appeals Commission the Bill does not make the situation clear.

We all remember the case of Abu Qatada being released on bail. In my view, the Special Immigrations Appeals Commission made the wrong decision in that case. From time to time all courts and tribunals make decisions that some of us think are wrong—in my own area just recently a magistrate released someone on bail in a decision that I thought was quite wrong—but it has always been the court’s decision. We have an independent legal system. The Secretary of State said at the time of Abu Qatada’s release on bail that the commission had applied the wrong legal test. The Court of Appeal, however, held that the commission had not misinterpreted or misapplied the law—although I have to say I still think that decision was remarkable and cannot see how it was reached under current law, given that Abu Qatada had been freed on bail and rearrested for breaching his bail conditions before.

Although no one on the Committee would want such a dangerous and unpleasant person released on to our streets, there is a “but”, and it is a big “but”. Not everyone who is here illegally or who needs to be removed from this country is an Abu Qatada. We want people who have no right to be in this country to be removed, and we want to see them being dealt with fairly, quickly and according to the law. The Opposition’s concern here is not about that aim. We are not concerned about whether people who should not be here are deported quickly but about whether what the Government are proposing will work. That is why we have tabled the amendment.

If the Home Secretary looks again at evidence that has already been before a tribunal and reaches a different conclusion about that evidence, will that not lead to cases alleging unlawful detention, delaying the process further and costing us all more? We do not want to end up in that position, and would be happy to discuss with the Government whether there is a better way of dealing with this matter. On the other hand, will the Home Secretary be thinking of factors that are not currently brought before a tribunal? If so, why not have them brought before the tribunal—why not have them in the rules?

We want to know more about when the power will be used, and we want to ensure that it will work. Having powers in a Bill that look tough but could turn out to cause more delays in the system will not actually solve our problems. When the Minister responds, I hope to hear exactly what is intended. Is it a re-examination of the evidence put before a tribunal or the exercise of the Home Secretary’s power on other grounds? If it is the first, we need to be reassured that it will not lead to further cost and delays. If it is the second, we need to know whether we are talking about factors that the Government believe cannot be put before the tribunal, or a court if necessary, and if so, why they cannot be put before the tribunal. I hope that the Minister can clear up those points for us, to reassure me on this issue.

Roger Gale (Conservative, North Thanet)

This is already a fairly wide-ranging debate on clause 3, and therefore I feel obliged to indicate now that it is unlikely that I shall grant a stand part debate at the end of it.

Meg Hillier (Labour, Hackney South and Shoreditch)

I will not repeat the very well argued points made by my hon. Friend the Member for Warrington North. However, the Minister needs to explain a bit more about the thinking behind this measure. It seems to be an embodiment of the current Home Secretary’s deep frustration with some of the bad decisions—as she sees them—that the law courts have made. I suspect that there have probably been other Home Secretaries who have been equally frustrated sometimes that the law of the land does not allow a politician to do exactly what they feel is right. But we have the law of the land for a reason, and we are discussing a widely drawn power that could affect a lot of people.

As my hon. Friend said, if we can be given more detailed arguments about why this measure is as it is, there may be less of an objection to it, but if those detailed arguments exist it is odd that they are not in the Bill. Clause 3 will provide an incredible power, and it comes from a Government who have taken a lot of powers away from politicians and passed them on to independent bodies, with great fanfare. I am puzzled about why it is in the Bill without the necessary caveats and protections to ensure that we do not routinely see a politician refusing people the liberty that the courts have granted them.

I look forward to hearing the Minister’s explanation, but I am concerned that this measure is so widely drawn that it will catch more people than I suspect he intends. I would be glad if he could outline what the intention behind it is.

Norman Baker (Liberal Democrat, Lewes)

Good morning, Sir Roger. I will try to respond to the points that Opposition Members have made.

The hon. Member for Warrington North said that she wants a system that works; I am sure she does, and so do we. That is part of the motivation for introducing these particular proposals. She also said that she wanted to ensure that the system did not cost more, and I will deal with that point first. It is important to stress that this discussion leads on inevitably to the amendment, which I must refer to in order to address her point.

The current system costs a great deal of money. I will refer to one particular case study. Between April 2007 and January 2011, one particular individual was convicted a total of 28 times for a range of offences, from being drunk and disorderly to being racially abusive to common assault. He received 210 days’ imprisonment for common assault and 225 days’ imprisonment for racially aggravated assault. A decision was taken to deport him, and he was detained. He then made multiple bail applications that were all heard by the tribunal, on 31 July, 7 August, 8 November, 16 November, 23 November, 29 November and 18 December in 2012, and on 20 February, 3 June, 11 June and 21 June in 2013. Each application was refused. Further bail applications were made and withdrawn on 4 March and 8 March. There were five applications in 40 days in November and December 2012, which was a big waste of taxpayers’ money.

I am sure that the hon. Lady does not in any way condone that behaviour, but what we are trying to do is to bring in a system that is not only fairer but saves the public purse money by eliminating some unnecessary appeals.

Helen Jones (Labour, Warrington North)

The Minister appears to be talking about the second half of the clause, which we will discuss shortly. However, the point that I was trying to raise, which I would be grateful if he could try to address, was this. If the Home Secretary is the person who denies bail, would that not lead to a further application in a higher court, which would actually cost more money, because it would constitute an unlawful detention under common law? Has the Minister had legal advice on that and, if so, can he share it with the Committee?

Norman Baker (Liberal Democrat, Lewes)

I will go through the process in a moment, but I will address the cost point first, to demonstrate that the present system—

Helen Jones (Labour, Warrington North)

It is a cost.

Norman Baker (Liberal Democrat, Lewes)

It is indeed. I will demonstrate that the present system is not very cost-effective, therefore I believe that, apart from anything else, our proposals would be more cost-effective. However, that is, of course, not the main justification for them.

The hon. Lady is right that the comments I made largely referred to the second half of the clause, but I wanted to put that amendment in context. The first change that we are making provides that the Secretary of State’s consent is required for a person to be released on bail where removal directions are in force and removal is due to take place within 14 days of the date of the decision to grant or refuse bail. As the hon. Lady said, amendment 18 would require the Secretary of State to consider whether the applicant was pregnant when deciding whether that person may be released. I accept fully that she picked those circumstances for her probing amendment and that she could have picked others.

I understand why Members might want to raise the specific case of pregnancy and include a safeguard for that. We consider that unnecessary because a person’s circumstances, including pregnancy and health, are taken into account during the detention and removal process, including when a bail application is received. Given the hon. Lady’s genuine concerns, however, it may be helpful if I set out how applying for bail is currently managed in the immigration and detention process. The Home Office has a presumption against detention for immigration purposes and will seek to detain an individual under immigration powers only if there is a reasonable prospect of removal within a reasonable time frame.

There is well established case law in this area, known as Hardial Singh, which I am sure the hon. Lady is familiar with, where the courts have held that it is appropriate to consider the risks of absconding, reoffending and subsequent harm to the public in making detention decisions. The Home Office must undertake regular reviews of an individual’s detention to ensure that it remains legal and proportionate. A review of detention is required at least every 28 days, and reviews must occur sooner if there is a major development in the individual’s circumstances. The longer the period of detention, the more senior the level of sign-off required internally to approve continued detention.

Additionally, an individual can make an application for bail to the immigration tribunal. If an individual considers that their detention is unlawful, either because the Home Office has not released them in a timely manner or because an immigration judge has not granted bail, the individual can seek judicial review of their detention and have a High Court judge declare it unlawful. The coalition Government takes matters of liberty extremely seriously. I stress that none of the changes proposed in the Bill will reduce the protection available to an individual detained under immigration powers.

Helen Jones (Labour, Warrington North)

The Minister is being generous in giving way. What he says is correct: the possibility of absconding is taken into account in the current process. I am trying to ascertain why he wants the Home Secretary to take that decision rather than a tribunal. If he thinks that the tribunal rules are wrong, why does he not strengthen those rather than send the decision to a politician?

Norman Baker (Liberal Democrat, Lewes)

I am trying to explain the situation as it pertains now to give context to the changes that we want to make. I will get to the hon. Lady’s perfectly legitimate point if she is a bit more patient.

It is Government policy that when an individual is due to be removed in the near future, and therefore there is a greater risk of them absconding, release from immigration detention on bail is not appropriate, save in the most exceptional circumstances. I hope that the hon. Lady agrees with that. The Government’s expectation is that the tribunal should not currently grant bail when removal is imminent, owing to the heightened risk of absconding, except in exceptional circumstances.

To pick up on the hon. Lady’s probing amendment, when a woman reaches the later stages of pregnancy and cannot travel to the country of return, imminent removal would not be considered, so the provision would not be relevant. I hope that that reassures her and her colleagues that safeguards they seek are already in place without the need for additional legislation.

Meg Hillier (Labour, Hackney South and Shoreditch)

I speak, dare I say, with perhaps a little more direct knowledge of pregnancy than the Minister—that is not intended as a criticism. The early stages of pregnancy can be problematic and some women may require medical attention at that point. Clearly, there are flight restrictions in the later stages of pregnancy, but problems can arise in the first few weeks. Will the Minister respond on what would happen in those circumstances?

Norman Baker (Liberal Democrat, Lewes)

I agree that I do not have the same experience of pregnancy, but I do have some experience as a father. I fully accept that complications can arise early on in a pregnancy, but the discretion that we propose allows for complex medical conditions to be taken into account. Therefore, if medical evidence were provided, that would be taken into account; it is not simply a matter of physical observation. I should say that we do not have the right to test for pregnancies; it is a matter for the individual concerned to provide evidence that demonstrates that an issue of medical importance should be taken into account at that stage.

The hon. Member for Warrington North was concerned about the Secretary of State considering matters not available to the tribunal, a point she raised in her opening remarks. The Secretary of State will consider the same factors as a tribunal, but she has ultimate responsibility for enforcing immigration action. She may of course disagree when removal is imminent, but there is recourse to the courts via judicial review and habeas corpus, so the matter is not without a judicial answer. Of course, it is important that the Secretary of State has that overall power. The hon. Lady referred to Abu Qatada, but there have been many instances in which individuals very close to deportation have absconded. It is important to the public good that these matters are taken into account.

A particular case that I asked for as part of the evidence for this session concerned a woman who was sentenced to two years and six months for two counts of possessing a class A drug with intent to supply. In 2005 she was served a deportation order, and she absconded later that year. Seven years after absconding she was arrested for attempting to obtain a British passport via deception, and in May 2013 she was detained pending removal. The removal directions were set for June 2013, yet on 6 June bail was granted, despite a history of absconding and removal directions being in place. That demonstrates to me that the system is not working as fully as we might want.

Meg Hillier (Labour, Hackney South and Shoreditch)

I fully appreciate that there can be challenges, and clearly I would defend detention to prevent that sort of absconding, but why the Home Secretary rather than a judge? If the system is not working, it suggests that the law and the issues that the tribunal needs to take into account are not appropriate. Why not have a judicial solution to the problems that the hon. Gentleman professes, rather than getting the politicians involved? Or is this just a political gimmick to make the Home Secretary look more powerful than she is already?

Norman Baker (Liberal Democrat, Lewes)

I am sure that she does not need any gimmicks to make her look more powerful than she is already, and it is certainly not a gimmick. The fact of the matter is that whether we like it or not these things are highly political, and Abu Qatada is an example. Such cases are discussed by the public at large, they are in newspapers and on television, and decisions such as this are very finely balanced. Ultimately, the Secretary of State is responsible for the operation of immigration law. It is perfectly proper that she should have that reserved power in these limited circumstances. I am sure that she would not wish to interfere on a daily basis, but she has to have that backstop power, for the reasons that we have given.

It is also important to make the point that this power replaces a much broader power, which is in paragraph 30 of schedule 2 to the Immigration Act 1971. That broader power is not limited to 14 days before removal. In other words, if that is what Opposition Members are worried about, then they may be reassured by the fact that we are actually narrowing the power from that which we inherited from the previous Government. I am happy to go through the processes whereby individuals can challenge detention to put them on the record, if hon. Members feel that that would be helpful. However, I hope that in the light of the answers I have given, the hon. Member for Warrington North will feel able to withdraw the amendment.

Helen Jones (Labour, Warrington North)

I am concerned that the Minister did not really answer many of the questions put to him from by Opposition Members, particularly on the issue of why the Government chose to do things this way rather than to strengthen the rules for the tribunal. I also note that although the Minister mentioned someone absconding—and of course we want to stop people absconding—he cannot give us any figures for that. Although I will withdraw the amendment, we reserve the right to return to the matter on Report, because we have not really had a satisfactory answer from the Minister today. I beg to ask leave to withdraw the amendment.

Julian Huppert (Liberal Democrat, Cambridge)

I beg to move amendment 32, in clause 3, page 3, leave out paragraph (3).

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss amendment 33, in clause 3, page 3, leave out paragraph (6).

Julian Huppert (Liberal Democrat, Cambridge)

I do not intend to detain the Committee long. We have had a detailed discussion of the broad themes, but there is a particular issue on which I would like clarity from the Government.

The amendments, which are probing, are intended to allow us to look at the requirement not to allow bail if there is another application within 28 days. There are a few edge cases on which I would be grateful for the Minister’s comments, particularly if there was an error with the first decision on procedural grounds, or an error of another sort. In such a case it does not seem that there would have been the material change in circumstances that the Bill requires, but it is odd to make somebody wait four weeks. In cases put to me by various people, the tribunal has done something contrary to how the procedures are supposed to work, such as relying in decision making on evidence that was not made available to both parties or was not provided by the Home Office to the tribunal in sufficient detail for the tribunal to consider. Neither of those things should ever happen, but sadly, I am told that they are common. They are errors in the process, and there should be an opportunity for them to be corrected.

Similarly, there are cases in which the tribunal has failed to follow last year’s bail guidance for judges or to deploy the case management options available in that guidance, such as the use of bail in principle. Finally, there are cases in which the tribunal has failed to understand the local or specialist knowledge required, jeopardising the fairness of a bail decision. For example, the tribunal may not have been aware or correctly informed about an available mental health treatment or electronic monitoring options.

I do not seek to eliminate the entire principle of repeated applications, but we can all see why there is a problem. I hope to hear some clarification from the Minister. There should be some space, where an error has been made or the tribunal has not been able to act properly in a case, for quick reconsideration without proof of a material change in circumstances other than a few more days’ detention.

Helen Jones (Labour, Warrington North)

The Opposition would not go as far as the hon. Gentleman’s amendment, but I want to find out the Government’s view on what constitutes a material change in circumstances and how it might work in practice. Let us take the issue that we first raised in relation to the earlier part of the clause, about a woman who was discovered to be pregnant but who was not known to be so at the time of the previous bail hearing. That would clearly be a material change in circumstances. It might not be the only factor to be considered, but it would be one that had not been taken into account on first application.

However, the question is how a woman could demonstrate on paper that she had not known that she was pregnant at the first hearing but knew at the time of reapplication. It may not be as easy as it sounds. She may not have seen a doctor before her first bail hearing. An estimate of how many weeks pregnant someone is in the early stages of pregnancy is precisely that: an estimate. How is someone meant to demonstrate that on paper submitted to the tribunal, when getting another bail hearing depends solely on the paper evidence? There is no opportunity for a woman in that position to be heard in person, and there is no opportunity to test the evidence.

Current guidance places restrictions on the length of the hearing, the right to the hearing and so on if there is no new evidence. I accept absolutely that it is necessary to stop constant repeat applications for bail, but it is not quite as simple as it might sound. When we took oral evidence, we were told that one example of a material change in circumstances might be that there was no reasonable prospect of removal, caused for example by a lack of documentation, a change in circumstances in the country to which the person would have been removed or other factors. Demonstrating such things on paper is much more difficult. It would require evidence not just from the person detained but from the people responsible for securing their removal.

There is another issue to consider. The provision applies when someone is to be removed from Britain within 14 days. The problem, as we all know, is that such removals, which should be done as swiftly as possible, are not always carried out within the time limit. Simply cutting down on bail hearings will not solve the problem, although I accept that they may be a factor. The Government must ensure that people who do not have the right to remain in this country are removed from it. The last set of Home Office statistics show that although the number of voluntary departures remained roughly the same, there were 7% fewer forced removals. If more people are not leaving voluntarily, despite the fact that detentions are up 5%, we can conclude that we are not doing terribly well at removals. In fact, research from Oxford university shows that between 2010 and 2011, the number of foreign nationals removed from the UK or known to have departed under threat of removal declined.

When the Minister replies, I would like to hear not only an answer to the question about repeat bail applications but what he will do, in circumstances in which repeat applications are not allowed, to ensure that people who have no right to be here are removed within the time limit.

Roger Gale (Conservative, North Thanet)

Order. Members may leave their papers in the room if they wish to. The room will be locked until 2 o’clock, when we shall sit again.

Clause 3 - Immigration bail: repeat applications and effect of removal directions

Roger Gale (Conservative, North Thanet)

I remind the Committee that with this we are discussing amendment 33, in clause 3, page 3, leave out paragraph (6).

Mark Harper (Conservative, Forest of Dean)

I should say—at least for the benefit of the Committee, if no one else—that my hon. Friend the Minister for Crime Prevention, who was just about to leap to his feet to reply to the debate on the amendment when you were forced, Sir Roger, to call order by the programme motion, is attending a very important constituency engagement in Lewes this afternoon. It is something to do with bonfires and the burning of various dignitaries from the past, which I understand is effectively a three-line Whip for Members of Parliament for Lewes, so I will continue his response. I thought the Committee might like to know why there has been a last-minute substitution.

I anticipated that I would have had to answer the debate, so I listened carefully to what the hon. Member for Warrington North said. The amendment, which she moved, seeks to remove entirely the further provision—[Interruption.]

Roger Gale (Conservative, North Thanet)

Order. Just to set the record straight, it was the hon. Member for Cambridge who moved the amendment.

Mark Harper (Conservative, Forest of Dean)

Thank you, Sir Roger; you are absolutely right. I hope the hon. Member for Warrington North will forgive me. I had not realised that ascribing to her an amendment tabled by my hon. Friend the Member for Cambridge would be so difficult to cope with.

Amendments 32 and 33 seek to remove entirely the further provision that where a person had made an unsuccessful bail application and another application was made within 28 days, the tribunal must dismiss it without a further hearing. We touched on the matter in the debate on an earlier amendment, so I will not go into it at length. At the moment, as my hon. Friend the Member for Lewes said, there is no limit on the number of times that a person may apply to the first-tier tribunal for bail. He provided some examples, which I will not repeat, of abusive repeat applications. Nothing prevents a detainee who has been refused bail from reapplying the following day on exactly the same grounds, and at the moment the tribunal is required to decide every such application at an oral hearing. The Government believe that to be inefficient and costly. A safeguard already exists, however, because the requirement to decide a repeat bail application on the papers will apply only when there has been no material change of circumstances. If the tribunal concludes that there have been material changes, it can proceed to a hearing.

The tribunal procedure committee has consulted on placing a time limit on repeat bail applications. It is seeking to allow a repeat bail application to be decided on the papers if it is made within 28 days and there is no change in circumstances. The committee’s consultation has now closed and we are awaiting its decision. It is clear that the issue raised by the Bill is also of concern to those who have to deal with the matter. My hon. Friend the Member for Cambridge might ask rhetorically, “Well in that case, why don’t we just let the tribunal procedure committee get on with it?” The fact is that it may decide to make the change—although it has not set that out—but it would be open for it to change it back in future. The Government think the change is wise and therefore want it in primary legislation.

One or two of the concerns came up that I do not think my hon. Friend the Member for Lewes was able to cover in the debate on the previous amendment. Just to be clear, if there were procedural flaws in a previous bail hearing and evidence of that came to light—as mentioned by my hon. Friend the Member for Cambridge—it would be open to the tribunal to conclude that that was a material change in circumstances and therefore to allow a full hearing on that application. In the type of case that my hon. Friend suggested, it would be open to the detainee to bring forward evidence that there had been a procedural problem and to present it to the tribunal. The tribunal would obviously assess that on the facts, but it would be open to the tribunal to conclude that there had been a flaw that amounted to a change in circumstances and to allow a full hearing, rather than making a decision on the papers.

I will now answer fully the points made by the hon. Member for Warrington North in the debate on the previous amendment. Information pertaining to the fact that someone was pregnant or information about a change in their health circumstances would indeed be a material change of circumstances that they could draw to the attention of the tribunal. Although the hon. Lady said there would be difficulties in producing such information in terms of papers, I do not see an enormous barrier to the person producing a letter or some form of evidence from a medical professional.

Of course, people held in immigration detention have full access to medical professionals, in a way that is broadly analogous to the medical support they get in the community, so it would be open to them to produce that information for a tribunal. They would have to produce only enough evidence to persuade a tribunal that there had been a material change in circumstances for the tribunal to conclude that they would get a full hearing.

I have addressed the issues raised by my hon. Friend the Member for Cambridge and the hon. Member for Warrington North. I therefore urge my hon. Friend to withdraw his amendment.

Julian Huppert (Liberal Democrat, Cambridge)

I thank the Minster for his comments and for clarifying that any procedural error would count as a material change in circumstance. That is not how I would have interpreted the legislation; I would have assumed that the circumstances were the same. However, if that is the intention—

Mark Harper (Conservative, Forest of Dean)

Just to be clear, that could count, but it would be up to the tribunal to make a judgment. It might judge that the procedural flaw made no difference to the decision and was very minor, but it would be open to it to make a judgment, although not necessarily in every case.

Julian Huppert (Liberal Democrat, Cambridge)

I thank the Minister for that clarification; I was not intending to put words into his mouth. The fact that a procedural error could count as a material change does change the tenor of this debate and resolves the concerns I had, so I am happy to beg to ask leave to withdraw the amendment.

Clause 5 - Identifying persons liable to detention

Helen Jones (Labour, Warrington North)

Let me say at the start of this debate that we are not opposed to the use of biometric information or its provision by various people. Indeed, many of the issues that the Government say they wish to tackle in the Bill—such as the use of the NHS by those not entitled to free treatment or the need for measures to identify people who should not be in this country—could have been much more easily dealt with if they had not cancelled our proposals for ID cards.

However, I have some questions about how the clause will work. If the Committee will bear with me, those questions go back to the much amended Immigration Act 1971. Paragraph 16 of schedule 2 to the 1971 Act provides for a person to be

“detained under the authority of an immigration officer”

if they are

“required to submit to examination under paragraph 2”—

that is the paragraph that deals with people arriving in the country. Paragraph 16 also provides for the detention of people who are required to submit to a further examination, and where

“there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14”.

Those paragraphs—this is the edited version, Sir Roger, so you can see why immigration lawyers make a very good living—cover people who have been refused leave to enter and cases where directions for a removal under paragraphs 8 and 9 might be given, but have not been.

Those paragraphs provide for the Home Secretary to give directions for owners or agents of ships and aircraft to remove that person, and to place a person with directions for removal in a place under the authority of an immigration officer, and so on. I recommend this schedule to anyone who finds it difficult to sleep at night. Paragraph 18 of schedule 2 to the 1971 Act gives the right to detain anyone subject to the provisions if they are not on a ship or an aircraft in such places as the Secretary of State may direct, and gives immigration officers, constables and prison officers the power to take the necessary steps for identifying him or her.

If the Committee is with me so far, the question is: if the existing provisions already cover such a wide range of people in different circumstances and if they can already be detained by an immigration officer under those provisions, who are the people whom the Government think—by adding the words “or liable to be detained”—are not covered? The provision in current law seem to covers that, in cases where there are reasonable grounds for believing a person is liable to be removed or has been refused leave to enter, and so on.

If I have read the clause correctly—perhaps the Minister will tell me that I have not—the Government seem to be introducing an unnecessary provision to enact something that already exists in law. Will the Minister clarify the circumstances the clause is expected to cover that are not already covered by legislation? In other words, will he specify who will be caught by the new provision who cannot be dealt with effectively under the law as it stands? The Opposition are concerned about dealing with people with no right to enter or to be in the UK, but we also want to ensure that innocent people are not picked up as “liable to be detained”, before we then find that we have the wrong person. I do not think that is the Minister’s intention, but I would be grateful if he clarified that point.

If someone is detained and there is a need to verify their identity, that is perfectly reasonable. The law as it stands allows for people to be detained and to submit to an examination when there are reasonable grounds for believing that they are someone in respect of whom directions may be given under certain paragraphs in the 1971 Act. Interestingly—perhaps not “interestingly” really, but there it is—the word used in that Act is “may,” not “have,” so there is already room for the detention of people suspected of being in the country illegally.

I hope the Minister can allay the fear that suspicion might fall on people who are perfectly innocent, and that he can tell me exactly whom the provision is intended to cover who is not covered by the law as it stands.

John Robertson (Labour, Glasgow North West)

May I ask the Minister for some clarification on a couple of issues? A constituent has written to me on several occasions because he feels he has been badly treated by being stopped going through customs and immigration. Will the Minister give some detail on why somebody would be stopped under such circumstances and therefore detained, even for a short space of time, as was the case for my constituent? My other observation is that the provision is so complicated that it strikes me that it could be there to be abused and therefore used for some form of victimisation. I would be interested to hear the Minister’s response.

Mark Harper (Conservative, Forest of Dean)

The hon. Member for Warrington North betrayed her fascination with this subject when she said that studying the rules would send someone to sleep and then admitted to having found the whole thing very interesting—we will keep that to ourselves, Sir Roger, and not share it more widely.

Helen Jones (Labour, Warrington North)

The Minister should remember that I have recently been dealing with local government finance, after which most things sound interesting.

Mark Harper (Conservative, Forest of Dean)

Now that the hon. Lady has made that clear, I can see why she finds this a much more fascinating subject. If she has studied local government finance—she must be one of only three individuals on the planet who clearly understand it—all becomes clear.

The hon. Lady asked about the gap we think we have identified and that we want to plug by making the change in the clause. She is absolutely right: where immigration officers have information that leads them to suspect that someone they have encountered might be an illegal immigrant, but where they also have doubts about that person’s identity, they can currently check the person’s fingerprints—we are talking only about checking their fingerprints. However, immigration officers can do so only with that person’s consent or following their arrest.

The hon. Lady is quite right that if an immigration officer arrests somebody, they are entitled to take and check their fingerprints. At the moment, the problem for an immigration officer is that, faced with someone they do not want to arrest but whose information they want to check—either to ascertain that they are that person or to check the information suggesting that they might be an illegal immigrant—that officer would have to either let the person go if they did not consent, or arrest them. We want to ensure that the immigration officer would be able to check the information and the fingerprints to ascertain whether or not the person was who they were looking to take. That is the gap. It is admittedly quite a narrow gap—the powers are already quite broad—but it is one we are trying to plug.

Perhaps I can suggest to the hon. Member for Glasgow North West that if his constituent is frequently stopped at the border, he should write to me with the details and I will make some inquiries. I have had cases raised with me before where we have discovered on investigation that some erroneous information is held about the constituent or that they share some information—for example, name or date of birth—with someone who is of interest to the authorities. If the hon. Gentleman’s constituent is frequently being bothered and is not someone who should be, we might be able to take steps to sort that out. If he writes to me with the details, I will make some inquiries. I hope that will be of benefit.

I hope I have explained the reason for the change from “detained” to “liable to be detained”. It does not force the immigration officer to make the arrest and detain someone to make the check. It is not a massive change, but it is a helpful step to plug a gap. That is the reason for the clause. I hope that my explanation satisfies the hon. Member for Warrington North.

Clause 6 - Provision of biometric information with citizenship applications

Julian Huppert (Liberal Democrat, Cambridge)

I beg to move amendment 34, in clause 6, page 4, line 36, at end insert—

‘(1ZA) Subsection 1(bza) does not apply to persons who were—

(a) born before 1 January 1983 outside the United Kingdom to a British mother; or

(b) born before 1 July 2006 outside the United Kingdom to a British father who was not married to their mother.’.

We are into the realm of details, albeit details that matter profoundly to a number of people. The amendment deals with applications for citizenship by two groups of people who have been discriminated against for some considerable time. The first set consists of those who were born outside the United Kingdom to a British mother before 1 January 1983, when the 1981 immigration changes came into force. These people are not automatically entitled to British citizenship. There is a process whereby they could register when they were under 18, but there were some complexities around that and a number of them found that deeply frustrating.

The second set consists of those who were born before 1 July 2006 outside the United Kingdom to a British father who was not married to their mother. The issue comes down to the fact that the British Nationality Act 1981 dealt only with “legitimate children”—something that now sounds very archaic indeed. The position of the mother and child is clear, but the 1981 Act used to read:

“For the purposes of this Act…the relationship of father and child shall be taken to exist only between a man and any legitimate child born to him”.

That was the wording of the legislation passed only 30 years ago, and it has caused a number of problems to unmarried British fathers, in that their British citizenship was not passed on to their child.

That was corrected by the Nationality, Immigration and Asylum Act 2002—one of the things that the previous Government did with which I totally agree. [Interruption.]That may come as a shock to the hon. Member for Hackney South and Shoreditch, but there are a number of such things. The previous Government changed the language to include

“the husband at the time of the child’s birth of the woman who gives birth to the child”,

those affected by virtue of certain provisions in the Human Fertilisation and Embryology Act 1990, and

“any person who satisfies prescribed requirements as to proof of paternity.”

That is a sensible way to deal with the issue. If there is no marriage, there would be a need to prove who the father is. I have no problem with that. That Act was passed in 2002. It took four years before the regulations came out in 2006, but they did come out, which has meant that since 2006 we have had a much fairer system. However, that does not solve the problem for people born before 1 July 2006 to a British father who was not married to their mother.

I am sure we would all want to see that sort of discrimination ended. I and others have been concerned about this issue for some time; we now have an opportunity to resolve it by changing the sort of information people would have to provide. It would be cleaner and neater to allow them to have British citizenship if they apply, subject to suitable constraints. Unfortunately that does not quite fall within the scope of this Bill, so we will look at the biometric requirements they have to have. In the case of people born before 1983 to a British mother overseas, although there are some routes, they cause problems. People have to go through a registration process, and citizenship is not necessarily granted. Let me quote one person who has been involved in this:

“I have lived in the UK for 20 years on a right of abode through my British born mother. I resent the fact that I have to pay £874 (which I can’t afford) for citizenship when my cousins can just go down to the British high commission in Toronto and apply for a British passport through their father (my uncle). This law is just downright sexist especially in this day and age!”

That is right: we should remedy this historic issue. There is a concern about retrospectively imposing citizenship on people who do not have it. I do not suggest that we should force people to acquire it, but we should allow them to do so.

The issue of those born before 1 July 2006 has been raised on a number of occasions. I raised it a couple of years ago with the Minister’s predecessor, the right hon. Member for Ashford (Damian Green), who has now changed his ministerial role. He described it as an

“odd hangover from previous legislation”,

which is a very good description. He accepted that changes could be made, but said that these

“would have to be made through primary legislation and there is no appropriate vehicle before the House at the moment”.—[Official Report, 9 May 2011; Vol. 527, c. 898-99.]

I have raised this issue on a number of other occasions and the Minister has been helpful in some regards. I have a helpful letter, which he sent me last month, in which he says:

“I agree that the position of children born before 2006 to British fathers who were not married to their mothers is an anomaly that deserves to be addressed”.

I thank him very much for comment, which will make a large difference to the people who are caught up in this issue. The Minister says that

“this is a discrete issue affecting a clearly defined group and it therefore seems to me suitable for a Private Member’s Bill”.

I hope the Minister can confirm that such a Bill, if an hon. Member were to bring it forward, would have the full support of the Government to make sure it could pass—this was an argument made by the right hon. Member for Ashford in 2009, when the issue was debated in relation to another piece of legislation. I hope the Government will correct both anomalies. However, if they cannot, they should at least correct the more recent anomaly, because we should not have a system that requires people to go through hoops merely because we used to have poorly dated legislation that made assumptions about the structures of people’s families.

The Minister has been very helpful on this issue. I hope he can go that final stage and resolve the problem, which would hold out a lot of hope for many people who have been caught up in it and feel deeply discriminated against, with very good reason. The Minister might also be able to look at the issue of people who end up being stateless because the relevant provisions do not apply to them, because of a mismatch between our rules and those of other countries. I thank the Minister for what he has done so far on this issue; if he could just take those last few steps, I and many other people would be deeply grateful.

Meg Hillier (Labour, Hackney South and Shoreditch)

In the spirit of cross-party co-operation, I support the hon. Gentleman’s amendment because I, too, have constituents who are caught in this trap. They have no idea, until they suddenly have to apply for a passport, that they cannot just get one as of right. There are old-fashioned anomalies in the law and if there is an opportunity in the Bill to redress the balance and even solve the problem in some cases, then I urge the Minister to do all he can to do that. He would certainly have my support—I cannot speak for those on my Front Bench, but I hope that they, too, would be sympathetic.

John Robertson (Labour, Glasgow North West)

Clause 6(3) proposes that photographs should be kept. There are a number of people in this country who do not have passports, and the clause proposes that a person’s photograph should be kept until they have a UK passport and they are a British citizen. How do the Government propose to do this? Are they going to start having a catalogue of photographs covering everybody who enters or does not enter the country, or who is in the country at the time? Can the Minister do that? I wonder, at a time when the Home Office is kind of stretched, how they will find the time to do all this work, with all the photographs that they might have to get.

Roger Gale (Conservative, North Thanet)

Order. I shall not be hugely distressed if the Minister wants to respond to the hon. Gentleman, but his question is covered in the next amendment, I think.

Mark Harper (Conservative, Forest of Dean)

I am grateful, Sir Roger, for that guidance. If the hon. Member for Glasgow North West will forgive me, as his question is covered in the next amendment, if he holds that thought I will respond to him when I respond to either the hon. Member for Warrington North or the right hon. Member for Delyn when they move amendment 20.

My hon. Friend the Member for Cambridge has raised with me before the issue that his amendment deals with, as he says, and he has thought of a very creative way of raising it in the Bill, given that to solve the problem substantively, as both he and the hon. Member for Hackney South and Shoreditch suggest, would actually be outside the scope of the Bill. I am sure that he tested that with the Clerks and came up with a very creative way of raising it. He is right that it is an anomaly that some people do not qualify as British citizens by birth, either because they were born at a time when they could not inherit a mother’s British nationality, or because their parents were unmarried and they could not therefore inherit their father’s nationality. That does not apply to children born today, but he is right that the previous law change was not retrospective. The Government do not believe in retrospectively imposing British citizenship on people, because that could cause difficulty for adults who have established their identity as nationals of another state.

There is provision for children of British mothers born before 1983 to register as British citizens by means of registration. They do have to pay the citizenship ceremony fee, which is £80, but they do not have to pay the naturalisation fee. As my predecessor, my right hon. Friend the Member for Ashford (Damian Green) said, and as I said in my letter, we support the change that my hon. Friend the Member for Cambridge proposes, but that is not within the scope of the Bill.

I am happy to do two things. First, I can give my hon. Friend an example of where we have been prepared to deal with such issues. He may be aware that the Government support the Bill introduced by my hon. Friend the Member for Woking (Jonathan Lord), who is resolving a discrete nationality issue that applies to some members of the armed forces. In those circumstances, the Government are happy to offer support.

In my letter, I said that if a private Member were successful in the next ballot and thought that this was an area worthy of support, the Government would be happy to work with that private Member and, as long as the Bill was properly drafted, would look to provide support to deal with these anomalies. Certainly, if my hon. Friend the Member for Cambridge or the hon. Member for Hackney South and Shoreditch are successful in that ballot, or if they can persuade others to table such a Bill, the Government will look favourably on that, but we cannot resolve the matter in this Bill because it is outside its scope. I urge my hon. Friend to withdraw his amendment.

Julian Huppert (Liberal Democrat, Cambridge)

I thank the Minister and the hon. Member for Hackney South and Shoreditch for their support. We have cross-party agreement that we should try to rectify some of the issues of the past. I accept, as the Minister said, that the best way of dealing with this is not specifically to deal with the biometric information. While I thank him for holding out hope of some change through a private Member’s Bill, I beg to ask leave to withdraw the amendment.

Helen Jones (Labour, Warrington North)

I beg to move amendment 20, in clause 6, page 5, line 10, after ‘citizen’, insert ‘or after three years’.

We can deal with this matter briefly. The amendment was tabled to find out the Government’s intention on the retaining of photographs until a person applies for a passport. What happens if, as my hon. Friend the Member for Glasgow North West asked earlier, they do not apply for a passport?

Section 8 of the UK Borders Act 2007 contains regulations on use of biometric information. Section 41 (1)(b) of the British Nationality Act 1981, which is to be amended, gives the Secretary of State the power to prescribe the manner in which applications for registration or naturalisation should be made—I mention that to show the Minister that I have read some of the other immigration legislation, because I lead a dull life. However, proposed section 41(1ZD) provides that, despite the regulations in the 2007 Act on the destruction of biometric information, photographs of someone who is registered or naturalised as a British citizen may be kept until the person is issued with a British passport.

The Home Office considers that change necessary to prevent imposters from wrongly acquiring passports. I agree with it on that; that is something that we can all support. On the face of it, that seems reasonable. I want to test the Minister, however, on what happens if someone does not apply for a passport. I accept that most people do, but that is by no means automatic. Let us say, for example, that an elderly person, who may not want to travel abroad again, gains citizenship. How long is it reasonable to keep photographs and, frankly, for how long would they be of any use?

Retention of photographs will be even more problematic when a young person who gains citizenship does not initially apply for a passport. If someone applies for a passport much later in life, do the Government intend to use digital technology to check whether that is the same person as in the photograph? People’s appearances can change radically. My right hon. Friend the Member for Delyn was once a young and eager county council candidate with a full head of hair, so I do not think that photographs taken of him at that time would be of much use now.

I want to hear the Minister’s response. While no one wants a person to get a false passport and the Government are quite right that we need to guard against this, at the moment information has to be destroyed as soon as is reasonably practical. I see from the statement of intent produced for the Committee that 90% of new citizens apply for a British passport within a year. Can the Minister tell us how many take longer, or do not apply at all? I realise that only a small number do not apply, but can he tell us how long their photographs would be stored and what use would be made of them? If he can clarify that issue for us, we will be happy to support this clause.

Mark Harper (Conservative, Forest of Dean)

We will come onto some of the points raised by the hon. Lady when we get to clause 10, which deals with the use and retention of biometric information. On this specific point, we have been very clear that once someone becomes a citizen we will destroy their fingerprint information. We are talking about retaining their photograph only until they make their first passport application, to ensure that the passport application is being made by the person who has indeed become a naturalised citizen, as the hon. Lady correctly said.

The statement of intent sets out that 90% of new British citizens make a passport application within one year. The rather trite answer to her question about how many do not is therefore 10%. I think that she was after more granular information on the 10%, the age profile of the distribution and how long they wait. I will see if I have that available and can help her with that in a few moments. I may not, in which case I will write to members of the Committee so that we have that information ahead of Report.

Let me give the hon. Lady an example of why the three years that she is testing in her amendment—she accepted that she is testing it—may need to be longer. We would make a judgment on whether it was necessary, but again the question would be why it might be necessary to keep information for longer. We have had fraudulent applications, and I have a specific example of a passport application that was made by a new British citizen five years after being granted citizenship. The application was supported with a different photograph than the one used for naturalisation. Even after five years, we have had specific cases in which it was necessary to keep information.

In the circumstances set out by the hon. Lady, clearly there is a time period after which a photograph may cease to be useful, although there have been examples of people making quite extraordinary applications. For example, the ethnicity of the person may not be the same in the photograph as in the application. Therefore, even if I accept that someone’s likeness may have changed, information might be gleaned from the photograph. Some of the important factors are physical features rather than just appearance, so the photograph may have a more lasting use. Clearly, a judgment will need to be made about whether the photograph continues to be useful, but we want the ability to keep it if it would be useful. This is also a protection for the individual, because it stops someone fraudulently applying for a passport or travel document. In fact, the risk of that happening is higher when we have someone such as the person mentioned by the hon. Lady.

Meg Hillier rose—

Mark Harper (Conservative, Forest of Dean)

I will give way to the hon. Lady after this sentence. Such a person may not use a travel document themselves and may therefore not be aware that someone has fraudulently applied for one. I wonder whether the hon. Member for Hackney South and Shoreditch, who I see has transmitted her enthusiasm to the hon. Member for Warrington North, will use this as another opportunity to tell me yet again why we should not have abolished ID cards. I give way to her.

Meg Hillier (Labour, Hackney South and Shoreditch)

I will not go that far on this point, but the Minister has raised an important point about protection for the individual applying for a passport. If a genuine passport is wrongly issued or a passport is fraudulently issued, that can cause real difficulty for the actual person in whose name the passport is, as well as for the passport service and others. Given those concerns, why are the Government proposing to destroy the other biometric they have already taken, namely fingerprints? That would give an extra guarantee that the applicant was who they said they were. The Government do not seem to be in favour of fingerprinting in general except for foreign nationals, but why do they not keep that biometric until after the passport has been issued and destroy it at that point? Indeed, the Government could keep the information and start up the ID card system all over again—but perhaps we should confine ourselves to the first part of my point.

Mark Harper (Conservative, Forest of Dean)

I think the second part of her point perhaps answers the first. Although it is important to have biometric checks and biometric information, it is necessary to treat that information and those data in a proportionate way. My preference is that once somebody has become a citizen we should to all reasonable extents treat them in the same way as we treat a citizen who was a citizen in the first place, and we do not routinely collect the fingerprints of UK citizens. The proposal is therefore that we destroy the fingerprints of somebody who has become a UK citizen, so that we are treating them in the same way as other UK citizens. However, in one specific area—applying for travel documents—we propose to use the biometric data before their first application as a way of avoiding possible abuses and preventing people taking advantage. We think that is proportionate. That is a judgment we have made, and it could be argued, as the hon. Lady perhaps did—I do not want to put words in her mouth, as she could simply have been posing a question—that we should hang on to the fingerprints as well.

The Government’s judgment is that it is proportionate to keep the facial image, as that provides the appropriate level of security to make sure that the passport application is valid while not holding unnecessary information about someone who has by now become a British citizen. I do not want to rehearse old information, but the Government’s view was that we did not want to have a national identity register or identity card, so for someone who has become a British citizen we want to limit the information we hold to what we feel is necessary and proportionate. That is why we have reached the judgment that we should destroy the fingerprints but keep the facial image.

I perhaps have not satisfied the hon. Lady, but I hope I have at least answered her question and dealt with the issue raised by the hon. Member for Warrington North.

Helen Jones (Labour, Warrington North)

Having listened to the Minister’s answer, I beg to ask leave to withdraw the amendment.

Clause 10 - Use and retention of biometric information

Roger Gale (Conservative, North Thanet)

I understand that amendment 21 will not be moved.

Helen Jones (Labour, Warrington North)

I beg to move amendment 22, in clause 10, page 7, leave out lines 1 to 3.

Again, this is a probing amendment to test the Government’s intentions. With your indulgence, Sir Roger, I hope to comment on some of the other aspects of the clause. We want to test how the Government propose to use the wide order-making powers under the clause, simply because when such wide powers are included in a Bill, it is the Opposition’s duty to try to ascertain the Government’s intentions.

Much of the clause restates provisions in the UK Borders Act 2007 on the use and retention of biometric information. Interestingly, section 8 of that Act includes a power for the Secretary of State to make provision about the use of biometric information

“in connection with control of the United Kingdom’s borders”.

It will be interesting to find out from the Minister why that provision is strangely absent from the revised version, although the clause replicates provisions on

“the exercise of a function by virtue of the Immigration Acts”

and “in relation to nationality”. Has it been missed out inadvertently, or was it deliberate? If so, why?

The clause’s provisions on

“the prevention, investigation or prosecution of an offence”

and national security mirror the provisions in the 2007 Act, and we have no problems with them. However, I want to ask about the use of information for the purpose of

“identifying persons who have died, or are suffering from illness or injury”.

I would have no problem if the clause referred to “persons suffering from a serious illness or injury”, as that would be sensible and would allow biometric information to be used if there was no one to identify a person who was very ill. However, the Bill does not quite say that. Will the Minister tell us whether the omission of the word “serious” is deliberate or accidental? If it is deliberate, why?

My worry about the provision is that anyone suffering from a minor illness, or who goes to hospital, could be subject to biometric identity checks. I accept that that is not the Minister’s intention—at least I hope it is not—but that is what the Bill says. That is rather odd, especially when the provision is read in conjunction with other parts of the clause. If a person provides biometric information, has their application accepted and is living in the country legally, will they be subject to biometric tests if they are ill? It would be much easier if we had ID cards, but the Minister must clarify his intentions.

Proposed new section 8(3)(d) will allow information to be used to ascertain

“whether a person has acted unlawfully, or has obtained or sought anything to which the person is not legally entitled”.

The things that immediately spring to mind are claims to benefits and access to the health service. I am all for ensuring that people who are not entitled to benefits do not get them, because I regard that as stealing from the poorest people in society. People who are not entitled to free health care in this country should not be getting it, but how will the provision work? Benefits officers cannot give biometric tests to applicants and compare the results with the database, and GPs and hospitals will not be testing everyone who walks in because they are far too busy dealing with sick people, so who will check the information and when? It clearly cannot be done before a person gets a benefit or is treated, and doing it after someone has been caught claiming a benefit to which they are not entitled is like shutting the stable door after the horse has bolted. It would be much easier if people proved their identity when they made a claim. As we all know, getting money back afterwards or recouping costs of treatment are long and difficult jobs. It seems that the Government are trying to sound tough, but without any idea of how their proposal will work.

Amendment 22, which would remove proposed new section 8(3)(e), is designed to test the Government’s intentions on their wide-ranging provision. Given the other measures in the clause, I do not know why that power has to be so wide. Paragraph (e) says:

“for such other purposes (whether in accordance with functions under an enactment or other wise) as the regulations may specify.”

That gives the Government wide powers to use biometric information for almost anything. Considering their dyed-in-the-wool opposition to ID cards, it seems a strange provision to include in the Bill. Of course, we have not yet seen the regulations, although that would have been helpful. The Government’s statement of intent tells us that they are tightening statutory safeguards, however.

Pat McFadden (Labour, Wolverhampton South East)

Does my hon. Friend think it would be fair to sum up the Government’s position as being against the cards, but not the data?

Helen Jones (Labour, Warrington North)

My right hon. Friend has it exactly right. This seems a complicated way to go about something that could have been done simply, which is why the approach is less effective. It sounds great as something that Conservative Members can take back to their associations, but my worry is whether the proposal will work in practice—I am not convinced that much of it will work in practice.

Perhaps the Minister will tell us why the Government are taking such wide reserve powers. Is it because they do not think their proposals are going to work in the first place, or is there another reason?

Mark Harper (Conservative, Forest of Dean)

I am grateful for what the hon. Lady describes as a probing amendment, which gives us the chance to go through how the proposal works. The clause provides a single regulation-making power to ensure consistency in how biometric information is used and retained by the Secretary of State. That is helpful because it means we can have a consistent policy across all the relevant nationality and immigration Acts, with one set of rules.

It is also worth saying that the order-making power—this is in distinction to our earlier debate about order-making powers—is potentially very wide, but that is why it is an order-making power. Any regulations would require the approval of both Houses of Parliament through the affirmative procedure before they could come into force.

The clause refines section 8 of the UK Borders Act 2007, which was brought in by the previous Government. I know that the amendment is probing, but it would remove the Secretary of State’s existing flexibility to provide in regulations new circumstances in which biometric information could be used. That is not a new power; it replicates a provision already in section 8 of the 2007 Act. That power has proved useful, such as by allowing the Secretary of State to make regulations to allow the use of biometric information she holds in connection with identifying victims of an event or situation that has caused loss of human life—I will come on to the hon. Lady’s point about illness in a moment—and for the purpose of ascertaining whether any person failed to comply with the law, or gained a benefit or service to which they were not entitled.

The hon. Lady asked two specific questions. One was whether there had been a deliberate omission of the word “serious” in connection with identifying persons suffering from illness or injury. It was deliberate in one sense, in that we are replicating the provisions of the 2007 Act and regulations made under it, particularly regulation 9(f) of the Immigration (Biometric Registration) Regulations 2008, which were subject to the affirmative procedure and do not refer to “serious” injury or illness.

I understand that the approach is to protect people who need medical attention when it is not clear who they are—in other words, when there is an unidentified person who needs medical attention. The purpose of using the biometric information is to identify them, not to deny them medical attention. It is to ascertain who they are and to try to establish facts about their medical records. That is the existing use of the provisions that we have tried to replicate in the Bill.

The hon. Lady also asked why there was no reference to border security. In immigration legislation, we consider that the reference to the border is nugatory, because it is covered by immigration and nationality purposes. The 2007 Act specifically related to biometric residence permits being used to support applications for British passports for non-citizens. We consider that the reference to immigration and nationality purposes is wide enough to cover in-country examples and those at the border. Arguably, we could have included such a reference, but we did not think it was necessary. I do not think that our approach materially changes what is already in place.

The hon. Lady was right that we published a statement of intent regarding the clause. It sets out the Government’s intentions for the retention of information, which we discussed briefly in the previous debate, and I hope that it is useful.

Helen Jones (Labour, Warrington North)

Will the Minister answer my point about proposed new section 8(3)(d), on the use of biometric information

“for the purpose of ascertaining whether a person has acted unlawfully, or has obtained or sought anything to which the person is not legally entitled”?

Would that provision be used only after someone had been arrested? It is not clear, but it seems to kick in only after someone has done something wrong, rather than preventing them from doing something wrong in the first place.

Mark Harper (Conservative, Forest of Dean)

The use of the phrase “acted unlawfully” and the word “obtained” suggests that the measure is looking backward—for checking whether someone had behaved unlawfully—but the phrase

“sought anything to which the person is not legally entitled”

obviously suggests a forward-looking provision, in the sense that if someone applied for something to which they were not entitled, action could be taken to stop them, working backwards from evidence that they were not entitled. Part of the reason for not going into enormous detail is that that would be set out in the regulations, on which debates would be held in both Houses of Parliament in which we would have to set out our exact intentions and the hon. Lady and others could ask questions.

Helen Jones (Labour, Warrington North)

How does the Minister propose to use biometric information when someone is seeking something to which they are not entitled—in other words, to stop someone getting something to which they are not entitled? Every applicant cannot be tested.

Mark Harper (Conservative, Forest of Dean)

A simple way would be to use the method used in right-to-work legislation, for example. We already insist that people present a biometric residence permit, which contains a facial image and enables somebody to check whether the person in front of them is the rightful owner of that permit and allowed to work in the United Kingdom. As we will debate later, that could also determine whether they had the right to rent accommodation.

Helen Jones (Labour, Warrington North)

I am grateful to the Minister, but what is being proposed is unclear to me and several other Committee members. Is he proposing that anyone who applies for benefits or tries to access the NHS could be asked for a biometric residence permit? If so, how will he prevent British citizens of black or ethnic minority origin from being asked for that information when they may have been born and bred in this country or lawfully resident here for many years?

Mark Harper (Conservative, Forest of Dean)

If we were bringing forward proposals to do that, we would have to table regulations for debate in the House, where we would set out their provisions. Let me give the hon. Lady an example. During the evidence session, the hon. Member for Hackney South and Shoreditch expressed concern, given the diversity of her constituency, about how we would ensure that landlords did not discriminate against either lawful migrants or British citizens from black and minority ethnic communities as a result of the residential tenancies proposals. As I said then, we will publish a code of conduct that explains what reasonable inquiries should be made and how landlords should go about making such inquiries in a way that is compliant with the Equality Act 2010 so as not to discriminate. If we tabled regulations to identify whether people were, for example, entitled to benefits, we would set out how we thought that was going to work.

On the question of benefit for foreign nationals, the Department for Work and Pensions already goes through with somebody whether they are entitled to benefits. If they are a non-European economic area national, it ascertains their status in the United Kingdom. Even for EEA nationals it establishes whether they have the right to reside here and asks a significant number of questions about whether they are habitually resident in the United Kingdom. Indeed, the DWP is strengthening those tests this autumn and extending the set of questions that it asks, so that it can be more thorough and robust in that testing process.

That type of checking already goes on, and if we were to bring forward significant provisions, they would have to be brought introduced under the affirmative procedure. That would give Members the ability to ask questions and probe the Government on what they were doing.

Meg Hillier (Labour, Hackney South and Shoreditch)

The Minister describes an administrative process which, from the distance of Whitehall to the Jobcentre in Hackney, sounds fine. However, a constituent of mine might still have a strong African accent despite holding a British passport or having lawful residence in the UK. Many people in that situation do not have a passport. In fact, I have the case of a group of men in their 50s who do not even have any photographic ID or a bill in their name. How will they be dealt with? They will often be asked for information as though they were foreign nationals and they will not have it. Many of them will not have the sort of ID that a British citizen or lawful resident will usually have. There are people in my constituency and up and down the country caught in that gap. Whatever the Minister’s reassurances, the safeguards do not capture that group.

Mark Harper (Conservative, Forest of Dean)

Again, without leaping forward to future debates, let me give an example. As I have said, if we were to bring forward specific proposals using proposed section 8(3)(d), we would be able to set out the way those should be adopted and the documents that people would need to deal with the issues that the hon. Lady raised. Let me use a specific example that we are going to deal with in the Bill, which we discussed at the evidence stage—the proposals for residential tenancies. As with the right-to-work measures that the previous Government brought in, we have accepted that the question has to be asked of everybody, in order not to be discriminatory. We will set out the documents that somebody will have to provide. We have accepted that not everyone has a passport or a driving licence, for example, and we will set out the combination of documents that will be accepted.

We listened to organisations, one of which gave evidence—Shelter, I think. It talked about individuals who lead lifestyles that perhaps are a little chaotic, or who do not have a set of documents. We have said that we will accept, for example, benefit documentation, which Shelter said those people frequently have. So in specific cases, we will look at the practicalities and the difficult cases that the hon. Lady sets out, and we will look pragmatically at the range of documents that somebody could provide to evidence the fact that they were entitled to a service.

I accept that the hon. Lady’s much slicker process of having a national identity register and a card could have been used for these purposes, but this Government resolutely did not want to do that. That was the right decision, but I give her full marks for her tenacity in trying to prove that her decision to bring in identity cards was the right one, which I am sure she will hang on to for many years to come.

Helen Jones (Labour, Warrington North)

I am grateful to the Minister for his reply and his generosity in giving way. Having listened to his reply, I still think that some of the provisions of the clause have not been thought through and that the Government are very unclear about how they work—particularly proposed section 8(3)(d). We may wish to return to the matter at a later stage, but for now I beg to ask leave to withdraw the amendment.

Clause 11 - Right of appeal to First-tier Tribunal

David Hanson (Labour, Delyn)

I beg to move amendment 24, in clause 11, page 10, line 1, at end insert—

‘(6) This section shall not come into force until a draft statutory instrument is laid before, and approved by resolution of, each House of Parliament.

(7) An order under subsection (6) may not be made until—

(a) a report by the Independent Chief Inspector of Borders and Immigration on entry clearance decision-making in the UK Border Agency for entry clearance and managed migration; and

(b) the Secretary of State is satisfied that decision-making for entry clearance and managed migration is—

(i) efficient;

(ii) effective; and

(iii) fair.’.

Clause 11 caused some debate at Second Reading and at the evidence sessions. In discussions with people outside this Committee, it has caused concern. I wish to examine and address that concern. Given your earlier advice and guidance, Sir Roger, I expect that that will form part of a wider stand part debate on clause 11, which I am happy to merge into one general discussion on some of our other concerns, although focusing on the amendment.

Roger Gale (Conservative, North Thanet)

Order. Just to clarify the position, amendment 23 was ruled out of order because accepting it would have meant the Committee would have had to vote against clause stand part. As before, the right hon. Gentleman can have the stand part debate either now or after the debate on the amendment.

David Hanson (Labour, Delyn)

I am grateful, Sir Roger. My intention was to try to wrap the whole thing up into one.

Amendment 24 would place an obligation on the Secretary of State to introduce a draft statutory instrument for both Houses of Parliament to approve. The draft order would not be forwarded for both Houses to consider until a report by

“the Independent Chief Inspector of Borders and Immigration on entry clearance decision-making in the UK Border Agency for entry clearance and managed migration”

had been made, and an order would not be made until the Secretary of State—whoever it was at the time—

“is satisfied that decision-making for entry clearance and managed migration is”

efficient, effective and fair. I accept that those words are subjective and open to interpretation, but I hope that the Committee will bear with me while I consider certain points related to them.

The amendment ensures that we can have a proper debate now about the decision-making process for entry clearance and for managed migration. We can look at it in the light of the proposals in the clause, which effectively remove the first-tier tribunal appeal mechanism for those areas of migration management. Our amendment would ensure that appeal rights, which are important and to which I will return in a moment, could not be abolished until the quality of Home Office decision making for managed migration—understood to encompass casework other than asylum—was deemed by the chief inspector and the Secretary of State to be, in the words of the amendment, efficient, effective and fair, although I accept that those words are open to interpretation.

The amendment is vital to ensure that the clause works. There are still too many mistakes made in the initial decision making by the Home Office. Nobody has ever said that the decision-making processes are easy. There were difficulties when my colleagues ran the Department—I was in the Home Office at the time, but responsible for policing. There have been difficulties for a long period, and nobody is saying that it is easy. Let me put that straight. The previous Government had difficulties with managed migration and with first-tier appeals, and the current Government have as well.

On any subjective assessment, on this glorious day, 5 November 2013, the Home Office is still challenged by policy. The removal of the first-tier tribunal will lead the Home Office to make decisions that are unfair and not based on fact, and, as I will attempt to show, that will lead to decisions that would have been overturned had the appeal mechanism been in place. Again, no one says that it is easy, and the Department faces a well documented set of challenges. There is a huge backlog of casework, and the Department is having to hire staff to try to deal with that; there is widespread use of overtime; and there are particular pressures on border staff in relation to checks and secondary checks.

Like many other Departments, the Home Office has faced financial challenges. A lot of money has been taken out of the Home Office, affecting its ability to respond to challenges. The Department has stated that it wants to reduce the administration budget by 50% from the 2010 figure. In my view, it is clear that the backdrop to the clause is that the Department is already struggling to deliver effective decision making and is making mistakes on managed migration. Those mistakes, irrespective of the fact that an administrative review is currently in place, are being overturned on appeal.

Do not listen to me, Sir Roger—

Mark Harper (Conservative, Forest of Dean)

Okay!

David Hanson (Labour, Delyn)

I always say this. Do not listen to me, Sir Roger, because you would expect me to have some criticisms of where we are. I have tried to be open and honest and to admit that things were not hunky-dory and rosy in the garden when my colleagues were in government. That is clear. It is a difficult challenge that demands a certain set of skills to meet it. Again, do not listen to me, Sir Roger. The Home Secretary, the right hon. Member for—[ Interruption. ] Maidenhead. I was going to say Maidstone. [ Interruption. ] I apologise. Constituencies change quite a lot and Maidenhead and Maidstone—perhaps not quite that much.

Roger Gale (Conservative, North Thanet)

Order. My colleague on the left says, “Stop digging.” I think that is good advice.

David Hanson (Labour, Delyn)

Which colleague, Sir Roger? They do not exist.

In March 2013 the Home Secretary gave a damning and accurate verdict on the UK Border Agency before taking it back into the Home Office. She told the House that it had been struggling with the volume of its casework and had been a troubled organisation since it was formed in 2008. She continued:

“UKBA’s IT systems are often incompatible and are not reliable enough. They require manual data entry instead of automated data collection, and they often involve paper files… The agency is often caught up in a vicious cycle of complex law and poor enforcement of its own policies… All those things mean that it will take many years to clear the backlogs and fix the system”.—[Official Report, 26 March 2013; Vol. 560, c. 1501.]

The Home Affairs Committee recently undertook an assessment of the UKBA failings and the problems with the future of immigration control back within the Home Office. In its report from 2012 on the work of UKBA it listed a catalogue of challenges which still exist today. Again, I am being fair: those challenges have developed and grown over time. Any Government would need to reflect on them, but the way the Minister is going about it in clause 11 will not help.

The Permanent Secretary to the Home Office, Mark Sedwill, is quoted as saying:

“Most of us will still be doing the same job in the same place with the same colleagues for the same boss”.

In an evidence session held by the Home Affairs Committee in June the interim director general of UK Visas and Immigration, Sarah Rapson, said that no new people had been employed since the decision to absorb UKBA into the Home Office, apart from those in her private office. When asked whether she thought the immigration service would ever be fixed she replied candidly, openly: “I don’t think so.”

Meg Hillier (Labour, Hackney South and Shoreditch)

Perhaps the figures I obtained from the Library this morning will help my hon. Friend. They show the scale of the problem that remains. In quarter 1 of 2013-14, 61% of new asylum applications were concluded within one year. That is over half, and I suppose we should be grateful for small mercies, but it shows that there is still a long way to go. For the full year of 2013-14, the percentage of visas issued in time was only 39% for family visits, 55% for visitors and only 69% for employment, which this Government are keen to see more of.

David Hanson (Labour, Delyn)

I am grateful to my hon. Friend for those figures, which came from the Library today. I shall quote the figures from the Home Affairs Committee report from last year. I do so not to suggest that responsibility is not shared for some of these problems—it is; the system is partly a shambles and it has been chaotic for many years—but because they will lead me on to my main contention regarding amendment 24, which is that we must assess the decision-making process before we remove the right of appeal.

The agency’s performance in the final quarter of 2012, according to the Home Affairs Committee, is challenging to say the least. There were 4,102 foreign national ex-offenders living in the community while awaiting deportation, and of those cases 65% were more than two years old; the number of foreign national ex-offenders living in the community rose by 122 in that period. Linking back to what my hon. Friend just said, there were 12,816 asylum cases awaiting an initial decision—a 17% increase on the previous quarter. Evidence placed before the Home Affairs Committee revealed a previously undisclosed new backlog in permanent and temporary migration decisions of—wait for it—190,000. The total immigration backlog stood at 502,467 at the end of 2012.

Mark Harper (Conservative, Forest of Dean)

Regarding an allegedly undisclosed backlog, the hon. Gentleman should be aware that I have written to the Home Affairs Committee to draw its attention to the fact that the information to which it referred—cases that had not yet concluded—was information that we had been disclosing to the that Committee over a period of time. For the Select Committee to turn around and say that it was a surprise and that it was new information of which it was not aware was not accurate. I have written to that Committee to put that straight. If it is helpful, Sir Roger, I can furnish this Committee with a copy of the letter that I sent to the Chair of the Select Committee.

David Hanson (Labour, Delyn)

The Minister has fairly put his point on the record. He is challenging the fact that the information was not disclosed, rather than the figure I mentioned, with which I do not think he is disagreeing.

Pat McFadden (Labour, Wolverhampton South East)

Does my right hon. Friend agree that the point is not really whether or not the backlog was secret? The point is the picture it paints of a system that has struggled for years to cope with the case load that it has to deal with.

David Hanson (Labour, Delyn)

I am grateful for my right hon. Friend’s support. I am a Labour party politician, but I am trying to be fair in my approach in this Committee. The difficulties and challenges are not new. They are not the fault of this Government and, dare I say it, they are not even necessarily the fault of the previous Government. They are inherent in a system that to date has not been able to manage the volume, type and complexity of cases before it.

The Home Affairs Committee also said that only 75% of case bundles were delivered to court on time by the agency, which means that 25% were not. The Select Committee’s overall conclusions bear out what my right hon. Friend the Member for Wolverhampton South East said:

“Establishing the UK Border Agency as an executive agency did not resolve the problems experienced by the old Home Office Immigration and Nationality Directorate and there is no reason to suppose that re-integrating those functions back into the Home Office will do so either. Further, significant change, to management structures, information sharing, processes and IT systems will be required if the Home Office is to succeed in raising the standard of its borders and immigration work.”

That is the challenge that the Minister faces and I wish him well with it. On our part, I hope we will continue to work on the shared objective of meeting some of those difficult challenges.

The reason I draw the Committee’s attention to those challenges is because, on top of them, there is significant evidence that there is poor-quality decision making within the Department in the areas affected by clause 11. That is why I tabled the amendment. The latest statistics reveal that 32% of deportation decisions and 49% of entry clearance applications were successfully appealed last year.

The appeal statistics for the areas affected by the clause are quite stark and worthy of the Committee’s attention. They show that the immigration system would be far from fair if the right of appeal were taken away in the areas where the clause would remove it. Success rates have increased over the years, as decision making has got worse. On average 40% of appeals succeed; in managed migration cases, where appeals are being removed by the clause, almost 50% of all appeals succeed. I shall give some detailed figures about the appeals that the clause is removing. In 2007-08, 34% of both first-tier appeals and managed migration appeals were successful. In the past seven to eight years that figure has risen, so that in 2013-14 45% of first-tier appeals and 52% of managed migration appeals have been upheld by the tribunal that the clause seeks to abolish.

A long time ago now, in 1967, when I was, dare I say it, still at primary school, long before human rights were justiciable in UK courts and long before this issue was as dominant as it is today, the Wilson committee said

“it is fundamentally wrong and inconsistent with the rule of law that power to take decisions affecting a man’s whole future”—

that was the phraseology of the time—

“should be vested in officers of the executive, from whose findings there is no appeal”.

That is a fair assessment. The Home Office currently has administrative review: it will look at the appeal mechanism internally, and if that mechanism is not satisfactory for the appellant, the appellant has the right—unless clause 11 is passed—to go to a first-tier tribunal to have the decision independently examined by the judicial system. That is fair because it means that the Home Office is not the sole body reviewing its own decision-making process.

In our evidence sessions, we heard from Adrian Berry, the chair of the Immigration Law Practitioners Association. I will say at the outset, as I am sure the Minister will say it, that Mr Berry probably has a vested interest in appeals being brought forward; that is the nature of the business. I asked Mr Berry:

“Will you give your assessment of the current standard of the decision-making process in the Home Office for immigration issues covered by the Bill, which will remove the first-tier tribunal?”

He replied:

“The Home Office decision making in this area is extremely poor, as the appeals impact assessment notes.”

That is the Government’s own appeals impact assessment. Confirming the figures I have already given, he went on to say:

“Some 50% of managed migration appeals are allowed on points of administrative law, and do not engage human rights or the refugee convention.”

I went on to ask whether he could give an example of something that could be overturned on appeal. I will quote just one of the examples he gave that I think is worthy of the Committee’s consideration. He said that

“a tier 1 investor—someone who invests £1 million in this country—can apply for further leave to remain in order to achieve indefinite leave to remain. If their application for further leave is refused, they currently have a right of appeal to the tribunal on a point of law”.

That example may not be commonplace, but as Mr Berry said:

“If the measure goes through, they will have no appeal right. The likely consequence of that is that they will withdraw their investment and take it somewhere else.”

According to a lawyer who deals with these cases every day of the week, the Government could be turning away, not on the grounds of human rights or asylum but on a point of administrative law, an investor worth £1 million, who will walk away and invest that money in France, Holland or somewhere else. Mr Berry also stated:

“The same would be true for people who have limited leave to remain for the purposes of study and who apply for further leave. The same would be true for people who apply to enter the UK for the purposes of UK ancestry and, perhaps most surprisingly of all, there is an abolition of certificates of entitlement to the right of abode. That is the document that British citizens use to vindicate the fact that they are British citizens when they seek to rely on their British citizenship when overseas. It has nothing to do with foreign nationals.”––[Official Report, Immigration Public Bill Committee, 29 October 2013; c. 73, Q154-156.]

Mr Berry may have an interest; I accept that, but let us hear the Minister’s response to those points.

I quote Angela Patrick of the organisation Justice, in answer to a similar question from me on 31 October 2013. My question was:

“Can you give an indication of your assessment of the current quality of Home Office appeals?”

She replied:

“The statistics say it all… In some cases, almost 50% of decisions are overturned on appeal. That simply says that this is a Department that is exercising its discretion badly.”––[Official Report, Immigration Public Bill Committee, 31 October 2013; c. 87, Q187.]

My amendment 24 does not imply that we oppose in principle removing the clause at the moment; we will consider that shortly and may decide to vote for it, depending on what the Minister says. I genuinely want the Minister to explain how he justifies abolishing a first-tier tribunal appeal mechanism when his own impact assessment, immigration lawyers, Justice and many other organisations I could have quoted are saying that the level of decision making is so poor that 50% of decisions are overturned on appeal. How can he justify it? If this proposal goes ahead, what mechanism is he undertaking to ensure that that level of appeal decision making and first principle decision making is being approved?

If the first-tier tribunal is abolished, as clause 11 proposes, and if amendment 24 is not accepted and there is no draft statutory instrument and no report from the chief inspector of borders and immigration or the Home Secretary that decision making has improved to the extent that it is efficient, effective and fair—those three subjective words that I have included in the amendment—will the Minister give us his estimate of the number of people who do not have their appeals upheld who will not be able to bring their investment to the country, continue their studies or join their families, and who would have, through administration, been able to do so had that first-tier tribunal not been abolished?

It seems to be contrary to a basic tenet of justice that because the Government cannot get it right in 50% of cases, instead of trying to get it right in 100% of cases they abolish the appeal so that nobody notices that those 50% of cases are upheld. Those 50% of people will be, under clause 1 or other clauses of the Bill, lifted, deported or not let into the country because of the changes that are being made. That seems an unfairness that should at least be explained by the Minister.

The decision making of the Home Office, in this view, is really no better than flipping a coin, because 50% of appeals are upheld, and that is not acceptable. These are not short-lived, short-term rights that people have got; these are long-entrenched rights that people have had for many years. The Immigration Act 1971 gave a right of appeal against a range of immigration decisions, following the recommendations of a report by a committee on immigration appeals. That committee which established the 1971 Act, which has survived for 42 years, said:

“However well administered the present control may be, it is fundamentally wrong and inconsistent with the rule of law that power to take decisions affecting a man’s whole future”—

again, the language of the time—

“should be vested in officers of the executive, from whose findings there is no appeal”.

I do not think that anything has changed in the 42 years since that principle was established.

More recently, in the case of Asifa Saleem v. Secretary of State for the Home Department in 2001, Lady Justice Hale, as she was then, said of the right of appeal to the immigration tribunal:

“In this day and age a right of access to a tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the ordinary courts.”

Lord Justice Roach said of the right of appeal under the Immigration Act 1971 that it was

“a basic or fundamental right, akin to the right of access to courts of law”.

I could be chilled and relaxed about those matters if no appeals were being upheld by the tribunal, which would show that, as my right hon. Friend the Member for Wolverhampton South East is concerned about, people are dragging out the system. When 50% of appeals are upheld, however, there is scope for debate about where the dividing line should fall.

I give the Minister credit where it is due. We have had ongoing discussions outside the Committee, and he has been very welcoming during my few weeks as Labour immigration spokesman. He has, as he promised to do when we discussed the matter privately, produced an “Administrative review in lieu of appeals” statement of intent, and he has circulated it to the Committee. He has set out how the administrative review will work. Is any of that different from how administrative review works at the moment? There are 16 bullet points on this statement of intent. Which of those do not currently apply in the Home Office? It is all very well saying, “Here is the way in which we are going to deal with administrative review,” but if the new process is fundamentally not very different from the current one, I contend that the 50% of appeals that are currently upheld will simply glide through the new system as they have glided through the current one.

What is new about this immigration statement of intent? I do not normally ask questions that I do not know the answer to, but I do not know the answer to that one and I would genuinely welcome some indication. The current administrative review process in the Home Office has not prevented 50% of appeals from being upheld, so unless the Minister can point out what is new, I do not see how that can change. I am not the only one to be concerned about that. I refer to Second Reading on 22 October 2013, when the hon. Member for Cambridge, who popped in briefly to the Committee—I do not know whether he plans to return—said:

“I continue to be very concerned, like other hon. Members, about the end of appeals. That could be dangerous when we are not making the right decisions. When we are getting the decisions right, we can look at how we can stop people prolonging the process, but when so many appeals are successful, it shows that there are problems. If we remove people before they have made their appeal, how can we be sure that we will hear the appeal properly? If somebody has been wronged, will there be a chance for them to present their case within a reasonable period of time?”—[Official Report, 22 October 2013; Vol. 569, c. 247.]

I wish he were here to intervene on me. He did not use the words “concerning” or “troubling”; he said that it could be “dangerous” if we do not make the right decisions, and I would like him to expand on whether he remains of that view. When I started the speech, he was here, but he has now managed to find alternative work elsewhere.

Mark Harper (Conservative, Forest of Dean)

Let me reassure the right hon. Gentleman that it was not the quality of his oratory that drove my hon. Friend the Member for Cambridge from the room. My hon. Friend is in a difficult situation: in the spirit of coalition support, he is serving on the Home Affairs Committee, which is sitting now, and on this Public Bill Committee. The Home Affairs Committee is taking evidence from the police officers involved in the gate-gate-gate scandal. One of them is alleged to have misled the Committee in answer to a question from my hon. Friend, which is why he is popping in and out. I thought it was helpful to make that clear to the Committee.

David Hanson (Labour, Delyn)

As you know, Sir Roger, I try to be fair on these matters and to give credence where it is due, and I accept that the hon. Member for Cambridge, given what the Minister has said, has to be there and here. I also accept that his vote will be here, if he wishes it to be, when the time comes—if I decide to move the amendment to a vote.

Mark Harper (Conservative, Forest of Dean)

He will be here if there is a vote.

David Hanson (Labour, Delyn)

If there is a vote, he will be. If there is a vote, I presume he will strongly consider supporting the Opposition on amendment 24, because it was not me, but him, who said:

“I continue to be very concerned, like other hon. Members, about the end of appeals. That could be dangerous when we are not making the right decisions.”—[Official Report, 22 October 2013; Vol. 569, c. 246.]

However, I will not dwell too long on the hon. Member for Cambridge. He is a member of the Committee, and he is working hard elsewhere. He might be back to vote one way or the other, and I am sure he will have listened to the debate through whatever mechanism he can find.

Let me turn now to the right hon. Member for Bermondsey and Old Southwark (Simon Hughes). We know how important he is in the Liberal Democrats. As I recall, he is the deputy leader—

Meg Hillier (Labour, Hackney South and Shoreditch)

President.

David Hanson (Labour, Delyn)

The president or the deputy leader—one of the two. He is something high up in the Liberal Democrats; he is certainly higher up than I am in the Labour party. [ Interruption. ] Well, there is time yet—I am a stripling. Speaking of immigration and asylum casework on Second Reading, he said:

“The overwhelming experience of that casework, which is frequently acute, is that far too often the wrong decision is made at the beginning.”—[Official Report, 22 October 2013; Vol. 569, c. 217.]

Unbeknown to the Committee, he is supporting the potential for the amendment, because he is saying that the quality of decision making is not good, and I agree with him on this occasion.

On Second Reading, my hon. Friend the Member for Slough (Fiona Mactaggart) referred to the Wilson committee report, which I mentioned earlier. She supported its contention that it is

“fundamentally wrong and inconsistent with the rule of law that power to take decisions affecting a man’s whole future should be vested in officers of the executive, from whose findings there is no appeal.”

She went on to say:

“Yet that is in effect what the Government are proposing to do in this Bill, 42 years after the Commonwealth Immigrants Act 1968.”—[Official Report, 22 October 2013; Vol. 569, c. 188.]

On Second Reading, my hon. Friend the Member for Brent North (Barry Gardiner)—this is now confirmed by the administrative notes the Minister has circulated with regard to appeals in clause 11—said:

“As the Bill stands, refused applicants will be required to apply for administrative review within 10 days of receiving the decision. All of us who have extensive correspondence with the Home Office know that most of the decisions come back to lawyers. So lawyers will be required to make that administrative review application within 10 days, but the Home Office must know full well that that simply will not happen. It is not happening at the moment.”—[Official Report, 22 October 2013; Vol. 569, c. 198.]

My hon. Friend’s concern is that the time scales for administrative reviews will mean that most do not happen. Again, that could cause some concern. My contention is that removing the first-tier tribunal will still mean that 50% of cases that are currently upheld are no longer upheld.

Let me turn now to the Minister’s impact assessment on the Bill. In part 2, which deals with appeals, he has helpfully included table 2, which is entitled “Appeals—Summary of costs and benefits”. He has given a 10-year impact assessment of the costs and benefits of this proposal. Included in that is a cost for reduced appeal income to Her Majesty’s Courts and Tribunals Service of £42 million, so we are saving that sum by not having those tribunals take place. The cost is £42 million over 10 years or £4.2 million a year saved by not having that tribunal, which is currently upholding 50% of the appeals which go to it. It is a relatively small cost per annum for that.

The assessment also says—this is the interesting point—that administrative review costs are “unknown”. The Minister does not know, in his own impact assessment, what he believes that the administrative review costs will be. It might well be that that they will increase—or decrease, I do not know—because of the pressures of now not having an appeal mechanism. Some cases are going through administrative review at the moment. They should go through that administrative review, and they go to the tribunal. I do not know whether there will be an even greater impact of people requiring and asking for an administrative review because they know that there will not be an appeal mechanism downstream. There might be much more of that. I would genuinely welcome whatever assessment the Minister has made of the cost of administrative review, based on the provisions of clause 11 if it is passed.

The Minister has also not given any estimate at all of any costs that might be incurred by the Home Office in the event of people applying for asylum or applying for judicial review following the enactment of this provision. I would welcome the Minister’s assessment of this, but I think that there is the potential for a number of individuals who are now being turned down to go to judicial review. This would increase the cost to both the Home Office and, if they can afford it, to the individuals themselves. This would also mean that only the richest people, or those with independent means, could go to judicial review. Therefore of the 50% of cases that are currently being upheld, the poorest people in that 50%—who will now not have their appeal heard—will be the ones to miss out. The richest people in that 50% will be able to undertake judicial review, which will also impact on the Home Office’s costs.

Amendment 24 simply says that we should have some better assessment of the decision making process because—although I would say this—quite frankly I think that that would be right, fair and accurate. The decision making process is not working. If the decision making process was working, 50% of appeals would not be upheld. The Minister is removing that first-tier tribunal and removing the right of that 50% to have their appeal upheld, so therefore before we can agree to clause 11 he must give this Committee some indication of how he will improve decision making. We need to know how he will make it more efficient, how the administrative review will work, and how it will reduce that 50% of upheld appeals, before we abolish clause 11.

Meg Hillier (Labour, Hackney South and Shoreditch)

I fully endorse the comments of my right hon. Friend the Member for Delyn, but I think that there is an additional issue to consider. A number of my constituents have come to my surgeries with basic letters containing material mistakes. I have already privately shared with the Minister some of the challenges we have both faced with that when in position. Likewise, I will give him every support to try to make the system better, but the fact is that as my right hon. Friend has said, the system is as it is now. This primary legislation will affect the fundamental right of appeal for people while the system is not working.

The other point I would like the Minister to respond to is the quality of legal advice that many of my constituents and others are getting at the beginning. Some of these problems, and one of the reasons why some original decisions are overturned on appeal, are also to do with the quality of legal advice that people get at the beginning. The actual application that as MPs we sometimes all see going in does not include some material information which might have resulted in a better administrative decision, because the decision maker would have had in the first place the relevant information which then appears at a later stage. It is a fault of both the Home Office system and the poor quality of some of that decision making, but it is also an issue about the cuts made, often by other Departments, to the legal advice that is available.

For many years now, parts of the UK have been good immigration legal advice deserts, with only a limited number of people to see and, for a poor migrant, the cost of travel is enormous. Improper lawyers out there—some of them are not even lawyers, but advisers—charge a lot of money for low-quality advice and we are aware of the huge changes under way to legal aid. While we have seen a little withdrawal on that, that has not been sufficient to ensure that appropriate legal advice is in place. The Minister needs to be alert to the fact that the Ministry of Justice is effectively cost-shunting many of the services on which it wants to save money to the Home Office and, in turn, the Home Office is shutting off an avenue of appeal to many of my constituents and others who want a fair decision.

All we want is something that is fair and clear and timely. At the moment, the system does not deliver that. I ask the Minister particularly to address legal advice, as without that, the system will never work.

Mark Harper (Conservative, Forest of Dean)

I will try to address the points made by the right hon. Member for somewhere in Wales—it is, of course, Delyn. Let me deal first with his amendment and then as we have dealt with the breadth of the clause, I will deal with points on that in context. His amendment would impose three conditions that must be met before the appeals provisions can come into force. I argue that that is unnecessary and counter-productive.

The clause changes the decisions that give rise to an appeal and the grounds on which that appeal can be brought. That does not affect cases in which fundamental rights are engaged, so asylum and human rights cases, for example, will still have an appeal mechanism. That is worth saying because on Second Reading I think some Members seemed to think—perhaps they no longer have the same view—that the clause also encompassed asylum and humanitarian protection cases where we are talking about not just someone’s economic interests, but their freedom and life.

The right hon. Gentleman spoke about—he repeated this frequently—the quality of decision making. I will not labour this point because he was good enough to acknowledge that we did not inherit a sleek, Rolls-Royce-like decision-making machine, but I will slip in that we inherited, for example, 450,000 undecided asylum applications, and I could give many other examples. We have now largely dealt with those cases and the remainder will be dealt with by the end of this Parliament.

The way in which the right hon. Gentleman quoted the statistics gave a misleading impression. On the quality of decision making, he obviously referred only to those decisions against which an appeal was brought, but of the 295,428 managed migration decisions we took in 2012, only 11% were refused, so 89% of the people who applied to the Home Office for a managed migration decision received one with which presumably they were content. He was referring only to that relatively small percentage that was refused, and we did not receive an appeal for all of those. In the latest set of statistics, admittedly we won only just over half of those cases, but that means that 5% of the decisions that we make are potentially found by a tribunal not to have been accurate. I accept that that is not fabulous and that we should try to improve on that, but his constant repetition that half the decisions that we make are not good gives a misleading impression. His figures were correct—I checked them as he cited them—in that of those cases brought to appeal, we win just over half. We should do better and I will set out how we propose to do that, but it is not the case that half the decisions we make are wrong.

The right hon. Gentleman is also right to say that there were some significant problems. The Home Secretary’s decision to split up the UK Border Agency has two significant benefits. There has been a real benefit for the bit of what was UKBA that is relevant to this debate—the UK Visas and Immigration part of the operation. He is right that most of the people working in that organisation also worked in UKBA, but they now have a very clear job. They are supposed to be delivering a good service to the people who are making applications, which did not always happen in the past. They have a clear job and the new interim director general, Sarah Rapson, who has been quoted once or twice already, has made real strides to improve things, although the process is not going to happen overnight, as the Home Secretary was frank about in her oral statement to the House earlier this year. We have made considerable progress on in-country casework, of which we had a backlog in 2012-13, and there is ongoing work to improve decision quality.

Meg Hillier (Labour, Hackney South and Shoreditch)

The Minister is citing a lot about numbers and he mentioned the backlog his Government inherited. Perhaps he can confirm that the asylum controlled archive of 70,225 cases at September 2012, and the migration controlled archive of 18,791—that is about 90,000 cases altogether—were closed, even though the Home Office had not concluded the cases, because it could not find people. That meant that, by December of that year, those figures were zero. The cases were not all dealt with; they were just written off by the Home Office. I think it fair to put on record that the Home Office wrote off some of those cases because it was no longer in contact with the individuals concerned. That is one way to solve a problem, but perhaps not the best solution for every case.

Mark Harper (Conservative, Forest of Dean)

I will put that straight, though I will not labour the point, Sir Roger, because we will drift off topic. We set out clearly and in writing that we did not just write off those cases. There were more cases than people, as some people had more than one case, as the hon. Lady will know. Many of the cases were very old. We went through an exhaustive process of checking whether those people were still in the UK, and we put all that on record. When we had established that they clearly were not in the country, we closed the cases. It is also worth saying that we did not just write the cases off, as all the information remains on the system.

When people suggested that we had given an amnesty, we made it clear that if we encountered any of those people, their cases would be reactivated and we would take steps to remove them. We went through exhaustive checks to determine whether there was any evidence that they were still in the UK. All the information was made available to the Home Affairs Committee. We published it and, I think, placed it in the Library. I do not think the hon. Lady is right that we just said that we did not want to deal with the cases and would just pretend that they did not exist. That is not an accurate reflection of what happened.

The right hon. Member for Delyn was right that quality of decisions is a focus for the Department. It is partly about the close supervision of new staff and the work we do when we take on new staff—looking at how they make decisions and feeding that back. The chief inspector’s November 2012 report on tier 4 student decisions acknowledged that positive steps had been taken to improve the process by which decision makers learn from appeals, which had not been consistently happening.

The right hon. Gentleman made it sound like there was a process whereby if someone made an application and got a decision, there would be an administrative review process and, if they did not like that, they could appeal. There is not an administrative review process for in-country decisions. The process that we are proposing is analogous to that which already exists for most of the decisions made out of country. I will, however, set out a little more detail as I think that will give the Committee confidence that this is not a novel process. The process already exists for many of the entry clearance applications, with which, on current performance, we deal swiftly and successfully.

Administrative review will be a central part of improving decision quality, dealing with case working errors and feeding back review outcomes much better to decision makers. The right hon. Gentleman rightly asked how we are making the process better. With the overseas administrative review process, we are much better at having a closed loop that feeds back the outcomes of the administrative review process to decision makers and thus improves decision quality. The chief inspector acknowledged in his September 2013 report on tier 1 visas that that was the right approach. Our in-country administrative review process is modelled closely on the approach overseas. Implementing administrative review will help us to make better decisions, which is why the right hon. Gentleman’s suggestion of effectively putting in place a delay to that process would be unhelpful.

For many of the people who get an initial decision that they do not welcome that relates to a caseworking error, an administrative review process will be no more costly that the existing approach, but will be quicker at resolving their problem. It can take many weeks for the independent tribunal service to deal with cases, but the overseas administrative review process is much quicker, so it is in people’s interests that we put such an administrative review process in place.

To be clear, while there is no in-country administrative review process, there is an out-of-country one, under which more than 90% of those administrative reviews are completed within the 28-day target—that is the figure for the quarter ending June 2013. That is much faster than the time it takes someone to go through the appeal process that has been available for some time. There was some scepticism on Second Reading and in last week’s evidence sessions that, given that part of the Home Office makes the decision, the process is just a charade and nothing changes. I made the point then that the initial decision in entry clearance cases overseas is overturned in 21% of cases by the administrative review process, so significant numbers of initial decisions are changed following the administrative review process. I have also set out those details in the statement of intent.

David Hanson (Labour, Delyn)

A response to a freedom of information request published by the Department states that, between July 2012 and June 2013, 6,096 administrative reviews were resolved and that, of those cases, 1,077 decisions were overturned at the first-tier tribunal, which is 18%. What happens to that 18%, or whatever the figure may be in future?

Mark Harper (Conservative, Forest of Dean)

If I understand the right hon. Gentleman correctly, he is saying that under the administrative review process that already exists for overseas decision making, 18% of decisions are overturned.

David Hanson (Labour, Delyn)

No. I am saying that, between July 2012 and June 2013, 1,077 of the administrative review decisions were overturned by the first-tier tribunal, which is a proportion of 18%. My question is: whatever that percentage is, what happens to the people whose appeals are upheld currently, but who will not have that right of appeal in future?

Mark Harper (Conservative, Forest of Dean)

Without having the document in front of me, I am not sure what the right hon. Gentleman means by “administrative review”. We do not have a review process for in-country decisions, although administrative reviews exist for overseas decision making. I am not sure that I will be able to answer his specific question at this point, although I will take a look at the document and come back to him.

Meg Hillier (Labour, Hackney South and Shoreditch)

I have a concern beyond that of getting rid of appeals, which my right hon. Friend the Member for Delyn has talked about in great detail. We as MPs can take up cases with the parliamentary ombudsman when we feel there has been a problem. We are the gatekeeper for that process. Has the Minister or the Department made any assessment of the cost to the public purse due to people coming to see MPs, or going through other routes, to get a maladministration decision or a decision from the ombudsman about how their case has been handled? I have dealt with such cases involving people who have had positive outcomes, but been through a bad process. I cannot see that problem diminishing under the proposals; I can see it increasing. Will he outline what costings have been examined?

Mark Harper (Conservative, Forest of Dean)

The good point that the hon. Lady raises was made during the passage of the Crime and Courts Act 2013, which removed the right of appeal on family visitor visas. I sat down with several hon. Members who had a significant number of constituents with family members overseas who were concerned both for themselves and their staff if there should be a significant influx of extra work. We went through a process to ensure that proper decisions would be made and that there was a proper way of allowing people to supply any extra information required.

I am clear that we are not just trying to move the problem to Members of Parliament, for example. I agree with the right hon. Member for Delyn that this is about making better decisions. One of the roots of our approach is that we are not very good at having a closed-loop process whereby we use appeal decisions to inform the caseworker who made the first decision why their decision was overturned. We are much better at doing that through the administrative review process that we implemented for those decisions from overseas. I am keen to ensure that we have a better process and improve initial decision making. The hon. Member for Hackney South and Shoreditch is right that the better solution—for applicants, and for Members of Parliament —is to make better decisions in the first place for those 5% of applicants who have their case upheld by a tribunal.

To be clear, however, nothing in what we are doing will prevent somebody who has run out of process with us from raising the issue directly with their MP as a backstop, but I assure the hon. Lady, based on my experience so far, that if anything happened in that regard, I would undoubtedly be made aware of it quickly—I am frequently made aware of individual cases—and I would deal with it. I have no intention of using MPs as a way to deal with issues that are not addressed by the tribunal because I know that that would come back quickly to bite me.

Meg Hillier (Labour, Hackney South and Shoreditch)

My concern is not so much about my office and my staff—it is our job to ensure that we represent people and take them through the available processes, and rightly so—as about the potential cost. This is about shunting costs from the Department to the ombudsman. Has the Minister made an assessment of the possible costs? Perhaps he could cite the real-life examples of any increases since the withdrawal of the family visitor visa appeal process, although obviously it is fairly early days on that. If he cannot answer that now, perhaps he will write to the Committee.

Mark Harper (Conservative, Forest of Dean)

I will certainly have a look to see what work we have done in that area. I reassure the hon. Lady that there is no intention that the Home Office will take a narrow view and just try to move the issue around Government or the public sector. This is about genuinely trying to make better decisions.

I am not at all surprised that people are sceptical, given the history under Governments of both parties. What I think will give people confidence is the administrative review process in the managed migration cases that I set out in the statement of intent, which I have circulated to Members. It is broadly analogous to an existing process that we already implement with our overseas entry clearance applications. That process is working successfully in both making a significant difference to decision making and enabling decisions to be made more quickly. People who apply for an administrative review overseas get a much faster review and determination than somebody going through an appeal process.

Forcing people to use an appeal mechanism when there is a caseworking error—I will go through the types of decision in a minute—is not very sensible. I will say, as the right hon. Member for Delyn thought I would, that I can absolutely see why immigration lawyers and advisers want to retain a process that makes people feel that they need advisers, although in my experience it is not always the case that such advisers provide good advice. The hon. Member for Hackney South and Shoreditch is right that some provide good advice and others do not. There are proposals in the Bill, which we will get to later, that will strengthen the ability of the office of the commissioner to further improve the quality of the advice that is provided by immigration advisers. I think the Committee will support those proposals.

I will talk briefly about the cases in which a tribunal makes a different judgment from us. We have looked at a sampling of the cases that the Home Office loses, and about 60% are cases in which we have made a caseworking error. We set out in the statement of intent examples of what we mean by that. In some examples it is alleged that we made an error in calculating the correct period of leave, or that we granted the wrong type of leave, or that we did not consider all the evidence, or the documents were not adequate. For example, there are cases in which we did not correctly apply the evidential flexibility policy, by which we ask the applicant to correct minor omissions in their application before it is decided. Such things account for about 60% of the appeals that we lose. An administrative review process is a sensible means of resolving that type of errors. It would not be sensible to force somebody to go through a legal process in a tribunal, which would impose an inappropriate cost and delay on them and the public sector.

David Hanson (Labour, Delyn)

My point, which I hope the Minister will address, is that we are not forcing people to go through a judicial procedure. If the administrative review still does not uphold their concern, they have the option of a one-off attempt in a first-tier tribunal to have the matter reviewed externally to the Home Office. The Minister’s proposal removes that external “judge over your shoulder”.

Mark Harper (Conservative, Forest of Dean)

I may not be being clear. The right hon. Gentleman is talking as though the process for in-country decisions—the managed migration process—were that we make a decision and then there is an administrative review process for people who do not find their decision favourable, and if they do not like the outcome they can bring an appeal in the first-tier tribunal. That is not the way it works. There is no administrative review process for in-country decisions. People get a decision, and if they do not like it they can appeal against it, which is what they do. We propose that for dealing with those cases it is more satisfactory for people to have an administrative review process.

I do not blame people for being sceptical. However, they can be confident because we already have an analogous process for overseas decisions, for which there is no right to appeal, and it works pretty well. It reviews cases on a timely basis, and in over 90% of cases it gives people a swift outcome. Some people have said, “Oh, of course, it’s just the same people”—it is not the same individuals, but it is the same organisation. I could understand that view if in 99.9% of cases the administrative review concluded that we had made the right decision. But the fact that in 21% of cases it comes to a different decision suggests that it is a robust process that looks seriously at cases and caseworking evidence processes and seriously deals with caseworking errors.

For appeals that are not against caseworking errors—the percentages will not add up to 100%, because there can be more than one ground for appeal—we think that about 30% of points-based system appeals succeed on article 8 grounds. If someone believes they should be allowed to stay in the United Kingdom on human rights grounds, they should make an application on human rights grounds rather than raising it in their appeal against a managed migration application. The Secretary of State can then make a decision on those grounds, which gives them a right to appeal. At the moment the issue of human rights is raised for the first time in the appeal process. It is not right that those decisions are considered by an immigration judge first. They should be considered by the primary decision maker, the Secretary of State. There is then an appeal mechanism, because a fundamental right has been raised. That also answers the question about whether many people will then make human rights or asylum applications. In 30% of managed migration cases in which people have effectively received a no, they already raise such grounds. However, they do so for the first time in the appeal mechanism, which is not the right place; they should make an application on such a basis.

A significant number of appeals are allowed for a technical reason related to a flaw in the Secretary of State’s power to serve removal decisions. That flaw has been resolved by the Crime and Courts Act 2013, so although some remaining decisions will work their way through the system, that power has been corrected, which deals with that point.

Finally—I am sure to the relief of Committee members —about 9% of allowed appeals are allowed on the basis that the judge came to a different conclusion from the decision makers, which is quite a small number. Where there is disagreement about the interpretation of rules or of the law, judicial review is the appropriate remedy.

Having set all that out and put it in context, we have shown that, compared with the total number of decisions and applications, only a relatively small number are successfully appealed. For those that are successfully appealed, we will put in place not an existing mechanism but a new mechanism analogous to one that already exists, that works well and that has been reviewed by the chief inspector—his report has provided evidence that it works well. That is the one that we are asking the Committee to support. We are not asking the Committee to take it on trust, but we are asking it to look at an analogous process that works and is better at improving the quality of decision making. That is the ultimate goal that we are all trying to reach and on which there is some unity. On that note, I ask the right hon. Gentleman to withdraw his amendment.

David Hanson (Labour, Delyn)

In his usual courteous manner, the Minister has tried hard to address my concerns, but I remain unconvinced.

Mark Harper (Conservative, Forest of Dean)

Extraordinary.

David Hanson (Labour, Delyn)

Much as I try to reach out the hand of friendship to Ministers on occasion, we sometimes have to agree to differ. My central difference with the Minister in this case is that, despite all he has said, some people whose cases would currently be upheld by a tribunal will not have their case upheld under his proposals. In my view, they would be unfairly—internally, within an admin review—denied the opportunity to have the fairer outcome to the application process that they would have if the tribunal still existed.

Although the Minister has tried hard, I wish to test the will of the Committee on amendment 24. I do not intend to vote against clause stand part this time, because I want to reflect on what the Minister has said and return on Report with a specific amendment. I want the Committee to vote on the amendment, but we will reserve our judgment on clause 24 until another day.

Clause 12 - Place from which appeal may be brought or continued

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment 1, in clause 12, page 10, line 27, leave out ‘foreign criminals’ and insert ‘persons liable to deportation’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss Government amendments 2 to 9.

Mark Harper (Conservative, Forest of Dean)

The amendments relate to clause 12(2) and (3) and would slightly broaden the power under the Bill to make foreign criminals depart from the UK first, and appeal afterwards. The new power is to help to speed up the deportation of harmful individuals, including foreign criminals. At present, all appeals where there is a human rights claim suspend deportation unless the claim can be certified as clearly unfounded. As the Home Secretary has made clear, where there is no risk of serious irreversible harm we should deport foreign criminals first and hear the appeal later, from overseas.

The provision would mean that those facing deportation could be deported, and their appeal could be heard later, while they were out of the country, if the Secretary of State certified that that would not breach the UK’s obligations under the European convention on human rights. In particular, the certification would have to include their not facing a real risk of serious irreversible harm if they were removed before the appeal was heard. That builds on the Crime and Courts Act 2013, in which similar provisions were made for out-of-country appeals in national security deportation cases.

The serious irreversible harm test is used by the European Court of Human Rights when it decides whether an individual’s deportation must be suspended pending conclusion of litigation, and in its rulings on what types of claim must be granted an in-country appeal. In the de Souza judgment of 2012 the Grand Chamber confirmed that there must be a suspensive appeal in cases where there was arguably a threat to life or a risk of torture. We propose to keep to that. In cases that raise issues about family or private life, the Court made it clear that a suspensive appeal would not normally be required, as long as removal would not cause serious irreversible harm.

I assure the Committee that an arguable asylum claim would never qualify for certification under the power. However, a criminal might suffer no serious irreversible harm in being away from his or her family temporarily during the appeal, even if it is claimed that permanent deportation would be contrary to the right to a family or private life. In the majority of criminal cases there would already have been a substantial interruption to family or private life during the period of imprisonment. Every case will be considered on its facts, and a decision will be made on whether the test for certification has been met.

The clause as originally drafted would apply only to foreign criminals, and so would be focused on those convicted of a serious offence. On reflection, we realised that that definition would leave out a cohort of harmful individuals who should not have a suspensive right of appeal; that is what the amendments are about. That group would include individuals who were being deported from the UK on the ground that their presence would not be conducive to the public good. That is a slightly broader judgment than automatic deportation on the ground of a single serious offence.

The relevant cohort would include, for example, gang members where witness intimidation had prevented a successful prosecution, but where there was sufficient compelling evidence about conduct to be used in an immigration decision. I emphasise that everyone certified under the power will still have an appeal if they have a human rights-based claim; and if their appeal is successful they will be able to return to the UK. We think, however, that where there is no risk of serious irreversible harm we should be able first to deport foreign criminals and those considered not conducive to the public good. They would then have to pursue their right of appeal from overseas.

The reason for that approach came up in the evidence-taking sittings, and it is that many people use the appeal mechanism not because they have a case but to delay their removal from the United Kingdom. In some cases, they attempt to build up a human rights-based claim under article 8, which they subsequently use, sometimes successfully, to prevent their departure. We want to put a stop to that sort of behaviour by people who are criminals or people whose existence in the United Kingdom is not conducive to the public good. I hope the Committee will support the Government amendments.

Julian Huppert (Liberal Democrat, Cambridge)

I apologise for missing the beginning of the Minister’s comments. It is slightly frustrating to have a Select Committee meeting at exactly the same time as this sitting. I apologise if he has already covered the issue that I am about to raise. What sort of methods do people have to challenge the labelling of being someone who is “not conducive to the public good”? How will the Minister ensure that their appeal is held in prompt time and under reasonable circumstances so that they are not just left waiting for many years?

Mark Harper (Conservative, Forest of Dean)

My hon. Friend can be reassured that, in the spirit of coalition bonhomie, I did actually explain his absence. When he reads the record, he will notice that the right hon. Member for Delyn was lamenting his absence during the debate on the appeals right. I stepped in to explain to the Committee that he was double-hatted today and serving on the Home Affairs Committee. I also explained that he had to be absent because of the nature of the debate and his involvement. I put all that on the record, and I hope he welcomes that.

On the Home Secretary’s power to deport someone on the ground that their presence is not conducive to the public good, her decision making is partly governed by the legislative framework for those decisions and also by the general view that she must take those decisions in a proportionate and lawful way. If someone disagrees with the original decision to deport someone on the ground that their presence is not conducive to the public good, they can challenge the Home Secretary. Before even getting to the discussion about whether they should be able to appeal against their removal, it should be said that there is a legal basis to the argument in the first place.

On the appeal of the speed mechanism, my hon. Friend is right to say that it should not be artificially prolonged. The Home Office does not run the appeals and tribunal service. I have not seen any evidence that an appeal in such a case would be unduly prolonged. He may have some specific cases in mind, but it is certainly not the intention to deport somebody—a foreign criminal—and then so arrange the administrative process in the tribunal service that they never get to one.

It is difficult to avoid the conclusion that many people who use an appeal—I know this from having looked at long immigration histories and I am sure that the hon. Member for Hackney South and Shoreditch, who has served in the Home Office, will know this as well—are doing so as a mechanism for delaying their removal, especially when their removal is inevitable. They do it to try to build up some of their rights under article 8 to try to subvert their removal. I do not think that people who are serious criminals or whose presence is not conducive to the public good should be allowed to get away with misuse of the system. Again, we cannot do it, and we should not do it, in cases where they might suffer serious irreversible harm. The Secretary of State has to certify that that is not the case before the power can be used. I hope that that provides my hon. Friend the Member for Cambridge with the assurance that he requires.

David Hanson (Labour, Delyn)

The Opposition do not oppose clause 12 and will not divide the Committee on it. None the less, I must test the Minister slightly more on his amendments. He obviously tabled them very late in the day. He knows that the Bill has not had pre-legislative scrutiny and that it effectively received an unopposed Second Reading. There were people who voted against the Bill, but the official Opposition did not, yet he is tabling major amendments that change quite significantly the nature of the provisions in clause 12. The Minister cited gang members as the one example of people who are “not conducive to the public good”. Members will be aware of the case of Pepper v. Hart, which effectively said that the courts can interpret legislation by what is said in Committees, such as the one we are in today. Giving one example provides only a narrow definition of

“deportation conducive to public good”.

The clause, as amended, gives great discretion to a future Home Secretary, who will be responsible for the legislation, to determine who is deported under that definition. The Minister related the definition to gang members, but I would like him to state why this late amendment was tabled. He said that the matter has been considered, but we have not yet had sufficient explanation of what it will mean in practice. I am saying that to save him difficulties downstream should the legislation be passed, because I can envisage many circumstances in which the Minister could determine that deportation would be conducive to the public good, and he could face challenges on what that actually means. At the moment, the definition refers to gang members only. I would appreciate some clarification either now when we agree to the amendment, to which we will give a fair wind, or later. It is in the Minister’s interest to put more flesh on those bones either now or through advice circulated via the Chair and the Clerk to members of the Committee, pending the confirmation on Report about whether that definition can be widened or clarified.

My second question is whether the Minister has any indication of the numbers of people that would be involved after the widening of the current definition. He can presumably tell the Committee how many people he anticipates would fall under the existing definition in clause 12, because “foreign criminals” is clearly defined in proposed new section 117D of the Nationality, Immigration and Asylum Act 2002. I am sure that the Minister can tell us how many fell under that definition last year or the year before, and how many he would expect this year, next year or in any future year. I am not sure, however, whether he can tell us how many of those deportations would be “conducive to the public good”. That is important because we have heard today about the challenges that the agency in the Home Office faces on these matters. It would be helpful if the Minister explained what the work load, the potential for challenge and the additional responsibilities might be.

There are two other important aspects. What will happen if the Secretary of State certifies a person’s appeal, but that person is not removed from the United Kingdom? If a person wins an appeal, how quickly can they come back from wherever they happen to be, which could be, although the Minister has provided some important caveats, a challenging area in the world?

The Minister needs to provide a little more information, if only to guard a future Minister’s back, on the implications of the proposals.

Mark Harper (Conservative, Forest of Dean)

On the Home Secretary’s power to deport people on the ground that their presence in the UK in not conducive to the public good, I cannot give the right hon. Gentleman an exhaustive list of examples, because the whole point about that power is that the Home Secretary must exercise some judgment. However, that judgment will be based on established legal principles for whether it is proportionate and takes proper evidence into account. The Home Secretary cannot just make a judgment about someone on a whim. Any judgment can also be subject to legal challenge. I will give the right hon. Gentleman another example, but it is not possible and would not be right to provide an exhaustive list. It is unhelpful to have undue specificity, because the danger there is the implication that cases that do not fall within those defined are therefore not covered.

The Home Secretary’s power is deliberately flexible, but not wide, in the sense that she has to have proper evidence. I know from the decisions that she takes on these matters that she makes them very carefully, with comprehensive advice, and it is well acknowledged in the Department that they are subject to legal challenge. It would be fair to say that, on a whole range of the Home Secretary’s decisions, it is not unknown for there to be legal challenge. So the Department is well aware that decisions have to stand up to that.

Another example, so that we do not get segmented in gang members, is that we may have intelligence that shows that an individual is a member of a serious organised crime syndicate. The nature of the intelligence means that we could not prosecute the individual. That criminal could have valid leave in the UK as an investor and he could use that leave to travel to and from the UK freely and to conduct the illegal activities of his crime syndicate. The Home Secretary could consider the intelligence against the criminal and decide to deport him, because his presence in the UK is not conducive to the public good. The decision would be certified to be considered by SIAC, on the basis that it has been taken considering secret intelligence.

The criminal then puts in an application on the basis that it will breach his article 8 rights, as he can no longer associate with his business partners in the UK. Under the original definition of the clause, that case would not fall to have a non-suspensive appeal and, having put in for article 8 rights, he would have had the right to delay being removed. Under our amended proposals, he would be removed from the United Kingdom and have to file his appeal from overseas. We think that would be right, but I will not give the right hon. Member for Delyn an exhaustive description, because it is not that kind of power. It is not one where you can put down every kind of scenario. The Home Secretary has to have the power to look at the facts of the case and the point is that she has to exercise those powers in an established way—case law sets out how she has to exercise them—and they are sufficiently ring-fenced.

I do not have the figures to hand, but since the right hon. Gentleman has said that he will not divide the Committee now, but reserves the right to come back on Report, it might be helpful to indicate to the Committee the historical cases which would be subject to the original definition in the Bill. I cannot, of course, give him future cases, because I do not know how many foreign national offenders there will be.

Again, I cannot give the right hon. Gentleman future numbers, but I can give him some statistics about the number of people for whom the Home Secretary uses her power to deport on non-conducive grounds. It is a very small number, so we do not anticipate this being used in a large number of cases, but those for which it is appropriate will, by definition, be quite serious. Given that we have primary legislation, we felt that this was a gap that we did not want to leave and that we had not considered when we were first drafting the Bill.

I hope that that is helpful. The right hon. Gentleman has indicated that he will not press the matter now, but I accept that he has some remaining questions which I will seek to answer while the Committee sits and before we reach Report.

David Hanson (Labour, Delyn)

My question is meant to be helpful, to clarify and not to cause the Minister any difficulty. It is about family members. At the moment, it is clear that a family member of an individual who has been convicted as a foreign national criminal has a relationship with somebody who has been convicted. Yet somebody removed because it is deemed to be conducive to the public good may have no convictions, but the decision is related to a range of material that the Minister has outlined in part—I understand his wish not to specify every circumstance. Again, it would be helpful either now or in writing before Report if he reflects on what that means for a family member of such a person. The proposal means that the Secretary of State can determine that an individual can be removed because of the conducive to public good element. As I understand it—and unless the Minister tells me otherwise—that could also apply to a family member who may have committed no crime, may not be involved in any crime whatever, and may individually have the right, or be applying for the right, to remain in the United Kingdom.

Mark Harper (Conservative, Forest of Dean)

I think I can partly answer that final point and, if there is anything further, I may then write to the right hon. Gentleman and other members of the Committee. I think we covered the general point when we talked about removals some time ago. Clearly, if the family member is a British citizen, an EEA national or has the right to be in the UK in their own right, the fact that a family member is being removed will not have an impact. It is clearly more complex if their right to be in the UK is related to the primary person, and if they are in the process of making an application. Those are the factors that have to be taken into account.

On that latter point, where the situation is more complex, I undertake to write to the Committee in good time before Report. I want to be clear rather than effectively winging it. I hope that will satisfy the right hon. Gentleman. If we finish Committee stage and the right hon. Gentleman is not satisfied before we get to Report, given that he is broadly content with what we are doing in this area, I am happy to have discussions with him.

David Hanson (Labour, Delyn)

The purpose of my questioning is not to be difficult for the Minister. It is simply to pose the type of question that will be posed by individuals who will be subject to the legislation downstream, if it is passed. The definition of family member and the relationship of family member are important, particularly in the circumstances where somebody might be resident in the UK because of a relationship to someone deemed not to be conducive to the public good, or is an individual who might be in the process of applying. They may not know that the other family member is deemed not to be conducive to the public good. There are occasions when people do not know the other lives that people lead.

I think it needs testing so that an individual subject to the legislation will have clarity from the Minister on its impact. I welcome the Minister’s offer to write to you, Sir Roger, and your co-chair with a copy to me. That will assist us in considering the clause.

Clause 14 - Article 8 of the ECHR: public interest considerations

Julian Huppert (Liberal Democrat, Cambridge)

I beg to move amendment 35, in clause 14, page 14, line 3, at end insert ‘or

(c) was born in the United Kingdom and has always lived in the United Kingdom;’.

The focus of the amendment is partly to understand the definition of qualifying children, but also to explore the consequences in relation to the rights of the child. I will start with that broader issue, and will be grateful if the Minister could clarify how this part of the Bill fits with the United Nations convention on the rights of the child. I am sure that the Minister does have an answer. Article 3(1) says,

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

That underpinning rule has fed into a lot of court judgments, which I will not read to the Committee at this stage. I am sure the Minister has looked at the UN convention on the rights of the child. It would be helpful to understand how he has assured himself that there is no contradiction. We would all want to see that level of support.

The specific point of the amendment is to understand what is meant by qualifying child. The interpretation talks on a number of occasions of who is a qualifying child. It talks of a person under the age of 18. There are two categories. One is if that child is a British citizen, and that is relatively clear. The next is that they have lived in the UK for a continuous period of seven years or more. I am interested to know where that period of seven years came from, as opposed to any other number. That leaves out children who have been here a considerable part of their lives but not yet for seven years. This is a probing amendment to understand these issues. Would we want the definition of a qualifying child to include a six-year-old who was born here and has never left? It seems to me that they are very much a British person. We would expect them to count as a qualifying child. If they came here at the age of three months they would have been here for six years. It seems odd that we would not count them as a qualifying child.

As ever, the issue is not the precise wording of the amendment. I am simply keen to understand how the Minister has ensured that the measures are compatible with the UN convention on the rights of the child. What definition has he used for who a qualifying child is? Can he expand on how that works? Could he show any flexibility in that? It is a critical part of this whole chain which is writing existing interpretation into the law. I understand that, although I do not entirely agree with the interpretation. I accept that that is different discussion, but I should be grateful if he could clarify the question of children here.

Priti Patel (Conservative, Witham)

I want to follow on from the points made by the hon. Member for Cambridge about children. I also seek some clarity here. To what extent will the measures in clause 14 clamp down on many of the associated abuses that we have seen with article 8? Judicial activism, which has rightly been referred to in our wider debates, has prolonged the presence in this country of people who clearly have no right to remain here and that undermines public confidence in the immigration system.

Guy Opperman (Conservative, Hexham)

I rise to address the amendment proposed by the hon. Member for Cambridge, which goes to the heart of article 8 of the ECHR. It concerns the length of time that an individual has been in the United Kingdom and what constitutes a qualifying partner. Relevant to that, as I am sure he will be aware, is the long history of how the coalition Government and previous Governments have addressed what constitutes the human right, what constitutes an article 8 right and what constitutes a qualifying partner within the confines of the balance between immigration rules, whether it is under the very old system, the 2007 Act or the present rules, and how an immigration judge assesses a problem.

The deportation of a foreign national has been the subject of much political and public debate. Traditionally it was a matter of case law. The case law can be traced back fundamentally to the Immigration Act 1971. I am sure others could go back beyond that Act but I was in short trousers then. Section 3(5) states:

“A person who is not a British citizen is liable to deportation from the United Kingdom if… the Secretary of State deems his deportation to be conducive to the public good”.

The previous Government quite rightly attempted to make the process more robust. I was not in this House but in 2007 the UK Borders Act was passed. I attempted to find out who introduced that Act, but as we all know, there were three Home Secretaries—none of whom represented Maidstone or Maidenhead at the time, I hasten to add—between 1 May 2006 and June 2007. All of them, interestingly, have departed this House.

Whether it was Charles Clarke, Dr John Reid or Jacqui Smith who proposed and ultimately introduced the 2007 Act, I know not. What is absolutely clear is that under sections 32(4) and 32(5) of that Act, the Secretary of State must make a deportation order in respect of a foreign criminal. Clearly, Parliament at that time, under the previous Government, was attempting to make the existing situation prior to the 2007 Act more robust. A foreign criminal was then defined as a person who was not a British citizen but who was convicted in the United Kingdom of an offence and sentenced to a period of imprisonment of at least 12 months. The reality was that the traditional law on the matter came from a variety of ECHR sources and was then interpreted by the House of Lords in its decision on Huang v. the Secretary of State for the Home Department in 2007, paragraph 11. Lord Bingham’s decision sets out the procedures by which the UK courts should assess such a case.

The coalition Government was elected in May 2010, and the Home Secretary decided to introduce the immigration rules, which were a clear attempt to make the 2007 Act more robust. One can see the gradual progression of Home Secretaries of different hues creating a more difficult situation for the foreign criminal. The Home Secretary certainly expected that the immigration rules would weaken article 8 rights for foreign criminals. That was the clear intention, but in the Court of Appeal case of MF (Nigeria) v. the Secretary of State for the Home Department, reference number C5/2013/0398, in a unanimous decision by the Master of the Rolls and two others, Lord Dyson set out an assessment of the immigration rules.

This is particularly relevant to the hon. Member for Cambridge, as the case of MF is very relevant to his proposed amendment. I will deal briefly with the facts of the case, but I refer anybody interested in that particular point to the extensive judgment of Lord Dyson. I suggest that it also dovetails with the point, of which hon. Members will be aware, about the delays in the system.

MF was a citizen of Nigeria who entered the United Kingdom illegally in March 1998. In September 2006, some eight years later, he claimed asylum. In November 2009, he was convicted of handling stolen goods and use of a false instrument, for which he was sentenced to 18 months’ imprisonment. He was, therefore, a foreign criminal as defined in the 2007 Act. Accordingly, under section 32(5) of the Act, the Secretary of State was required, subject to section 33, to make a deportation order. However, on 28 March 2009, MF had the good fortune to marry one of his co-appellants, SB, at a time when it was known by all concerned that his immigration status was, to quote the Court of Appeal with its famous undertones, “precarious”. He had probably already been charged with offences.

SB had a daughter, F, by another person. Therefore, F was MF’s stepdaughter. In that context, the case was heard first by the first-tier tribunal; MF obviously sought leave to stay. The case was subsequently heard by the upper tribunal. I am paraphrasing a long case, but eventually his case was heard by the Court of Appeal, which found very much in favour of MF.

MF was therefore in a position where, if one understands the case, the clear effect was that the existing immigration rules were not sufficient—notwithstanding the facts that I have set out, nor the fact that the appeal was in relation to a stepdaughter—to secure his deportation. Although many deprecatory things were said about the conduct of the individual, the gentleman was allowed to stay here. I want to set that in the context of the comments of the lady from Justice who gave evidence to us several days ago. If you will give me one more minute, Sir Roger, I will finish on this point.

Simon Kirby (Conservative, Brighton, Kemptown)

Hear, hear!

Guy Opperman (Conservative, Hexham)

I am most grateful for my hon. Friend’s assistance. The context is that Angela Patrick from Justice made it clear that the process by which clause 14 was being introduced would make the immigration rules more robust. Having studied the case of MF, I am not persuaded by the amendment tabled by the hon. Member for Cambridge. With your indulgence, Sir Roger, I shall stop there.

Mark Harper (Conservative, Forest of Dean)

I should make it clear that I do not think the amendment is a good one, but—I suspect this might be why my hon. Friend the Member for Cambridge tabled it—it does provide a good opportunity to set out how the Government think the article 8 provisions in the Bill dovetail with our legal responsibilities to consider the best interests of the child.

My hon. Friend mentioned the other legal provisions that govern our obligations towards children: the United Nations convention on the rights of the child and section 55 of the Borders, Citizenship and Immigration Act 2009, usually referred to as the children duty. Having mentioned that and previous immigration Acts, I should say in passing that I was quite worried, although perhaps I should not have been, when listening to my hon. Friend the Member for Hexham describe the UK Borders Act 2007. That Act seemed to get through quite a number of Ministers as it progressed. I hope that I can steer the Bill on to the statute book and come through the process unscathed. My hon. Friend’s explanation of the passage of the 2007 Act made me slightly nervous.

Returning to the specific point about children, the two provisions mentioned by my hon. Friend the Member for Cambridge—the UN convention on the rights of the child and section 55 of the 2009 Act—have in common the fact that, as interpreted in particular by the Supreme Court in ZH (Tanzania), they establish the fact that the best interests of the child are a primary consideration. That means that, in discharging the children duty, the Secretary of State must have regard to the best interests of the child as a primary consideration and ask herself whether any other considerations outweigh it. That does not mean that it is the only thing that must be considered, but it is a very important thing to consider.

I am mindful of what the hon. Member for Hackney South and Shoreditch said in her well argued remarks earlier. She made the point that it cannot be the case that the existence of a child trumps everything else because, apart from the fact that there might be other factors, of which criminality might be one, that would mean that children would become tools of people who are up to no good. The provisions in the Bill protect children by not allowing them to be a mechanism for getting around the provisions that are in place.

This is a difficult issue. Cases involving children and families are particularly difficult, as we saw in our earlier debate, because although the adults concerned may well be immigration offenders or may have committed serious wrongdoing, and at the very least are in breach of the law and have taken decisions in full knowledge of what they have done, those factors do not apply to their children. Judgments in those cases are difficult, but that does not obviate the need to make them.

In the case of AJ (India), the Court of Appeal analysed ZH (Tanzania) further, and made some very important comments at paragraph 43 of the judgment:

“As Baroness Hale stated...in ZH, consideration of the welfare of the children is an integral part of the Article 8 assessment. It is not something apart from it...The absence of a reference to section 55(1) is not fatal to a decision. What matters is the substance of the attention given to the ‘overall wellbeing’...of the child...The welfare of children was a factor in Article 8 decisions prior to the enactment of section 55...The primacy of the interests of the child falls to be considered in the context of the particular family circumstances, as well as the need to maintain immigration control.”

I have quoted all that because some people have said that the best interests of the child are the primary consideration and outweigh all other factors. That is not correct. Some people have also said that the best interests of the child must be considered first, before all other factors. That is also not correct. Technical legal arguments about whether the best interest of the child is “a” or “the” primary consideration, or the order of consideration, are a distraction. What matters is that we comply with the obligation to treat the best interests of the child as a primary consideration, and the clause is entirely consistent with that.

When we introduced the immigration rules in June 2012 —my hon. Friend the Member for Hexham referred to the Government’s previous attempt to lay out a clear view, and both Houses of Parliament agreed the immigration rules unanimously—we said that we wanted to ensure clarity and consistency in decision making while having regard to our obligations under article 8 and the children duty. A rules-based approach means that everyone is clear about the consequences of overstaying or committing criminal offences and that Parliament decides where to draw the line.

Some lawyers have argued, as did some of the people who gave evidence to us last week, that each case must be looked at on its own facts, that effectively there can be no rules at all and that it is not for Parliament to make judgments about the public interest. That approach provides plenty of work for lawyers, who can then argue that their client’s case is different from every other case—or, if it suits them better, that it is just like another case—but it leaves decisions in the hands of lawyers and the courts. It does not allow this Parliament to set out its view, nor does it allow the Secretary of State to make decisions. She is of course the person to whom Parliament has entrusted that decision making. It is right to set out some rules, as we did with the immigration rules and as we are also doing in the clause.

The children duty requires us to have regard to the best interests of the child when making immigration decisions, and the Bill does not change that. I labour that point because, although my hon. Friend the Member for Cambridge did not say this, we heard evidence from a number of organisations—some of them very reputable, on whose judgment I would normally place a great deal of weight—that said that the clause somehow puts aside the need to have regard to the best interests of the child. That is simply not the case.

I will set out a few details for clarity. The clause applies when a court or tribunal is considering article 8 in an immigration case, and sets out what the public interest requires. Those public interest tests or arguments are countervailing factors that must be balanced against the best interests of the child.

Proposed new section 117B of the Nationality, Immigration and Asylum Act 2002 relates to non-criminal cases. It refers to the need to enforce immigration controls and to protect the economic well-being of the UK, both legitimate aims under article 8(2) of the convention. But we have had regard to the children duty and subsection (6) sets out that the public interest does not require the removal of a person who has a qualifying child where it would not be reasonable to expect the child to leave the United Kingdom.

Proposed new section 117C of the 2002 Act applies additional public interest factors to foreign criminals. Again, we have had regard to the children duty, and subsection (5) provides that, where the foreign criminal has been sentenced to less than four years’ imprisonment, the public interest does not require deportation where there is a qualifying child and the effect of the criminal’s deportation on the child would be unduly harsh. The test is higher for criminals than it is for non-criminals, because of the greater public interest in their deportation. That distinction was accepted by Baroness Hale in ZH (Tanzania). She said:

“If the prevention of disorder or crime is seen as protecting the rights of other individuals, as it appears that the CRC would do, it is not easy to see why the protection of the economic well-being of the country is not also protecting the rights of other individuals. In reality, however, an argument that the continued presence of a particular individual in the country poses a specific risk to others may more easily outweigh the best interests of that or any other child than an argument that his or her continued presence poses a more general threat to the economic well-being of the country.”

So, both the economic interests of the UK and the prevention of disorder and crime are legitimate factors to weigh in the balance when considering the children duty, but, unsurprisingly, criminality is a more weighty factor. That is not to say that an article 8 claim on the basis of family life with a child born in the UK with less than seven years’ residence could never succeed in outweighing the case for deportation. Such a claim could of course be argued, but would need to demonstrate very compelling circumstances over and above the family life exception, taking into account the public interest in deporting foreign criminals and the seriousness of the offending.

Rather than ignore or overlook the best interests of the child, clause 14 provides very specific protection to a qualifying child, similar to that contained in the current immigration rules. The Bill defines a qualifying child as a child who is a British citizen or has lived in the UK for a continuous period of at least seven years. My hon. Friend’s amendment is intended to extend that definition of a qualifying child to include a child who was born in the UK and has never lived anywhere else. I think that attempting to change the definition shows a misunderstanding of the effect of the clause. The best interests of the child have to be considered in every case. The reason for setting out the specific test in clause 14 for when the public interest does not require deportation is to ensure that, as reflected in case law and the current rules, we have clarity and consistency.

In cases that do not fall within the scope of clause 14, consideration will need to be given to the individual facts of the case, having regard to article 8 and section 55. The Bill does not cover every possible situation in which an article 8 or section 55 issue may arise and it would be too complex and unwieldy to attempt to do so. When considering the best interests of the child, the fact of citizenship is important, but so is the fact that a child has spent a large part of their childhood in the UK.

My hon. Friend asked where the period of seven years came from. It is not a number that we simply invented for the Bill. It is based on a previous seven-year concession for children, known as DP5/96, which was a concession against deportation where children had accumulated seven years of continuous residence. It was withdrawn in December 2008 in favour of a case-by-case approach applying article 8. However, as we made clear in the debate on the rules, that left it to the courts to develop the policy on what article 8 required and led to uncertainty and inconsistency. We want to redress the balance, and our starting point is that where a child has been in the UK for seven years, that has significant weight when considering article 8.

In EA (Nigeria) in 2011, the court said that, in the case of very young children—from birth to age 4—the child is primarily focused on themselves and their parents or carers. It said that very young children do not typically form any deep or strong friendships outside the family, such as will happen as the child grows up and begins to develop more independence. We have acknowledged that, if a child has reached the age of seven, it will have moved beyond simply having his or her needs met by the parents. The child will be part of the education system and will be developing social networks and connections beyond the parents and the home. However, a child who has not spent seven years in the UK, either will be relatively young and able to adapt, or, if they are older, will be likely to have spent their earlier years in their country of origin or another country.

A child who is born in the UK and has never lived anywhere else is not analogous with a British child or a child who has lived in the UK for seven years. The child may be a week old, a year old, or five years old. In every case, the best interests of the child will need to be considered, but where the parent has no right to be in the UK, or is being deported, we would expect, if there are no special circumstances, the child to accompany their parents. We do not want to create a position in which the moment a person has a child in the UK the article 8 balance shifts in their favour, which I think is what I said earlier. That recognises the point raised by the hon. Member for Hackney South and Shoreditch.

If the amendment tabled by my hon. Friend the Member for Cambridge were accepted, it would effectively mean that, as soon as a child came into existence, someone would have a much stronger article 8 case. Creating that automatic presumption would not be helpful.

In a globalised world, many people reasonably and legitimately take their children temporarily to another country before the family return to their country of origin. Sometimes a child is born abroad, and I hope no one is suggesting that by moving to another country and returning home the parents are breaching their child’s human rights. In many cases, the parents’ aim is to enhance the life and experience of their children by exposing them to different cultures and countries. It is wrong to suggest that removing a family from the UK who have entered temporarily or illegally and have no lawful basis to stay is a breach of article 8, or of the children duty, if they have had a child here. That puts a huge premium on having a child in the UK and would send a bad message about the value of a child as a means of circumventing immigration control. I hope that my hon. Friend will reflect on that and feel able to withdraw his amendment.

Julian Huppert (Liberal Democrat, Cambridge)

I will be extremely brief, because I know that hon. Members are keen to finish. The Minister’s comments have been helpful, and I will carefully go through and reflect on what he said. Unlike some hon. Members and Members of the other place, I am not a lawyer. I beg to ask leave to withdraw the amendment.