Immigration Bill — Committee (3rd Day) (Continued)

House of Lords, 1 February 2016.

Lord Paddick (Liberal Democrat)

My Lords, Amendment 184, in my name and that of my noble friend Lady Hamwee, concerns the power of immigration officers to examine the immigration status of those entering the UK. Clause 20(2) inserts the ability of the immigration officer to curtail existing leave to enter the UK. The amendment would replace the consideration of whether the leave “should be” curtailed, which implies an inappropriate degree of discretion, and substitute “is required to” be.

Also in this group is our opposition to Clause 21 standing part of the Bill. It seems disproportionate that immigration officers should have the power to search premises simply to establish whether an employer should be given a civil penalty for employing an illegal worker, or to establish whether a landlord should be given a civil penalty for leasing a property to a disqualified person. Immigration officers already have powers to search for evidence in relation to criminal offences related to these two activities. Surely it is only in the most serious cases, where a criminal prosecution would at least be being considered, that it would be appropriate for immigration officers to search premises in this way. It is rare for powers of search to be granted in connection with civil penalties in British law, and Clause 21 should not undermine such a principle.

We also oppose Clause 22 standing part of the Bill. This clause allows an immigration officer who is lawfully on premises to seize anything that he thinks may be evidence of any offence, under any legislation, if he thinks it necessary to prevent the evidence being concealed, lost, altered or destroyed. Initially, this appears a sensible approach, to obviate the need to call for police assistance when something is discovered that is not related to an immigration offence—for example, discovering what appear to be class A drugs.

Police officers receive extensive training in securing and preserving evidence, and in the questioning of suspects in relation to the discovery of evidence during searches. In addition to the need to carefully question the subject about the ownership of the items in question, since usually the owner of the premises denies that the item belongs to them, there is the question of whether photographic or forensic evidence is required in situ. I have been involved in searches of premises, and there have been many cases of police being involved in searches of premises where the very facts that the substance in question was on the premises and who it belonged to have been questioned subsequently in court. It is something of which the police have now had extensive experience, and they know how to handle these situations. I suggest that it would take a lot of training and experience for immigration officers to reach the level of expertise necessary to ensure that convictions subsequently take place. Either immigration officers will require extensive, and necessarily expensive, training in evidence preservation and the questioning of those suspected of non-immigration offences, or there is a real danger that valuable evidence will be lost in such cases.

There is also the question of what I might call false positives, when immigration officers seize items that they wrongly believe to be evidence of an offence and then pass them on to the police, placing a significant administrative burden on the police to process, secure and subsequently return the items to the owners. With significant cuts to police resources, the last thing the police need is for immigration officers to dump innocent items on them that they then have to deal with. We therefore believe that Clause 22 should not be part of the Bill. I beg to move.

Lord Kennedy of Southwark (Labour)

My Lords, Amendment 184 and the two clause stand part debates in respect of Clauses 21 and 22 give an important opportunity to explore here exactly what the intention is behind the clauses. It is important that the Minister carefully sets out what he believes are the reasonable grounds for immigration officers to conduct a search for documents in respect of illegal working or leasing premises to disqualified persons obtained in the commission of an offence. Will the Minister set out what he means by a search of the premises? At any point, would that include a search of the person? How would that be conducted?

These are very sensitive matters and I want to be satisfied that proper processes are in place, and that people are treated with respect. We often need to remember that asylum seekers have not always had a good experience of meeting officials of the state in other countries, and we must ensure that actions are taken in a proportionate manner and to the highest professional standards. I have the highest regard for the officers who undertake this work for the Immigration Service; they do a very difficult and challenging job.

The noble Lord, Lord Paddick, made an important point when he talked about the extensive experience and knowledge that police officers have when it comes to conducting searches and preserving evidence to secure convictions. Are we confident that the immigration officer would have this knowledge? The noble Lord makes another important point when he talks about the burden of bureaucracy arising from items taken during a search that are then passed on to police but in the end do not secure any convictions because there is no offence at all.

Lord Alton of Liverpool (Crossbench)

My Lords, before the Minister replies to the noble Lords, Lord Kennedy and Lord Paddick, may I add a word in support of their points, particularly the point about proportionality that has just been made by the noble Lord, Lord Kennedy? Why does the Minister feel we need to add to those powers that immigration officers already have, as set out in chapter 16 of the Home Office Enforcement Instructions and Guidance?

Would he also comment on the extensive powers that immigration officers already have to search without warrant in connection with a criminal offence? What is envisaged here, as I try to understand it, is to give those same officers powers to search premises without a warrant, in circumstances where they do not have any reasonable suspicion that a criminal offence has been committed. Is that the case? Is there no restriction in this clause authorising an immigration officer to act only where it is not practicable to obtain a warrant? If that is so, this is quite an extension of powers, and one that is disproportionate in the way that the noble Lord, Lord Kennedy, has described.

Lord Keen of Elie (Conservative)

I am obliged to the noble Lords, Lord Paddick, Lord Kennedy and Lord Alton, for their observations on these provisions. I shall begin with Amendment 184, which seeks to insert the phrase “is required to” in place of “should”, and explain why that would not be appropriate. As I observed, Amendment 184 seeks to ensure that an immigration officer’s power to examine a person for the purpose of making a decision to curtail their leave is limited to whether the person’s leave is required to be curtailed. The use of the words “should be”, which appear in Clause 20, reflects the wording already included in paragraph (2) of Schedule 2 to the Immigration Act 1971, which refers to examination on the basis of whether a person should be given leave or refused it. It naturally follows that the power to examine for the possible purpose of making a curtailment decision is on the same basis. Indeed, it would be rather strange if one test differed from the other in that context.

The effect of the amendment would be to fetter the Secretary of State’s discretion under the Immigration Act 1971 to decide when a person’s leave should be curtailed. The basis on which leave may be curtailed is set out in the Immigration Rules. Some of these are mandatory probations and some are discretionary. An example of a discretionary ground on which leave may be curtailed is when the Secretary of State considers it undesirable to permit a person to remain in the United Kingdom in light of his or her conduct, character or associations. Immigration officers therefore need to be able to question a person to ascertain whether curtailment is or is not appropriate. I can reassure the noble Lord that immigration officers may question only people who have already entered the United Kingdom for immigration enforcement purposes where they already have some information, or reasonable grounds for suspecting, that the person is in breach of immigration law. Therefore it would be wholly inappropriate, having regard among other things to the terms of the Immigration Rules, to put in this amendment in the form of a requirement rather than a discretion.

Clause 21 gives immigration officers a power to search premises for documents that might help in determining whether a civil penalty should be imposed on an employer or landlord. This power may be exercised only where immigration officers are already lawfully on premises. I will come back to this point in the context of the observations from the noble Lord, Lord Alton; it is not a question of dispensing with the requirement for a warrant, but I will address that point directly. A primary role for immigration enforcement activity is the disruption of illegal working and illegal renting. We believe it is fitting for immigration officers to have specific administrative search powers where they are exercising powers for a non-criminal purpose.

Immigration officers already have powers to search for evidence of the offence of employing illegal workers and will do so for the new offence of leasing premises to a disqualified person. However, as I am sure noble Lords will agree, it is often more appropriate to impose a civil penalty than to pursue a criminal prosecution. Immigration officers provide employers and landlords with an opportunity, during a visit to the relevant premises, to supply evidence that they have undertaken right-to-work checks before taking any enforcement action. If an employer or landlord is able to do this, no further action is taken against them.

While I understand that some noble Lords may have concerns regarding the reasonableness of having a power of search in the context of a civil penalty, where immigration officers have established through existing powers that a migrant does not have a right to work or a right to rent, and the employer or landlord is unable to demonstrate that they have made the appropriate checks, it does not seem unreasonable for the immigration officer to be able to search for evidence such as payslips or timesheets, tenancy agreements and letting paperwork. This is especially important in cases where a migrant claims simply to be a guest at residential premises or “assisting”, for example, in a restaurant.

While search powers in the civil penalty context are relatively rare, they should not be disregarded purely on this basis when there is a compelling case for introducing them. By equipping immigration officers with these new powers, the Home Office should be enabled to make better-informed decisions as to whether liability for a civil penalty has arisen and help to ensure that only non-compliant landlords and businesses are faced with civil penalties. To put the matter shortly, it would be rather strange if, having made provision for civil penalty, we should say to immigration officers, “You have the power to search if you intend to pursue a criminal prosecution but you have no power to search if you intend to take the lesser step of imposing only a civil penalty”. For that reason, Clause 21 is considered material to these provisions.

Clause 22 provides a power for immigration officers to seize anything they may find in the course of exercising a function under the Immigration Acts while lawfully on premises where they believe that it has been obtained in the consequence of committing a crime, or where it is evidence of an offence. Clause 22 allows them to seize such an item but only to prevent it being concealed, lost, altered or destroyed, and to retain it unless a photograph or copy is sufficient. It is sometimes the case that, while searching premises using immigration powers, immigration officers may encounter quite clear evidence of a criminal offence. Presently in such circumstances they are required to contact the police and invite them to attend the premises in the hope that perhaps some further steps may be taken to retain the relevant material. In the mean time, they have no power to prevent that material being removed, destroyed or simply taken away somehow, which seems a somewhat unusual situation for them to be left in.

This power will therefore enable immigration officers to retain such material in circumstances where they are already lawfully on premises, either by virtue of a warrant or because they have been given entry but only for the purpose of preserving that evidence. They will not be responsible for the chain of evidence through, for example, to a prosecution. They will take steps to hand that evidence over to the police at the first available opportunity. For that purpose, they will be trained with regard to obtaining that evidence. I make clear, to reassure the noble Lord, Lord Kennedy of Southwark, that there is no provision in Clause 22 for any search of the person. That power will not be conferred on immigration officers in this context.

As regards proportionality, it respectfully appears to us that it is appropriate and proportionate that immigration officers who encounter material which on the face of it is the product of some criminal act should be able to at least preserve that evidence pending its availability to the investigative authorities. I add that, in fact, some immigration officers have power under Section 19 of the Police and Criminal Evidence Act 1984 to search for and recover evidence of a crime. However, that power is exercised only when the relevant immigration officers have gone through the full training that would also be available to police officers. Therefore we accept that that is an exceptional case. Here there will be suitable training for immigration officers for the purpose of seizing and retaining evidence of a criminal act.

Lord Alton of Liverpool (Crossbench)

My Lords, I am grateful to the Minister for what he said about the training of immigration officers. But before he goes on to the next point in his argument, does he recall that in 2014, in the case of R v Ntege and Others, his honour Judge Madge stayed the prosecution because of both bad faith and serious misconduct? He held:

“I am satisfied that officers at the heart of this prosecution have deliberately concealed important evidence and lied on oath”.

In addition, in 2010, in Abdillaahi Muuse v Secretary of State for the Home Department, the Court of Appeal concluded that the conduct of what was then the Immigration and Nationality Directorate in the unlawful imprisonment of Mr Muuse,

“was not merely unconstitutional but an arbitrary exercise of executive power which was outrageous”.

How can the Minister, in extending the powers that already exist for immigration officers, ensure that there is not a repetition of those sorts of cases?

Lord Keen of Elie (Conservative)

Clearly, I will not comment on the detail of individual cases in this context. Those findings were made, and clearly they indicate conduct that was wholly unacceptable, and—let us add—quite exceptional, with two cases cited in many years. It is regrettable that those events occurred, but let us remember that they are isolated events. As regards the general powers of immigration officers, they will be provided with training and guidance on the use of their powers and are given enforcement instructions in guidance.

Lord Kennedy of Southwark (Labour)

My Lords, on that very point, I know that the Minister cannot do it today, but would he be prepared to write to noble Lords, or to the noble Lord, Lord Paddick, and explain what that training and guidance will be? He said it would be very extensive, and I am sure it will be, but I wonder how long it will take, what the cost will be and how practical it will be.

Lord Keen of Elie (Conservative)

I should add that the guidance on immigration officers’ use of powers is set out in the enforcement instructions and guidance, which are published on the UK Government website. But I would be content to write to the noble Lord to set out an outline of the proposed training for those immigration officers who are going to have the limited power conferred by Clause 22 with regard to the preservation of evidence that they believe has been the product of some criminal act.

There was one further point made by the noble Lord, Lord Paddick, about the false positive, as he termed it, and the administrative burden. I respectfully suggest that that burden will be no greater than the burden imposed upon police officers in circumstances where immigration officers believe that they have encountered the product of a criminal act and then telephone or radio the police and invite them to attend a premises. So there is a question of balance here, but it is not, on the face of it, going to be a disproportionate burden when compared to the present circumstances in which the matter is, in any event, brought to the attention of the police.

Lord Paddick (Liberal Democrat)

My Lords, I thank the noble Lords, Lord Alton of Liverpool and Lord Kennedy of Southwark, for speaking to this group. I also thank the Minister for his explanation of Amendment 184. I will read with care what he said on that particular amendment.

As far as Clause 21 is concerned, which is the power to search premises simply to establish whether a civil penalty should be imposed, I am a little confused, because I am not sure how an immigration officer can establish whether a breach of the law is something that should be responded to by way of criminal prosecution or by civil penalty until the search of the premises and the necessary paperwork has been found. If the immigration officer has reasonable cause to suspect that a criminal offence has been committed, there is an existing power to carry out that search. Now it may be that in the course of that search, using the power under the suspicion of a criminal offence having been committed, the paperwork is found to show that it is not a serious breach and therefore that a civil penalty would be more appropriate. But the search can still be conducted without a specific power to search on the basis of a civil penalty.

The Minister said that having the power to search on the basis of a civil liability would ensure that only non-compliant employers and landlords would have action taken against them. But surely a compliant employer will offer up the necessary documentation and a search without the consent of the employer or landlord will not be required. Therefore, again, I do not see why that power is necessary.

As far as Clause 22 is concerned, if it were simply a case of restraining people who were on the premises from interfering with something that was believed to be evidence of a criminal offence while the police are called and come to investigate the matter, I might be a little more sympathetic. But the Minister kept talking about seizing and retaining property, and said that immigration officers would not be in the evidence chain. Clearly, if they seize and retain the property, they are in the evidence chain: the police cannot give evidence of the fact that the property was in the premises if the immigration officer just appears at the police station with the property and tells the police officer, “I found this”.

As I said earlier, it is very important to question people in situ about, for example, a bag of drugs. It may be necessary for there to be forensic examination of those drugs for, say, fingerprints or perhaps even DNA, or for the property to be photographed in situ. That is something that I would have confidence that only the police would think about, rather than an immigration officer who is there to enforce the law on immigration rather than to deal with these other, arguably more serious, offences.

As far as the administration burden is concerned, with property being taken and given to the police versus the time that the police would have to spend going to collect the property from the premises, with the greatest respect, I do not think that the Minister realises the administrative burden that goes with police seizing property and the problems associated with it. I say that it would be a disproportionate burden on the police were immigration officers able to seize such property. But, at this stage, I beg leave to withdraw my amendment.

Amendment 184 withdrawn.

Clause 20 agreed.

Clauses 21 to 24 agreed.

Clause 25: Search for nationality documents by detainee custody officers etc

Amendment 185

Moved by Lord Paddick

185: Clause 25, page 31, line 30, leave out “, or intends to make,”

Lord Paddick (Liberal Democrat)

My Lords, I beg to move Amendment 185 standing in my name and that of my noble friend Baroness Hamwee. We also have Amendments 186 through to 193 in this group.

Amendment 185 relates to the power of detainee custody officers, prison officers and prison custody officers to search for nationality documents. The powers set out in Clause 25(6) can be exercised not only when the Secretary of State has made a deportation order in relation to the individual but, as stated in Clause 25(2)(b), when the Secretary of State “intends to make” a deportation order. The briefing from the Immigration Law Practitioners’ Association expresses serious concerns about the new powers to conduct searches for nationality documents, including strip searches, in the light of the concerns expressed about the treatment of vulnerable persons in immigration detention made by the all-party parliamentary groups on refugees and on migrants. That review was conducted by Stephen Shaw and others.

On the particular issue of the amendment, if the Government mean to extend the power to include cases where the Secretary of State has fulfilled the procedural requirement to give formal notice of her intention to make a deportation order, this should be in the Bill, rather than the current wording, which is simply,

“intends to make, a deportation order”.

Amendments 186, 187, 188 and 189 relate to the circumstance where a nationality document has been seized but the person is not removed from the United Kingdom. Clause 25(13) states that the Secretary of State “may” arrange for the document to be returned, but surely she is under an obligation to return the document, so amendment 185 seeks to replace “may” with “shall”. Amendment 192 covers the same point in relation to documents seized by a detainee custody officer or a prison officer.

Amendment 187 refers to Clause 25(13)(b), which goes on to say that a document can be disposed of and not returned if the Secretary of State thinks that it would not be appropriate to do so. Can the Minister explain in what circumstances a search for a nationality document might produce a document that is not required as part of the process of deporting an individual but should nonetheless be disposed of rather than returned? For example, the Immigration Law Practitioners’ Association reminds us that passports, one of the “nationality documents” listed in the Bill, remain the property of the issuing authority. As such, the Secretary of State has no right to dispose of these documents as she thinks fit.

Amendment 193 covers the same point in relation to a document seized by a detainee custody officer or prison officer in Clause 26(7)(b) and Amendment 212 covers a similar point in Clause 29(10) and (11) in relation to a document supplied to the Secretary of State by a public body. The amendment suggests that the document is returned to the person who supplied it rather than being disposed of.

Amendment 188 relates to Clause 25(14)(b), which states that if it is it necessary to return a document and it was not found on someone, it should be returned to,

“the location in which it was found”.

The amendment suggests as an alternative that the document should be returned to the person who appears to be entitled to it. It is difficult to envisage that a document seized as potential evidence of an immigration offence would not contain any information about the person to whom it belongs. As it stands, Clause 25(14)(b) could allow for a document that subsequently turns out to be stolen to be replaced where it was found. The Immigration Law Practitioners’ Association has pointed out a flaw in this amendment in cases where someone is seeking asylum and the returning of a nationality document to the person’s country of origin may place them in danger, but we can address this defect in our amendment at Report if necessary. Amendment 190 covers the same point for a document seized by a detainee custody officer in Clause 26(5)(b).

Amendment 189 was originally intended to challenge the inclusion of “citizenship” and documents that show where the person has come from or is going to in the definition of nationality documents, but we now accept that Section 44(5) of the UK Borders Act 2007 gives a similarly broad list of documents. However, the Immigration Law Practitioners’ Association points out that in the UK Borders Act a,

“‘nationality document’ means a document showing … the individual’s identity, nationality or citizenship”,

whereas this provision defines a nationality document as a document which,

“might … establish a person’s identity, nationality or citizenship”—

a significant widening of the power.

The document that indicates where a person has travelled from could include a guidebook, personal diary or hotel receipt. Will the Minister explain how a personal diary or a travel guide could be defined as a nationality document? If the Government want to be able to search and retain any document found, they should say so on the face of the Bill. Amendment 213 is on the same point in relation to nationality documents supplied by the police, local authorities and other public bodies at Clause 29(11) and (14).

Amendment 191 relates to Clause 26(6), which states:

“The Secretary of State may retain a relevant nationality document”,

discovered during a search of a person detained,

“while the Secretary of State suspects that … a person to whom the document relates may be liable to removal from the United Kingdom … and … retention of the document may facilitate the removal”.

Surely there must be a reasonable level of suspicion before the document can be retained rather than simply a gut instinct or a feeling of suspicion. I beg to move.

Lord Alton of Liverpool (Crossbench)

My Lords, during the excellent remarks of the noble Lord, Lord Paddick, in introducing his amendments and talking about these clauses, he referred to Stephen Shaw’s report and I want to ask the Minister some questions about that. He will know that the All-Party Parliamentary Group on Migration produced a pretty damning report on immigration detention, which led to the former Prisons and Probation Ombudsman, Stephen Shaw, being asked to investigate the treatment of vulnerable persons in detention. His report was published on Thursday 14 January, so another place had no opportunity to discuss that when it was considering the Bill, but we have a chance now to ask the Minister some questions about it in the context of these clauses.

Has the Minister had a chance to read the report in detail? It criticises the conduct of searches in immigration detention centres and it gives cause for further scrutiny of these provisions. The Minister himself, in his remarks on the previous set of amendments, said that things such as strip-searching would not be permitted, but I was concerned to read a number of accounts in Stephen

Shaw’s report that involved male detention staff in searches of women, although not with the removal of clothes, and of women’s rooms in Yarl’s Wood. I am particularly interested in the situation there, as, thanks to the Minister, my noble friend Lord Hylton and I have been able to arrange a visit to Yarl’s Wood on Wednesday morning. I am glad that we will have the opportunity to put some of these questions directly to the staff who run that facility.

Mr Shaw says in his remarks:

“It is of the greatest importance that the proportion of female staff at Yarl’s Wood is increased … In the meantime, Serco should only conduct searches of women and of women’s rooms in the presence of men in the most extreme and pressing circumstances, and there should be monitoring and reporting (to Home Office Detention Operations) of these cases”.

In recommendation 35 of the report, he states:

“I recommend that the service provider at Yarl’s Wood should only conduct searches of women and of women’s rooms in the presence of men in the most extreme and pressing circumstances, and that there should be monitoring and reporting of these cases”.

During that review, Stephen Shaw identified evidence that the Home Office policy of not searching detainees, especially women, in the view of other people, is not always followed. I was struck by some examples that he gave. He said that:

“As far as the practices at Heathrow, Lunar house and Eaton House are concerned, the evidence of this review is that the Home Office’s policy that detainees (especially women) should not be searched in view of other people is not always followed”.

For instance, talking about Heathrow Terminal 3, Mr Shaw says, at paragraph 3.175:

“A female detainee was searched in front of several people”

At paragraph 3.227, talking about Lunar House, he says:

“Detainees were searched in an area where they could be seen by others in the main holding room”.

At Eaton House, at paragraph 3.240, he says:

“A female detainee was searched in the holding room by the Tascor escort who had arrived to take her to Colnbrook. This was in front of a male detainee and a male member of staff”.

Clearly, given the vulnerable position of detainees, particularly women, who are held as immigration detainees, and the lack of compliance by detention custody staff with existing policies on searching detainees, it would be highly inappropriate to extend those powers of search to include searches for the purpose of identifying nationality documents, particularly where they are so broadly defined in the way that the noble Lord, Lord Paddick, has already described to the Committee. When he comes to reply, I would be grateful if the Minister could tell us how the Government intend to respond to Stephen Shaw’s observations and recommendations.

Earl of Listowel (Crossbench)

My Lords, having visited Yarl’s Wood several times in the past, I have noted the deep anxiety of those resident there. Anything like this will be particularly disturbing to them, so that should be kept in mind.

We must always draw attention to concerns about the treatment of these vulnerable individuals, but we must also commend the Government when they take steps to protect such individuals and treat them with respect. I take this opportunity to pay tribute once again to the last coalition Government, which took children and families out of these settings. Many of us were very concerned at the large numbers of families who were detained at Yarl’s Wood, often for many months on end. I remember speaking to a 16 year-old girl who was there with her mother and her six or seven year-old sister for nine months. It is very much to the coalition Government’s credit that they decided to change the system.

Lord Keen of Elie (Conservative)

I am obliged to noble Lords. I shall begin by addressing the points raised by the noble Lord, Lord Alton, and the noble Earl, Lord Listowel, in the context of the report from Stephen Shaw. Of course the background to this was the detailed Report of the Inquiry into the Use of Immigration Detention in the United Kingdom by the All-Party Parliamentary Group on Refugees and the All-Party Parliamentary Group on Migration, of which the noble Baroness, Lady Hamwee, was a member. That led to the appointment of Stephen Shaw, and as the noble Lord, Lord Alton, has observed, he recently reported on this matter. My noble friend Lord Bates, upon receipt of that report, made a Statement to the House in which he pointed out that the Government welcomed the important contribution that Stephen Shaw had made to the debate about effective detention and accepted the broad thrust of his recommendations. That will be the subject of a further response in due course, and certainly I hope before the Report stage. I hope that the noble Lord, Lord Alton, will allow me to defer any detailed comments on the points he raised until that further response is made. But what I add is that we welcome observations that he may have to make following his visit to Yarl’s Wood on Wednesday. His comments will be received in the appropriate spirit because this is a demanding area and one in which the Government are willing to seek to respond to the broad thrust of the recommendations that Stephen Shaw has made.

I turn to Amendment 185, moved by the noble Lord, Lord Paddick, but before doing so I will make this observation. He spoke about strip searches. I take issue with that term. There are full searches but they are not strip searches. It may be that he wishes to come back on that, but I take issue with the term “strip searches”; they are full searches.

Lord Paddick (Liberal Democrat)

Can the Minister tell us the difference between a full search and a strip search?

Lord Keen of Elie (Conservative)

It is set down in detail, but in general it means that someone is not stripped. It means that articles of clothing are removed and returned in turn, but without them being stripped.

I return to Amendment 185, which would limit the Secretary of State’s ability to direct officers to search for nationality documents to those in respect of whom she has made a deportation order under Section 5(1) of the Immigration Act 1971, preventing its use for those whom she intends to deport. It may help if I explain that the Secretary of State, in accordance with regulations made under Section 105 of the Nationality, Immigration and Asylum Act 2002, issues a written notice to those foreign national offenders who are liable to deportation under Section 5(1) of the Immigration Act 1971 stating that she intends to seek a deportation order against them. Such persons may be detained by virtue of paragraph 2(2) of Schedule 3 to the Immigration Act 1971. Therefore, the reference to “intends to” is simply a way to ensure that such persons are within the ambit of the new powers while in detention. Being able to direct a search for nationality documents once a person has received such a notice but before a deportation order is made reduces the risk of documents being destroyed when the person knows that deportation is a realistic prospect. That is the purpose of the provision in its present form and why we resist the proposed amendment.

Amendments 186 to 188, 190, 192 and 193 seek to limit the Secretary of State’s disposal options on nationality documents which are not used to remove a person, by ensuring that they must be returned to the person who was previously in possession of them or who appears to be entitled to them. On that last point the noble Lord, Lord Paddick, is of course right to say that the country which issues a passport is the proprietor of that passport, while the person to whom it is issued is the user. It is therefore that country which is entitled to claim ownership, as it were, of the passport document. That touches upon the point he mentioned about the potential risk of returning a document to an issuing authority creating a danger for a person in particular circumstances. That is a point I will take away and consider because it had not immediately occurred to me in this context.

The reason why the Secretary of State should be given the wider power indicated in the present clauses is because there may be circumstances in which she would wish to remove from circulation forged or counterfeit documents. The idea that, having identified a passport as forged or counterfeit, she should return it to the person who had been using it seems a little unusual. It is in these circumstances that the wider power is sought.

Amendment 189 reduces the definition of “nationality document” to those which might establish a person’s identity, nationality or citizenship. The noble Lord, Lord Paddick, was quite right to notice that this provision does in fact follow on from Sections 44 and 45 of the United Kingdom Borders Act 2007, which contain powers for immigration officers and constables to search for nationality documents, but with a wider definition than the one suggested by Amendment 189. The reason for that is that there may be circumstances in which it is important to identify the place from which a person came, or indeed the place to which they were intending to go, in the context of whether or not they should be subject to deportation. The noble Lord also asked how or why a hotel receipt, travel guide and other such documents might be considered relevant. In that context they would be considered relevant because they might disclose the first place of safety that a person had arrived at within the European Union, for example, where the provisions of the Dublin agreement apply. It is therefore entirely appropriate that one should be able to search for such documents. They could provide a trail in circumstances where a person may have been seeking to make repeated asylum applications in a whole series of countries once they had arrived in a relatively safe environment.

Finally, Amendment 191 seeks to ensure that the Secretary of State may retain a relevant nationality document only if she is reasonable in her suspicion that the person to whom the document relates may be liable to removal from the United Kingdom and that the document may facilitate that removal. All Ministers must comply with public law principles when exercising public functions. This includes the requirement to act reasonably. If those delegated to use such powers do not do so, that may be challenged in the courts by means of judicial review. It is therefore implicit that the Secretary of State will act reasonably in exercising the power to retain nationality documents. I should also emphasise that the wording used in Clause 26(6) is consistent with that used in Section 17 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 regarding the retention of documents that come into the possession of the Secretary of State or an immigration officer in the course of exercising an immigration function. There is consistency in the proposed legislation.

In light of these points, I hope that the noble Lord will agree to withdraw his amendment.

Baroness Hamwee (Liberal Democrat)

My Lords, I think that some Members of your Lordships’ House are still struggling to work out how a search which is complete in bits sequentially is different from a strip search. However, what I want to say at this point is that I am not the only Member of your Lordships’ House, or indeed the only Member present today, to take part in the inquiry by the all-party groups to which the Minister referred. The noble Baroness, Lady Lister, was also an energetic member of the group.

Lord Keen of Elie (Conservative)

The noble Baroness is of course quite right and I apologise to the noble Baroness, Lady Lister, for omitting her name from the reference. Of course it is acknowledged that the report was the precursor to Stephen Shaw’s helpful and incisive report on this matter. I am obliged for that.

Lord Paddick (Liberal Democrat)

My Lords, I am very grateful to the Minister for his explanation. As noble Lords will be aware, many amendments at Committee stage are probing amendments, so the explanations given by the Minister on this occasion have been very helpful.

On Amendment 185, I mentioned that the Secretary of State has to serve a notice on people—a formal notice of the intention to make a deportation order. The Minister pointed to that as being the meaning in the Bill. I asked the question: if that is the case why is that wording not on the face of the Bill rather than the rather vague wording that is currently there? Maybe the Minister can reflect on that between now and the next stage.

As far as the definition of nationality documents is concerned, I accept that under the Dublin agreement, as long as we are a member of the European Union, it is important to establish the first place of safety in terms of where the person should apply for asylum. I am reassured that Secretaries of State must at all times act reasonably. On that basis, I beg leave to withdraw the amendment.

Amendment 185 withdrawn.

Amendments 186 to 189 not moved.

Clause 25 agreed.

Clause 26: Seizure of nationality documents by detainee custody officers etc

Amendments 190 to 193 not moved.

Clause 26 agreed.

Clauses 27 and 28 agreed.

Schedule 5: Amendments to search warrant provisions

Baroness Fookes (Conservative)

Before I call the noble Lord to move his Amendment 194, I should point out that if it were agreed it would not be possible to call government Amendment 195 in the name of the noble Lord, Lord Bates, as it would be pre-empted.

Amendment 194

Moved by Lord Paddick

194: Schedule 5, page 94, line 13, leave out from “application” to end of line 17

Lord Paddick (Liberal Democrat)

My Lords, I move the amendment in my name and that of my noble friend Lady Hamwee. We also have Amendment 201 in this group.

Amendment 194 relates to Schedule 5 and amendments to the search warrant provisions in the Immigration Act 1971. We have already debated all premises warrants under Amendments 171, 172 and 173 in relation to the seizure of vehicles driven by someone illegally in this country. These provisions relate to search warrants issued to search for personnel records and nationality documents, and again allow any premises owned or occupied by the person specified in the warrant without having to specify the premises. The only thing I would say to that is that the explanation given under those previous amendments appeared to be simply to bring the Immigration Act into line with the Police and Criminal Evidence Act. Will the Minister say whether there are other specific reasons why all premises warrants would be valuable in the circumstances?

Amendment 201 is to probe the extension from one month to three of the time during which a search warrant issued under the Immigration Act 1971 can be executed. I accept that these provisions bring Immigration Act search warrants into line with those issued, predominantly to the police, under the Police and Criminal Evidence Act 1984, as amended by Section 15 of the Serious Organised Crime and Police Act 2005. However, is this necessary or safe in immigration cases?

The Immigration Law Practitioners’ Association points to evidence in the March 2014 report of the Independent Chief Inspector of Borders and Immigration in relation to the use of the power to enter business premises without a warrant by immigration officers. It found that in 59% of the cases examined, the required justification had not been made out. I appreciate that this provision is to extend powers given by warrant but the chief inspector’s report indicates the need for increased, not less scrutiny by the courts of the powers used by immigration officers. I beg to move.

Lord Keen of Elie (Conservative)

My Lords, I am obliged to the noble Lord. As he indicated, Amendment 194 would remove the ability for immigration officers to seek an all premises warrant where they have a power to enter and search premises for material which is likely to be relevant evidence of an immigration offence under the 1971 Act. As the noble Lord anticipated, one purpose of this is to bring the provisions on such warrants into line with those for police warrants under PACE.

In addition, Amendment 201 is intended to do the same thing, but I should perhaps explain that when the immigration warrants were originally provided for, as running for one month, that was in parallel with the time that a police warrant would run under PACE. Subsequently, the warrant under the Police and Criminal Evidence Act was extended to a three-month period, so they fell out of sequence. The difficulty is that, from time to time, there are joint immigration officer and police operations which involve warrants being granted, and it is not convenient that the immigration warrant should be a period of one month while the police warrant is for a period of three months. The purpose of Amendment 201 in particular is simply to bring the time limit back into line with that which applies for police warrants.

Coming back to Amendment 194 and the use of all premises warrants, it is considered appropriate that an all premises warrant should be available to immigration officers, not only because that is consistent with the form of warrant available to police officers pursuing their own powers but because there are many circumstances in which an all premises warrant will be required for effective recovery of material pertaining to either illegal working or potential offences in respect of landlords and illegal renting. For example, where you have someone who has a number of restaurants employing persons who may be suspected of being illegal immigrants, you may have a warrant in respect of particular premises and then discover that all the records are actually kept elsewhere—in an office, a lock-up, or something of that kind. Therefore, it is appropriate that all the premises that are subject to the control of a particular employer should be available under the warrant, otherwise we would have a very long, drawn-out, step-by-step process of knocking down one domino, going from one warrant to the next one, and so on. It is in these circumstances that it is considered appropriate that an all premises warrant should be allowed in the case of immigration officers. I hope that that addresses the concerns or reservations expressed by reference to Amendments 194 and 201. In a sense, they bring immigration warrants into line with police warrants, but they were in line with police warrants before the amendment to the Police and Criminal Evidence Act. In addition, there are substantive reasons why it is practical and effective for immigration officers to have an all premises warrant facility available to them.

Government Amendments 195 to 200 and 202 to 209 may look rather complex, but have at their core a very simple proposition; that is, in Scotland it is not lawfully possible to secure an all premises warrant and a multiple entry warrant. Therefore, it is necessary to ensure that immigration officers operating in Scotland do so within the bounds of the Scottish criminal justice system.

Lord Kennedy of Southwark (Labour)

I see the need for the amendments, but will the noble and learned Lord explain further how we have had to come to this stage in the Bill—I assume that it was drafted in the Home Office, checked and rechecked, and then went all through the Commons—and now we find that we have to table an amendment because these powers are not available in Scotland? I am surprised that we had to come to this stage to realise that point.

Lord Keen of Elie (Conservative)

It may be that the Scots only recently had a look at it. I am not in a position to elaborate, but I hope that the noble Lord will accept that as a potential explanation.

Lord Kennedy of Southwark (Labour)

That is very helpful, thank you.

Lord Keen of Elie (Conservative)

I shall go on to deal with government Amendment 214B, which is not concerned with warrants per se, but to clarify that the person who can undertake the role of custody review officer under Section 24A of the Criminal Law (Consolidation) (Scotland) Act 1995 includes a police inspector and is not limited to a person of equivalent rank. In Scotland, immigration officers currently have a power to detain pending arrest, and charge for immigration and nationality offences under Section 24 of the 1995 Act, which is similar to arresting a person pending charge in England, Wales and Northern Ireland. Under Section 24A of that Act a “custody review officer” may authorise an extension of the period for which a person can be held in detention under Section 24. This role has always been undertaken by a police inspector and the amendment is simply to ensure that there is no possible ambiguity in the provision that provides for this operational practice. Amendments 214C and 214D are minor and technical and simply remove redundant wording from the Bill.

I hope that these explanations will satisfy noble Lords and that they will feel able not to press their amendments, and I shall move the government amendments.

Lord Paddick (Liberal Democrat)

My Lords, I am grateful to the Minister for the explanations that he has given. I still have concerns relating to the Chief Inspector of Borders and Immigration’s report on immigration officers’ use of powers to enter premises without a warrant. In 59% of cases examined the required justification had not been made out. Giving immigration officers similar powers to those of police officers to enter any premises owned or occupied by the person named in the warrant and to do it over an extended period where it is not a joint operation with the police still causes me some concern.

I am not sure whether there is similar malpractice, so far as police officers are concerned, in the execution of PACE warrants, but the Chief Inspector of Borders and Immigration’s report seems to suggest that the exercise of powers by immigration officers is not perhaps as thorough as it is by police officers. My concerns remain, but at this stage I beg leave to withdraw the amendment.

Amendment 194 withdrawn.

Amendments 195 to 200

Moved by Lord Keen of Elie

195: Schedule 5, page 94, line 14, after “(b)” insert “subject to subsection (2A),”

196: Schedule 5, page 94, line 29, after “(1C)” insert “Subject to subsection (2A),”

197: Schedule 5, page 94, line 35, at end insert—

“( ) After subsection (2) insert—

“(2A) A justice of the peace in Scotland may not issue—

(a) an all premises warrant under this section, or

(b) a warrant under this section authorising multiple entries.””

198: Schedule 5, page 95, line 7, after “(b)” insert “subject to subsection (3C),”

199: Schedule 5, page 95, leave out lines 21 to 26 and insert—

“( ) After subsection (3) insert—

“(3A) Subject to subsection (3C), the warrant may authorise entry to and search of premises on more than one occasion if, on the application, the justice of the peace is satisfied that it is necessary to authorise multiple entries in order to achieve the purpose for which the justice issues the warrant.

(3B) If it authorises multiple entries, the number of entries authorised may be unlimited, or limited to a maximum.

(3C) A justice of the peace in Scotland may not issue—

(a) an all premises warrant under this section, or

(b) a warrant under this section authorising multiple entries.””

200: Schedule 5, page 96, line 35, leave out “28FB(1C)” and insert “28FB(3A)”

Amendments 195 to 200 agreed.

Amendment 201 not moved.

Amendments 202 to 209

Moved by Lord Keen of Elie

202: Schedule 5, page 97, line 36, leave out “28FB(1C)” and insert “28FB(3A)”

203: Schedule 5, page 98, line 4, after “(b)” insert “subject to sub-paragraph (6BA),”

204: Schedule 5, page 98, line 17, after “(6AC)” insert “Subject to sub-paragraph (6BA),”

205: Schedule 5, page 98, line 24, at end insert—

“( ) After sub-paragraph (6B) insert—

“(6BA) A justice of the peace in Scotland may not issue—

(a) an all premises warrant under this paragraph, or

(b) a warrant under this paragraph authorising multiple entries.””

206: Schedule 5, page 98, line 26, leave out “(6AC)” and insert “(6BA)”

207: Schedule 5, page 98, line 38, after “(b)” insert “subject to subsection (3A),”

208: Schedule 5, page 99, line 6, after “(2C)” insert “Subject to subsection (3A),”

209: Schedule 5, page 99, line 12, at end insert—

“( ) After subsection (3) insert—

“(3A) A justice of the peace in Scotland may not issue—

(a) an all premises warrant under this section, or

(b) a warrant under this section authorising multiple entries.””

Amendments 202 to 209 agreed.

Schedule 5, as amended, agreed.

Clause 29: Supply of information to Secretary of State

Amendment 210

Moved by Lord Paddick

210: Clause 29, page 36, line 2, after second “State” insert “reasonably”

Lord Paddick (Liberal Democrat)

My Lords, in moving Amendment 210, in my name and that of my noble friend Lady Hamwee, I shall speak to Amendments 211 to 213 and Amendment 215.

Amendment 210 suggests the addition of “reasonably” in the power of the Home Secretary to direct public agencies to supply documents, so that she must “reasonably suspect”, rather than simply “suspect”, that someone may be liable to deportation under new Section 20A(2). Amendment 211 suggests a similar change to the power of the Secretary of State to retain such a document. Amendment 212 requires the Secretary of State to return a nationality document that is no longer required to the person who supplied it, as previously debated on Amendment 188.

Amendment 213 again queries extending the definition of “nationality document” from “a document showing” the individual’s “identity, nationality or citizenship”, to one that “might establish” the individual’s “identity, nationality or citizenship”, as previously debated on Amendment 189. I do not think that the Minister addressed in that debate the broadening of the definition from a document “showing” the individual’s identity to one that “might establish” their identity. That is a considerable broadening of the definition.

Amendment 215 would insert a new clause after Clause 30 relating to complaints and the investigation of serious concerns relating to the conduct of immigration officers. It suggests that a commission be established to,

“make recommendations about the establishment of an independent oversight body”,

for immigration officers and other authorised officers, in so far as they exercise powers available to immigration officers. My understanding is that the Independent Police Complaints Commission currently investigates complaints against immigration officers, but only relating to powers similar to those exercised by the police. There is not one overall coherent complaints investigation or recording system. Would the Minister confirm this? Even if the IPCC has a role, we believe that such arrangements may be inadequate and should at least be reviewed to ensure that they are effective.

The Independent Police Complaints Commission is fighting an uphill struggle to win the trust and confidence of the public in general, and the black and minority ethnic communities in particular. Those most likely to come into contact with immigration officers are those seeking asylum and others in a very vulnerable position. The likelihood that such people will have a good understanding overall of their rights and the standard of conduct expected of immigration officers and other authorised officers is far less than among those born in this country or who have lived here for some time. Indeed, the way they may have been treated by officials in their own country may well be far below the standard expected of immigration officers and other authorised officers in the UK.

In all the circumstances, it seems that there is at least a question that needs to be examined as to whether the existing arrangements by which long-standing residents of the UK—well-versed in their rights and the conduct expected of officials—can have their concerns about the police and immigration officers investigated are adequate for asylum seekers and those newly arrived in the United Kingdom. I beg to move.

Lord Kennedy of Southwark (Labour)

My Lords, this group of amendments concerns the supply of information to the Secretary of State and the establishment of a commission for standards for immigration officers. I was somewhat surprised that without Amendment 212 or something similar—it may need refining—it would be left to the Secretary of State to dispose of nationality documents as they think appropriate, without any further clarifications. It would be useful if the noble and learned Lord, Lord Keen, would confirm that there is no question that these documents will not be returned to the person when they are no longer needed by the Secretary of State or their officials. I understand that we would not want to return the documents to someone who had no right to have them, but if they have been obtained lawfully they should go back to them.

Amendment 215 requires the Secretary of State to establish a commission to make recommendations for an independent oversight board to set standards for immigration officers. Given the sort of powers that immigration officers exercise as public officials, it is right that we should have in place a proper process to look at complaints about their conduct and standards. It would be helpful if the noble and learned Lord were to set out what happens at present. Is this safeguard in place with regard to certain things but not to others, as the noble Lord, Lord Paddick, indicated? Does the noble and learned Lord think that the present system is adequate in all respects?

Lord Keen of Elie (Conservative)

I am obliged to the noble Lords, Lord Paddick and Lord Kennedy of Southwark, for their observations on these provisions.

Amendments 210 and 211 are essentially the same as those previously discussed in relation to Amendment 191 in seeking to ensure that the Secretary of State may direct a person to supply a relevant nationality document only—and may retain that document only—if she acts reasonably in her suspicion that the person to whom the document relates may be liable to removal from the United Kingdom, and that the document may facilitate that removal.

Amendment 213 is the same as Amendment 189, put forward to Clause 25, in seeking to limit the definition of “nationality document”. The noble Lord, Lord Paddick, observed that I had not addressed the distinction between the term “showing” and the term “might establish”. It respectfully appears to me that it is the distinction between that which is explicit on the face of a document and that which may be inferred from its terms. The terms of a document may not on their face show a particular position but an analysis of the terms of that document would lead to an implication about the source of the document, the person using it or the background of that person. So I suggest that it is the distinction between a document being explicit on its face, and giving rise to what might be termed a circumstantial evidential route to a determination with regard to a person’s nationality or route of travel.

Amendment 212 differs slightly from those previous amendments to Clauses 25 and 26 on the Secretary of State’s power to dispose of documents which she no longer wishes to retain in that it requires the document to be returned to the person who supplied it. However, to answer the question raised by the noble Lord, Lord Kennedy, we again face a difficulty when the Secretary of State is provided with documents which are clearly forged or counterfeit. The desire is to ensure that these should not remain in circulation and therefore be returned to someone who would put them back into circulation or use them again. I hope that that satisfies the noble Lord. It should be acknowledged that some of the bodies supplying documents will not be in a position to establish whether they are forged or fraudulently obtained—but, generally speaking, Immigration Enforcement personnel are able to determine that from the analysis of documents.

As we have discussed, Clause 29 contains powers that enable the Secretary of State to require public authorities, subject to certain conditions, to supply nationality documents to the Home Office for immigration purposes. Schedule 6 lists those public authorities to which the new duty applies. Government Amendment 214A is quite straightforward in terms of its effect in that it adds education bodies to that list: these are schools and further and higher education providers across the United Kingdom. This power will be exercisable only where the Secretary of State suspects that a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and that the document may facilitate the removal.

I wish to be absolutely clear that this is not a power to require education bodies or, indeed, any of those listed, to collect data or information on behalf of the Secretary of State, or to seize documents from people, as it applies only where the Secretary of State has reasonable grounds for believing that a nationality document is already lawfully in the possession of the relevant body—that is to say, that they hold the document for the purposes of their own functions.

On the new clause proposed in Amendment 215, I fully understand the value of having standards for the actions of immigration officers, the handling of complaints against them and the investigation of serious concerns about their conduct. It is vital that the public are able to make complaints where they feel they have been mistreated by immigration officers, and, of course, it is right that serious incidents are subject to independent scrutiny. Indeed, it is precisely because of our commitment to protecting the public that we have ensured that adequate oversight mechanisms are in place for all areas of Great Britain and Northern Ireland.

In England and Wales, the Independent Police Complaints Commission provides oversight of serious complaints, matters of conduct and incidents involving immigration officers exercising enforcement powers. The Police Ombudsman for Northern Ireland’s remit mirrors that of the IPCC, enabling oversight of serious incidents, complaints and conduct matters in Northern Ireland where immigration enforcement powers are exercised.

In Scotland, the Crown Office and Procurator Fiscal Service has the remit to investigate deaths and allegations of criminality in respect of immigration matters. In addition, all complaints about immigration officers who are exercising enforcement powers in Scotland may be investigated by the Police Investigations and Review Commissioner.

Furthermore, the United Kingdom’s border and immigration functions as a whole are subject to the independent scrutiny of the Chief Inspector of Borders and Immigration, who was cited a little earlier by the noble Lord, Lord Paddick. Detention staff are also subject to a number of oversight and monitoring bodies. Her Majesty’s Inspector of Prisons has a statutory responsibility to report on the conditions and treatment in not just prisons but all places of immigration detention in the United Kingdom; the Parliamentary and Health Ombudsman can conduct unannounced inspections; and detainees may ask for complaints to be reviewed by the independent Prisons and Probation Ombudsman.

The role of the Independent Chief Inspector of Borders and Immigration was created by Section 48 of the UK Borders Act 2007. It has been in place for a number of years and is believed to work effectively and efficiently. Guidance on how complaints are managed and resolved by UK Visas and Immigration, Immigration Enforcement and Border Force is publicly available on the Government’s website. This includes information about the complaints management structure, types of complaints handled, dealing with complaints, service complaints, minor misconduct complaints, serious misconduct complaints, special circumstances, complaints from children and complaints for the purposes of financial redress. Complaints may be raised at a local level to a senior officer within the relevant immigration compliance and engagement team which conducted the search. Complaints about serious misconduct are allocated to, and investigated by, the immigration Professional Standards Unit.

So there is a wide-ranging series of bodies available to ensure that complaints from the public are properly handled and effectively disposed of. I again point to the observations made a little earlier by the noble Lord, Lord Paddick, about the use, or alleged misuse, of warrants in circumstances where they have been employed by immigration officers. That points up the fact that there is a very effective monitoring system in place. In these circumstances, I urge noble Lords to accept government Amendments 214A and 214B and invite the noble Lord, Lord Paddick, to withdraw his amendment.

Lord Kennedy of Southwark (Labour)

The noble and learned Lord has gone through the various bodies to which we can complain. However, there are a lot of bodies to which one can complain about all sorts of different things. Perhaps his officials should reflect that there is a case for bringing all these things together because having all these bodies may not be the best way to run things. As regards the nationality documents, I entirely accept the point about fraudulent documents but if a document is genuine I assume that it would be returned to the relevant person.

Lord Keen of Elie (Conservative)

On the last point, the Secretary of State will act reasonably, and is lawfully obliged to act reasonably, so there cannot be any real difficulty about that. On the noble Lord’s first point, our complaints procedure may be so comprehensive that it is difficult for him to get his arms round it. However, I would be content to write to outline that procedure in more detail if he felt that would assist.

Lord Paddick (Liberal Democrat)

My Lords, I am very grateful to the Minister for the explanations that he has given. As he said, many of them were similar to points that we had already debated. I am very grateful for his explanation about the broadening of the definition, which he did not cover on the previous amendments. I shall read with interest, and very carefully, what he has said on that issue.

On Amendment 215, I echo what the noble Lord has just said about the many and different avenues of complaint. How can somebody who has a genuine grievance against the Immigration Service possibly know which body to turn to among all that complexity? The Minister did not address the concerns that I expressed on behalf of many communities about their lack of trust and confidence in the Independent Police Complaints Commission, and the concern that those who are likely to come into contact with the Immigration Service are likely to be more vulnerable and less aware of their rights than those who do make complaints to the Independent Police Complaints Commission.

The Minister made reference to the Independent Chief Inspector of Borders and Immigration. I have to confess to not knowing exactly what the chief inspector’s remit is, but if it is similar to that of Her Majesty’s Chief Inspector of Constabulary, it is purely a monitoring function—an investigation and review function—rather than a complaint-examining function. Indeed, if any complaint were made to the Chief Inspector of Borders and Immigration about the conduct of the immigration office, I would expect him to refer it to—

Lord Keen of Elie (Conservative)

I should have added that Independent Police Complaints Commission’s remit was extended to investigating complaints and serious conduct matters relating to the exercise of immigration enforcement powers by Section 41 of the Police and Justice Act 2006 and the UK Border Agency (Complaints and Misconduct) Regulations 2010. I had omitted to mention that.

Lord Paddick (Liberal Democrat)

I am very grateful to the Minister for that.

As I was saying, I expect that we would find in practice that complaints made to the Independent Chief Inspector of Borders and Immigration would just be passed on to the many and various organisations and bodies that the Minister highlighted.

I am therefore still unconvinced that there is no need to review whether the current procedures for making complaints against immigration officers is user-friendly to people who are going to find it very difficult to navigate all these different systems. But in the meantime, I beg leave to withdraw my amendment.

Amendment 210 withdrawn.

Amendments 211 to 213 not moved.

Clause 29 agreed.

Schedule 6: Duty to supply nationality documents to Secretary of State: persons to whom duty applies

Amendments 214 and 214A

Moved by Lord Bates

214: Schedule 6, page 100, line 9, leave out “Licensing” and insert “and Labour Abuse”

214A: Schedule 6, page 100, line 23, at end insert—

“Education bodies

The proprietor of a school or 16 to 19 Academy within the meaning of the Education Act 1996 (see sections 4 and 579(1) of that Act).

The governing body of an institution within the further education sector within the meaning of the Further and Higher Education Act 1992 (see sections 90 and 91 of that Act).

The governing body of a qualifying institution within the meaning of Part 2 of the Higher Education Act 2004 (see sections 11 and 21 of that Act).

The proprietor or governing body of a school within the meaning of the Education (Scotland) Act 1980 (see section 135(1) of that Act).

The proprietor or governing body of a post-16 education body within the meaning of the Further and Higher Education (Scotland) Act 2005 (see section 35 of that Act).

The proprietor of a school within the meaning of the Education and Libraries (Northern Ireland) Order 1986 (SI 1986/594 (NI 3)) (see Article 2(2) of that Order).

The governing body of an institution of further education within the meaning of the Further Education (Northern Ireland) Order 1997 (SI 1997/1772 (NI 15)) (see Article 2(2) of that Order).

The governing body of a higher education institution as defined by Article 30(3) of the Education and Libraries (Northern Ireland) Order 1993 (SI 1993/2810 (NI 12)).”

Amendments 214 and 214A agreed.

Schedule 6, as amended, agreed.

Clause 30: Detention etc. by immigration officers in Scotland

Amendments 214B to 214D

Moved by Lord Bates

214B: Clause 30, page 37, line 27, at end insert—

“( ) The Criminal Law (Consolidation) (Scotland) Act 1995 is amended as follows.

( ) In section 24A (extension of period of detention under section 24) for subsection (7) insert—

“(7) In this section and section 24B, “custody review officer” means—

(a) an officer who—

(i) is of a rank at least equivalent to that of police inspector, and

(ii) has not been involved in the investigation in connection with which the person is detained, or

(b) in relation to the detention of a person under section 24 by an immigration officer, a constable—

(i) of the rank of inspector or above, and

(ii) who has not been involved in the investigation in connection with which the person is detained.”

( ) In section 26A(2) (power of arrest of authorised immigration officers) omit “or immigration enforcement offence”.”

214C: Clause 30, page 37, line 28, leave out “of the Criminal Law (Consolidation) (Scotland) Act 1995”

214D: Clause 30, page 37, line 37, leave out subsection (3) and insert—

“( ) Omit the definition of “immigration enforcement offence”.”

Amendments 214B to 214D agreed.

Clause 30, as amended, agreed.

Amendment 214E

Moved by Lord Bates

214E: After Clause 30, insert the following new Clause—

“Powers to take fingerprints etc. from dependants

(1) Section 141 of the Immigration and Asylum Act 1999 (powers to take fingerprints from certain persons and their dependants) is amended as follows.

(2) In subsection (7) for paragraph (f) substitute—

“(f) any person (“F”) who is—

(i) a member of the family of a person within any of paragraphs (a), (b) or (ca) to (e), or

(ii) a dependant of a person within paragraph (c)(i).”

(3) In subsection (8)(f) after “person” insert “of whose family he is a member or”.

(4) In subsection (9)(f) after “person” insert “of whose family he is a member or”.

(5) After subsection (13) insert—

“(13A) For the purposes of subsection (7)(f)(i), a person is a member of the family of another person (“P”) if—

(a) the person is—

(i) P’s partner,

(ii) P’s child, or a child living in the same household as P in circumstances where P has care of the child,

(iii) in a case where P is a child, P’s parent, or

(iv) an adult dependant relative of P, and

(b) the person does not have a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom.

(13B) In subsection (13A) “child” means a person who is under the age of 18.”

(6) In subsection (14) for “(7)(f)” substitute “(7)(f)(ii)”.”

(7) Section 142 of the Immigration and Asylum Act 1999 (attendance for fingerprinting) is amended as follows.

(8) In subsection (2) for “a dependant of” substitute “a member of the family of, or a dependant of,”.

(9) In subsection (2A) for “a dependant of” substitute “a member of the family of”.

(10) Until the commencement of the repeal of section 143 of the Immigration and Asylum Act 1999 (destruction of fingerprints) by paragraph 17(2) of Schedule 9 to the Immigration Act 2014, subsection (9) of that section has effect as if after “the person” there were inserted “of whose family he is a member or”.

(11) In section 144A(2) (application of regulations about use and retention of fingerprints etc to dependants) after “the person” insert “of whose family F is a member or”.”

Amendment 214E agreed.

Amendment 215 not moved.

Clause 31 agreed.

Clause 32: Immigration bail

Amendment 215A

Moved by Baroness Hamwee

215A: Clause 32, page 38, line 13, leave out “bail” and insert “temporary admission”

Baroness Hamwee (Liberal Democrat)

My Lords, my noble friend Lord Paddick and I have a number of amendments in this group, and we have added our names to other amendments in the names of the noble Lords, Lord Rosser and Lord Kennedy.

With this amendment we come to another big issue, starting with what may appear to be a triviality, although I do not regard it as such. The clause, of course, is about bail. The law as it currently stands is that if a person cannot lawfully be detained under immigration powers—for instance, because there is no prospect of removing her or him within a reasonable period, or at all, or because it is contrary to policy to detain because the person is a victim of torture or trafficking or is seriously mentally ill—that person must be released from immigration detention and cannot be subject to bail because the powers to grant bail and to impose bail conditions can apply only if there is a power lawfully to detain. Bail is not liberty, either conceptually or practically, because of conditions which may be applied.

The Master of the Rolls, Lord Dyson—I appreciate he may not be the flavour of the month in the Government’s eyes, following evidence to the Justice Committee—recently referred to the long-established common law position that,

“The power to grant bail presupposes the existence of (and the ability to exercise) the power to detain lawfully. … It would be extraordinary if Parliament had intended to confer the power to grant bail where a person has been unlawfully detained or could not lawfully be detained”.

But we have Clause 32 and Schedule 7, which say that a person may be granted bail,

“even if the person can no longer be detained”,

which left my head spinning—but not spinning so much that I do not think that the language is important.

In this debate, we will all refer to “bail” because that is the term used in the Bill, but Amendments 215A and 216A would replace it with the term “temporary admission”. Language should be accurate and should not imply what it is not. We are not wedded to the term “temporary admission”. It used in at least three immigration statutes which I have come across, and indeed there is a Government amendment using the term. But if the Government wish to propose an alternative which does not suggest that detention is the norm, and that is accurate and does not carry connotations—in particular, that does not suggest that persons seeking asylum are criminals—I would of course be happy to entertain it.

I am spending a little time on this issue because it is not just me and the other noble Lords concerned who are nodding. Article 31 of the 1951 refugee convention expressly protects those who claim asylum from being treated as criminals, and I am advised that the UNHCR and other international guidance recognises that detention must always be the exception—a point I would like to emphasise.

In the Public Bill Committee in the Commons, the Minister said that the language was chosen deliberately because it is commonly understood by practitioners, but the point, surely, is how it is understood by others. Anything that risks designating an asylum seeker or someone who is seeking to register his status as an asylum seeker, who is not illegal, as a criminal—instead of, as he often is, as a victim—should be avoided.

Moving on to the other amendments, the language is not new but the restrictive provisions of the Bill are. We have added our names to Amendment 217, tabled by the noble Lord, Lord Rosser, because it gives a role to the judiciary, not the Executive. That is probably the most important issue in this part of the Bill. It highlights the importance of regular and frequent reviews of detention in every case. It is implicit in that, certainly as I read it, that detention should not be automatic nor roll on automatically.

We have also added our names to Labour’s Amendment 220 and to Amendment 221, tabled by the noble and learned Lord, Lord Mackay of Clashfern. It was originally shown as being in his name and that of my noble friend Lord Paddick. I respect the noble and learned Lord’s views and I wondered why my noble friend had done a little exercise of his own. It was only on Thursday that I discovered that he had not, when the noble Lord, Lord Pannick, called me and asked me to speak, since neither he nor the noble and learned Lords, Lord Mackay and Lord Judge, could be here this evening—so the unlearned gets to go first on this. I predict the weight of learning might come to bear at the next stage if the Government do not concede on this point.

Paragraph 2 of the schedule deals with conditions of bail and the sub-paragraphs allow the Secretary of State to override the decisions of the tribunal about residence conditions and electronic monitoring. The organisation Justice—at this point one might say Justice without adding “the organisation”, I think—describes the power of the Secretary of State, who will have requested the First-tier Tribunal to impose conditions, which the First-tier Tribunal will have considered and refused, then to overturn the decision as,

“a direct affront to the rule of law”.

The Constitution Committee asks whether it is compatible with the rule of law for the Executive to be able to override the decision of an independent judicial body, and quotes a number of comments from the noble and learned Lord, Lord Neuberger, in the recent Evans v Attorney-General case regarding freedom of information, when he said that,

“it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive”.

The Constitution Committee also says in its recent report:

“It is also worth noting that, unlike the matter at stake in the Evans case, electronic-monitoring and residence conditions engage considerations of individual liberty—something that arguably renders the prospect of executive intervention more constitutionally dubious”.

The Constitution Committee goes on to express concern about the provisions being,

“in tension with the principles of the rule of law”,

and says:

“The usual process, should a Minister have concerns about a judicial decision, would be to appeal against it. The House may wish to ask the Government”—

which is what I am doing now—

“to clarify how their proposals comply with the rule of law. The House may also wish to ask the Government why, if the intention is to ensure the use of certain bail conditions for particular offenders (such as satellite monitoring for foreign nationals), they do not simply propose new criteria for the First-tier Tribunal to take into account when setting bail conditions”.

In the Commons Public Bill Committee, the Minister said that the powers would be used “very rarely”. That hardly requires a response other than, perhaps, as I commented earlier, if one is not afraid of something, why not provide for it?

Our Amendments 221A and 221D address matters to which the Secretary of State or the First-tier Tribunal must have regard when determining the grant of bail or bail conditions. One of these is that the person might cause a danger to public health. I would be grateful if the Minister could explain why incarceration would be applied in this case. For instance, would treatment not be more appropriate? If someone is not in the group of people who are seeking asylum and who might be subject to immigration bail—you or me, I might say—but causes a danger to public health, they would not be incarcerated. Other public health provisions might apply but they would not be subject to bail conditions.

The other matter I wish to raise this evening is,

“whether the person’s detention is necessary in that person’s interests”.

My concern is whether this could be used in the case of mental illness and whether it might be open to abuse. It is a very wide provision and there are a number of cases in which the courts have found that the use of immigration detention to protect a person from himself is unlawful. In view of the time I am taking, I will not quote them now, but I have them to hand.

Amendments 221C and 221D are about electronic monitoring and related arrangements, which may require the person to communicate,

“in a specified manner and at specified times”.

Amendment 221C would insert reasonableness. This comes from evidence that a number of your Lordships will have heard during the period when control orders were being applied that controlees were often required to report at times and in places which were very unreasonable and precluded them from normal activities. It seemed to me that, in another context requiring reporting, reasonableness would be appropriate.

The arrangements in the Bill would allow the exercise of functions by persons other than the Secretary of State or First-tier Tribunal, and my Amendment 221D would insert “on behalf of” those. I assume that is what was meant, or has outsourcing crept even further? Certainly, if it has, whoever exercises the functions should be subject to the supervision and control of the Secretary of State or tribunal in this context. I beg to move.

Lord Keen of Elie (Conservative)

My Lords, I hope it may be for the convenience of the Committee if I observe that, with regard to Amendments 220, 222 and 223, which raise the question of bail conditions and the Secretary of State’s proposed power to address conditions already set by the tribunal, I recognise the important constitutional issues that the noble Baroness, Lady Hamwee, has raised. Given the proposed amendments from all sides of the Committee and the concerns expressed by the Constitution Committee and the Joint Committee on Human Rights with regard to this matter, the Government will think again about this. We anticipate bringing forward before Report a suitable amendment to Schedule 7 with respect to bail conditions. I hope that this assists the Committee.

Baroness Lister of Burtersett (Labour)

Very briefly, I support Amendment 215A because I absolutely agree that this is not a trivial matter. I am not an expert on these issues but a social scientist who knows the importance of language. Some years ago, it was quite common among the media and politicians to talk about bogus asylum seekers. That did immense harm, so I absolutely agree that language which has connotations of criminality when applied to asylum seekers is totally inappropriate and could be very harmful.

Lord Alton of Liverpool (Crossbench)

My Lords, I intervene briefly to support the point that the noble Baroness, Lady Lister, and previously the noble Baroness, Lady Hamwee, have made about the importance of the language we use. When the Minister comes to consider this issue again between now and Report, I wonder whether he will look at the nomenclature that we use here and whether “immigration bail”, with its connotations of criminality, really is the right language for us to use at all. In particular, people seeking asylum are not criminals when one considers that they will include refugees, children, survivors of torture and trafficked people. It is quite wrong to imply that they are necessarily people who are therefore trying to break our laws.

I hope that the Minister will also return specifically to the point made by the noble Baroness, Lady Hamwee, about our duties under international law, especially Article 31 of the 1951 refugee convention, which expressly protects those who claim asylum from being treated as criminals. The UNHCR and other international guidance recognises that the detention of persons seeking asylum must always be the exception, so let us at least start from the basis that those seeking asylum will be among people who are genuine. They will be trying to escape from the most appalling situations in their own countries and are not criminals. We therefore must have some regard for their well-being and status.

I would like to raise one other brief issue in relation to Schedule 7, which is not covered by these amendments but on which I hope that the Minister will be able to provide some clarification. It appears that the introduction of a restriction on studies as a condition either of temporary admission or bail for those subject to immigration control is a new provision. I would be grateful if the Minister would spell that out. No reason for the restriction is given in the Explanatory Notes to the Bill, so I wonder whether we could take this opportunity in Committee to find out what that reason is. Breach of a condition of immigration bail is, as we have just discovered in these exchanges, a criminal offence and therefore has serious consequences. Those lawfully present and in touch with the authorities should not be restricted from undertaking studies. All those subject to immigration control will be on immigration bail, not just persons released from detention. The condition could potentially be applied to children and young people, preventing them accessing further education and even attending their school. I am sure that that is not what the Government had in mind but I hope they will clarify what the consequences of this provision might be.

Lord Hylton (Crossbench)

My Lords, for a long time I have been concerned about immigration detention and I have therefore visited two, if not three, of the detention centres. It is very important for us to take full note of the fact that the Shaw review was not available to the other place when considering the Bill. I emphasise that that review said that the length of detention should be reduced, whether by better screening, more effective reviews or a formal time limit. We also have to recall that this country makes more use of immigration detention than other, comparable western European countries, almost all of which have time limits for it. I also emphasise the extreme vulnerability of some of the people who get detained. I notice that my noble friend Lord Ramsbotham will speak to a specific amendment on this point later.

However, to reinforce that approach, I shall quote from a case detailed by the Detention Forum, which is a large consortium of voluntary organisations. A man whom the consortium code-named Jacques was, it said,

“detained for the purposes of removal to Denmark where he had previously claimed asylum. He had a traumatic history as a child soldier and was severely”,

affected by post-traumatic stress disorder. The forum said:

“Despite being visibly unwell, and despite anecdotal evidence of staff feeling unable to manage the situation, he was detained for over two months before being removed to Denmark. During detention, Jacques suffered periodic blackouts and dizziness, which at least once led to injury. He was unable to communicate with staff or other detainees and exhibited erratic behaviour, at times running naked out of his room or speaking what was understood by staff as gibberish. In response, Jacques was regularly placed in isolation, which appeared to exacerbate his confusion and paranoia. The local visitors’ group made efforts to raise concerns with the detention centre staff, but got no response from the healthcare centre. Attempts to support Jacques were made by a fellow detainee who spoke the same language as well as a solicitor who was willing to represent him for a temporary admission application and for unlawful detention. Jacques’ paranoia made him unwilling to enter the room with the solicitor, and so it was impossible to represent him. Communication was so difficult that his fellow detainee was unable to do much to support him either”.

That surely is the kind of situation which we should do our level best to avoid.

Earl of Sandwich (Crossbench)

My Lords, my noble friends have been tempted to move into the next group of amendments. I can see why, as bail and detention are so inextricably intertwined, but I will try to resist that temptation. I would say that the question of bail has been raised on successive immigration Bills, and many of us remember that historic repeal by Labour of the clause that would have brought in automatic bail. This issue has a direct bearing on the next group of amendments and the old problem of the inadequacy of initial decisions.

I will simply quote here the words of the highly regarded Detention Forum, which was mentioned by my noble friend Lord Hylton. It said:

“Given the lack of automatic bail hearings for individuals who have been detained, and without the initial decision to detain being sanctioned by any kind of legal proceeding, the lack of effective case-working has serious and damaging consequences”.

I have had some experience of visiting detention centres where there are a lot of patient and courageous visitors who, just like the inmates themselves, have become frustrated with the system. There are some who have committed serious offences but there are genuine migrants and asylum seekers in their hundreds, anxiously awaiting either sentences or appeals for crimes that they have not committed. I understand that in 2014, more than 30,000 individuals were detained but only 12,000 removed. I support the later amendments on the need for a time limit to detention but I will not mention that now. We have already heard the example of Yarl’s Wood and of the work of the Shaw report, so I will leave that for later.

Lord Kennedy of Southwark (Labour)

My Lords, the intervention by the noble and learned Lord, Lord Keen, is helpful in respect of this group of amendments. It starts with Amendments 215A and 216A in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. These amendments seem practical and proportionate. I concur with the points made by the noble Baroness, Lady Hamwee: a person must be released if there is no power to detain and they cannot lawfully be detained, and it does not seem right to use the term “bail”. I particularly agree with the point made by the noble Baroness, Lady Hamwee, and other noble Lords that language must be accurate. People seeking asylum should be seen as victims and not treated as criminals. That is an important point.

Amendment 217, which was tabled by my noble friend Lord Rosser, the noble Baroness, Lady Hamwee, the noble Lord, Lord Paddick and me seeks to add an additional clause that sets out a process whereby somebody detained has a clear procedure to go before the First-tier Tribunal within eight days, then after 36 days and then every 28 days for it to determine whether they should be released on bail. This is an important role for the judiciary, as the noble Baroness, Lady Hamwee, said. The amendment makes provision for detention not to be indefinite and for a proper review process. Depriving somebody of their liberty is a serious matter. It is right that the reasons for detention should be vigorously tested and that the tribunal should be satisfied that there is no other reasonable course but to detain the person. We support this amendment.

Amendment 219 seeks to remove from the Bill the power for the Secretary of State to detain an individual granted bail by the tribunal without just cause. Amendments 220, 222 and 223 would remove the provisions that would allow the Secretary of State to override the decisions of the tribunal with regard to electronic monitoring or residence conditions on immigration bail. Amendment 224 would require the Secretary of State to make provide accommodation facilities for a person released on bail. This is an important provision under the heading:

“Powers of Secretary of State to enable person to meet bail conditions”.

Ensuring that a person has a roof over their head should be a primary concern.Amendments 221A and 221B in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, seek to remove the words,

“causing a danger to public health”,

and,

“in that person’s interests or”.

I particularly look forward to the response of the noble and learned Lord, Lord Keen, on this. The noble Baroness, Lady Hamwee, made an excellent point.

Amendment 221C clarifies that the arrangements to communicate must be reasonable. It is important requirement. These are difficult matters and the emphasis on the word “reasonable” is very welcome. Amendment 221D makes clear that the functions are exercised on behalf of the Secretary of State. The remaining amendments are in the name of the noble Lord, Lord Bates, and I looking forward to an explanation of them.

Lord Keen of Elie (Conservative)

I am obliged to the noble Baroness and to noble Lords for their observations on this part of the Bill and on bail. I notice that we have all referred to “bail” throughout the debate. Going back through various parliamentary reports over many years, the references are consistently to “bail”. It is a term that we understand in this context. That is important because, as the noble Baroness observed, the use of language is significant in this context. It is as well to bear that in mind.

I shall look first at Amendments 215A and 216A on the use of the term “immigration bail”. Let us be clear: no one is seeking to criminalise immigration or to treat immigrants as criminals. It so happens that the term “immigration bail” has come into common parlance in this context. Clause 32 and Schedule 7 are intended to simplify the current powers on bail and temporary release contained in various Immigration Acts, effectively reducing six different forms or statuses to one. The description “immigration bail” was chosen because it is a well-understood concept. The statutory underpinning for criminal bail and immigration bail are in entirely different pieces of legislation. The naming of immigration bail is not about criminalising people. It is about being clear about an individual’s situation. The term “temporary admission” could have been chosen, but it is a less accurate way of describing the status as it would not capture, for example, the circumstances of individuals encountered in the UK without leave or those who had leave but are subject to a deportation order. In these circumstances, we resist the suggestion that “immigration bail”, which is widely understood by those who engage in this debate, should be replaced by “temporary admission”, which is less exact and less accurate as a means of describing the relevant status.

Amendment 217 is on automatic bail hearings. It would require a bail hearing in the tribunal after eight days of detention, then after 36 days and every 28 days thereafter. The Government take matters of liberty seriously and have made clear in the recent Written Ministerial Statement by my right honourable friend the Minister for Immigration that changes to policy and the operational approach to detention should lead to a reduction in the number of those detained and in the duration of detention before removal, especially for the most vulnerable. However, the Government do not consider that introducing mandatory and scheduled bail hearings will aid these reforms. There is already well-established judicial oversight available. Individuals detained under immigration powers have unrestricted opportunity to apply to the tribunal for bail at any time. They can also apply for a judicial review of their detention or for a writ of habeas corpus to the High Court, again at any time.

The current system is flexible by design, both in the interests of justice and in allowing the detainee ready access to the tribunal. Introducing automatic bail hearings at set periods in all cases would be a significant resource burden on the tribunal at the expense of the taxpayer and would take valuable judicial time that could be spent on other matters, potentially prolonging the time spent in detention and denying other appellants timely access to justice. Mandatory bail hearings at set intervals were placed on a statutory footing, as a noble Lord observed, the last time the Opposition formed a Government, being legislated for in Part III of the Immigration and Asylum Act 1999. However, they were never brought into force and were repealed in the Nationality, Immigration and Asylum Act 2002. What was the reason for the repeal? The plans were unworkable in practice and would have been a significant resource burden. That remains the position today, so we resist the amendment.

Amendment 221A would remove the requirement to consider the public health implications of bailing an individual. It is not about incarceration. In order to detain pending removal, there must be a realistic prospect of removal in a reasonable timeframe. Paragraph 3 of Schedule 7 sets out a number of factors that the bailing authority must have regard to when considering whether bail is appropriate and the conditions of bail that should be imposed. Naturally, risk to the public and community is a paramount consideration, whether that is the likelihood of the person committing an offence, the likelihood of the person absconding or the likelihood of the person’s presence in the UK being a danger to public health. This would, for example, be a consideration if there were a pandemic and an individual were infected and detained pending removal. Clearly it would not be possible to detain under immigration powers if the sole consideration was protecting public health and there was no underlying immigration justification for the exercise of the detention power. It is a justifiable power in the context of protecting public health.

Amendment 221B would remove the requirement to consider whether it is in a person’s best interests to be detained before being released on bail. I understand the reason why this amendment has been laid, as when could it ever be in anyone’s best interests to be detained? First, let me be clear on a point of principle. It is the Government’s policy that there is a presumption of liberty and that immigration detention should be used as a last resort. This is long standing and will not change. It is important to put that on the record and I am sure that the whole Committee will agree that this is right.

The thinking behind this provision is simple. When detaining under immigration powers, normally for examination purposes, there will be a very limited number of cases where the Home Office’s duty to safeguard individuals at risk—both adults and children—will mean that a very short period of detention may be justified while arrangements are made for an individual to be transferred to appropriate care. For example, a very short period of detention may be necessary for safeguarding reasons where an unaccompanied child arrives at a port, especially late at night, with uncertain or no care arrangements. At present there would be no lawful basis for detaining the child for their own benefit and their own protection.

I want to be clear to the Committee that detention under immigration powers to ensure that an individual is not put at risk and is safeguarded should be used in only a limited way, for the shortest period possible and only when there is a lawful underlying immigration power to detain. We are talking about a period of hours, not of days or weeks. Again, we resist this amendment.

Amendments 221C and 221D would make changes to the arrangements in support of electronic monitoring conditions and how they operate. These amendments are not necessary. The language on electronic monitoring in paragraph 4 of Schedule 7 is virtually a word-for-word reproduction of the current electronic monitoring power in Section 36(6) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It is simply a case of importing the existing provisions into the new bail power.

Amendment 224, spoken to by the noble Lord, Lord Kennedy, concerns accommodation and support provided to anyone released on bail. This would be an unnecessary provision. Paragraph 7 of Schedule 7 provides a power for the Secretary of State to ensure that a person can meet bail conditions by paying for the costs of their accommodation and travel expenses in appropriate circumstances. It is not right to mandate in statute that the Secretary of State must pay for accommodation and travel costs, particularly in these times of austerity.

The arrangements in the Bill are designed to replace Section 4(1)(c) of the Immigration and Asylum Act 1999, which is repealed under the Bill but which to date has been used to provide accommodation for persons released on bail in the limited circumstances where it is felt that that would be appropriate. The repeal is part of the wider changes to support provision for failed asylum seekers and other irregular migrants. The power is deliberately drafted in a narrow way because it will not generally be necessary to arrange accommodation for those on bail or to pay for travel expenses. The individuals will usually be expected to accommodate themselves—for example, with friends or relatives. This is not any different from the way in which Section 4 is currently used. If the person really is unable to arrange their own accommodation, the powers can be used to provide it on a case-by-case consideration of the particular circumstances, including whether they are able to avoid the consequences of being left homeless by returning to their own countries.

The noble Lord, Lord Alton of Liverpool, made a point with regard to restrictions on studies and the provisions in Schedule 7. This existing power is used only in the context of a terrorism-related issue which is subject to SIAC provisions. I would be content to write and elaborate on that in due course. I had not anticipated that the point would be raised, but I emphasise that this is an existing power used only in the most exceptional circumstances pertaining to terrorism. If the noble Lord wishes me to write further on that, I would be glad to do so.

Lord Alton of Liverpool (Crossbench)

My Lords, I am grateful to the Minister for giving that clarification. It would be a convenience and a help to the House and to those who have made representations about this if further clarity could be given. If the power is to be used only in circumstances relating to terrorism, that seems a reasonable and justifiable provision.

Lord Keen of Elie (Conservative)

I am most obliged to the noble Lord and I undertake to write on that point.

The government amendments that arise here are essentially consequential amendments. Amendments 224E to 224K are consequential amendments to legislation to ensure that the provisions in Schedule 7 work as they should, by bringing existing legislation into line with Schedule 7, removing references to provisions which have been or are being repealed by Schedule 7 and, where necessary, inserting references to the relevant provisions in Schedule 7. Amendments 229ZA and 230ZA are consequential amendments to Schedule 8 to the Bill to reflect the amendments and repeals made in Schedule 7.

I am conscious that your Lordships had in mind not only the question of bail but the question of detention. However, as that is going to be addressed in a further group of amendments, I will come to that when we address that further group. I hope your Lordships will support the amendments standing in the name of my noble friend Lord Bates, but I ask that noble Lords withdraw their amendment—I say noble Lords, but I address that to the noble Baroness, Lady Hamwee.

Baroness Hamwee (Liberal Democrat)

My Lords, I think we are all Lords, whether Lords or Baronesses. I am obviously pleased to hear that the Government are considering the issues around the relationship between the Executive and the judiciary raised in the three amendments, although I am not entirely surprised, as I felt that the arguments—they were not mine—were irresistible. I was also interested to hear the response on the restriction of studies. It will be very helpful to see the detail of that.

I said when I moved my amendment that I would use the term “bail” in the debate because that is the term used in the Bill, although “temporary admission” is in fact used in a government amendment later. When we are bringing six statuses into one, it seems the perfect time to change the terminology. It does not necessarily have to be temporary admission—I heard what the noble and learned Lord said—but any ideas will be gratefully received on this. It is clearly something that other noble Lords feel as strongly about as I do.

I will just pick up two other points. On safeguarding for a very short time, I would be much happier if I saw that short time limit reflected in the legislation. After all, we are talking about detention here, and it is particularly ironic if it is applied to people who are on their way to care and support, which are the categories referred to. As regards public health, I suspect that if one holds a visa and comes in through a recognised route, but is found at Heathrow or wherever to be suffering from a communicable disease, one’s destination is hospital not detention.

We will wait to see the amendments on the central issue of the Executive’s power in this regard—or otherwise—and I beg leave to withdraw my Amendment 215A.

Amendment 215A withdrawn.

Clause 32 agreed.

House resumed. Committee to begin again not before 8.38 pm.

Lord Rosser (Labour)

Our Amendment 216 in the form of a new clause provides for an independently chaired report on immigration detention, including, among a number of other issues, looking at introducing a statutory limit on time in detention.

Detention takes place in what are called immigration removal centres. They are, as the name implies, intended for short-term stays. That, though, is not how they are always used now. The use of detention has expanded rapidly over the last two decades. In 1993, 250 detention places were available in the United Kingdom. At the beginning of last year, the figure had reached just over 3,900. The number of people starting detention in the year to June 2015 was just over 32,000—up 10% on the previous year. Yet Home Office policy is that detention should be used sparingly.

In the last Parliament, an all-party group looked at immigration detention. We are unusual in this country in having no limit on administrative detention for immigration purposes. The recommendation of the all-party group calling for the introduction of limits on indefinite immigration detention was endorsed by the House of Commons last September. Included in the evidence heard by the all-party group, which had parliamentarians from both Houses, and in which opposition members were in a minority, was a case of a young man who had been raped, tortured and trafficked before arriving in this country. He had been detained for three years in an immigration removal centre. The inquiry also heard evidence which reflected reported incidents of deaths and of allegations of sexual assault in immigration removal centres.

Home Office-stated aims are that those who have been trafficked should not be detained, those who have been tortured should not be detained, and that detention should be for the shortest possible time. There is clear evidence that these aims are not always achieved. The all-party group inquiry into immigration detention heard evidence that detention was worse than being in prison, since people in prison do at least know when they will be getting out. People in prison have also been convicted of an offence, unless they are on remand awaiting trial. For people in immigration detention, the uncertainty can be hard to take. Their life is in limbo. They are not told a great deal—or, indeed, perhaps anything—about how long they will have to stay, and they do not know whether they will be deported.

There is, I agree, little sympathy for people in immigration detention, which is precisely why the present situation goes on and on. The view, expressed to me again in a conversation two days ago—last Saturday, is that those coming to this country are doing it only for the benefits they can obtain and for the use of our National Health Service. Unfortunately, too many of those in a position, and with the power, to influence public opinion on this issue choose to use their position and power to reinforce, rather than refute, that impression.

The all-party inquiry heard from medical people with knowledge in this field that the sense of being in limbo in immigration detention, and the hopelessness and despair it generates, leads to deteriorating mental health. One such witness said that those who are detained for more than 30 days have a significantly higher level of mental health problems. In the first three quarters of 2014, 37% of those detained were detained for longer than 28 days, even though 28 days reflects best practice in other countries. Home Office guidance provides for detention to be used only as a genuine last resort to effect removal.

The inquiry also heard from a person with knowledge as a team leader at the prisons inspectorate that lack of any time limit encourages poor casework and ineffective procedures. The evidence this person gave was that a quarter of the cases of prolonged detention that the prisons inspectorate had considered were the result of inefficient casework rather than because it was inappropriate for people to be released.

Despite these places being called immigration removal centres, most people who leave detention do so for reasons other than being removed from the United Kingdom. According to government statistics, more than half the detainees are released back into this country. The system would therefore appear not only potentially damaging for those involved but expensive and a poor use of resources, since detaining someone costs £36,000 a year, with the overall cost being, as I understand it, just over £164 million—or some 165 times the figure the Government used in this House the other week to justify the new offence of illegal working because of the greater opportunity it was considered it would provide to secure more money under the Proceeds of Crime Act—namely, just under £1 million.

Having a time limit would not only bring an end to the prospect of indefinite detention but would change the culture within the system, which arises when there is no limit to the length of time someone can be detained, without any independent outside check on or review of whether that continuing detention is justified and proportionate in the light of all the circumstances. Decisions to detain and for how long are taken as an administrative or executive decision, with no automatic judicial oversight. Yet we are not talking about people who are detained because they have committed criminal offences.

There needs to be a wider range of community-based alternatives to detention, enabling people to remain in communities while their cases are being resolved or when arrangements are being made for them to leave the country. According to the Home Office’s own evaluation, the family returns process, designed to reduce the number of children detained, has resulted in most families being compliant with the process and no increase in absconding.

Following a visit to Yarl’s Wood immigration removal centre last year, the Chief Inspector of Prisons said that the rigorously evidenced concerns that have been identified in an unannounced inspection provided strong support for the calls for time limits on administrative detention. He went on to say that a strict limit should now be introduced on the time that anyone can be administratively detained.

Not only have we heard the views of the all-party group inquiry report on immigration detention and the views of the Chief Inspector of Prisons; there is now also the government-commissioned report on immigration detention and the welfare in detention of vulnerable persons, by Stephen Shaw, the former Prisons and Probation Ombudsman.

In the Commons debates on this Bill on immigration detention, the Minister referred to detailed analysis being conducted by the Home Office; to coming back to the Commons in the new year, before the Bill had passed through both Houses; to setting out the broader piece of work the Government are undertaking; to responding to the Shaw report before the Immigration Bill had started its Committee stage in the House of Lords; and to setting out proposals for a new detained fast-track. I am not clear whether the documentation we have had so far from the Government is intended to have met all those undertakings, or whether there is more to come. No doubt, the Minister will clarify that point when he responds.

As far as the report commissioned by the Government from Stephen Shaw is concerned, the remit was to conduct an independent review of policies and procedures affecting the welfare of those held in immigration removal centres. Bearing in mind that the remit did not refer to considering the central issue of a statutory limit on detention, it had a surprising amount to say on the issue of detention and its impact—perhaps to the concern of the Government.

For his report, Mr Shaw commissioned a review by Professor Mary Bosworth of the evidence linking detention with adverse mental health outcomes. Mr Shaw said that he regarded her review as,

“a study of the greatest significance”.

Two of Professor Bosworth’s key findings were, first:

“There is a consistent finding from all the studies carried out across the globe and from different academic viewpoints that immigration detention has a negative impact upon detainees’ mental health”.

Secondly:

“The impact on mental health increases the longer detention continues”.

Mr Shaw himself also said:

“Most of those currently in detention do not represent a serious (or any) risk to the public, and many represent a very low risk of non-compliance because of their strong domestic links to the UK”.

He also said:

“Ideally, voluntary returns options should be exhausted, and a community-based approach attempted, before detention is considered”.

In his conclusions, Mr Shaw stated:

“Most of those who have looked dispassionately at immigration detention have come to similar conclusions: there is too much detention; detention is not a particularly effective means of ensuring that those with no right to remain do in fact leave the UK; and many practices and processes associated with detention are in urgent need of reform”.

He ended by saying:

“Immigration detention has increased, is increasing, and—whether by better screening, more effective reviews, or formal time limit—it ought to be reduced”.

One assumes from that that Mr Shaw does not regard a formal time limit on immigration detention as being beyond the pale, as apparently do the Government, who, in their Written Statement on Shaw, referred to,

“the potential abuse of the system that arbitrary time limits would create”.—[ Official Report , Commons, 14/1/16; col. 28WS.]

In his report Mr Shaw also recommended that, in common with individuals who have been trafficked or tortured, there should be a presumption against detention for victims of rape and other sexual or gender-based violence; that for pregnant women it should be an absolute exclusion; and that for those suffering from serious mental illness the words,

“which cannot be satisfactorily managed in detention”,

should be removed from the enforcement instructions and guidance.

The Government gave a response to Stephen Shaw’s report in a Written Statement on 14 January 2016. In it they said that they accepted,

“the broad thrust of his recommendations”.—[ Official Report , Commons, 14/1/16; col. 26WS.]

That of course is as long as a piece of string. In order to clarify the Government’s position, perhaps the Minister could say which of Mr Shaw’s 64 recommendations the Government accept and which they do not. I beg to move.

Lord Ramsbotham (Crossbench)

My Lords, before speaking to the amendments in my name and those of the noble Baronesses, Lady Hamwee and Lady Lister of Burtersett, perhaps I might put a more general question to the Minister, to which I do not expect a definitive answer—it may be above his pay grade to give one.

An enormous number of government amendments were tabled just before Report in the other place, none of which was discussed in Committee. Since the Bill has been before this House, the Government have tabled more than 150 amendments; they have received a 350-page report from Stephen Shaw, which they commissioned on the welfare of vulnerable persons in immigration detention, to which they have published a one-and-a-half-page response; they have received a report commissioned by SERCO on detention arrangements in the immigration removal centre at Yarl’s Wood; they have also received an internal report on immigration detention, announced by the Minister at Second Reading, about which no details have been disclosed or released.

This unprecedented volume of associated activity after a Bill has been formally introduced in the other place suggests that the Government do not know exactly what they want to achieve, and that the Bill as currently constructed is not fit for purpose. I speak from the point of view of someone who fervently hopes that the Bill, as ultimately approved, will improve the way in which immigration and asylum issues are conducted in this country, and I bear in mind the increasing strain under which the system is going to come as climate change pressures are added to those it is currently under. Given that, I put it to the Minister that further processing of something to which the Government have already made more than 200 amendments—which must be something of a record—seems a pretty pointless exercise until they have worked out exactly what they intend.

My question to the Minister is therefore in the form of a proposal; namely, that on common-sense grounds alone further processing should be suspended and the Bill temporarily withdrawn, as happened to the Health and Social Care Act 2012, until it has been adjusted to include the Government’s many changes of mind and the implications of any recommendations they accept from the reports they have commissioned. In addition, such a pause would enable them to think again about some of the unnecessary bureaucratic complexity that the Bill, as currently constructed, will add to the demands on already overstretched officials on the front line, when simplicity should be the name of the game.

In speaking to my amendments, I first acknowledge what the Minister said about detention being used only as a last resort. The Government’s short response to the Shaw report states:

“Where it is necessary for the purposes of removal”,

of those with no right to remain in this country,

“and taking into account any risk that an individual may abscond”,

the enforcement action that they take,

“will involve a period of detention (which of course can be avoided if the individual departs voluntarily)”.

As the noble Lord, Lord Rosser, said, immigration removal centres—the official title of places in which immigration detention is conducted—are presumably intended to be only short-term holding facilities. This explains their lack of suitable facilities for anyone held for more than a few days. However, the Government do not appear to have made up their mind about what rules govern detention in short-term holding facilities because, despite a promise made as long ago as 2002, these rules have yet to be published. True, draft versions appeared in 2006 and 2009 but nothing more. The situation appears to be that announced by the noble Lord, Lord Taylor of Holbeach, in answer to a Question of mine in October 2013, namely that:

“The … Short-Term Holding Facility Rules have yet to be finalised and … there is at present no fixed date for when they will be made”.—[Official Report, 30/10/13; col. WA261.]

Can the Minister update the House on the current position?

Commenting on the Shaw report the Detention Forum, a network of 30 organisations working in the immigration arena which was mentioned by my noble friend Lord Hylton, has said that the damning conclusions of the wide-ranging recommendations demonstrate that fundamental reform is needed. I would have thought that 350 pages and 64 recommendations deserved more than a mere one-and-a-half pages of government response, particularly when everyone outside the Home Office who knows anything about the way that immigration detention is currently conducted knows that something so obviously flawed is in urgent need of fundamental reform. Report after report by successive chief inspectors of prisons and immigration are nothing more than catalogues of failure which successive Ministers, and senior Home Office officials, have done nothing to correct over too many years. Seen against what those currently responsible must know to be urgently needed, the Government’s three proposals in their miserable response amount to nothing more than a sticking-plaster exercise. I hope that taken overall, my amendments and Amendment 216, moved by the noble Lord, Lord Rosser, will give those responsible for reform a comprehensive list of subjects that any review should encompass.

The Government’s first proposal, to adopt a wider definition of those at risk, is covered by Amendment 216ZC. I declare an interest in their second proposal, as a vice-president of the Centre for Mental Health, which has been commissioned to carry out a detailed assessment of the mental health needs of those held in immigration detention and report next month. Following receipt of this report, the Government then allege that the Home Office and the Department of Health will publish a joint mental health action plan in April. I simply do not believe that a fully comprehensive mental health treatment action plan can be produced in this ridiculously short time. To suggest that it is possible discloses a lack of understanding of what will be required—no doubt spurred on by wanting to give the impression that, after years of masterly inactivity and refusals to listen, urgent action is about to be taken. As Chief Inspector of Prisons I reported on the inadequacy of mental health arrangements in what were then called immigration detention centres in 1998 and, 17 years later, nothing has happened. Is it really likely that they are now to be transformed in a matter of weeks?

The Government’s third proposal is also beyond the capability of the Home Office to deliver, bearing in mind how long we have been waiting for short-term holding facility rules. They say that they will,

“implement a new approach to the case management of those detained, replacing the existing detention review process with a clear removal plan for all those in detention … combined with a more rigorous assessment of who enters detention through a new gate-keeping function”.

As my Amendments 216ZB and 216ZD point out, there is far more to detaining someone in a removal centre than making a clear removal plan, which is something that should have been an automatic procedure for years.

I now move on to timing. The Government’s response to the Shaw report says:

“It is a long-established principle … that where an individual is detained pending removal there must be a realistic prospect of removal within a reasonable time”.

The committee established by the All-Party Group on Refugees and the All-Party Group on Migration, of which I was a member, recommended that immigration detention should be limited to a period of 28 days and the other place formally voted in favour of that on 15 September 2015. The committee also recommended that,

“the Government should introduce a robust system for reviewing the decision to detain early in the period of detention. This system might take, for example, the form of automatic bail hearings, a statutory presumption that detention is to be used exceptionally and for the shortest possible time, or judicial oversight”.

This appears to be in line with the current statutory requirement on the Home Office that,

“detention should ... be reviewed during the initial stages”—

that is, in the first 28 days.

“This does not apply in criminal casework cases, where detainees come from prison, or remain there”—

in an immigration removal centre—

“on completion of custodial sentence”.

The guidelines also state that:

“Criminal casework cases involving the detention of children must be reviewed at days 7, 10, 14 and every seven days thereafter”.

I submit that, totally wrongly, too many reviews are conducted not by a court or tribunal, but by officials. Noble Lords may have seen an interview with the retiring Chief Inspector of Prisons, Nick Hardwick, which was published in the Guardian on Saturday 29 January, in which he spoke about his anger that comparatively junior officials in the Home Office were able to lock up someone who had not been convicted of anything. He added:

“If you lock someone up in a detention centre, you are punishing them, whether that’s your intention of not … Even if you’re trying not to run it like a prison. Even if you have the best staff in the world … it’s still a prison ... It should be very exceptional that you lock someone up without going before a court, and at the moment, it’s not exceptional enough ... It ought to be a huge decision to lock someone up, and the problem is that if you make that huge decision often enough it becomes not such a huge decision; it becomes routine”.

My Amendments 218, 218A and 218B are designed to ensure that the Secretary of State, having denied civil servants the routine power to lock anyone up, also ensures that detention should be for no longer than 28 days, after which a detainee should be released on bail, unless that is refused on the grounds that that is not in the public interest by a First-tier Tribunal.

All my amendments reflect my agreement with the Detention Forum that the Shaw review is a damning demonstration of the need for fundamental reform. I do not believe that such reform can be carried out during the time that this Bill is being processed through Parliament. Therefore, in order not to waste the time of either House, I recommend that the Bill be withdrawn so that due consideration can be given to the legislative implications of processing the recommendations contained in reports that the Government have commissioned. There is more than enough evidence of what is required of the system, and many people are only too happy to contribute their expertise to such a process. I await the Minister’s response with interest.

Baroness Hamwee (Liberal Democrat)

My Lords, were my noble friend Lord Avebury able to be here, I think he, too, would have started with short-term holding facilities. I feel I am letting him down by not having a specific amendment on the point.

When the all-party group undertook its inquiry, to which much reference has been made, I was particularly struck by the paradox of detainees both fearing and hoping for sudden change—or that things would stay the same way. It was well expressed by Dr Melanie Griffiths, who is quoted in the report as saying:

“By being detained indefinitely, without knowing how long for and with the continual possibility of both imminent release and removal, detainees worry that detention will continue forever and also that it will end in unexpected deportation the next morning. They have the simultaneous concern both that there will be sudden change and never-ending stasis. It is the lack of temporal predictability that prevents deportable individuals not only from being able to plan for the future, but also from having the ‘stability’ of knowing that the present will remain uncertain for a protracted length of time”.

A number of these amendments are concerned with time limits and timescales. The inquiry made a number of recommendations and comments, one of which was about the link with mental health. As the report expresses it, there is,

“a considerable mental health cost to detainees”.

The report also said that,

“the lack of a time limit, far from aiding Home Office effectiveness, was itself an incentive to poor case-working”.

The Government say that an arbitrary time limit is unnecessary, because we should have whatever is reasonable—although of course what is reasonable is often in the eye of the beholder. They also say that an arbitrary time limit—“specific” would perhaps be a better word—would become the norm and an incentive for non-compliance. However, those of us advocating a time limit do not wish to overlook the individual characteristics or indeed the changes over time and the changes of combinations of factors which may apply to individuals. We do not like a tick-box approach to vulnerability.

There are a lot of amendments in this group. I have signed up to all of those in the name of the noble Lord, Lord Ramsbotham, and started by supporting Amendment 218, which is the straight 28-day amendment, rather than the proposal for a review, which is in the first of the amendments in the group. After the Shaw report was published, and after we had addressed the issue at Second Reading, I discussed with the noble Lord, the noble Baroness, Lady Lister, and other members of that inquiry whether we might look for an alteration—I was going to say slight relaxation, as it were, but that would be a very bad term for me to use in the context—to the 28 days in the event of something exceptional.

The first of the two approaches in Amendments 218A and 218B is that the Secretary of State would go to the tribunal on the basis that bail is not in the public interest. I hope that would answer the critical comments made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, at Second Reading that there must always be some exceptions. We have had a go at a reference to offences which are in Schedule 4 to the Modern Slavery Act. That was suggested by somebody who has been concerned with this subject for a long time. I am not sure that it would be my preferred approach, but the intention was to present some possibilities to the Government as to how they might achieve 28 days, or a specific time limit, but with any absolutely necessary exceptions.

The other amendments—particularly Amendments 216ZA, 216ZB, 216ZC and 216ZD—are drafted directly from the Shaw report in the hope that the Government will give a detailed response to each of them. As the noble Lord said, we had a short response in the Written Ministerial Statement. I hope that the Minister, whose task tonight is considerable, has been briefed to give a response to each point. We could have tabled 64 amendments but that might have tested the patience of the Committee a little too much. Of course, none of this actually needs legislation; the Government could just get on with it. The essential items that lend themselves to an amendment are ones to which I and, I know, others would like a detailed and specific response.

Baroness Lister of Burtersett (Labour)

My Lords, I rise to support the various amendments in this group, focused in particular on the case for a time limit and for the absolute exclusion from detention of pregnant women.

As has already been said, like the noble, Lord Ramsbotham, and the noble Baroness, Lady Hamwee, I was a member of the all-party parliamentary inquiry into detention. Unlike them, I knew very little about detention beforehand and so was perhaps the more shocked by what I heard from both professionals and people who had been detained. One message that hit me with particular force was the impact of detention on the mental health of detainees—we have heard a bit about that already. It is clear that this was true for Stephen Shaw, too. In his very fine report, he states at the outset that,

“the impact of detention upon detainees’ mental health, has been at the heart of this review. For that reason alone, it is not possible to distinguish the fact of detention from the consequences for welfare and vulnerability”.

He based this conclusion in part on a literature review by Professor Mary Bosworth, to which my noble friend Lord Rosser referred and which Shaw suggests was perhaps the “most important contribution” made by his report. He concludes that it,

“demonstrates incontrovertibly that detention in and of itself undermines welfare and contributes to vulnerability”.

Professor Bosworth’s review found a clear link between duration of detention and mental health outcomes. She also points to qualitative studies that indicate that the uncertainty arising from no time limit creates additional difficulties, and concludes that in the absence of clinical studies,

“it is clear at the very least that uncertainty makes detention more difficult”.

That resonates with what we heard in our inquiry. For instance, Dr Robjant of the Helen Bamber Foundation told us that its clients talk about it increasing their sense of hopelessness and despair.

Despite the restrictions placed on his remit, Stephen Shaw raised serious questions about numbers detained, the length of detention, the impact of the unknown length of detention on vulnerability, and the need for alternatives. He emphasises from the outset that his recommendations, in themselves, do not go far enough. We must take seriously what in my view is a clear steer that we need to go beyond recommendations designed to mitigate the “diswelfares” associated with detention, important as they are, and address the underlying question of the role of detention itself, and in particular the question of the absence of a set time limit on its duration.

Since the parliamentary inquiry’s report, the UN Human Rights Committee has recommended that the UK introduce a time limit. In oral evidence to the Public Bill Committee on this Bill, a representative of the UNHCRC stated that his one wish would be the introduction of a time limit on detention—which, he underlined, was within the scope of the Bill. In addition to the unanimous vote in the other place in support of our inquiry which has already been mentioned, there was strong support for a time limit when the report was debated in your Lordships’ House in March, including from the former Home Secretary, the noble Lord, Lord Hurd of Westwell, who deemed it “deeply unsatisfactory” that detainees,

“have no certainty in their lives about when they might be removed from detention”.—[ Official Report , 26/3/15; col. 1569.]

This point was echoed by the noble Lord, Lord Cormack, who said that,

“it is worse than that, because it deprives people of hope”.—[ Official Report , 26/3/2015; col. 1578.]

We have heard other arguments in favour of a time limit, which I shall not go into. Let us now use the opportunity of this Bill to provide hope for migrants and asylum seekers deprived of their liberty by a detention system shown to be deeply unsatisfactory by legislating for a time limit and encouraging the Government to develop effective community alternatives.

I turn to Amendment 216ZC, which incorporates Shaw’s recommendations concerning presumption against detention. I thank the Minister for responding to our March debate by extending Shaw’s remit to include pregnant women and women who have been subject to rape or sexual violence. I applaud Stephen Shaw for the clear lead that he gave on this, including his recommendation that there should be an absolute exclusion of pregnant women, not just, as now, a presumption against exclusion. The recommendation was based in part on the evidence of the damaging impact of detention on the health of pregnant women and their unborn children, submitted by the Royal College of Midwives and Medical Justice, among others. In fact, Medical Justice published a report on the matter in 2013 and, in the foreword, the Royal College of Obstetricians and Gynaecologists declared that it was unacceptable that pregnant asylum seekers were being incarcerated. The study concluded that current policy is ineffective, unworkable and damaging.

Like the Medical Justice study, the Shaw review found that the Home Office policy of a presumption against the detention of pregnant women is not being implemented properly. Mr Shaw was told by HM Inspectorate of Prisons that there is little to suggest that pregnant women are being detained only in exceptional circumstances. This was the finding of the parliamentary inquiry, too. The Shaw review also found that it is very rare for the detention of pregnant women to result in removal.

The ministerial Statement in response to Shaw, described by the noble Lord, Lord Ramsbotham, as a miserable response, did not make clear the Government’s response to his recommendation on pregnant women, but the implication seemed to be that it had not been accepted. So I tabled a Written Question that asked whether the Government had accepted the recommendation and, if not, why not. The reply was that the Government’s position on the Shaw review was set out in the ministerial Statement—as if I had not read it—and that its recommendations, including on pregnant women, would be taken into account as they developed arrangements for the proposed adults at risk policy. The term “taken into account” is rather vague, so the response is disappointing and really not good enough.

Stephen Shaw’s report was dated September. I do not know when it was actually handed in, but it cannot have taken that long to print, even though it is a very substantial report. So it really should be possible to give us a clear yes or no answer as to the Government’s response to this important recommendation. I therefore ask the Minister to do so now. I very much hope that it will be a yes. If it should be a no, I trust that he will provide a clear explanation so that we can assess whether this is an issue to which we want to return at Report.

Lord Roberts of Llandudno (Liberal Democrat)

My Lords, I thank the noble Baroness, Lady Lister, for using one word especially—the word “hope”. We have responsibility not only to our own people but to the whole world community. As we deny that responsibility and act in ways that make people very much inferior and in fear, they will grow up to be people without that hope. People might resort to extremism and terrorism. Our opportunity in this Bill is to restore hope to people. I heard from Calais just half an hour ago that both the mosque and the Christian church there have been bulldozed today, removing another element of hope for those people. It is an opportunity. We deal with clauses, amendments and all sorts of things, but we are basically dealing with people—people just like ourselves.

I must not take long, and I will not. The Universal Declaration of Human Rights states that everyone has the right to liberty and to protection from arbitrary detention. Are we in violation of that declaration? Article 31 of the United Nations Convention Relating to the Status of Refugees specifies that states shall not impose penalties or unnecessary restrictions on the movement of refugees entering their territory without authorisation. Are we also denying that here in the United Kingdom?

What if we compare ourselves with other countries in Europe? France has a limit of 32 days and Belgium of two months. Here, though, two years ago—the only figures that I could get were for 2013—400 immigrants were detained for more than six months. At the moment there are about 3,500 people detained in our removal centres—many more than there were a few years ago. Just think of the cost of this. It was revealed in an Answer in June 2011—and the figure will be higher now—that the cost of detaining an individual at an immigration centre was £102 a day. We are acting totally against what would be best for our own people.

So there is so much to be done. As the noble Baroness, Lady Lister, said, the psychological and physical effects of indefinite detention must be totally devastating. You have family and opportunities at home or elsewhere but you do not know when you are going to be released. I know that the Minister has a good heart; I have spoken to him many times on these issues, and I hold him in great respect. Can we in the House of Lords not move in such a way that the rest of Parliament will have to listen to us? We have the opportunity here to bring hope to many more people.

Lord Dubs (Labour)

My Lords, I support the thrust of these amendments. I shall refer to two or three specific points. Amendment 216 is very moderate and the Government ought to have no difficulty in accepting it. The sort of review envisaged would give us more information; I think it would help to make the arguments clearer and might well come out more in favour of the tougher amendments that are also part of the group. It is up to the Government to say why they do not want this information to come to light and why they are against such a moderate amendment.

I turn to the question of time limits. I agree very much with the points that have been made. To detain vulnerable people and to give no sense of how long they are to be detained is not something that we as a country should be proud of doing. In a debate today on earlier amendments, it was put to us by the Minister that if people were in detention, they had other ways of getting out and processes they could go through—I think one example was judicial review and another was habeas corpus. It would be very difficult to achieve these safeguards, costly without legal aid to pay for them and indeed costly for the Government to defend such cases if people had the power to bring them. I do not think that that is a positive way forward.

Apart from supporting time limits, I also support the point made so clearly by my noble friend Lady Lister: to detain pregnant women must be entirely unacceptable. They are not going to run away, they can be of no danger to society, and I cannot understand what benefit there is to the country or to anybody else in detaining people who are so vulnerable by definition of their pregnancy. That also goes for some of the other categories listed in Amendment 216ZC, such as victims of torture. How can we contemplate detaining victims of torture, who surely have already suffered enough? For some of these people Britain is a country of hope, with high standards, and when they find that the way they are treated does not meet those high standards, as the noble Lord said, hope is gone.

So I very much hope that the Government will come forward with some positive responses to these amendments. We cannot as a country allow our reputation to be blemished and besmirched by the practices we adopt in detaining some of these people, who surely have more rights than we give them at the moment.

Lord Hylton (Crossbench)

My Lords, at Second Reading I said that indefinite detention without charge was completely repugnant to public opinion in this country. Therefore I welcome Amendment 216 and other amendments in this group. It is hard to imagine a subject which calls out more loudly for review than this one. My noble friend Lord Ramsbotham, with his long experience of inspecting official institutions, pointed out very strongly that for years now we have been subject to drift on this very subject. We have excuses, palliatives and promises, which have fairly seldom been fulfilled.

It may help if I give some figures on the length of time that people have been held. During the full year 2014, 857 people were held for longer than six months, and by the time that those people had been released, 26 had been detained for between for between two and four years and one person had been held for over four years. Of course, these figures do not include those held in prisons under immigration powers. Of the 161 people who were released after more than 12 months, only 70 were actually removed from this country, while 86 were granted temporary admission, temporary release or bail. That throws some light on the seriousness of how things have been running lately.

Lord Alton of Liverpool (Crossbench)

My Lords, I will briefly intervene to support the speeches that have been made thus far in favour of these amendments. In doing so, I will return to something my noble friend Lord Ramsbotham said earlier on about the inappropriateness of our procedures. It seems that the cart and the horse have been confused here. Why did we bother asking Stephen Shaw to carry out his review and examine these procedures while we were steamrollering through legislation? Surely we should have waited for that review in the first place.

The terms of reference for the Shaw review were interesting in themselves. They were to “review the appropriateness” of the Government’s,

“policies and practices concerning the welfare of those who have been placed in detention, whether in an immigration removal centre or a short-term holding facility, and those being escorted in the UK”.

That goes to the very heart of this legislation. Surely it would have been wise to await the findings of that review before the other place considered this legislation, and before we in Committee were asked to look at 64 recommendations and consider which of those could be incorporated in amendments, as the noble Baroness, Lady Hamwee, said before.

Stephen Shaw called for a complete overhaul of the Rule 35 process, a supposed safeguard against the detention of victims of torture which—as the noble Lord, Lord Dubs, implied in his remarks earlier on—he said is not working. That something as serious as people who have been subject to torture is now being addressed in amendments to legislation at this stage shows again the inappropriateness of the procedures we are using.

Although Shaw does not explicitly endorse the parliamentary inquiry’s recommendation that a 28-day time limit should be introduced, he does argue that detention should be reduced,

“whether by better screening, more effective reviews, or formal time limit”.

It would clearly be helpful to our debate, at least at this late stage, if when the Minister comes to reply he would say which of those proposals—better screening, more effective reviews or a formal time limit—the Government are likely to support.

In recommendations 62 and 63 of his report, Shaw calls on the Home Office to consider ways of strengthening legal safeguards against excessive lengths of detention and for the Home Office to explore alternatives to detention. I wonder whether rather more light could be shed on that too. What does that mean? What could the alternatives to detention that Shaw had in mind be, and are the Government examining such things?

I support what the noble Baroness, Lady Lister, said earlier about pregnant women. Will the Minister tell us how many pregnant women are in detention centres at present? What is the average length of stay? How many women in the last year or last five years have given birth in our detention centres? Shaw makes clear that a fundamental change of culture is required, not simply legislation. How are we going to go about that?

Finally, will the Minister tell the House what examination has been made, as Shaw did, of experience elsewhere? Currently, there is no statutory maximum time limit on how long an individual can be held in immigration detention, but this makes the United Kingdom an outlier among EU member states, most of which are signatories to the European Union returns directive, which specifies a six-month time limit. Many member states operate a shorter time limit. For example, in France the time limit is 45 days, in Spain and Portugal it is 60 days, and in Belgium it is two months. In Ireland, which along with the UK is the only EU member state not signed up to the returns directive, the maximum time limit is 21 days. What account have we taken of experience overseas and why are we not signatories to the returns directive? Is that still on the agenda and, if not, why not?

Lord Stunell (Liberal Democrat)

My Lords, I support this run of amendments. I do so not with a lot of expertise but with real puzzlement. I hope that the Minister can deal with one or two of my puzzles relating to the cost, effectiveness and impact of the current policy and the possible risks there might be should it ever be changed. Does the Minister have a ready list of other policies that cost £160 million a year and produce no measurable benefits whatsoever to anybody? If he has, I recommend that he talk to the Chancellor about how that might be used effectively elsewhere by the Government.

The percentage of people who are detained and who subsequently return is not that high. Does the Minister have the figures for the returns percentage of those who are not detained? I strongly suspect that detaining people is no more successful in encouraging them not to return than not detaining them. However, the Minister may have some evidence that would contradict my impression, and I think we should hear it.

There are two impacts that I would like to hear some evidence from the Minister about. One of those is the impact on the United Kingdom’s reputation for the rule of the law—the noble Lord, Lord Dubs, made the point just a few minutes ago—our reputation for fairness and our reputation for pragmatic common sense. We rather pride ourselves on our pragmatism and common sense when it comes to public administration. Does the Minister have any evidence that those countries that have a set time limit find that that leads to them having fewer returners than we do? What evidence is there that our asylum seekers—those who reach our shores—are more dangerous than those who get to France, Spain or Italy? Are they more likely to abscond than the people who go to those countries? In terms of the importance of having this policy at all, are we more successful in getting returners by not having that time limit than those countries are by having one? If that is a central part of the justification for the current policy, I am sure that the Minister will have those figures at his fingertips.

Then there is the impact on detainees themselves. The mental health impact and the impact on pregnant women have been mentioned. Bearing in mind that two-thirds of these people will be let out into the community eventually, the mental health costs and the costs for the children will fall on the National Health Service. What assessment have the Government made of the additional National Health Service costs generated by the impact of returning detainees to the community, with all the problems so ably set out in the Shaw report? I notice from an earlier debate that when it came to reporting complaints about treatment by immigration officers, the Government pointed out that there were five different routes to register a complaint. Obviously, if you do not speak English and have no experience of democratic public institutions and how they might be able to help you, those are formidable barriers to taking advantage of that help. So far as I understood from the puzzled looks around this Chamber, none of us knew how the process worked, never mind someone detained in Yarl’s Wood. What information is put in the way of detainees about how they can claim the rights that the Minister sets out as being available?

My final question is the same as the one I started with. What purpose does it serve to have the current policy, which costs public money, is not effective and has such a negative impact on the UK’s reputation abroad and on detainees themselves? I hope that the various amendments in front of the Committee today will provide some opportunities for the Minister to take back to the ministerial team a clear view that something has to change—to save money, to save the reputation of the United Kingdom and to save detainees the indignities that we are inflicting on them.

Lord Green of Deddington (Crossbench)

My Lords, I find myself once again in a minority of one in the Committee, but I am reassured that I am not in such a minority in the country as a whole.

The Bill and these amendments should be considered in a wider context. The removal of immigration offenders is central to the credibility of any immigration system. Furthermore, detention is an essential component of the removal process. Of course it is undesirable for people to spend long periods of time in detention, but in practice that is not the outcome of a majority of cases. The noble Lord, Lord Hylton, mentioned some statistics, but there are others from the same year, 2014. About 30,000 people were detained in that year, but 63% were detained for less than 28 days, of whom 37% were detained for less than seven days. Only 11% of those detained spent more than three months in detention and, of those, 62% were eventually removed from the UK, which suggests that those cases were among the more difficult ones and that detention was necessary to achieve removal.

Individual cases vary enormously. I do not think anyone would favour pregnant women being held in detention, but any specific time limit would be an invitation to those concerned and their lawyers to game the system. Let us not forget that 50% of all those who claim asylum in this country are in fact refused, and that includes those who have made an appeal and have lost it. That is the average over the past 10 years, so broadly speaking we are talking about a significant number of people who the immigration courts have decided no longer have the right to be in this country. Those are the people we are talking about here.

Those who attended the Second Reading debate will have heard the most eloquent intervention by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in which he stressed the complexities of the issues and the fact that detention is permitted only where there is a reasonable prospect of removal. That is the case law and he set it out clearly, and it seems to me a reasonable approach to this issue.

There are of course other entirely different approaches to reducing the time spent in detention. One example is to have effective returns agreements with third countries and to combine those with dedicated resources for enforcement so that the entire process speeds up. Meanwhile, any significant reduction in the use or indeed the prospect of detention could only encourage people to stay on illegally in the hope, and even the expectation, that they could dodge removal. Finally, we cannot be blind to the extraordinary events that are taking place in southern Europe. This is surely not the time to weaken our capability to return economic migrants to their countries of origin.

Lord Alton of Liverpool (Crossbench)

My Lords, given that my noble friend has placed a great deal of reliance on public opinion and how he thinks public policy should be shaped, and given that he has cited figures from 2014, has he had a chance to reflect on the figures produced by the House of Commons Library about the cost of running detention centres in the way we are at the moment? The cost was £164 million in 2014, while the cost of keeping one person in a detention centre is £36,000 a year. In addition, £15 million was paid out in compensation for illegal and unlawful detention. Surely he would agree with those of us who have been putting an alternative point of view that it is an issue which needs to be tackled at a fundamental level.

Lord Green of Deddington (Crossbench)

Yes, I certainly agree that detention is a very expensive business in all circumstances; that is true. The people I would be most concerned about are those who plan to come here as economic migrants and who would have no right of asylum. They are the people who need to be deterred. It is not so much public opinion; it is having an asylum system which is seen to be effective. By all means, people who have been tortured need to be dealt with, but it would surprise me if many were actually in detention. They would not be there if their cases had not been heard and refused by the immigration courts.

Baroness Lister of Burtersett (Labour)

I am not sure whether the noble Lord has read the report of the inquiry to which a number of us contributed, but we did quote from the International Detention Coalition about the experience in countries that do not rely so much on detention. The noble Lord seems to be worried about what that might mean in terms of the effect on compliance. The coalition found that alternatives to detention,

“maintain high rates of compliance and appearance, on average 90% compliance. A study collating evidence from 13 programs found compliance rates ranged between 80% and 99.9%. For instance, Hong Kong achieves a 97% compliance rate with asylum seekers or torture claimants in the community, and in Belgium, a pilot working with families facing removal had an 82% compliance rate”.

Alternatives to detention have proved to be very effective and can address some of the concerns of the noble Lord.

Lord Green of Deddington (Crossbench)

Yes indeed, but I would imagine that the conditions are very different in Hong Kong and to a certain extent in Belgium. You have to look at the circumstances that you find in a particular country. What we have here is a very large illegal population which people can quite easily join. I am not against looking at the kind of alternatives being suggested, but let us be pretty sure that they are going to be just as effective. Any move at this point to weaken, not so much the asylum system but our capability to remove those who have failed asylum, would be an extremely foolish step to take.

Baroness Hamwee (Liberal Democrat)

My Lords, this may be the last intervention, before the noble Lord sits down—again, using the language of this place. He has based his comments on immigration offenders. I wonder if he could explain what he means by that term. Certainly there are individuals who have committed offences within our criminal justice system and who are—not on the way to being deported; that being the problem—liable to deportation. There are people who have sought asylum but who are not offenders in the way that I would understand the term. Indeed, their claims have not been determined, which as we have heard in other debates, is a big problem. Could he just disaggregate that term?

Lord Green of Deddington (Crossbench)

The noble Baroness’s point is rather similar to the point she made about bail earlier in the debate. The term “immigration offenders” is a broad term and applies to anyone who does not have, or no longer has, a legal right to be in the UK. It could be a whole range of people who do not have a right to be here; they have not taken opportunities for a voluntary return, or even an assisted voluntary return, both of which are available to them. Therefore, they might find themselves in detention for those reasons.

Baroness Hamwee (Liberal Democrat)

Does that include those who have sought asylum but whose claim has not been determined?

Lord Green of Deddington (Crossbench)

Not when I use the term, and I do not think that it applies to those people. It applies to those whose cases have been rejected, and rejected on appeal, and they do not return home when they could do so.

Lord Keen of Elie (Conservative)

I wonder whether I might, as it were, intervene at this point. I was obliged for the contributions from all corners of the House about what is a difficult and demanding issue. Having regard to the observations of the noble Lord, Lord Stunell, I notice that the immigration system with which he is struggling is a product, at least to a material degree, of the Immigration Act 2014, which is in turn the product of a coalition Government, in which I believe he was a Minister. That said, clearly there is room for improvement. On that we can agree, and that is why the Bill is before the House.

Lord Stunell (Liberal Democrat)

I thank the Minister for giving way, and of course he is absolutely right. I am very proud of the fact that we secured some mitigation of the existing scheme in what was achieved on child detention, which I am sure he welcomes.

Lord Keen of Elie (Conservative)

One of the points that noble Lord referred to, and which was referred to also by the noble Lord, Lord Alton, was the question of set time limits, and the limits that apply in the context of the EU returns directive. It is important to have a full understanding of the EU returns directive. It sets a limit on immigration detention of six months and is extendable to 18 months. Some EU countries have shorter limits—France, for example—but Germany allows for the full 18 months’ extension under the directive. So one has to have regard to the full terms of the EU directive.

The United Kingdom has not signed up to the EU returns directive; we prefer to maintain control of our own borders. There are other issues to be considered as well. The very legal system within each of these European countries is distinct, so for example, in some there is no concept of judicial review of executive action, as we understand it, and therefore no scope for review of executive action in the context of immigration control and the application of immigration policy. So one has to be a little careful when seeking to rely on comparative law and comparative data.

We are, of course, working towards the voluntary return of illegal migrants to this country, as well as implementing various schemes to deal with those who refuse to return. I notice that during the last two years there have been more than 50,000 voluntary returns by migrants to this country. Again, that is simply to put the matter in context.

The noble Lord, Lord Ramsbotham, raised issues about the Bill itself and whether, given the amendments that have been made, it should not at this stage simply be withdrawn for the Government to consider many of the changes that they might have in mind, or, indeed, have regard to the amendments that have already taken place. Again, at a general level, I note that the Bill deals with a whole series of issues: labour market reform, housing, driving and driving licences, illegal working, the appeals process, immigration and bail. Only one or two aspects of that are immediately impacted by the issue that we are addressing in the context of detention.

The noble Lord also alluded to the number of amendments—but again, to put that in context, amendments took place following the consultation on labour market enforcement. When one examines them, one sees that a great number of the amendments address only a few discrete issues. For example, a whole series of amendments were required because of the nature of the local rules that apply to taxis and taxi licensing. From Portsmouth to John O’Groats, there seem to be varying rules regarding that matter. In addition, as the noble Lord, Lord Kennedy, noted, there had to be extensive amendments with regard to warrants under the judicial system in Scotland. So one has to get this into context and have a sense of proportion about what the Bill is doing.

Reference was made to Stephen Shaw’s report, which we welcomed, considered and continue to consider. Stephen Shaw did not make any recommendations about legislation. Much of what he says, so far as it is to be implemented, will be implemented by guidance, not by primary legislation. Again, it is important to get these points into context so that we understand what we are dealing with.

I will come back to some of the individual points raised, but first I will deal with the individual amendments, beginning with Amendment 216. This would require the Secretary of State to commission an independent report into the use of immigration detention, which would need to consider: how effective current use of detention is; how effective current safeguards are; how to reduce the numbers in detention; and the practical steps needed to introduce a maximum time limit for detention of 28 days.

While I understand the intentions behind the proposed new clause, in our submission it is not necessary. Stephen Shaw has undertaken an independent review of our approach to the detention of vulnerable individuals.

The Government have published his report and our initial response to it, through a Written Ministerial Statement published on 14 January. It is not the length of that response that is material; it is the quality of it that truly matters. In it, we have set out our ambition to see a reduction in the number of those detained, and the duration of detention before removal, which in turn would improve the welfare of those detained.

The Government have broadly accepted the recommendations that Stephen Shaw made, and in particular will introduce a strengthened presumption that adults at risk should not be detained unless there is clear evidence of immigration risk factors. I take this opportunity, which I am sure that the whole Committee will echo, to thank Stephen Shaw for his thoughtful and in-depth consideration of these very material issues and for his associated recommendations.

If Amendment 216 is agreed it will simply duplicate the work that Stephen Shaw has undertaken and delay the Government’s programme of implementation while the outcome of the new review is considered. Here we are addressing this Government’s manifesto commitments.

Amendment 216ZA would place a statutory requirement on the Secretary of State to review our policy on detention and bail conditions, and consult as part of that exercise. Again, Stephen Shaw has already done much of this. He has undertaken an in-depth review of our policy and made recommendations for improvements. We will take forward this work and, again, it will be implemented not by primary legislation but by consideration of guidance.

Amendment 216ZB requires a review of the rules and regulations about how individuals are treated while in immigration detention. I wish to make it clear to the Committee that the Secretary of State takes her duty of care to these individuals very seriously indeed. Healthcare is provided by the National Health Service and there are meaningful activities provided. Individuals also have access to legal advice—a point that was raised earlier—and to translation services.

Immigration removal centres are not prisons and do not have as strict a regime as prisons. Individuals are allowed to associate and move freely throughout the centres. However, the Government have accepted the broad thrust of Stephen Shaw’s report and will be taking further action to review our policies and procedures to ensure that detainee welfare is at the heart of immigration removal centres’ regimes.

Amendment 216ZC would mean that an individual who claims to be vulnerable could not be detained on the authority of the Secretary of State; a request would need to be made to the tribunal to authorise detention. It would also have the effect of preventing the detention of pregnant women in any circumstances. I understand the intention of this amendment, and the whole House will agree that vulnerable individuals should not normally be detained. That is our current published policy. In response to Stephen Shaw we will be further strengthening our approach, introducing a new “adult at risk” concept into decision-making on immigration detention. This means adopting a wider definition than at present of what constitutes an adult at risk, with a clear presumption that people who are at risk, including pregnant women, should not be detained.

Baroness Lister of Burtersett (Labour)

I may be pre-empting what the noble and learned Lord is about to say. However, Stephen Shaw is very clear that presumptive exclusion should be replaced with an absolute exclusion. The noble and learned Lord talks about strengthening presumption. That is qualitatively different from absolute exclusion. Do the Government accept the recommendation of absolute exclusion and, if not, why not?

Lord Keen of Elie (Conservative)

The present published guidance means that we do not, and should not, detain pregnant women except in exceptional circumstances. There are, in fact, very few pregnant women in the estate. The Government are reflecting on how to implement Stephen Shaw’s policy in regard to adults at risk, and will address that in due course. However, as I say, it will be a matter of guidance.

Baroness Lister of Burtersett (Labour)

I am sorry to press this. I accept that it is a matter of guidance. We put it in an amendment to have a debate on it. However, it seems to me that there is an attempt to slide out of answering the question of whether presumptive exclusion in the guidance will be replaced by absolute exclusion, because that is very clearly what Stephen Shaw recommended. I am not getting a clear answer on that.

Lord Keen of Elie (Conservative)

The clearest answer I can give is that it is a matter for consideration at present by Ministers. They will consider it because they have already said that. They noted the recommendations in Stephen Shaw’s report. They have not yet determined in a black and white way that they will implement all 64 recommendations and no one would expect them to have done so in this timescale, but they will address them.

Lord Alton of Liverpool (Crossbench)

My Lords, the noble and learned Lord, Lord Keen, has probably exhausted that line of argument for the moment. However, he was also asked during the debate not whether there are few or many but how many pregnant women are in detention centres at present, what their length of stay has been and whether any babies have been born there. If he cannot give those figures this evening, rather than simply saying “very few”, which was the phrase he used a few minutes ago, perhaps he will agree to write to noble Lords and let us know exactly what the numbers are.

Lord Keen of Elie (Conservative)

I am perfectly happy to write to noble Lords to give the figures for the number of pregnant women at present in detention and perhaps over a period of six months to cover both before and after Stephen Shaw’s report, so that there are some meaningful figures they can work from. I cannot give exact figures. That may not surprise your Lordships. I am advised that there are very few pregnant women in the estate. However, more precise figures will be given.

The adults at risk policy will take a more holistic and dynamic approach to the assessment of vulnerability, based on the best available evidence. That is what Stephen Shaw has identified as the most ambitious approach to ensuring that adults at risk are safeguarded. However, the approach in the proposed new clause would not be workable in practice. It does not take into account the realities of how individuals are discovered. For example, how would we handle cases at the border who can be returned on the next flight? Following this amendment, an individual could not be lawfully detained without an order of the tribunal. That would be an administrative challenge to obtain and would require significant extra resources. The same would be true of an individual encountered jumping off the back of a lorry. And what would happen if someone was already detained and raised these issues? Would they be unlawfully detained until an order of the tribunal was given? It is simply not workable in practice.

Amendment 216 would require the Government to undertake a review of the quality of immigration detention. In the light of Stephen Shaw’s recommendations, the Government are taking a close look at the quality and fitness of the accommodation on the detention estate and at the regimes within the detention centres. This is not, however, a matter for legislation. The Government already have a raft of guidance and standards in place for ensuring that the regimes in detention centres operate at appropriate levels and in the interests of the welfare of detainees.

Amendment 218 would introduce a statutory time limit on detention, with a requirement that a detained individual be released on bail after 28 days. Amendments 218A and 218B require release after 28 days if, in relation to amendment 218A, the tribunal has not already refused bail as being “not in the public interest” or, in relation to Amendment 218B, unless the individual has been convicted of an offence listed in the Modern Slavery Act 2015. We consider Amendment 218 to be a blunt tool. It would be a statutory requirement to release from detention, no matter what risk was posed and no matter how imminent the removal of an individual might be.

While there is no fixed statutory time limit on the duration of detention under immigration powers, it is not the case that there is no limit on the length of detention. It is limited by statutory measures, by the European Convention on Human Rights, by the common law and what is sometimes referred to as the Hardial Singh principles, and by legal obligations arising from Home Office policy. Home Office policy is clear: detention must be used as a last resort and only for the shortest period necessary.

Published statistics show that the majority of individuals leave detention after 28 days or fewer, with over 90% having left detention within four months. The facts do not bear out the accusation that immigration detention is indefinite. Yes, there are exceptional cases, and one can often cite those without regard to the exceptional facts that lie behind them. Again, without full knowledge of the facts of those individual cases, it is very difficult just to take them out of context and say that there are people who have been there for X period of time.

Baroness Lister of Burtersett (Labour)

I am sorry to intervene again, but “indefinite” does not mean that people are there for ever. It means that people do not know how long they will be there, and that is what has had the terrible psychological impact on people. From that perspective it is “indefinite”, because there is no clear time limit that gives people certainty and hope.

Lord Keen of Elie (Conservative)

With respect, it is not possible to say to somebody that they will be in detention for X period in this context. For example, if they choose not to co-operate by producing any documents, or they do not tell the truth about their point of origin or their journey—where they arrived in Europe, for example—it may be very difficult to investigate their circumstances, and they may yet during that period pose a risk, whether to the public or otherwise. Therefore, detention is not necessarily, and cannot be, dictated by reference to a fixed period. But of course, it is open to them to go to a tribunal and apply for bail—and that is the whole point. So it is not, in that sense, indefinite: they have the opportunity to canvass before the tribunal the issue of whether or not they should remain in detention.

At Second Reading, we heard a number of noble Lords speak on detention. As has been said, there was a contribution from the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He rightly identified that:

“There are two basically different circumstances in which people are detained under the legislation: first, on initial application for asylum and, secondly, when, much further down the line, it is sought to remove people whose rights of whatever sort have expired and it is proposed that they finally be deported”.—[Official Report, 22/12/15; col. 2473.]

The detained fast track generally related to the first category that the noble and learned Lord, Lord Brown, identified. Many noble Lords will be aware that the detained fast track has been suspended since July following my right honourable friend the Immigration Minister’s decision that he could not be certain of the level of risk of unfairness to certain vulnerable applicants who may enter the process. I can confirm to the noble Lord, Lord Rosser, that the detained fast track will remain suspended until my right honourable friend is sure that the right structures are in place to minimise any risk of unfairness and that effective safeguards can be put in place. A Statement will be made when that point is reached.

Lord Roberts of Llandudno (Liberal Democrat)

Can the Minister tell me in what circumstances that was suspended? Was it not because of a High Court action, which found that it was illegal?

Lord Keen of Elie (Conservative)

There was, among other things, a determination as to the legality of the process. I accept that—but that is why it was suspended and why it remains suspended at the present time.

Those who are detained for any length in the removal centre estate will normally be cases that fall into the second category mentioned by the noble and learned Lord, Lord Brown: those who have had their application to remain in the United Kingdom refused, whose rights have expired and who it is proposed should finally be removed. I ask the Committee to reflect on the fact that if all individuals complied with a notice that they should leave the United Kingdom, there would be little need for immigration detention, and certainly very limited need for detention beyond a very short period. However, some individuals choose not to comply with the law and do not leave the United Kingdom when they should. That is the position we are in.

Amendment 218A would require a bail hearing in every case of detention within 28 days. As I have explained previously, mandatory bail hearings by set deadlines are incredibly resource-intensive for the tribunal and have been rejected previously as being unworkable in practice. Amendment 218B would impose a requirement to release on immigration bail after 28 days of detention, unless an individual had been convicted of an offence under the Modern Slavery Act.

I can understand the noble Baroness’s reasoning for the amendment. The offences listed in Schedule 4 are very high-harm offences. But what justification could there be for detaining beyond 28 days anyone other than these high-harm criminals? Matters are not that simple. We seek to remove national security threats under deportation powers—individuals who do not have a conviction but where there is clear intelligence that they pose a risk to the public. This power would prevent detention of these individuals beyond 28 days. It would lead to the release, for example, of Abu Qatada, despite the clear threat that he and others like him pose.

The noble and learned Lord, Lord Brown, went on to say:

“Many participants in this debate have urged and will urge, benevolently, for fixed limits—sometimes as little as 28 days—to immigration detention. I say to those noble Lords: do not underestimate the ingenuity and persistence of many of those who seek to defeat immigration controls. Time and again, down the years, the system has been cleverly played, often by those who are least deserving of our sympathies. In the present edition of one of the standard textbooks on immigration law, the chapter on detention and bail extends to 96 dense pages and endless footnotes. A case on this topic in the Supreme Court in 2011 … stretched to 115 pages of judgments. This is a difficult area of the law and I respectfully suggest that we should not rush to impose some limit”.—[Official Report, 22/12/15; col. 2474.]

Again, the noble and learned Lord, Lord Brown, summarised the position well. I ask this House to heed his wise words and not to legislate in haste. It is for these reasons that I ask that the amendment be withdrawn.

Before I sit down, I notice that I have not responded fully to the points made by the noble Lord, Lord Ramsbotham. In particular, he raised the question of consultation on the short-term holding facility rules. It is regrettable that we have not yet consulted on those rules. However it has to be remembered that they operate not in a vacuum but under the statutory framework contained in Part 8 of the Immigration and Asylum Act 1999 and its associated schedules. They are also covered by the Home Office’s detention services orders. Now that the Shaw report has been published, we will take forward consultation on the draft rules.

Baroness Hamwee (Liberal Democrat)

My Lords, before the noble Lord, Lord Rosser, responds, the picture that has been painted of the situation, including those who are subject to detention, does not seem to accord with the observations which so many of us have heard, including those of Stephen Shaw. The noble Lord, Lord Rosser, quoted the last sentence of Mr Shaw’s conclusions, which is in paragraph 11.8. He said:

“Immigration detention has increased, is increasing, and—whether by better screening, more effective reviews, or formal time limit—it ought to be reduced”.

It seems unlikely to me that it has been increasing because the number of people who have been convicted of offences and are due for deportation, but for some reason or another are not being deported, would account for that increase in the way in which I heard the explanation.

I took seriously the comments of the noble and learned Lord, Lord Brown of Eaton under Heywood. I ask again whether there is not a way in which those of us who are concerned properly to get to a situation where there is not the lack of hope to which noble Lords have referred cannot together find, with some imagination, a way of dealing with this that will give a structure to detention immigration but allow for the very rare exceptions that it might be proper to make.

Lord Green of Deddington (Crossbench)

May I give one example of how this arises? There are some countries that require an interview with their consul in London to re-document someone who is here as an illegal immigrant and in detention. That requires an interview to which the person in detention has to agree. If there is a time limit of a month, he will know perfectly well that all that he has to do is to refuse the interview for a few weeks and he will be out.

Baroness Hamwee (Liberal Democrat)

I am not quite sure how that fits in with what I was saying. I am certainly not arguing that there should not be a good returns process; in fact, I have tabled an amendment to that effect later in the Bill .

Lord Alton of Liverpool (Crossbench)

If the noble Baroness will allow me, one thing that does not seem to have been referred to in the course of our debates is the exponential increase in the number of people detained. I think that there was an 11% increase last year, with around 31,000 people being detained in this country. Does that not underline the importance of what she is saying about looking for alternatives to this? I gave the figures earlier: the cost to the public purse is around £36,000 per person detained. Millions of pounds are being spent on something that does not give great credit to our nation. Surely we should look for an alternative to this. We know that such alternatives exist elsewhere, which is where Stephen Shaw seems to be pointing us. Is that not what we should be doing between now and Report?

Baroness Hamwee (Liberal Democrat)

Indeed, and the sentence before the one which I quoted referred to a system,

“both … more protective of the welfare of vulnerable people and”,

delivering,

“better value for the taxpayer”.

Lord Rosser (Labour)

I am sure the Committee will be relieved to know that I do not intend to say a great deal but, first, I thank everybody who has contributed to this debate and for the views that have been expressed.

I am naturally disappointed by the Government’s reply that things will be done through guidelines when it has been pointed out on more than one occasion during this debate that it is precisely because Home Office guidelines are not adhered to that we have ended up in this situation of concern over immigration detention. I am sure that the Minister will not mind me saying that statements that things will be in guidelines in future ring a little hollow. He said nothing whatever to give us any confidence that the situation in future with be any different from the situation that applies at the moment where it is clear that Home Office guidelines are not being properly and appropriately applied.

The Minister rejected my amendments, which basically call for a review. He did not say that there should be a time limit. He said that it should be looked at. He sought to say that that was what Stephen Shaw said. I am sorry, but he did not. He was not asked to consider a statutory maximum limit on the length of time an individual can be detained under the relevant provision, so I am not quite sure on what basis the Minister managed to make his statement that Stephen Shaw had already addressed the terms of my amendment. I suspect that I shall have to leave it in the context of registering my disagreement with the Minister’s analysis.

The Government are clearly unmoved by what the Shaw review said. They are unmoved by the all-party inquiry into immigration attention. They are unmoved by the decision in the House of Commons, and they are unmoved by the view of the Chief Inspector of Prisons. If the Minister wishes to intervene, I am very happy to give way. There has been no indication that the Government intend to move on anything. I asked which of Stephen Shaw’s recommendations were being accepted and which were being rejected. I have not been told of even one that has been accepted. I have been told that the Government continue to undertake a review of his recommendations. One of his recommendations—recommendation 62—has already been referred to.

Lord Keen of Elie (Conservative)

I believe that I did observe that we accept the broad thrust of his recommendations. At this stage, we have not determined which of the 64 individual recommendations we will implement. I cannot see that as surprising in the time available.

Lord Rosser (Labour)

That comes back to the point that the noble Lord, Lord Ramsbotham, made about this legislation in relation to an inquiry that has just taken place. In my opening contribution, I commented that a statement that we are accepting the broad thrust of the recommendations is as long as a piece of string. Perhaps I can test the Minister on that. Recommendation 62 states:

“I recommend the Home Office give further consideration to ways of strengthening the legal safeguards against excessive length of detention”.

Is that one that the Government intend to accept? I am only asking about one recommendation out of 64. The Minister shakes his head. That makes my point.

Lord Keen of Elie (Conservative)

With great respect, one could ask about one out of 64,000. It is not a question of which one but of addressing all of them in due course and in the context not necessarily of primary legislation but of the need for further guidance. The noble Lord has underlined the potential need for further guidance in this area.

Baroness Hamwee (Liberal Democrat)

I suspect that the noble Lord may be coming towards a halt, if not to the end of the issue. It occurs to me that I do not think that any of us asked about the Home Office’s internal review on this subject, which we heard about in previous debates.

Lord Ramsbotham (Crossbench)

I think I asked.

Baroness Hamwee (Liberal Democrat)

Well, I do not think the question was answered. Has the Minister any news about that? I appreciate that we are taking a long time on this, but the size and substance of the issue justifies it.

Lord Rosser (Labour)

The reason for asking about recommendation 62 was that the Minister sought to tell us there was not a problem because people could apply for bail. But recommendation 62 is based on Mr Shaw looking at the situation with regard to bail. It is in the light of having looked at it that he said:

“I recommend that the Home Office give further consideration to ways of strengthening the legal safeguards against excessive length of detention”.

So I would have thought that the Minister, having referred to the very issue that prompted recommendation 62, might have a view on what the Government’s response was to it. But clearly there is silence from the Government on that particular score.

I do not know whether the Minister intends to respond to the question about the Home Office internal review. As I understand it, the noble Lord, Lord Ramsbotham, has said that he raised the question and has not had a response to it. Is there an internal Home Office review going on? I am obviously not going to get an answer, so it looks like a secret review.

Lord Keen of Elie (Conservative)

There could well be a secret review, but in so far as there is an ongoing review, we will write to the noble Lord about its progress. However, I have mentioned the matter which the noble Lord, Lord Ramsbotham, raised, about the short-term holding facility rules and the review of those rules. I indicated that we were going to consult on those draft rules in the light of the Shaw report.

Lord Rosser (Labour)

Is the purpose of the Home Office internal review to decide whether to accept any or all of the Shaw report recommendations, or is it on another issue?

Lord Keen of Elie (Conservative)

There is an internal review, and I have already indicated that we will set out the position in writing.

Lord Rosser (Labour)

That is a very interesting reply; the Minister is not prepared to tell me what the purpose of the review is. That is a fair comment, because he could have stood up and told me. I asked him the question and he has not answered it. I will just leave it in this context. We detain people who are not criminals for an unknown period of time as an administrative or executive decision and not as a judicial one at any meaningful stage. The message that has come over from the debate so far, in the absence of anything very specific from the Government, is that the Government find that situation entirely satisfactory. A number of noble Lords in the Committee this evening do not find that situation satisfactory. None the less, I beg leave to withdraw my amendment.

Amendment 216 withdrawn.

Amendments 216ZA to 216ZD not moved.

Schedule 7: Immigration bail

Amendments 216A to 224 not moved.

Amendment 224A

Moved by Baroness Hamwee

224A: Schedule 7, page 106, line 16, leave out “may” and insert “must”

Baroness Hamwee (Liberal Democrat)

My Lords, this is a shorter group. Amendments 224A, 224B, 224C and 224D are in my name and that of my noble friend Lord Paddick.

Paragraph 7 of Schedule 7 gives powers to the Secretary of State to enable a person to meet bail conditions. Paragraph 7(1) provides for when a person is subject to a condition requiring him to reside at a particular address and he would not be able to support himself at that address without assistance. Sub-paragraph (2) allows the Secretary of State to,

“provide, or arrange for … facilities for the accommodation … at that address”.

My first amendment would again change this from permissive to mandatory. If the Secretary of State requires someone to live at a particular address, it seems to us that, in the circumstances spelled out of the person not being able to otherwise support himself, the Secretary of State should provide the facilities. Sub-paragraph (3) limits the power I just described,

“to the extent that the Secretary of State thinks that there are exceptional circumstances which justify the exercise of the power”.

We would take out the thinking element of that to make the limitation more objective.

Sub-paragraph (4) gives the power to make a payment for travelling expenses which the person incurs,

“for the purpose of complying with a bail condition”.

Similarly, it applies,

“to the extent that the Secretary of State thinks that there are exceptional circumstances”,

and we would make the same two amendments.

I rather wish now that we had also sought to delete the reference to “exceptional circumstances”, given that by definition the person who is the subject of this cannot support himself. I failed to do that, but I do not think it invalidates the amendments. I beg to move.

Lord Keen of Elie (Conservative)

I am obliged to the noble Baroness. As she observed, Amendments 224A and 224B would create a duty to pay, in exceptional circumstances, for accommodation to anyone released on bail if the individual were required to live at a bail address not of their choosing or if the person could not otherwise support themselves. In turn, Amendments 224C and 224D would require the Secretary of State to pay an individual for travel costs incurred while complying with conditions of immigration bail where there were exceptional circumstances, again limiting discretion.

We would submit that these amendments are unnecessary. As was noted by the noble Baroness, paragraph 7 of Schedule 7 provides a power for the Secretary of State to ensure a person can meet bail conditions by paying for the costs of their accommodation and travel expenses in appropriate circumstances. It is important to note that the Secretary of State is given a discretion on the matter of exceptional circumstances. Individuals released on bail will be able to be supported by the Home Office under the Bill if their individual circumstances warrant it, generally because they do not have the funds to obtain adequate accommodation, cannot obtain it from friends or relatives, and are unable to avoid the risk of destitution while they are here except by leaving the United Kingdom.

However, if a person is an asylum seeker, they will be able to apply for support under Section 95 of the Immigration and Asylum Act 1999, and the Bill makes no changes to the support available to asylum seekers who would otherwise be destitute. They will continue to be provided with accommodation and a cash allowance to cover their other essential living needs.

In our submission, it is right that the Secretary of State, who is accountable to Parliament, has the final discretion on whether to provide accommodation to, or to pay the travel expenses of, those released on bail. It is not a matter that she should be obliged to respond to. In those circumstances, I ask that these amendments be withdrawn.

Baroness Hamwee (Liberal Democrat)

My Lords, I thank the Minister for that reply. It seems that whether the amendments are necessary or not depends on whether you are the Secretary of State or the person subject to the bail condition. However, I heard what the Minister said. I do not think it would be appropriate to pursue the matter now. I beg leave to withdraw the amendment.

Amendment 224A withdrawn.

Amendments 224B to 224D not moved.

Amendments 224E to 224K

Moved by Lord Keen of Elie

224E: Schedule 7, page 109, line 4, at end insert—

“In section 11(1) (construction of references to entry)—

(a) omit “, or temporarily admitted or released while liable to detention,”,

(b) omit “or by Part III of the Immigration and Asylum Act 1999”, and

(c) for “or by section 68 of the Nationality, Immigration and Asylum Act 2002” substitute “or on immigration bail within the meaning of Schedule 7 to the Immigration Act 2016”.”

224F: Schedule 7, page 112, line 12, at end insert—

“Immigration and Asylum Act 1999 (c. 33)

The Immigration and Asylum Act 1999 is amended as follows.

In section 10(9) (removal of persons unlawfully in the United Kingdom: application of Schedule 2 to the Immigration Act 1971) omit paragraphs (h) and (i).

In section 53 (applications for bail in immigration cases) omit subsection (4).

In section 95(9A) (support for asylum seekers etc: matters to which conditions may relate) in paragraph (b) for the words from “restriction” to the end of the paragraph substitute “condition imposed under Schedule 7 to the Immigration Act 2016 (immigration bail).”

(1) Section 141 (fingerprinting: persons temporarily admitted to the United Kingdom) is amended as follows.

(2) In subsection (7)(b) for “temporarily admitted under paragraph 21 of Schedule 2 to the 1971 Act” substitute “granted immigration bail under Schedule 7 to the Immigration Act 2016”.

(3) In subsection (8)(b) for “admit him temporarily” substitute “grant him bail”.

224G: Schedule 7, page 112, line 14, at end insert—

“(1) Section 23 (power for residence restriction to include requirement to reside at accommodation centre) is amended as follows.

(2) In subsection (1) for “restriction” substitute “condition”.

(3) For subsection (2) substitute—

“(2) In subsection (1) “residence condition” means a condition imposed under Schedule 7to the Immigration Act 2016.”

(4) In subsection (4) for “restriction” substitute “condition”.”

In section 30 (conditions of residence at accommodation centres) in subsection (7) for the words from “restriction” to the end of the subsection substitute “condition imposed under Schedule 7 to the Immigration Act 2016.””

224H: Schedule 7, page 112, line 18, at end insert—

“(1) Section 70 (power for residence restriction to take account of induction programmes for asylum seekers) is amended as follows.

(2) In subsection (1) for “restriction” in both places substitute “condition”.

(3) For subsection (2) substitute—

“(2) In subsection (1) “residence condition” means a condition imposed under Schedule 7 to the Immigration Act 2016.”

(4) In subsection (5) for “restrictions” substitute “conditions”.

(1) Section 71 (asylum seeker: residence etc restriction) is amended as follows.

(2) In subsection (2)—

(a) for the words from “restriction” to “restrictions)” substitute “condition which may be imposed under Schedule 7 to the Immigration Act 2016”, and

(b) for “that Schedule” substitute “Schedule 2 to the Immigration Act 1971”.

(3) In subsection (3)—

(a) for “restriction” in each place substitute “condition”,

(b) for “paragraph 21 of that Schedule” substitute “Schedule 7 to the Immigration Act 2016”, and

(c) for “that Schedule” substitute “Schedule 2 to the Immigration Act 1971”.

(4) In subsection (4) for “restriction” substitute “condition”.”

224J: Schedule 7, page 112, line 24, at end insert—

“( ) in the heading, for “Temporary admission, &c” substitute “Immigration bail”,”

224K: Schedule 7, page 113, line 6, at end insert—

“Criminal Justice and Immigration Act 2008 (c. 4)

The Criminal Justice and Immigration Act 2008 is amended as follows.

In section 132(4) (special immigration status: effect of designation) in paragraph (b) for the words from “temporary admission” to the end of the paragraph substitute “immigration bail under Schedule 7 to the Immigration Act 2016.”

In section 133 (special immigration status: conditions) for subsections (3) and (4) substitute—

“(3) If a condition is imposed under this section on a designated person, the person imposing the condition may also impose an electronic monitoring condition within the meaning of Schedule 7 to the Immigration Act 2016 on the designated person.

(3A) Paragraph 4 (electronic monitoring conditions) of that Schedule applies in relation to a condition imposed under subsection (3) as it applies to an electronic monitoring condition imposed under that Schedule.

(4) Paragraph 7(4) and (5) (bail conditions: travelling expenses) of that Schedule applies in relation to conditions imposed under subsection (2)(c) as it applies to conditions imposed under that Schedule.””

Amendments 224E to 224K agreed.

Schedule 7, as amended, agreed.

Clause 33: Power to cancel leave extended under section 3C of the Immigration Act 1971

Amendment 225

Moved by Baroness Hamwee

225: Clause 33, page 38, line 31, after “a” insert “material”

Baroness Hamwee (Liberal Democrat)

In moving Amendment 225, I shall speak also to Amendment 226, which takes us on to the next clause, about cancelling leave to enter or remain where there is an extension of limited leave. Leave which is extended may be cancelled if the applicant has failed to comply with the condition attached to the leave. I suggest that in the first of the amendments, that should be a reference to a material condition, not to a trivial condition, although the Bill does not use that language. Leave may also be cancelled if the individual has used deception in seeking leave to remain. I suggest that if there is deception, it should be deception directly for the purpose of seeking leave.

These are very much probing amendments to ask how the power should be used and why it is necessary. Do the Government have recent experience in which the Secretary of State has been unable to cancel leave when, on a common-sense view, she should have been able to do so? I beg to move.

Lord Keen of Elie (Conservative)

I am obliged to the noble Baroness. As she observes, Amendment 225 seeks to change the wording of Clause 33 so that leave extended by Section 3C of the Immigration Act 1971 may be cancelled only when the failure to comply with a condition of their leave relates to a “material” condition. That would leave us in the situation whereby the original grant is not subject to that condition, but the extension was. The Immigration Rules allow for leave to be curtailed when a person has failed to comply with any condition attached to their grant of leave. However, the Home Office has published guidance on when failure to comply with conditions of leave may lead to curtailment of leave. For example, if a student is granted leave with the condition that they work no more than 10 hours each week, the guidance states that curtailment is appropriate if the student is working full time. However, when the breach of leave is very minor—for example where a student worked for 10.5 hours for one week only and was compliant with their conditions of leave in all other respects, the guidance states that it would normally be disproportionate to curtail their leave. In considering whether to cancel leave extended by Section 3C, caseworkers will apply the same principles as they do when considering whether to curtail leave under the Immigration Rules. So there is here consistency between the original leave and the extension allowed for, which is why the wording is as it is. The same considerations of proportionality will apply as in terms of the guidance that I have just indicated.

The effect of Amendment 226 is to change the power to cancel leave extended by Section 3C so that a person has to “deliberately” use or have used deception in seeking leave to remain. The wording of Clause 33 is the same as that used in the offence of deception in Section 24A of the 1971 Immigration Act and the wording used in the Immigration Rules to curtail immigration leave. The courts have confirmed that “deception” means something that is knowingly done and so the addition of the word deliberate is, with respect, unnecessary.

Both Amendment 225 and Amendment 226 would mean that the power to cancel leave extended by Section 3C would differ in its wording from equivalent powers to curtail leave under the Immigration Rules. This creates the risk of perceived differences between the circumstances in which Section 3C extended leave and leave granted under the Immigration Rules can be cancelled. I fear that if either of these amendments were to pass, much time and cost would be spent in the courts considering whether these differences in wording have the effect of creating different powers in practice.

I understand the concerns about how the power to cancel leave extended by Section 3C is to be exercised. I reassure noble Lords that the power to cancel leave extended by Section 3C is discretionary. For example, it would not be right to cancel leave extended by Section 3C where a person was unaware of the deception. In deciding whether to cancel leave extended by Section 3C, the same principles will apply as when considering the curtailment of immigration leave. For the benefit of the noble Baroness, the relevant decision on deception is the case of AA (Nigeria) v Secretary of State for the Home Department in 2010. In these circumstances, I invite her to withdraw her amendment.

Baroness Hamwee (Liberal Democrat)

My Lords, I did not disbelieve the noble and learned Lord when he said that there was case law on this. I understand that the term “deliberately” is encompassed within deception. As I said, my concern was to probe how the power would be used and why it would be necessary. From what we have heard, it seems to have been something of a tidying-up exercise, rather than because there has been a bad experience—the Minister is nodding his head.

I suspect that I am not alone in, as always, feeling just a little uneasy when we are told that the answer is “in guidance” so it will all be okay. Having made that observation, though, I beg leave to withdraw the amendment.

Amendment 225 withdrawn.

Amendment 226 not moved.

Amendment 226A

Moved by Baroness Hamwee

226A: After Clause 33, insert the following new Clause—

“Return of asylum seekers: countries deemed safe

(1) Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (removal of asylum seeker to safe country) is amended as follows.

(2) In paragraph 8, omit sub-paragraph (2).

(3) In paragraph 12, omit sub-paragraph (2).”

Baroness Hamwee (Liberal Democrat)

My Lords, I apologise to the House; if any noble Lords have tried to follow my drafting, they may have thought either that I had completely lost it or that my drafting skills had gone out of the window. They might be right on both counts because what I have produced is the direct opposite to what I intended. I contacted the Bill team to explain that earlier today, and was very grateful to receive a sympathetic response from the Bill team manager. Having managed to communicate what I intended, it will take me about two or three minutes—perhaps five— to cover the principle of what I wanted to deal with: the use of a list of deemed safe countries of origin to which asylum seekers could be returned.

The Minister may be able to tell us whether there is any news about the common EU list that has been proposed and whether the UK is still not minded to opt into it. It is no secret that Liberal Democrats consider that there is a good deal to be said for an EU-wide approach to asylum and refugees.

It was not this that prompted my interest. I can see that it is administratively convenient to have a list of countries that are safe to return people to; I understand the rationale. However, this does not take account of the different characteristics and situations of different individuals. If there is a presumption that a country is safe, it becomes that much harder to counter the presumption by evidence, particularly if one is on the fast track, which is not being operated now, or any other equivalent of it.

There was a ruling in Canada in July that Canada’s safe-country-of-origin list is unconstitutional because it is discriminatory on its face and serves to marginalise, prejudice and stereotype asylum seekers coming from countries that the Government have designated as unsafe. I have no doubt that the Home Office is aware of this and will be able to counter that if it were to be challenged on it.

The article which I saw said that:

“While it might seem reasonable to weed out claims of people coming from stable countries that respect human rights, the fact that Ukraine remained on the United Kingdom’s SCO list throughout the crisis there—and still is today—is a warning how these lists can quickly become obsolete and not reflect changes in countries of origin”.

I therefore wonder whether the Minister can give us any news on the EU list—I suspect that I know what the answer will be—but in particular, deal with the point about keeping lists up to date and that a country which might be safe for you and me might not be safe for him and her. I beg to move.

Lord Keen of Elie (Conservative)

I am obliged to the noble Baroness. Just to be clear, if I were to take the black letter of her amendment, I, like many of your Lordships, would be a little confused. Indeed, one part of the amendment appeared to remove the affirmative procedure of Parliament in approving the addition or removal of names from the safe list. I have no doubt that that was never her intention. I will therefore respond in the spirit in which the amendment was addressed.

There are various lists, of course; one has to be careful about this, because there are lists of countries for the purposes of Section 94, but in addition there are potential lists of safe third-party countries—that is, where someone has left one country but arrived in a safe country within Europe and then moved on to the United Kingdom. I will therefore deal with this at a fairly high level of generality, because the various lists have various different aspects to them. Indeed, the Part 3 list does not have any countries in it at the moment.

The Government have already made an announcement that they will not opt into the common EU list—just to be clear about that. However, in so far as we maintain lists of safe countries, we are conscious of the issues that can arise with respect to them. Indeed, it has been the subject of litigation in case law in this country, which cited, for example, Jamaica and the issue of whether it was a safe country of return. The Home Office keep these lists, whether they are under the Immigration Act or under Part 3, under constant review, and consider all aspects of the list when deciding whether or not to maintain a country on that list or to remove it. I apologise for addressing the matter at that level of generality, but I hope that the noble Baroness will forgive me for responding to her amendment in that form.

Lord Alton of Liverpool (Crossbench)

I would be grateful if I could ask him something about these lists—whether the Government accept that the guidance the Home Office gives can sometimes have extraordinary consequences. He will know that his noble friend Lord Bates was good enough to meet me to discuss the situation of detainees held in detention centres in the Far East—people who had escaped from Pakistan. These included people from the Ahmadiyya community, Shia Muslims, Hindus, Christians—they came from many backgrounds but all had faced what seemed to be absolute examples of persecution. However, the Home Office guidance simply said that these were people who risked discrimination. As the noble Lord, Lord Bates, knows, that became like holy writ as far as the UNHCR—which I met during the same visit, in September last year—was concerned. I had the Home Office guidance quoted back at me as though this was a trump card they were able to use to show that these people were perfectly safe and no consequences would befall them. However, in reality, because of that guidance many of those cases will not even be considered until 2020, and those people will go on living beneath the radar between now and then, living illegally in the country where they are because their asylum claims have not been settled and where they are not allowed to work. Therefore the implications of Home Office lists and guidance can often be more far-reaching than maybe we ever imagine.

Lord Keen of Elie (Conservative)

I notice what the noble Lord says and I do not take issue with it. I add only that, where an individual does identify particular circumstances pertaining to themselves, whether it be religion or whatever, those circumstances are taken into consideration. However, I appreciate the point that the noble Lord has made.

Baroness Hamwee (Liberal Democrat)

My Lords, I thank the Minister for his response. Jamaica is indeed an example, and maybe the Democratic Republic of Congo as well. In defence of my rubbish drafting, one of my then quite new colleagues told other colleagues that the most reassuring thing she had encountered in giving her confidence to speak in the Chamber was when I moved the wrong amendment and the sky did not fall. I may use this example in encouraging other new colleagues. I beg leave to withdraw the amendment.

Amendment 226A withdrawn.

Amendment 226B not moved.

Amendment 226C

Moved by Baroness Hamwee

226C: After Clause 33, insert the following new Clause—

“Registration with police: requirement for review

(1) The Secretary of State shall undertake a review of the requirement that immigrants register with the police in accordance with section 4(3) of the Immigration Act 1971 and shall, within one year of the passing of this Act, lay before each House of Parliament a report on that review.

(2) The report shall include an assessment of—

(a) the resources required to conduct the registration process;

(b) the usefulness of registration;

(c) the uses to which the information obtained through registration is put;

(d) the necessity for the requirement; and

(e) any recommended changes including efficiencies.”

Baroness Hamwee (Liberal Democrat)

My Lords, I beg to move Amendment 226C standing in my name and that of my noble friend Lord Wallace of Saltaire. This amendment deals with the requirement for certain immigrants to register with the police and calls for a review of the arrangements.

The matter was brought to our attention by Universities UK because of the experience of foreign students being required to register with the police within seven days. Failure to register in that time limit may lead to the curtailment of leave or may affect future applications. We heard of students having to queue through the night or round the block to register. The question that was asked of us, and which I now ask of the Minister, is: what is done with the information garnered through that registration process? That is why subsection (2) in the proposed new clause refers to an assessment of the resources that are required, how useful the registration is, the uses to which the information is put, the need for the requirement, and any recommended changes, including efficiencies. I have not used the term “cost-benefit analysis”, but that is essentially what it amounts to, together with a concern for the individuals.

I also wonder about the cost of the administration for this. There is a fee of £34: not only do you have to register but you have to pay £34 for the privilege of queuing through the night. The numbers arising at particular times make the administration really quite difficult to handle. There is also the issue of this country’s reputation internationally as a result of this procedure. I beg to move.

Lord Keen of Elie (Conservative)

Again, I am obliged to the noble Baroness for highlighting this point. The new clause would require the Secretary of State to review the requirement that non-visitor migrants of specified nationalities register with the police, and then lay before both Houses a report on that review. In our submission, such a review and report is not necessary.

The noble Baroness correctly identified that there is a police registration scheme. The provision is set out in Section 3(1)(c) of the Immigration Act 1971. The requirements to register with the police are specified in the Immigration Rules. The requirement to register with the police is normally placed on a migrant who is aged 16 or over, from a non-EU country and who is given leave for longer than six months. The requirement is to register within seven days of obtaining qualifying leave to enter or remain. There are a number of exceptions where the requirement will not usually apply, including ministers of religion, people exercising access rights to a child resident in the UK, and those granted refugee status.

The requirement to register with the police is not onerous. In the Metropolitan Police area, where there is the highest concentration of migrants required to register, there is a designated office in Borough. For all other police force areas, the individual should register at the nearest police registration office. As the noble Baroness noted, there is a registration fee, currently £34, which reflects the administration costs of the police registration certificate.

The noble Baroness mentioned an occasion when students were reported to have had to queue. In October 2012, some long queues of migrants, mainly students, were seeking to register at the London Overseas Visitors Records Office. OVRO made changes to its process following that incident, including providing pre-booked timeslots for migrants required to register, and I am advised that there has been no recurrence of those queues. Universities are also given the option of collating the relevant paperwork from their students who are required to register and delivering it to the OVRO in bulk. The police continue to work and engage with those involved to manage peak flows in registrations and to minimise any inconvenience from that. I accept that there was an occasion in 2012 when there were delays, but that has not repeated itself.

The information required for registration is all information that will be held by the individual, including personal details, a current photograph, passport details, address in the United Kingdom, their last place of residence outside the UK, and details of their employment and/or place of study. This information is then on record for the police and other law enforcement to access, as necessary, in order to maintain security.

The various requirements for those seeking to stay and live in the UK, as set out in the Immigration Rules, are periodically under review to ensure that they strike the right balance between immigration control and security in the UK. I believe that this current approach is proportionate, particularly in the current state of heightened security concerns, and it is unnecessary for there to be a statutory requirement for a formal review to be conducted and a report laid before both Houses. In light of these points, I invite the noble Baroness to withdraw the amendment.

Lord Rosser (Labour)

How many people should have registered under this arrangement in 2014, or any other year that the Minister is aware of, and how many did register? What is the penalty for not registering and how many people have been penalised for not registering?

Lord Keen of Elie (Conservative)

I am obliged to the noble Lord for his three questions and I will write in response to provide the detail, which I do not have immediately to hand at this moment. I hope that was not a surprise to the noble Lord.

Lord Rosser (Labour)

It was not, but I am grateful to the Minister for his response.

Baroness Hamwee (Liberal Democrat)

When the Minister writes, will he explain what he described to me to be functions of UK Visas and Immigration—if I have its current title correct? It sounded as though a degree of duplication is required on the part of the police. One would have thought that the visa implications of all the administration, particularly around students, would have been taken care of without having to go to a central point to register. I agree that the amendment is not necessary, because it does not require an amendment for the Government to undertake a review. However, on the Minister’s comment that the arrangements are not onerous, I wonder why it was so specifically raised with us by Universities UK, which will no doubt read the comments and give us its response. I beg leave to withdraw the amendment.

Amendment 226C withdrawn.

House resumed.