UK Borders Bill

We have just been talking about how the Secretary of State can continue to detain a person after the expiry of a prison sentence while he considers whether automatic deportation under Clause 31 applies and in between deciding that it does apply and finally making the order. The first conundrum is why it is not possible in every case to make the order at the same time as the decision that Clause 31 applies, as the noble Lord, Lord Judd, has just been saying. I would be grateful if the Minister would explain in what circumstances there can be a gap between those two events. If condition 1 of Clause 31 applies, there cannot possibly be a problem; if the person was sentenced to 12 months or more in prison, the Secretary of State would have had plenty of time to consider whether any of the exceptions in Clause 32 were applicable. If the offence is one of the 320 specified in the NIA Act, which we were talking about earlier, we have to consider several possibilities. If the sentence is less than 12 months, what will happen to the person after the custody plus offence is introduced? That offence comprises a custodial period of no more than 13 weeks, followed by at least six months on licence. If a person is to be deported, what purpose is served by setting conditions on the last few months he spends in Britain that were designed in the Act that created this class of punishment to break the cycle of reoffending in this country? Would the Secretary of State use these powers to detain the offender when otherwise he would be out on licence, or would the court be able to impose a condition under custody plus that the offender would voluntarily leave the United Kingdom for the licence period? Another possibility is that the offender was convicted of one of the 320 offences and was given a suspended sentence which, as the noble Lord said on an earlier amendment, would not make him liable to automatic deportation, but would do so if he breached any of the terms and conditions of the licence. Has that eventuality prompted the drafting of Clause 35(1)(a)? Is it that the Secretary of State needs a breathing space in which to consider whether any of the exceptions apply before he can use Clause 35(1)(b)? ILPA suggests that the offender already could be detained under Schedule 3 to the 1971 Act, but that seems to apply to a person whose deportation has been recommended by a court. In the case of offences specified under Section 72(4)(a) of the NIA Act 2002, the courts presumably would not bother to make a recommendation, knowing that automatic deportation would follow under Clause 31. In deciding whether to impose a suspended sentence for a Section 72 offence, as the court might do routinely if it knew that deportation would follow a breach of the licence and it would be pointless to clog up the prisons with people who would spend the rest of their lives in another part of the world, the court would have to consider whether any of the exceptions in Clause 32 applied. Would they be able to ask the Probation Service to provide a report on the application of the exceptions before passing sentence? Some of the Section 72 offences would be relatively trivial and the persons concerned would pose no serious threat to the public. Clause 35 envisages that there may be cases where the Secretary of State does not exercise the power to detain. Would she be able to impose residence conditions where for any reason she cannot make a deportation order immediately? If she decides not to detain, am I right in thinking that she would be unable to apply electronic monitoring to the person, considering that under Section 36 of the treatment of claimants Act 2004, tagging can be applied only to those who are liable to be detained under the 1971 Act? If I am right on that, would it not have been wise to insert the powers in Clause 35 into Schedule 2 to the 1971 Act, rather than making them stand alone in this Bill? The criteria for placing someone on a tagging restriction include, "““currently not removable by virtue of country of origin””," and, "““no travel document currently available””," either of which could apply to many people convicted of minor Section 72 offences and given suspended sentences. The intention is surely not to keep people in those categories in detention indefinitely. It would make sense at least to have the option of tagging them.