UK Borders Bill

My Lords, I am grateful to all the contributors to this debate. These discussions are always enlivened when the contributors include the right reverend Prelate the Bishop of Winchester, my noble friend Lord Judd, the noble Lord, Lord Hylton, and the noble Earl, Lord Sandwich, because they bring a wealth of concern, knowledge and experience to the issue. I was impressed by a point made by my noble friend Lord Judd and repeated by the noble Baroness, Lady Carnegy of Lour, that the nub of the issue is the gap between policy and practice. In other words, that to which we aspire and what on occasion takes place in one of the institutions, which can fall far short of our policy objective. Our role as a Government, of course, is to focus our attention on and narrow that gap. I am grateful to all those whose care and concern keep us up to the high aspiration that we have set out in terms of policy, and translating that policy into effective, humane and sensitive practice, because this is a very difficult area. Having said that, I do not see a need to depart from the position we adopted in Grand Committee. This amendment seeks to create a blanket exemption from immigration detention for vulnerable adults who must include torture victims, pregnant women and those with serious physical or mental health conditions. The noble Baroness, Lady Hanham, also said that this is a difficult area, one in which we aspire to provide the best of care, but we have to have firm and clear rules in position and ensure that there can be no abuses of the system. That, in essence, is our position as a Government. I shall go through some of the issues raised in the debate because I believe that they demand to be dealt with seriously. The noble Lord, Lord Hylton, made it clear that he had tabled a similar amendment in Committee covering just torture victims. At that stage I set out at length why we could not accept such a blanket exemption from detention. That position has not changed, and we cannot accept this new amendment, which it could fairly be argued goes even further. As I said during the debate in Committee, our stated policy and published guidance makes clear that a history of torture is one of the factors that must be taken into account in deciding whether to detain a person and would normally render the person concerned unsuitable for detention other than in exceptional circumstances. Independent evidence of torture will weigh heavily against detaining an individual. In Committee I set out examples of the sort of circumstances in which a person who may be a victim of torture, or at least claims to be, might be detained. It is worth repeating them. Detention may be appropriate for reasons of public protection in the case of convicted criminals. The person concerned might be a persistent absconder. Detention might be appropriate in the case of a person who is to be returned to a third country for consideration of their asylum claim. Most commonly, it is likely to be appropriate in the case of persons who have no lawful basis to remain in the United Kingdom and whose removal is to be enforced. Amendment No. 13 would remove completely our ability to detain in these or other appropriate cases. That is not something that sensible immigration control can accept. Stated policy and published guidance makes clear that pregnant women should not normally be detained. The exception to that general rule is where there is a clear prospect of early removal and medical advice does not suggest confinement before then. In addition, pregnant women of 24 weeks and above are excluded from detention as part of the fast-track asylum process. In the case of women detained during the latter stages of their pregnancy we are always guided by medical advice on the issue of fitness to fly, which would be a key factor in deciding whether removal could proceed and thus whether detention should be maintained. Pregnant women who are detained have access to the normal range of healthcare services, including visiting midwives and health visitors. This is a perfectly sensible and reasonable approach to the detention of pregnant women. It would be nonsense if women were barred totally from being detained at any point during the entire period of a pregnancy, as the amendment would require. In the case of people with serious physical or mental health conditions, we already make clear that a history of physical or mental ill health will be a factor arguing against detention. Individuals with a particularly serious physical or mental health condition are excluded from the detained fast track and would not normally be considered suitable for detention in any other circumstances. Detained individuals who suffer from physical or mental health conditions have access to good quality primary healthcare services within removal centres, including in-patient facilities in some centres, and access to secondary healthcare including mental health services. More generally, all cases are considered on their individual merits, and factors arguing either for or against detention must be taken into account in deciding whether to authorise that detention. That covers those who claim to have been the victims of torture, pregnant women and people with physical or mental health difficulties. This is a sensible position to adopt, allowing for a flexible and appropriate response to individual cases. The amendment would remove that degree of necessary flexibility and create a potentially significant gap in our ability to ensure and enforce compliance with immigration laws. It would also be likely to provide a fruitful ground for costly legal challenges designed further to frustrate or delay removal from the United Kingdom. Furthermore, the amendment would be a serious obstacle to the quite proper use of detention in appropriate cases and would therefore weaken our ability to maintain an effective immigration control system. I turn to Amendment No. 26, moved by the noble Lord, Lord Avebury. I appreciate the concerns that he and others have expressed over issues of this kind, but the amendment is not necessary. As I have made clear, it is already the case that a history of torture is one of the factors that must be taken into account in deciding whether to authorise or maintain an individual’s detention. The system under Rule 35 of the Detention Centre Rules of reporting claims or concerns about a person having been a victim of torture is intended in effect as a safety measure to ensure that such issues, where they are not previously known, can be taken into account in deciding whether to maintain detention. In the vast majority of cases, the individuals concerned will either be at the end of the process facing removal and claims to have been tortured will already have been considered, or they will be in the fast-track asylum process and can be expected to make their claim to have been tortured as part of that process. Existing guidance to agency staff requires them to acknowledge receipt of an allegation of torture report from a removal centre doctor. It is important that the doctor should know that the report has been received by the relevant agency staff and I agree that this should be done promptly. It may be that the response to the doctor should go beyond a simple acknowledgement. The agency will look at the current guidance to see what more could be said, subject to any issue of confidentiality. For example, the response could indicate to the doctor whether the information about the claim of torture is already known to the BIA and has been considered or whether it is being considered as part of the individual’s asylum application. The guidance should also make clear the need for a prompt response to the doctor’s report. I have explained why we cannot accept Amendment No. 13 and I hope that the commitment to review the relevant guidance to staff will meet, at least in part, the concerns that lie behind Amendment No. 26. Some specific questions were asked during this debate and I shall try to respond to them. The noble Lord, Lord Avebury, drew attention to some statistics that I released during an earlier discussion. I think that he wanted some idea of how many of those who are detained are subsequently released for a referral to the Medical Foundation. From 1 April 2006 to 31 March of this year, we detained through DFT and NSA processes 4,295 individuals, of whom 156, or 3.63 per cent, were released for a Medical Foundation referral. That gives some data in response to the noble Lord’s question. I am not sure whether it adds much, but I thought that I should put it into the public domain, because it underlines the point that the referral process is made use of. The right reverend Prelate the Bishop of Winchester made a couple of valid and valuable points about CRB checks and the impact of foreign national prisoners on this part of our detention estate. I understand why he raised those points and, like everyone else, I share his concerns. All removal centre staff have to be CRB checked to an enhanced level—the very highest level of checking. That is absolutely appropriate, as we would not want any potential for abuse in the centres. The checks are very thorough and go a long way towards eliminating potential problems. High numbers of ex-foreign national prisoners have of course had an impact on the immigration detention estate in terms of additional challenges for the security and control of establishments. However, the individuals concerned are risk-assessed to ensure that they are allocated to appropriate centres, and centre staff are alert to the additional risks and the impact on other detainees. I recently visited Tinsley House at Gatwick, where I asked the very question that the right reverend Prelate raised. In that establishment, there were not, as I understood it, any problems presenting, although staff rightly have to be sensitive to the issues that may arise. The noble Lord, Lord Avebury, asked whether staff have any particular training to deal with mothers with young children. Staff at centres that may hold mothers with young children are trained to deal with the issues that may arise. The healthcare staff, including visiting midwives and health visitors, are particularly alert to the relevant issues.