UK Borders Bill

My Lords, before I respond to the amendment, since the noble Lord, Lord Avebury, had the great courtesy to advise me in advance of his point about the points-based appeal system, I ought to respond to that. It was a very helpful question, which enables me to provide further elucidation. A 28-day grace period will be included in the Immigration Rules as part of the tier 1 process in March 2008. I am sure that the noble Lord will welcome that. This will allow those who send their applications within 28 days of their leave expiring to continue with their application. That is a very helpful approach on our part, which will probably be welcomed, not least by immigration law practitioners. On the amendment, the principal purpose of automatic deportation is to protect the United Kingdom public from harm by deporting foreign criminals. Our view is that the amendment would undermine that aim. I am not saying that that is the purpose behind the amendment, but it would have that effect. It would remove the Secretary of State’s power to detain foreign criminals while she considers whether automatic deportation applies and pending the making of a deportation order under that power. I fully realise that noble Lords feel queasy about what they view as an open-ended power to detain. Who would not? It is an understandable reaction, and I am no different in that regard. I can provide some reassurance that the provision is not designed to allow the Secretary of State to detain people indefinitely; that is not its objective. Deportation action will, whenever possible, be commenced while the criminal sentence is being served. In those circumstances, it will not be necessary to use these powers. My guess is that that will cover the majority of circumstances. However, there will be cases where, for example, a person who appears to meet the criteria for automatic deportation is eligible for immediate release by the sentencing court because he has already served the sentence while on remand. That happens from time to time. In such circumstances, it is vital to have a power to detain while the Secretary of State considers whether automatic deportation applies. I am sure that noble Lords will understand why that might be the case. This will help to remove the risk of the offender absconding, thereby affording an extra level of public protection from potential harm. I am sure that we can imagine the sorts of cases where that would be especially important. Noble Lords might also note that Clause 36 applies the existing provisions on bail, arrest and restriction orders to automatic deportation cases. As such, it will be open to foreign nationals detained under these powers to apply for bail should they wish to. The noble Lord, Lord Avebury, was, as ever, assiduous in asking about how other matters impact upon this issue. He asked whether electronic monitoring was an option for those detained under Clause 36. Yes, that is possible and officials will exercise these powers on behalf of the Secretary of State; existing guidance will be updated. The noble Lord asked whether Clause 36 was compliant with Article 5 of the ECHR. We are satisfied that Clause 36 is compliant with Article 5. A decision on whether a person may be liable to automatic deportation is action taken for the purposes of deportation and, therefore, is within the remit of Article 5. The noble Lord, Lord Hylton, returned to the impact of foreign national prisoners on the deportation estate and asked about the impact of bringing in large numbers of staff to decide who should be deported and who should be detained. The Border and Immigration Agency’s Criminal Casework Directorate is now considering most foreign national prisoner cases 10 months from the end of their sentences. The Border and Immigration Agency expects to deport some 4,000 foreign national prisoners in 2007 as a result of the increase in staff and improved caseworking. Detention is based on a risk assessment and, as I have said on a number of occasions, primary consideration is related to ensuring the utmost protection of the public. I am sure that we can all subscribe to that principle. We cannot accept the amendment for those reasons. I hope that some of the information that was asked for adds extra clarity, and I am happy to have answered the question on the points-based appeal system to the satisfaction of the noble Lord, Lord Avebury.