UK Borders Bill

My Lords, I thank the noble Lord, Lord Hylton, for tabling an amendment on this issue. He has been indefatigable in following up this matter and he made a brave effort to tempt me to accept the amendment; I congratulate him on that. Sadly, I think that I will ultimately frustrate him, although I hope that on the journey to that point he will be persuaded by what I have to say. He was right to remind your Lordships’ House that, as I said earlier, we are trying to ensure that we close the gap between our stated policy objectives and where we end up in practice, because it is practice that we are trying to affect. The noble Baroness, Lady Hanham, was right to remind us of the need to raise standards, because that is what we strive for—it is a noble objective—and we should have in the forefront of our minds at all times the need to do exactly that. The noble Lord, Lord Hylton, tabled amendments on this subject in Grand Committee and on Report, when, he will accept, he widened his proposal to include pregnant women and those with serious health problems. I set out in detail during the debates on those earlier amendments why they were not acceptable to the Government. I intend to elaborate a little more, because I can see that there is a thirst in your Lordships’ House for more information. The amendment would require the Secretary of State to take account of and comply with Article 17 of the 2003 European Council directive on minimum standards for the reception of asylum seekers and the Asylum Seekers (Reception Conditions) Regulations 2005 when considering whether to detain an asylum seeker who is a vulnerable person. Both Article 17 and the 2005 regulations are primarily concerned with support arrangements for asylum seekers and define a ““vulnerable person”” as a minor, a disabled person, an elderly person, a pregnant woman, a lone parent with a minor child, or a person who has been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, and who has had an individual evaluation of their situation that confirms their special needs. Those must then be taken into account in relation to material reception conditions, healthcare and in deciding whether to provide support. Regulation 4 of the Asylum Seekers (Reception Conditions) Regulations 2005 requires the Secretary of State to have regard to Article 17 when providing support or considering whether to provide support. Article 17 applies only to those persons found to have special needs after an individual evaluation of their case has been completed. The relevant regulation does not require the Secretary of State to carry out, or arrange for, an evaluation of a vulnerable person to determine his special needs. To return to the specific question of detention, it is already the case that those persons defined as ““vulnerable”” by the reception directive and the 2005 regulations are subject to particular guidance in relation to whether or not they should be detained. They are already subject to that guidance, which makes it clear either that such persons should not be detained—unaccompanied minors, for example—or that the reason for their inclusion among those defined as ““vulnerable”” should be a factor arguing against detention, with a requirement that all factors arguing both for and against detention are considered. The latter position would, for example, apply to individuals with a history of torture. Where it is decided that such individuals should be detained, their special needs are identified at the point of initial detention—or as soon as they become known thereafter—and are communicated to those responsible for their custody so that appropriate arrangements for their care may be put in place. For example, in the case of pregnant women, this would include access to midwives and health visitors or, in the case of a person with a disability, ensuring that appropriate facilities were available. Where information on an allegation of torture or some other factor that might argue against detention comes to light only after detention has been authorised, it will be passed to the agency so that consideration can be given to whether the person’s detention should continue. I explained at some length during the earlier debates why we could not accept a blanket ban on the detention of individuals who are or who claim to be torture victims, or on other individuals such as pregnant women and those with physical or mental health problems. I will not repeat those arguments today, not least as the noble Lord appears to have changed his own approach to that issue. However, I reassure noble Lords that we already comply with Article 17 of the reception directive, as we are legally obliged to do. Furthermore, the 2005 regulations on reception conditions are concerned with the provision of support rather than detention. The amendment is therefore unnecessary, as what it seeks to achieve is already happening in practice. The noble Lord, Lord Avebury, asked who was to respond to Rule 35 letters, on allegations of torture, from removal centre doctors. Case owners are clearly responsible for considering Rule 35 letters. The noble Lord also made a point about HMCIP criticism and asked whether there should be an independent review. HMCIP regularly inspects all removal centres and short-term holding facilities and therefore has ample opportunity to look at issues such as Rule 35 letters—and it does so often. He also asked whether we would publish the review into Rule 35 and the detention centre rules. I can tell the House that the review will be a quick, informal exercise to see whether changes can be made to the existing content of responses to Rule 35 letters. The results, and any changes that might be made, will be included in published guidance. The noble Baroness, Lady Hanham, asked for further elucidation, too, and asked whether the Government will ensure compliance with the 2003 directive. We are already required to comply with that directive, which is implemented through the Asylum Seekers (Reception Conditions) Regulations 2005; so we are complying with it. I think that that concludes consideration of most of the questions that were asked. I make the further point that cases are very carefully audited and we seek to ensure compliance through that audit process. That is another very important check, because the quality of decisions taken in the asylum process is very important. Senior caseworkers, who are embedded in the original asylum teams, currently order some 20 per cent of interviews and decisions with their teams, using a decision-quality assessment form jointly designed with the UNHCR, so there is a good deal of audit and quality processing. Those forms are collated by BIA, which looks for trends across the region. We believe that that form of monitoring provides us with valuable intelligence about the quality of caseworker decisions. Noble Lords who are concerned about this issue should take some comfort from that.