My Lords, the contribution of my noble friend Lady Williams of Crosby is probably a good place to start. The deprivation of liberty is a very serious matter so I will first set out the safeguards that are currently in place to ensure that detention powers are used appropriately. Although there is a power to detain, the Home Office has a policy presumption in favour of temporary admission or release. Wherever possible, alternatives to detention are used. Detention must be used sparingly and for the shortest period necessary. I hope that that reassures the noble and learned Lord, Lord Hope of Craighead, and my noble friends Lady Hamwee and Lady Williams.
The noble and right reverend Lord, Lord Harries, asked why we do not have a time limit on detention. That was echoed by a number of subsequent speakers. The current system is derived from case law, specifically a case called Hardial Singh. The system works well, is understood by the tribunal and other judges, and has been authoritatively restated by the Supreme Court in a case called Lumba. The system affords appropriate protections to individuals and flexibility to the Government. It is not indefinite detention: every case is carefully and regularly considered to see whether detention continues to remain appropriate. Regular reviews of detention are required to be undertaken to ensure that detention remains lawful and proportionate, and individuals can apply for bail and challenge the legality of detention by judicial review, as has been stated.
I reassure noble Lords that these safeguards are also built into the provision already included in the Bill. Clause 3 will not prevent an individual from applying for bail immediately after being placed in immigration detention. Likewise, an individual can challenge the legality of their detention at any point by way of judicial review, and legal aid will remain in place for this. The existing internal formal reviews of detention will also remain. I reassure noble Lords that detainees will have full access to legal advice.
My noble friend Lady Hamwee wanted to know more about the requirement to decide on the papers. She asked what qualified as a “material change in circumstances”. It will vary on a case-to-case basis and the tribunal will decide whether that test is met. An example could be a significant deterioration in someone’s health over a short period. The provision will not apply where there are genuine reasons to seek a further hearing because there are materially different grounds to consider. If the tribunal concludes on the papers that there are material changes that need to be considered, it will proceed to a hearing and can grant bail if it thinks it right to do so.
Noble Lords should also be aware that the Tribunal Procedure Committee has consulted on placing a time limit on repeat bail applications. The committee may have proposed implementing the requirement through
the Tribunal Rules rather than in primary legislation, as here, but it is clear that repeat applications on the same facts are a concern to the Tribunal Procedure Committee.
I want to highlight to noble Lords the context of the requirement for the Secretary of State to consent to the grant of bail where removal is 14 days or fewer away. Rather than introducing a new power, the Government are clarifying existing legislation to block immigration bail granted by the tribunal, defining an existing power. Under paragraph 30 of Schedule 2 to the Immigration Act 1971, the Secretary of State can prevent bail being granted while someone is pursuing their appeal at any stage,
“if directions for the removal of the appellant from the UK are for the time being in force or the power to give such directions is for the time being exercisable”.
The Government consider that the proposal in the Bill requiring the Secretary of State’s consent to release on bail 14 days prior to removal is a proportionate approach. As I have explained, this proposal actually represents a reduction in the powers available to prevent the grant of bail. In that context, I hope that noble Lords will not feel unduly concerned about this condition.
My noble friend Lady Hamwee asked whether exercising this veto would not just cause people to seek judicial review, thereby delaying removal and creating an expense. A judicial review would not have to be pursued in-country. Removal would therefore not need to be postponed. There are obvious savings from proceeding with removal and not allowing anyone to remain in the country either in detention or on bail with conditions.
We should try to get some of these figures in proportion. Admittedly some individuals have been detained for considerable periods of time but 62% have been in detention for fewer than 29 days, and the total number of people who have been in detention for more than a year is 199. In terms of proportion, this system is therefore dealing effectively with the vast majority of detainees.
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The new clause proposed in Amendment 16 would introduce a statutory presumption of liberty which would direct a judge to release those held in immigration detention when a bail application had been made unless the judge had “substantial” grounds for believing that an applicant would fail to comply with one or more of their bail conditions or while on bail commit an offence that is punishable by imprisonment. I understand why noble Lords seek to include this safeguard. However, the Government consider that it is not necessary to legislate because their own published policy is for a presumption of liberty in immigration detention, that alternatives to detention should be used wherever possible, and that a person’s circumstances, including their mental health, are taken into account during the detention and removal process. There is no need to place the presumption of liberty on the statute book and bind judges in the way that the amendment would.
The proposed new clause would set the threshold for displacing the presumption in favour of liberty far too high. It would mean that bail should be granted even when a judge had substantial reasons for believing
that the person concerned would offend on release, provided the offence being contemplated would not lead to a custodial sentence. It would mean that a perfectly lawful detention might have to be terminated even if the judge believed that the person concerned would go on to commit further criminal offences. I hope that noble Lords will agree that this cannot be right.
Amendment 17 would introduce mandatory release of any individual in immigration detention after 28 days of detention no matter how imminent removal was or the abscond risk that they posed. As I have said, the Government have a presumption of liberty. A majority of people leaving detention in 2013, 62%, had been in detention for fewer than 29 days. During the same period, less than 1% of individuals in the immigration detention estate had been detained for a year or more.
The immigration detention power is used proportionately and safeguards are in place. However, I am sure noble Lords will agree with me that detention under immigration powers is an important tool to ensure compliance from those who may otherwise abscond pending removal. Requiring release 28 days after initial detention is inflexible and would have unintended consequences. For example, if an illegal entrant did not have a passport and refused to co-operate with the redocumentation process, the Secretary of State would be required to release despite the fact that the reason that removal was not achieved was the non-compliance of the foreign national. The amendment may have the unintended consequence of causing an increase in non-compliance with the removal process.
Amendment 18 would include a new subsection in the provision whereby a person will not be released on bail without the consent of the Secretary of State if there are removal directions in place for within 14 days of the date of the decision to grant bail. The new subsection makes provision for the Secretary of State to consider whether the applicant was pregnant. The noble Baroness, Lady Smith, used this as an example in a number of questions that she went on subsequently to raise. I understand why noble Lords seek to include this safeguard. However, the Government consider that it is not necessary to legislate for it, because a person’s circumstances, including pregnancy and health, are taken into account during the detention and removal process, including when a bail application is received. I can assure the Committee that where a woman reaches the later stages of pregnancy and cannot travel to the country of return, imminent removal would not be considered and detention would normally not be appropriate, so the provision would not be relevant. I hope that this reassures the noble Baroness and other noble Lords on this point.