My Lords, this has been a welcome start to the Bill. Although we have strayed into some of the subsequent elements in discussing this, that is inevitable because the Bill knits elements together. It is proper that we see how the provisions of Clause 1 fit into the other aspects of the Bill.
I think that we can all agree that our current system for removal is too complex. It requires a number of decisions and notices to be made and served. Separate refusal and removal decisions can cause confusion to migrants as to when they need to leave the UK and lead to legal challenges being made later in the process
I start by considering the two amendments so ably moved by my noble friend Lady Hamwee. We know that she works assiduously on these Bills, whether or not she has taken home the guidance brochure this past weekend. Amendments 1 and 2 would ensure that a person must be given written notice of their removal. Amendment 1 also mandates setting out the date and approximate time of that removal. While I understand the broad intention behind Amendment 1, this would inadvertently reintroduce a layer of complexity, which the whole purpose of the clause is to reduce.
The intention behind Clause 1 is to move to a system where only one decision is made and served,
giving, refusing or varying leave. Following that decision, those who require leave but do not have it will be removable.
I can confirm to my noble friend Lady Hamwee, and indeed to other noble Lords, that such people will all receive notice of the decision in writing, in accordance with Section 4 of the Immigration Act 1971, so it is unnecessary to place an additional notice requirement within this clause. This notice will inform them of the decision on leave, of their liability to be removed if they do not depart voluntarily, and the proposed destination for any enforced removal.
It would not be feasible to provide a date or approximate time of removal in this notice. Not all those who become liable to removal will be facing an enforced removal, as we—and, I think, all noble Lords—would always prefer that those who do not have valid leave to be in the country should return home voluntarily. This allows the migrant to depart on their own terms, is more cost-effective for the taxpayer, and, if the migrant leaves without the use of taxpayer resources, they can reduce the likelihood of, and possibly avoid, a re-entry ban.
I turn to the comments of my noble friend Lady Hamwee on the deemed service of the decision. She will be well aware that “deemed service” replicates the existing notice provisions, which have been shown to work effectively and are interpreted with a degree of flexibility, such that if the person can show that they received the notice at a later date, we will accept that as the date of service. There are established procedures on the delivery of notice and, indeed, they are set out in the regulations.
All migrants will be given the opportunity to raise with the Home Office any asylum, human rights or European free movement reasons why they believe they are entitled to stay in the UK. They will informed that they are under a duty to do so at the earliest opportunity if their circumstances change, and will be advised to seek any legal advice as early as possible.
I hope I can reassure the most reverend Primate the Archbishop of York, who I am delighted is participating in our debates today, that the common law principles of access to justice mean that migrants will be given sufficient time—a minimum of 72 hours—to raise such grounds before any removal can be enforced. They will be reminded of the fact that they may be removed from the UK if they do not depart voluntarily during any contact management events. If the migrant’s removal is enforced but they are compliant with the process, they will be informed of when to check in to the port of departure. If the migrant is not compliant, they will first be detained, where they will be informed when removal is imminent.
The noble Lord, Lord Ramsbotham, mentioned our very productive meeting. Although I cannot share his view of the hard-working people we ask to handle this difficult task on our behalf, I note what he says about oversight. I should say that quality assurance checks are part and parcel of the process. However, we recognise that there is room for further improvement. As such, we have an ongoing programme of work to continue to monitor and progress our decision quality.
Amendments 4 to 7 seek to remove the discretion in the regulations as to whether we notify family members of removal. We have already stated our intention that family members will always be given notice where they are to be removed. I hope that it pleases the noble Baroness, Lady O’Loan, and my noble friends Lady Hamwee and Lord Avebury, that it is our intention to work out how to address the recommendations of the Joint Committee on Human Rights on Clause 1. We will amend the Bill on this subject. However, I remind noble Lords that it was only on 21 February that we received the report of the Delegated Powers and Regulatory Reform Committee, making some similar recommendations. We are working out how to address both issues on Report. I hope I will return on Report. I reiterate that we will amend the Bill to meet the issues raised by these reports.
I now turn to Amendment 8. I appreciate the concerns raised by the noble Lord, Lord Rosser, about the processes surrounding the removal of family members which have led to his tabling this amendment. At the risk of jumping ahead of ourselves, Clause 67 sets out the proposed parliamentary procedures in respect of various order and decision-making powers provided for in the Bill. It already specifies that any power to make an order or regulations is exercisable by statutory instrument and that, for this particular power, it is under the normal process of negative rather than affirmative procedure. The draft affirmative procedure is normally reserved for those orders or regulations that amend or repeal primary legislation, or develop policy in a way to require significant parliamentary debate, or where the intention behind the power to make them is not clearly set out in the Bill. This Bill is clear on the intent of the regulations. The scope for Government to construct anything that would require significant debate in a statutory instrument deriving from it is limited.
The existing removal powers that are in force allow the removal of family members. Unlike in deportation cases, there is currently no statutory definition of what constitutes a family member. That is a matter left to the Home Office. By defining this in regulations—noble Lords have referred to the draft regulations that have appeared in the memorandum that has been circulated—the Bill will give new clarity to families so that they will know exactly who may be liable to removal. It will also provide further parliamentary oversight that has until now been absent. Following scrutiny of this clause in the House of Commons, and at the request of the right honourable Member Mr David Hanson, my honourable friend Mark Harper, the former Immigration Minister, arranged for a draft of these regulations to be published and a copy is placed in the Libraries of both Houses.