My Lords, I shall speak only to Amendment 84, not Amendments 85 and 86, which concern the detention of vulnerable persons. Far and away the most striking feature of Amendment 84 is proposed new subsection (4), which would disapply the time limit in any case where the detainee has been sentenced to imprisonment for 12 months or more, or whom it is proposed to deport.
The fact is that those are the vast majority of cases involving prolonged detention. Frankly, that provision emasculates the whole idea of a time limit.
None of the previous campaigns or arguments in favour of a time limit has suggested such a striking restriction on its scope; no such suggestion was advanced in Committee; and no other country has gone down this road. Small wonder that in its briefing on the amendment, the Equality and Human Rights Commission does not support subsection (4); nor does the organisation Bail for Immigration Detainees, to which I spoke for some length on the telephone this morning. It says that, with this restriction, it would regard the amendment as essentially pointless.
I suggest that subsection (4) is inconsistent with the definition of “relevant powers” in subsection (6), because those powers as identified in paragraphs (b) and (d) refer to detention pending deportation powers: detention which, under subsection (4), would not be subject to the limit anyway. I therefore propose to address the amendment for all the world as if subsection (4) was not part of it. Let me make plain at this stage that, even then, I shall conclude by offering limited support for the imposition of a time limit—certainly less opposition than I have expressed hitherto.
At Second Reading, I spoke against the introduction of fixed time limits for immigration detention. I pointed to the very real difficulties of such limits in the case of those whom we are trying to remove, who exercise remarkable persistence and ingenuity in their efforts to remain here. As the Minister made plain in answer to a Question a fortnight ago arising from the Chief Inspector of Prisons’ report on the immigration removal centre at Harmondsworth, the overwhelming majority of the 2,700 detainees there have committed immigration offences, 40% being foreign national offenders. Those figures are higher still if you consider those detainees who have been there for more than four months—or, indeed, more than 28 days. They are, as the Minister said, working very hard to avoid their removal, and trying to frustrate the system.
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The problems of removing those intent on thwarting the system are, of course, legion and notorious; they include the destruction of documents and non-co-operation with getting fresh documents, repeated asylum claims and so forth. Far too few are successfully removed. I concluded at Second Reading by saying that while I was no supporter of what is called indefinite administrative detention, nor would I support releasing back on to our streets foreign national criminals who have managed to stretch their fight against deportation beyond some arbitrary time limit. I had already explained how the apparently unlimited statutory power of administrative detention is, in fact, subject to a long-established line of authorities, starting with the decision of Mr Justice Woolf, as he then was, in the Hardial Singh case, some 30 years ago, in 1984, which dictates that detainees can be held for only as long as is reasonable in all the circumstances, and while there remains a realistic prospect of their removal within a reasonable period—the sort of considerations that are, of course, in play and now listed in paragraph 3(2) of Schedule 9 to the Bill, such as the risks of the
detainee offending or reoffending or absconding. These established legal principles, and the Home Office’s own published policy guidance, which says notably that detention should be used only sparingly and only for so long as is strictly necessary, have been policed in years past by the courts exercising their judicial review jurisdiction. Indeed, I and others here, including the noble and learned Lord, Lord Hope, have been engaged in a number of such cases.
So it can be argued that the present system is workable and sustainable, particularly when allied to the detailed scheme for immigration bail now prescribed comprehensively under Schedule 9. But all that said, I have come round to the view that something broadly along the lines of this amendment would be better—namely, to have some time limit, together with express provision for extension by the tribunals or, as the case may be, by SIAC, on application by the Home Secretary. I have been persuaded by the great weight of informed criticism generally levelled at the existing system: from the APPG’s inquiry and report last year into the use of immigration detention and the subsequent debate in this House, as mentioned by the noble Lord, Lord Ramsbotham—Lord Lloyd of Berwick’s valedictory debate; the recent report from the Chief Inspector of Prisons on Harmondsworth; and my own recognition of the basic principle that administrative detention ought ordinarily to be subject to close scrutiny and control and not left as presently it is merely to bail applications and the courts’ general supervisory jurisdiction, with all the increasing problems that we know about of obtaining legal aid, and so forth, for such challenges.
The problem with the present scheme is that detainees must take the initiative and prove their case for release whereas, more properly, the burden should shift to the Home Secretary to prove good reason to extend a period. However, I cannot support a 28-day time limit—a limit, one notes, substantially shorter even than in many of the countries subject to the EU returns directive, with its maximum time limit of 18 months, which of course we opted out of. A summary published by Detention Action a year ago states that France limits detention to 45 days but still enforces 31% more removals of irregular migrants and asylum seekers than we do. One suspects that they may be more ruthless in combating attempts to frustrate their system. Italy’s time limit is three months, Belgium’s is eight months and Sweden’s is 12 months. The imposition of a time limit would no doubt tend to improve the way in which the Home Office processes removal proceedings —for example, in the case of foreign national offenders—starting the process earlier than at present they do, during the prison sentence rather than waiting for the transfer to immigration detention. There would still be some scope for frustrating the system, though rather less than used to be the case, given the increasing provision for appeals to be heard only from abroad. In any event, the Home Office will need time to streamline, accelerate and improve its processes, if the tribunals are not to be overwhelmed with applications for extensions, whatever the time limit decided on. I would accordingly favour initially a substantially longer time limit than 28 days—perhaps, say, nine months, with the possibility that on a later review that may be able to be shortened.
I am conscious of having spoken rather longer than I should have done, but I wanted to explain why I have come to a rather different conclusion from that earlier expressed. I cannot support the particular proposal here, but if the House were to divide I should not vote against it.