I am obliged to noble Lords for their contributions to this debate. The diversity of views expressed perhaps underlines the issues that have to be wrestled with in such a difficult area.
The Government take the issue of deprivation of liberty very seriously. Our current published policy in respect of immigration detention is quite clear: there is a presumption of liberty. There is a well-established principle that for an individual to be detained pending removal there must be a realistic prospect of removal within a reasonable time, and that is carried out by virtue of judicial oversight. Depriving someone of their liberty is always subject to careful consideration and account is invariably taken of individual circumstances.
Amendment 84 would significantly impact on our ability to enforce immigration controls and maintain public safety, particularly at a time when the Government have set out a commitment to ensure effective use of detention, complemented by a renewed focus on facilitating an increased number of voluntary returns without detention, which safeguards the most vulnerable while helping to reduce levels of immigration abuse.
It might be helpful to remind noble Lords that most people detained under immigration powers spend only relatively short periods in detention. According to published statistics for the year ending September 2015, more than 32,000 people left detention. Of these, 62% had been in detention for fewer than 28 days. The overwhelming majority of detainees—93%—left detention within four months. Of those, approximately 40% were subject to deportation action, having been previously convicted of criminal offences in the United Kingdom or the EU and having refused to leave the UK on a voluntary basis.
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I appreciate that persons subject to deportation would be excluded from the amendment. But the majority of the remainder had committed an immigration offence in the United Kingdom and had again refused to depart on a voluntary basis, even though they had no basis to remain in the United Kingdom and had been required to leave. Well over half of those who had claimed asylum had already had their asylum claim rejected, and most of those who had claimed asylum in the UK had done so only after a criminal conviction, after a significant immigration offence or after having done so previously elsewhere in the EU. The time limit created by the amendment—namely, 28 days—would give any non-compliant illegal migrant whose wish is to frustrate removal an easy target to aim for in order to secure their release from detention.
It should be borne in mind that an individual’s compliance history and the likelihood of them absconding form part of the consideration of whether detention is necessary in the first place. I myself have recently noted the case of an individual who lied about his date of entry to the United Kingdom on more than one occasion—each lie being about six years apart—in order to promote his Article 8 claim. He submitted numerous unsuccessful immigration applications and human rights claims over a number of years, with all appeals being rejected by tribunals. He absconded at the point at which he became removable and subsequently claimed asylum after being apprehended and served with removal directions. After having his asylum claim rejected, he submitted a claim that he had been tortured. This new claim emerged only after he had been in the United Kingdom for 16 years.
In circumstances such as those, an asylum claim will take longer than 28 days to conclude. Added to that, the average time to conclude a judicial review is three months, even when expedited from the date it is lodged with the court. This could lead to meritless asylum claims being made, and judicial reviews being lodged, simply to get out of detention.
We detain a significant number of undocumented cases with poor immigration histories who would abscond if not detained. That is largely the purpose of detention
in this context. The refusal of individuals to co-operate with the documentation process can also lead to significant delays in obtaining travel documentation. To put it bluntly, if we cannot detain these persons, we cannot get them documented, and if we cannot get them documented, we can never remove them from the United Kingdom, even though they have absolutely no right to be here.
Even if an individual were to co-operate with the documentation process, the 28-day time limit would make it difficult to obtain documents in the time available. Some countries require interviews to satisfy themselves of the nationality of the detainee, and the lead-in and turnaround time can mean that the time taken is well in excess of 28 days. It would also mean releasing an illegal migrant if a replacement travel document was delayed.
In addition, it is proposed in the amendment that the 28-day period should be aggregated. The aggregate limit of 28 days would make it difficult if, for example, we were required to redetain a person when their travel document subsequently arrived, or where a person disrupted their removal at the point of getting on to a flight and they needed to be taken back into detention until new removal arrangements had been put in place. I heard of a recent example of an individual who eventually had to be taken to the airport escorted by three personnel, having disrupted previous attempts to remove him from the United Kingdom—again, when he had absolutely no right to be here in the first place. Due to the timescales involved in arranging that sort of removal, one could easily require much in excess of 28 days to effect it.
In addition, such a time limit would reduce the incentive for individuals to comply with the conditions of immigration bail if they knew that the Home Office could not redetain them because they had already accumulated 28 days in detention.
Although the amendment allows for the detention period to be extended, the situations I have just described are all common occurrences. They are not “exceptional” circumstances, as would be required by the amendment. So, although the Secretary of State could, and indeed would, apply for an extension, because the tribunal would be required to find exceptional circumstances, it might be unable to do so and thus be unable to extend the period of detention, even in the face of such an application.
The reality is this: the vast majority of those detained are either foreign criminals or individuals who, as in the case to which I referred earlier, have broken immigration laws. Not being able to effect enforced removals would make it less likely that others would depart voluntarily from the United Kingdom and would mean more immigration rule-breakers in the community at large.
Furthermore, we can, and do, regularly remove foreign criminals sentenced to short periods in prison or because of their criminal history overseas. Because we are using administrative removal powers rather than deporting them, those who would not fall under the exemptions set out in the amendment could not be removed. It is important for public safety to remove these types of offenders before their criminality escalates —as, unfortunately, so often happens.
In requiring the Secretary of State to apply to the tribunal for an extension, or further extension, to the period of detention at a set time, the amendment would bring about a fundamental shift in, and extension from, the tribunal’s current role of deciding on questions of bail to deciding on the quite distinct question of whether bail should be granted and the length of detention.
Approximately 30,000 people are in immigration detention in any one year. So, saving foreign national offenders and other deportees, they would need to be brought into this detention review process. At the moment, the tribunal receives about 12,000 bail applications per annum, so the amendment would generate a significantly increased workload for the tribunal, consequently diverting significant resources away from consideration of asylum and human rights appeals and leading to delays in other areas of the immigration system. It would also increase complexity and require new infrastructure to provide an ongoing review process. The impact on the resources of the Special Immigration Appeals Commission would also be significant, particularly as that is a higher-level court and uses High Court judges.
It is not clear how a free-standing power for the tribunal to review a period of extended detention without the need for an application from the Secretary of State can be made workable, as the tribunal does not have access to the relevant information on which to make such a decision. The tribunal already plays an important role in the oversight of detention decisions by considering applications for bail at a time of the detainee’s own choosing. It is not clear how the limits on detention are intended even to fit with the availability of bail.
While I understand the motives behind the amendment, as I have just set out, the tribunal can already consider whether detention is appropriate when a person applies to be released on immigration bail, which they can do at any time during their period of detention. This proposal would significantly undermine our immigration controls by enabling illegal migrants to manufacture their release from detention through various forms of non-compliance. I underline that last point. Let us remember that those who find themselves in detention for long periods are, generally speaking, those who have disposed of their passport, destroyed their travel documentation, lied about their nationality and lied about their arrival in the United Kingdom. It is they who often have to be detained until their nationality and origins can be identified and the appropriate travel documentation is secured for their removal from the United Kingdom.
I turn to Amendment 85, which was tabled by the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Hamwee, on the matter of vulnerable individuals. Again, this would have the effect of making it disproportionately difficult for the Government to remove individuals who have no right to remain in the United Kingdom. The effect would be that an individual regarded as being vulnerable who refused to leave the UK voluntarily could not be removed through the use of detention unless the Home Office applied to a tribunal on the basis that exceptional circumstances
pertained. In the case of those subject to a deportation order, the Home Office would be able to detain only if removal were to happen immediately and the individual had not appealed against the deportation order. Again, I venture that this amendment is, in any event, unnecessary. As set out in the Written Ministerial Statement of 14 January, and in my noble friend Lord Bates’s letter of 1 March, the Government have a significant programme of work under way to deliver reforms against the key themes identified by Stephen Shaw in his review of the welfare of vulnerable people in detention.
Amendment 85 would mean that an individual regarded as vulnerable who refused to leave the United Kingdom voluntarily could not be removed unless very narrow conditions applied. In addition, it would make it impossible for the immigration authorities to detain an individual for even a short period of time to check their identity or to establish that they have a legitimate immigration claim, if there were any indication that they were vulnerable in some way. Furthermore, the requirement to apply to the tribunal would, as with Amendment 84, place an unreasonable burden on both the courts and the Home Office.
In the case of those subject to a deportation order, being able to detain only when removal was to happen immediately would mean never being able to otherwise detain under immigration powers a vulnerable person whose presence in the United Kingdom was deemed as not conducive to the public good, who was a risk to the public and who had a high risk of absconding, unless the tribunal process was invoked.
We also believe that the amendment is based on the false assumption that serious criminals are the only individuals with vulnerabilities who should be detained for the purposes of removal. The amendment ignores the fact that there is a large cohort of individuals who may not be subject to a deportation order but who have histories of low-level criminality or who have persistently failed to comply with immigration law and who could simply not be removed without the use of detention. By virtue of this amendment, there would be little to stop such individuals claiming a vulnerability in order to further frustrate the system. This situation would not be in the interests of public protection or in the general public good. In addition, excluding such individuals who had appealed against a deportation order would be likely to mean that all individuals subject to a deportation order would be likely to make such an appeal in order to frustrate removal, and that would simply place further burdens on the court system.
The overall effect of the amendments tabled by the noble Lords would be to have a major impact on the Government’s ability to enforce removals, significantly undermining legitimate immigration controls and the maintenance of public protection at a time of high levels of migration and real and growing security threats. They are also unnecessary and unhelpful, as they cut across the plan that the Government are putting in place for the significant reform of detention in response to Stephen Shaw’s review.
That brings me to the adults at risk policy, which was announced in a Written Ministerial Statement on 14 January as part of the response to the recommendations
in Stephen Shaw’s report of his review into the welfare of vulnerable detainees. It will be an evidence-based process that overcomes some of the intractable issues around determining whether an individual falls into a particular category. It will remove much of the legal uncertainty and provide a logical and transparent way of ensuring that adults at risk are considered generally unsuitable for detention, while maintaining the integrity of the immigration system. Amendment 85 would simply not strike that balance, but government Amendment 86, which I shall come on to now, would provide both that balance and parliamentary oversight of this area of government policy.
The effect of amendment 86 would be to place a requirement on the Secretary of State to issue guidance to those making decisions on the detention of individuals for the purpose of immigration control where issues of vulnerability are raised. The guidance would inform decision-makers of the matters that they should take into account in deciding whether individuals would be particularly vulnerable to harm if they were detained or were to remain in detention. These provisions relate directly to the adults at risk policy. The purpose of Amendment 86 is to put this new guidance on a statutory footing.
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On 1 February, during the debate on this Bill in Committee, noble Lords expressed strong views about the level of detail in the Government’s response to Mr Shaw’s report. It is in response to that that the Government have reflected and decided to put forward Amendment 86. Your Lordships will be aware of the letter of 1 March from my noble friend Lord Bates, in which he set out further detail on the framework for the emerging adults at risk policy. It is a complex area of policy that is still under development, but I hope that the information provided in the letter will confirm the Government’s commitment to dealing with the issues raised by Mr Shaw. Indeed, I notice that Mr Shaw himself, in his evidence to the Home Affairs Committee in another place on 9 February, referred to the “considered and serious” approach that the Government are taking to this issue.
By virtue of Amendment 86, the Government wish to go further than people, I believe, suspected, by making provision for parliamentary scrutiny of the matters to be considered in the context of guidance for the adults at risk policy. It is, of course, possible for the Government to put the policy in place without requiring it to be in statute. However, the Government wish to ensure that Parliament is aware of this important policy and, if it sees fit, able to debate its principles. We consider that that can be adequately done in circumstances where it will be subject to the negative procedure—I say that just to respond to the point made by the noble Baroness, Lady Hamwee.
I pause now, if I may, to refer back to one or two of the points that were raised by—