I beg to move that this House do not insist on its Amendment 84 and do agree with the Commons in their Amendment 84C in lieu and disagree with Motion A1 in the name of the noble Lord, Lord Ramsbotham, which seeks to reinstate Amendment 84. I shall speak also to Motion A2 in the name of the noble Baroness, Lady Hamwee, which would amend Amendment 84C to reduce the time limit for automatic bail referrals from four months to two months.
I start by reminding the House of what it has already achieved in its role as a reviewing and revising Chamber. There can be no doubt that the spirited debate in this House has added considerably to the quality of this legislation. This House has done its job, and more. This is indisputably a better Bill for it and, particularly, it does more to protect the interests of the most vulnerable. However, we must now make sure that we deliver what the British public voted for last May and pass this Bill into law.
The Immigration Bill delivers important reforms to our laws, and it is right that we ensure that there is proper consideration and debate of its content. The House’s achievement includes ensuring that the detail of the important reforms in the labour market and illegal working provide an effective mechanism to enable us to clamp down on those who exploit vulnerable migrants. The House has delivered improvements to the provisions on the criminal offences and ensured that the duty to have regard to the need to safeguard the welfare of children underpins all the provisions in the Bill. It has pressed the Government for the amendment tabled by the noble Lord, Lord Dubs, to do more to help refugee children, and the Commons yesterday accepted that amendment.
On detention, the Government recognise the strength of feeling on this issue, the need to ensure that detention is for the shortest period possible and that, in particular, there is proper provision to ensure that those who are vulnerable are detained only when necessary and for the shortest period possible.
On time limits on detention, while we do not agree that those are appropriate, we have listened to the concerns expressed in this House. We have listened to the concern that some people may be unaware of their ability to apply for bail or are unable to make such an application. That is why we have proposed our Amendment 84C, which ensures that, unless the detainee has already had a bail hearing, there will be a bail hearing after four months and every four months thereafter. That is an important safeguard, and this House deserves credit for it.
Amendment 84 places an upper limit on detention for all those who are not being deported of a maximum of 28 days in total, which may be extended by the tribunal only on the basis of exceptional circumstances. It might be helpful to remind noble Lords that we will seek to detain and enforce the removal of only those migrants with no basis to remain in the UK who are unwilling to depart of their own volition or who are non-compliant.
As I have stated before, this arbitrary time limit is frankly unworkable and would provide non-compliant migrants with an easy target to aim for in order to secure their release from detention and frustrate their removal. It would lead to meritless asylum claims being made, meritless judicial reviews being lodged and individuals refusing to co-operate with the documentation process. The aggregate limit of 28 days would cause difficulties if we need to redetain a person when a travel document is delayed or where a person disrupts their removal and needs to be taken back into detention until new removal arrangements are put in place.
It may help the House’s understanding if I illustrate this with some real examples. Mr R’s student visa was curtailed when he failed to enrol at university. He was encountered when giving notice of marriage to a British citizen, which was found to be a sham, and he was detained. The day before he was first due to be removed, he submitted a humans rights claim. He was subsequently removed after 30 days in detention. Mr M was encountered by the police and subsequently detained after his visa had expired. An emergency travel document was applied for, but when he lodged a judicial review he was released on bail. Once the judicial review was resolved he was redetained for removal. He disrupted the first attempt to remove him, so removal had to be rescheduled for a charter flight. Mr M’s two periods of detention totalled 130 days. Neither of these examples is likely to qualify as “exceptional circumstances” which would allow the Secretary of State to apply for extended detention.
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This process of considering whether detention should be extended beyond 28 days would be a significant burden on the judiciary, significantly increasing the tribunal’s workload, diverting resources away from consideration of asylum and human rights appeals, and therefore leading to delays elsewhere in the immigration system. It would also increase complexity and require a new infrastructure to provide a process for the tribunal to review extended periods of detention without requiring the Secretary of State to make an application.
In our previous debate, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, helpfully quoted from a recent decision of the Supreme Court which supported a flexible and fact-sensitive approach to the duration of detention. It was also noteworthy that the noble Lord, Lord Ramsbotham, clarified, in response to comments from the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, that,
“I never said that immigration detention should be limited to 28 days. What I said was that nobody should be submitted to administrative detention—that is, detention ordered by civil servants—without judicial oversight of that detention within the shortest time possible ”.—[Official Report, 26/4/16; col. 1097.]
Of course, the noble Lord believes that 28 days is reasonable.
It is on this last point that we disagree. The Government continue to believe that we can best provide the required level of judicial oversight of detention by automatically referring cases to the tribunal at a set point, which we had initially set at six months from either the date of detention or the date of the tribunal’s last consideration of release on bail, with referrals at further six-monthly intervals calculated from the point of the last hearing. I am grateful for the encouragement this measure received from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who expressed his satisfaction that the safeguard this provides, in circumstances where detainees do not themselves apply for bail, properly addresses the problem of detainees having to take the initiative in seeking release from detention.
The duty on the Secretary of State to refer a detainee’s case to the tribunal for bail consideration removes the onus from the individual. Bail guidance, issued by the
President of the First-tier Tribunal (Immigration and Asylum Chamber), provides that judges will focus on several matters when considering a grant of bail, including the reasons for detention, the length of detention so far and its likely future duration, as well as the effect of detention on the individual and the likelihood that they will comply with bail conditions. This guidance explicitly states that the tribunal will need to be shown,
“substantial grounds for believing that detention should be maintained”.
The noble Lord, Lord Pannick, also thoughtfully supported the Government’s position that a bail hearing every six months was, to use his term, “adequate”. However, we have taken on board the concerns expressed by a number of colleagues here and in the other place; it is claimed that six months is still too long without judicial oversight. The Government have therefore tabled a motion in the other place proposing, again, a duty to arrange consideration of bail before the tribunal, but this time reducing the timing of the referral from six to four months.
Much has rightly been made in these debates about how detention affects those suffering from mental health problems. The reforms the Government are putting in place in response to Stephen Shaw’s report, including the “adults at risk” policy, will strengthen the existing presumption against detention of those who are particularly vulnerable. This, alongside the overall package of reforms to how immigration detention is managed, including the enhanced gatekeeper role and the new system of quarterly case management reviews, means that we fully expect to see fewer people being detained, and for shorter periods.
Nevertheless, for the small proportion of people who are detained for longer periods, the Government’s amendment ensures that, while judicial oversight may happen even earlier if a person applies for bail themselves, those who do not do so and do not opt out of the process will be guaranteed judicial oversight after at least four months in detention, and at future four-monthly intervals from their last tribunal consideration.
However, we now need to press on with delivering the important measures in this Bill. The other Chamber has considered Amendment 84 on two occasions now, and has rejected it—yesterday, without even pressing it to a vote. We should not continue to insist on this measure.
The Government understand the sentiment behind limiting time and detention, but the practicalities involved mean that Amendment 84 is not realistic or workable for the reasons I have set out at length in previous debates. This is not just the view of the Government. The noble Lords, Lord Pannick, and the noble and learned Lord, Lord Brown—both experienced lawyers in this field—supported the Government position. Your Lordships have rightly pressed the Government to examine what more can be done to limit time spent in detention. The Government have listened. They have made significant concessions and explained why they can go no further. The Commons has twice agreed with the Government. I urge noble Lords to now accept that decision.
Amendment 84D in the name of the noble Baroness, Lady Hamwee, accepts the principle behind Commons Amendment 84C and automatic bail referrals, but proposes to reduce the timing from four to two months. The Government have already moved their original position from six to four months, accepting that there is a case for more frequent judicial oversight. With respect to the noble Baroness, Lady Hamwee, we believe any further reduction is unworkable.
In our last debate, I noted that Labour had repealed legislation for routine bail hearings at eight or 36 days because they were impracticable. Likewise, if the frequency of referrals was two months, this would still impose a significant extra burden on the tribunal and the Home Office, diverting valuable resources away from the consideration of asylum and human rights appeals, the management of the removal centres, and delivery of the removals programme at a time when their efforts should be focused on supporting faster and more cohesive immigration and asylum processes.
Your Lordships have raised legitimate concerns and the Government have listened and have made significant amendments to this Bill. The time, I submit, has now come to implement it. I beg to move.
Motion A1 (as an amendment to Motion A)