My Lords, I shall overlap with my noble friend in speaking to the proposal that Clause 47 should not stand part, in the name of the noble Lord, Lord Dubs. It is about immigration bail and immigration detention—I am starting to feel that I am in detention myself.
The JCHR expressed in a report a few years ago its
“serious concerns about the detention decision-making at the Home Office”,
and recommended that such decision-making should be independent, to distance it from decisions on removals and deportations. The fact that over a period of three years, from 2019 to 2021, the Home Office paid out £24 million in compensation to 914 people that it was found to have locked up unlawfully bears out the wisdom of the JCHR’s recommendations.
Clause 47 adds additional matters to the existing practice to which Home Office decision-makers and the First-tier Tribunal must have regard when making
decisions on immigration bail. Clause 47 says that nonco-operation with the immigration process should be a factor, but detention should be used only if it is necessary and proportionate. Given that the decision-maker must already consider whether a person is likely to comply with bail conditions—as my noble friend mentioned—failure to co-operate can be taken into account in that context if relevant. Taking it into account when not relevant could result in arbitrary detention, in breach of Article 5 of the ECHR.
The NGO Bail for Immigration Detainees observed to the JCHR that, since Part 2 introduces new strict procedural time limits, people who fail to comply with them would be at risk of being deemed to be nonco-operating with the immigration process, and thus at risk of being and staying detained rather than getting bail. This appears both unjust and expensive, and I therefore suggest, in my name and that of the noble Lord, Lord Dubs, that Clause 47 should be struck out of the Bill.