Clause 45 - Detention by Secretary of State
Nationality, Immigration and Asylum Bill
4:30 pm
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
The Government accept the comments of the hon. Member for Woking (Mr. Malins) about the power to detain. It is a serious matter that raises important issues. The problem is that, although the Immigration Act 1971 had a clear division of powers and duties in that respect—immigration officers dealt with people seeking to enter the United Kingdom and the Secretary of State dealt with those already here—the distinction has since become rather blurred, especially as a consequence of certain changes made under the Immigration and Asylum Act 1999.
New section 3A of the 1971 Act allows the Secretary of State to grant, refuse or vary leave to enter the UK in the circumstances set out under the Immigration (Leave to Enter) Order 2001, a function that was previously reserved to immigration officers. Section 10 of the 1999 Act transfers to an immigration officer the power previously held by the Secretary of State to remove overstayers and certain other types of immigration offender.
Our practical difficulty is that in the case of, say, an illegal entrant who claims asylum, a caseworker in the integrated casework directorate can decide the asylum application on behalf of the Secretary of State, but cannot authorise detention if that is considered appropriate. Furthermore, the caseworker cannot authorise release subject to reporting conditions in other cases. The file has to be passed to an
immigration officer to make that decision and then passed back. The position is different for an on-entry applicant. The ICD caseworker can authorise temporary admission subject to conditions, but cannot authorise detention.
The clause will overcome what we believe is an inefficient way to proceed. It will allow the Secretary of State to authorise detention and grant release subject to conditions in the following cases: when the Secretary of State has power to set removal directions, and when he has power to grant or refuse leave to enter. We are trying to simplify the process.
I understand the hon. Gentleman's points about the importance of such decisions. They will always be reviewed by a senior officer, and I confirm that appropriate training will continue to be provided, although in many senses the criteria will not differ. It is the group of people to whom they apply who will be slightly different.
If the amendment were accepted, no minor who is liable to removal as an illegal entrant under section 10 of the 1999 Act powers or following a refusal of leave to enter could be detained on the Secretary of State's authority. However, an immigration officer's power to detain someone under the age of 18 would not be affected. Obviously, detaining a child is not done lightly, but it is sometimes necessary to allow the removal of a family group to take place smoothly. It may also be necessary in other exceptional circumstances, such as when a child arrives unaccompanied late at night and it is impossible for local social services to make suitable arrangements. Detention in such cases would usually be overnight while alternative care arrangements were made.
The hon. Gentleman asked for examples of decisions ''of a particular kind''. That refers to the sort of decisions allowed under the clause: for example, subsection (2)(c) allows detention pending a decision by the Secretary of State to give legal directions. Under subsection (8), the power to detain under subsection (2)(c) can be exercised pending a decision by the Secretary of State to set removal directions when he has grounds to suspect that he may make a decision to set removal directions.
I emphasise that detention in family cases would be used only when necessary and not for an excessive period. As I said, limiting the power to detain under the clause in the manner proposed would not prevent the detention of a person under 18 by an immigration officer using powers contained elsewhere, in the 1971 Act. I hope that with that explanation the hon. Member for Woking will consider withdrawing the amendment.