Relevant documents: 22nd, 23rd and 24th Reports from the Delegated Powers Committee and 6th Report from the Constitution Committee.
Clause 1: Removal of persons unlawfully in the United Kingdom
Moved by Lord Taylor of Holbeach
1: Clause 1, page 1, leave out lines 11 to 14 and insert—
“(2) Where a person (“P”) is liable to be or has been removed from the United Kingdom under subsection (1), a member of P’s family who meets the following three conditions may also be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer, provided that the Secretary of State or immigration officer has given the family member written notice of the intention to remove him or her.
(2A) The first condition is that the family member is—
(a) P’s partner,
(b) P’s child, or a child living in the same household as P in circumstances where P has care of the child,
(c) in a case where P is a child, P’s parent, or
(d) an adult dependent relative of P.
(2B) The second condition is that—
(a) in a case where the family member has leave to enter or remain in the United Kingdom, that leave was granted on the basis of his or her family life with P;
(b) in a case where the family member does not have leave to enter or remain in the United Kingdom, in the opinion of the Secretary of State or immigration officer the family member—
(i) would not, on making an application for such leave, be granted leave in his or her own right, but
(ii) would be granted leave on the basis of his or her family life with P, if P had leave to enter or remain.
(2C) The third condition is that the family member is neither a British citizen, nor is he or she entitled to enter or remain in the United Kingdom by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972.
(2D) A notice given to a family member under subsection (2) invalidates any leave to enter or remain in the United Kingdom previously given to the family member.”
My Lords, in Committee I gave a commitment to give consideration to amendments tabled by a number of noble Lords and to the recommendations made by the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee regarding the definition of family members and the regulation-making power in Clause 1, and to return to it on Report.
Amendment 1 removes the discretion that was previously set out in the regulation-making power as to whether we notify family members of removal. We previously stated our intention that family members will always be given notice when they are to be removed but, in recognition of the arguments so eloquently made in Committee, we have now placed this firmly in the Bill.
We have accepted the recommendation of the Delegated Powers and Regulatory Reform Committee that it was “inappropriate” to delegate the power to define a family member for the purpose of administrative removal within the regulations. We have therefore defined in Clause 1 those family members who might be removed because of their dependency on the principal.
The first condition of the definition sets out the relationship of the family member to the principal. I am grateful for the point made by my noble friend Lord Avebury during our previous debate on this issue that the definition of family member should be dependent on the principal’s leave to enter or remain, and this is what we have sought to achieve within the second condition. The third condition is that the family member is neither a British citizen nor a person entitled to be in the United Kingdom by virtue of an EU treaty right. As I have previously stated, our aim is to give new clarity to families so that they will know exactly who may be liable to removal.
My noble friend Lady Hamwee noted in Committee that the draft regulations contained a provision that the giving of notice to family members acted to invalidate any leave to enter or remain previously held, and asked why this was not included in the Bill itself. We have taken on board her concern and moved this provision out of the regulations and added it to Clause 1.
In Amendment 2 we have sought to reduce the power to make regulations about the removal of family members to matters such as time periods and the service of notice. Further to the DPRRC’s 24th report, published yesterday, we will make a further amendment at Third Reading to take out the reference to “in particular” from line 27 so that it will be completely clear that the scope of the regulations cannot extend beyond these two provisions. This limits them to procedural matters that should be subject to the negative resolution procedure by virtue of Section 166 of the Immigration and Asylum Act 1999. Amendment 3 simply clarifies the definition of a child in this context as someone under the age of 18.
Other amendments in this group, tabled by the noble Lord, Lord Judd, concern the return of families and children to their country of origin. This Government have transformed the approach to returning families with children, in line with their commitment to end child detention for immigration purposes. I hope that I will be able to explain any further issues as we debate the amendments in this group. Meanwhile, I beg to move.
My Lords, I know that my noble friend is anxious to speak on the Government’s amendment so I will leave the main argument to him.
In May 2010, the Government did indeed commit to ending the immigration detention of children. There was a widespread, positive response to this change—and there have been some improvements. Fewer children are detained, and when they are it is for shorter periods. This must be recognised. The Government’s amendments would create a legislative basis for some of these improvements, for example by setting a time limit on child detention in law. However, it is very disappointing that the Government’s amendments do not prohibit or even properly limit child detention. They do not state that detention should be a last resort, as is the current policy, or that detention should be for the shortest possible time. I fear that, in practice, it may become normal for children to be detained for the maximum permissible period, where this is administratively convenient. Amendment 8 seeks to address this concern.
Bail for Immigration Detainees, to which I am sure many of us are grateful for its experience and for what it has shared with us in its helpful briefing, produced Fractured Childhoods, a report on the cases of 111 parents who were separated from 200 children by immigration detention. Children lost weight, had nightmares and suffered from insomnia during their parents’ detention. In 2010, BID dealt with a family whose members were separated for removal. The father was detained when reporting and the mother and young children were asked to make their way to the airport to leave the UK with him the following week. The family had previously complied with the Home Office and reported regularly, as required. Following the father’s arrest, the family did not have access to financial support and the mother was unable to buy food for her children, including milk for her baby. The mother did not speak English and her very distressed eldest child had to translate when an immigration officer telephoned the family. Her younger child began waking up in the night, crying hysterically. The mother was not offered any practical or financial assistance to travel across the UK to an airport, with several young children, for an early-morning flight.
New Section 78A(2)(b) under Clause 2 states that,
“a relevant parent or carer may not be removed from or required to leave the United Kingdom if, as a result, no relevant parent or carer would remain in the United Kingdom”.
This clause envisages that one parent may be split from a two-parent family and forcibly removed from the UK. It also allows that single parents may be removed without children as long as there is a relevant carer remaining with the child.
In many cases, children are likely to be seriously damaged by such separation. In Committee, the noble and learned Lord, Lord Wallace of Tankerness, stated that the separations would occur,
“in exceptional circumstances … for example, where there is a public protection concern or a risk to national security”.—[ Official Report , 3/3/14; col. 1125.]
However, the clause does not state that any specific circumstances are needed to justify separation. Amendment 5 would address this concern by providing that families must be separated only where necessary for child protection.
The noble and learned Lord, Lord Wallace, also stated in Committee that families may be split where the presence of one parent,
“was not conducive to the public good”.—[ Official Report , 3/3/14; col. 1133.]
This appears to refer to cases where parents have committed criminal offences. However, the fact that a parent has committed, for example, a false document offence is surely not of itself a sufficient reason to deport or remove them without their children.
Clauses 2 and 3 define family returns cases and limit the definition of a “relevant parent or carer” to somebody who is,
“living in a household in the United Kingdom with the child”.
The child may be seriously affected if a parent who is not living in their household is removed and, indeed, may need to leave the UK with them. For example, single parents who are in prison or immigration detention are not living in a household with their child. Furthermore, there will be cases where children living in households with other family members—for example, for financial reasons—would be very seriously affected if their parent were removed from the United Kingdom. Amendments 4 and 6 would remove the requirement for parents to be living in a household with their children in order to take part in the family returns process and would safeguard the welfare of children in the sort of situations I have described.
Current Home Office policy states that unaccompanied children should be detained for removal,
“on the day of the planned removal to enable the child to be properly and safely escorted to their flight and/or to their destination”.
However, Clause 5 would allow for unaccompanied children to be detained overnight for removal, potentially multiple times.
A 28-day period is proposed between families exhausting their appeal rights and enforcement. However, Clause 2(4)(a) states that the removal directions may be set in this period. This would prevent families having a meaningful reflection period. Furthermore, we have to take seriously the evidence that that timeframe is too short for families who have been in the UK for years to consider voluntary return.
Before I finish, I should like to put four specific questions to the Minister. First, why does the Bill not clearly state that child detention should be a last resort for the shortest possible time? Secondly, how will children whose parents are in detention or prison be safeguarded, given that Clause 3 defines a relevant parent or carer as,
“living in a household in the United Kingdom with the child”?
Thirdly, is it not possible that families will be separated on removal in any case where a parent has committed a criminal offence? Does this include cases involving non-violent offences, such as possession of false documents? Fourthly, a 28-day period is proposed between the family exhausting appeal rights and removal. New Section 78A(4)(c) under Clause 2 states that “preparatory action” may be taken in this period. Can the Minister clarify whether this will include detention?
At the outset of our deliberations on Report, perhaps as I put these amendments forward I may be forgiven for saying that we all like to pride ourselves on living in a civilised society. In a civilised society, children and their well-being should at all times be central to our concerns. Indeed, many of our obligations under international conventions and agreements arise from undertakings given by British Governments of both parties. Very often, Governments of both parties were pioneers in the changes and legislation proposed.
Detention can have a serious impact on children, too often irreparably. That can lead to alienation and assist social instability in disturbing ways. It lays people open to manipulation by extremists. That is why, for practical reasons in terms of security not less than anything else, our natural concern for children being at the forefront of all our considerations matters the most. My amendments are intended, transparently, to put our commitment to children in the Bill and put beyond doubt that it will always be the prevailing values and culture that matter most. Legislation of itself achieves nothing but it is there to lay out the values to which we subscribe and to underpin them by the law. That is why it is so important.
My Lords, I welcome the Government’s amendments here. I commented on the need for these issues to be on the face of the Bill at the previous stage, as my noble friend said. I sought clarity and certainty, and it is right that those points are in the Bill. I have a number of questions, but I will not repeat the questions that the noble Lord, Lord Judd, has asked—I have just crossed through that bit of my notes—although the questions are no less valid for that.
In Committee, the Minister gave assurances that removal would not happen where the dependency between the individual and the family member was broken, for instance when the former dependant—as he called him—was a victim of domestic violence. Could my noble friend confirm that that would be covered by the new subsection (2B)(b)? I would be grateful if he could say anything about how it will operate when the immigration officer or Secretary of State considers how a matter would have been dealt with had it been put to him or her.
New subsection (2A)(b) refers to a child,
“where P has care of the child”.
I had a look to see what the phraseology was in the draft regulations we were sent before Committee—I presume they will not go ahead now. They referred to “parental responsibility”. I warned my noble friend that I would ask these questions and realise this might be a technical one, but I would be grateful if he could explain the distinction between having care of a child and having parental responsibility. This may be in the same area as the question of the noble Lord, Lord Judd, about not being in the same household. It is certainly related to that.
I want to take advantage of these amendments to say how much I welcome the Government agreeing to pin down provisions for conditions at short-term holding facilities—a matter that my noble friend Lord Avebury raised—and the consultation, which I understand is to be undertaken. However, like other noble Lords, I feel strongly that the 24 hours that is referred to must not become the norm: it is a maximum.
On Amendment 8, in the name of the noble Lord, Lord Judd, how can the term “last resort” be demonstrated practically or legally? Is it a term found in legislation? Certainly, it was used at the Dispatch Box and is in Home Office policy. I warned my noble friend that I was going to ask about that but, since then, I have found the answer. It is used in the United Nations Convention on the Rights of the Child, which is reproduced in Welsh legislation. It is also used in Northern Ireland justice centre rules and—I hope this will appeal to my noble and learned friend who was previously Justice Minister in Scotland—in Scottish primary legislation. I say that in support of the noble Lord, Lord Judd, because I want to pre-empt the criticism that this is not the sort of language one should put in a Bill but is simply descriptive.
I support the amendments in the name of the noble Lord, Lord Judd, and refer to my experience as a member of the advisory panel formed by the Government when they first considered the detention of children, particularly the detention of children who were going to be removed. We advised that it should be handled by a separate returns panel, which has since been established.
During those deliberations, we had several other concerns about a word that the noble Lord used in his address—namely, “safeguarding”. In addition to the safeguarding of children who are involved either in detention or in the removal process, there is a very large problem of unaccompanied minors applying for immigration or asylum who are distributed throughout the United Kingdom in order not to overload the social services immediately adjacent to ports or airports of entry. We felt that there was an urgent need for the handling of children, whenever they appeared in the immigration system, to be looked at particularly from the point of view of safeguarding. I am not aware that that has happened. I urge the Minister to give this his urgent consideration. Many of the things that have been said today arise out of the need to look at the treatment of children overall.
My Lords, we will listen with interest to the Minister’s response to my noble friend Lord Judd’s amendments, which he put across with the decency and humanity we all associate with him. The government amendments make concessions on a number of issues, which we and others, and the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee, have made during the passage of this Bill through both Houses. The Minister has indicated the purpose of the government amendments, one of which seeks to make clear that all family members will be given prior notice of their liability for removal. Will the Minister confirm the position on the minimum period of prior notice that will be given in that instance?
“requires leave to enter or remain in the United Kingdom but does not have it”,
or their family members as well. Subsection (6) provides a power for the Secretary of State to make regulations regarding,
“the removal of family members”.
As we know, the Government’s stance up to now, which continues to be the case, is that the regulations would be made by statutory instrument but that they would be subject to the negative procedure. We remain of the view that the affirmative procedure is justified. We are disappointed that the regulations under what will become Section 10(6) of the Immigration and Asylum Act 1999 will not be subject to the affirmative procedure.
I was going to go on to refer to the comments made by the Delegated Powers and Regulatory Reform Committee in its latest report, which was published yesterday. The report reiterated the committee’s view that the power should be subject to the affirmative procedure. The Minister, probably with a view to seeking to address the concerns expressed by the Delegated Powers and Regulatory Reform Committee, has indicated that the Government will be bringing forward, if I understood him correctly, an amendment at Third Reading. He mentioned that it would address the concern that the committee had over the words “in particular”, which the committee commented on in its report. I assume that the amendment that the Government will put down at Third Reading will seek to address the concern expressed by the committee.
For our part, we want to see what that amendment is before making up our minds about whether we find it acceptable or not. Certainly, our position is that the regulations ought to be subject to the affirmative procedure for the kinds of reasons that were given by the Delegated Powers Committee, but we will see what the Government’s amendment says and whether that addresses the concerns that we too have on that particular issue.
My Lords, I welcome the Government’s amendment as far as it goes and what may be coming at Third Reading. The Government’s amendments bear witness to the good intentions of the noble Lord, Lord Taylor, which he has shown in the numerous letters and briefings that he has sent out as this Bill has moved through the House. However, in Clause 5, the Government seem to be kinder and provide greater protection for children newly arriving in this country compared with children who are already here. That is why I welcome Amendments 5 and 8 in the name of the noble Lord, Lord Judd, because they are very clear and give us the certainty that we need. I hope that your Lordships will accept them.
My Lords, I hope I will be forgiven for returning to a point that we discussed in Committee, on the basis that the noble Lord, Lord Judd, has tabled a number of amendments that deal with the position of women and children. My noble friend referred to the undertaking that the Minister gave in Committee concerning the facilities at Heathrow. That is not the subject of a particular amendment, but I am aware of delays that have occurred in implementing the improvements at the short-term holding facilities, particularly at terminal 4, which are the worst in the whole airport.
In view of that fact, will my noble friend take this opportunity to give us an update on where we have got to? None of the facilities has any showers for the children and families who are detained in them. The shortage of accommodation is acute and the facilities have been thoroughly condemned by the independent monitoring board that deals with Heathrow. It would be helpful if the Minister, when he comes to reply, would give us an update on where we have got to on the improvement of those facilities.
My Lords, as noble Lords will know, the Bill gives legislative effect to our current policies on family returns by putting key elements of the new process into primary legislation. Noble Lords have spoken of the Government’s record and our policies towards children, and mentioned them in favourable terms. I think it is a shared opinion across this House that we take policies towards children seriously. I hope to demonstrate that we are doing that in the passage of this Bill.
Amendments 4 and 6, in the name of the noble Lord, Lord Judd, would narrow the definition of a family return case. It is important that families where children are being looked after by someone other than the parents, such as an older sibling in some cases, a grandparent or another adult member of their extended family, are included in the family returns process so that their cases can be resolved together and so that they benefit from the intensive support provided by the new process. Under our definition of “family”, a parent must be living with their children to benefit from the family returns process. That is a reasonable definition. Other than in exceptional cases, where common sense would prevail, if a parent is living apart from the child they may be removed separately.
With regards to Amendment 5, and separating children from their parents, I assure noble Lords that we will always seek to ensure that families remain together during their return. I am sympathetic to the amendment, but there are exceptional cases. The noble Lord, Lord Judd, referred, I think, to the comments of my noble and learned friend Lord Wallace of Tankerness in previous debates on the Bill. Splitting families would never be done for tactical reasons to achieve compliance. However, in exceptional circumstances, we may need to remove an adult family member separately, even during the 28-day grace period which Clause 2 will establish. This may be, for example, where there is a public protection concern or a risk to national security.
The noble Lord, Lord Judd, also asked what the criminality threshold is over which we might separate families. He wanted a stronger definition than perhaps my words just now have offered, but there can be no fixed threshold. Each case will be considered on its merits, based on an assessment of whether an adult poses a threat of offending that cannot be satisfactorily managed without removal. That is the only fair answer that I can give the noble Lord.
Amendment 8 seeks to ensure that children are detained only as a last resort and for the shortest possible time. That is already, as noble Lords will know, government policy. Clause 5 will, in effect, ensure that detention is for the shortest possible time, while reflecting the operational reality that, in very exceptional circumstances, unaccompanied children may need to be held for short periods in transit to a port of departure or at the port awaiting departure. If we do not hold children safely while they are coming in and out of the UK unaccompanied, we increase the risk that they may fall prey to traffickers or, indeed, abscond.
Later this afternoon, we will be considering an amendment concerning children tabled by the noble Earl, Lord Listowel, to which I have added my name. I mention this because it is important to consider our approach to children in the Bill in the round. That amendment will confirm that the important statutory duty towards children in immigration decisions applies to every matter in the Bill. It will of course apply to this part of the Bill, further underlining that when families and children are being returned, we must have regard to those children’s best interests.
I will address the questions posed by my noble friend Lady Hamwee, whose help on this matter and on the Bill in general has been very positive.
I am very grateful to the Minister for what he is saying and the way he is saying it. Will he re-emphasise his position on two points? First, is there an understanding within the Government that sometimes the emotional relationship between children and someone who may be in prison can be very strong indeed, and that that needs to be taken fully into account when dealing with the interests of the child? Secondly, will he confirm that he agrees with me—if I may put it that way—that what will always matter most is the ethos, the spirit and the way in which the policy is being operated by everyone in the operation, and that sometimes therefore it is terribly important to have clearly in the legislation the overriding objective, purpose and value so that these cannot be lost in the niceties and legalities of the various parts of the legislation? That is why some of us argue for a firm, clear statement in the Bill.
My Lords, I would like to think that by our signing up to the amendment in the name of the noble Earl, Lord Listowel, there is a clear expression of those objectives across the Bill as a whole, not just in one section. If the noble Lord doubts our commitment in this regard, he should look at the number of children now held in detention compared with in the past. That has been supported by all noble Lords. It is not something that the Government have done on their own; it has been done because this House and others who care for children and families have been prepared to act in the interests of children and families. Nobody has done more so than the noble Lord. I hope that I have reassured the noble Lord with my statements, and I hope that the Government have reassured noble Lords by their deeds in this regard.
I was asked a number of questions by my noble friend. I do not want to take too long on the issue. My noble friend asked whether removal would not happen where dependency was broken when the former dependant was a victim of domestic violence, and asked me to confirm that proposed new subsection (2B)(b) covers this. I can give that assurance. Removal as a family member will not happen where the dependency is broken, because this scenario would not be covered by proposed new subsection (2B)(b). If there is a breakdown in a relationship such that a partnership no longer exists, the former dependant falls outside the definition in proposed new subsection (2A) and would be dealt with separately. I hope that that helps. I can give a fuller answer to my noble friend in correspondence, if she wishes.
My noble friend asked whether there was anything I could say about how proposed new subsection (2B)(b) will operate, and what the procedure is. In making a decision on whether to serve notice of removal on a family member, having already established the family relationship, an immigration officer or a case worker acting on behalf of the Secretary of State would next have to check whether the family members had leave on the basis of a family life with P. In cases where a family member has no leave, either because they never had any or because previous leave has expired, the immigration officer or case worker would look at whether they would be able to be granted leave in their own right because of their immigration status as an illegal entrant or overstayer, but they might be granted leave on the basis of their family life with P if P otherwise had leave.
My noble friend also asked how,
“where P has care of the child” differed from “parental responsibility”? I think that lies in the fact that we were talking about draft regulations when we were discussing the early draft. That is not necessarily the final wording. The wording prepared by parliamentary draftsmen is designed to include where children are being looked after by someone other than a parent, such as an older sibling, a grandparent or another adult family member. I think that my noble friend kindly answered her own question about “last resort”, so I shall not go into that.
In answer to the noble Lord, Lord Rosser, I can confirm that family members will be given a minimum of 72 hours between receiving notice of removal and any enforced removal, as per current requirements as endorsed by the courts.
My noble friend Lord Avebury has asked me before about the facilities at Heathrow. Unfortunately, the plans for those have been delayed. He is quite right to draw attention to that. I responded to him in those terms. I remain committed to providing him and the House with information on that issue when those facilities are finalised, but at the moment, that is not the case, so I cannot advance our knowledge on that issue any further.
I think that I have covered most of the questions, although I worry that I may not have addressed the issue raised by the noble Lord, Lord Hylton. I promise to read the record and come back to him on that.
I am entirely sympathetic to the intention behind the amendments proposed by the noble Lord, Lord Judd. I hope that I have been able to show how what he seeks to achieve is expressed in the Bill, so I hope that he will be prepared not to move his amendments and, meanwhile, I beg to move mine.
Amendment 1 agreed.
Amendments 2 and 3
Moved by Lord Taylor of Holbeach
2: Clause 1, page 2, leave out lines 28 to 35 and insert—
“( ) the time period during which a family member may be removed under subsection (2);
( ) the service of a notice under subsection (2).”
3: Clause 1, page 2, line 35, at end insert—
“( ) In this section “child” means a person who is under the age of 18.”
Amendments 2 and 3 agreed.
Clause 2: Restriction on removal of children and their parents etc
Amendments 4 and 5 not moved.
Clause 3: Independent Family Returns Panel
Amendment 6 not moved.
Schedule 1: Enforcement powers
Moved by Lord Ramsbotham
7: Schedule 1, page 60, line 13, leave out paragraph 5
My Lords, in returning to the amendment, I shall concentrate on developments since it was debated in Committee. In his letter of
“Home Office monitoring teams ensure that there are robust systems in place for monitoring escort and detention providers, to ensure service delivery and accountability”.
When I was Chief Inspector of Prisons, I used to warn Home Secretaries and prison Ministers that there was a world of difference between the facts that I was giving them, based on what had been seen during inspections, and the fudge that was too often given to them by officials based on what it was alleged that they wanted to hear. Real improvement can be made only if it is based on fact, and I believe that one of the main reasons for so little consistent or significant improvement in the conduct of imprisonment is that too many Ministers have preferred fudge to fact. My successor had a more eloquent way of putting that, calling the prisons described by officials to Ministers “virtual”.
Having studied the enforced removals process for a number of years, I have to say to the Minister that there is more virtual than fact in what was drafted for him to write and that until and unless the whole enforced removal process is taken by the scruff of the neck, re-examined and revamped, it will continue to cause avoidable ministerial embarrassment and bring shame on the good name of this country.
Before I raised the amendment in Committee, I wrote to the Minister drawing his attention to the report of the National Independent Commission into Enforced Removals that I chaired in 2012, following the death of Jimmy Mubenga while under restraint from three G4S detainee custody officers in an aircraft at Heathrow. Noble Lords will no doubt have noted that, since Committee, the Crown Prosecution Service has brought charges of manslaughter against these three, following a verdict of unlawful killing by the inquest jury. In view of what we learnt during the commission, I have to admit that I found the Crown Prosecution Service’s earlier refusal to prefer charges perverse. However, now that the CPS has done its U-turn, I hope that the questions which this tragic affair asks of the current enforced removals process will at last persuade Ministers that it is in need of urgent attention.
To assist with this, I also sent the Minister a copy of a draft code of practice that I and my fellow commissioners had drawn up. I suggested that the draft code might be considered with advantage by Home Office officials outside the timetable of the Bill, and said that I and my colleagues would be only too delighted to assist with that consideration. The failings described in our report were not new and had been drawn to the attention of the Home Office a number of times by many people over the years. Furthermore, the coroner who conducted the inquest into the 16 year- old Gareth Myatt, who died in Rainsbrook secure training centre in 2004 at the hands of G4S employees, had ordered the Home Office to publicise the dangers inherent in the restraint technique that subsequently was used, again by G4S employees, on Jimmy Mubenga. I must ask the Minister: was its use ever monitored by a Home Office team?
In setting about such a revamp, the Home Office has a priceless asset in the current Independent Chief Inspector of Borders and Immigration, who keeps on turning up examples of bad practice that have gone unchecked for years. Only last Thursday, he published a damning report on his inspection of the emergency travel-document process highlighting, inter alia, that the quality assurance process set up by the Home Office was not standardised, nor did it have an audit trail. He also reported that 78% of the cases of those in contact with the Home Office were not actually being worked on and that 11% of the inspectorate’s chosen sample had been granted some form of residency or leave to remain and so should not even have been in the removal pool. He also drew attention to something that I have often raised in this House, namely the detention of too many foreign national offenders in immigration detention centres for long periods after they have completed their prison sentences—the average time being 523 avoidably expensive days. Not least to save money, documentation should be completed during their imprisonment so that they can be deported the moment that that imprisonment ends.
There are two reasons why I am raising this amendment again. First, I thank the Minister for meeting me, along with the noble Earl, Lord Attlee, and officials, to discuss the draft code of practice, and for a subsequent meeting last week that was also attended by the Immigration Minister, James Brokenshire MP. I also commend the Minister for the assiduous way in which he has set about educating himself on the issues involved, not only by visiting Harmondsworth but by accompanying a return flight, during which he saw at first hand the demands made on detainee custody officers in what is never an easy exercise, and the problems caused by failure to pass on legal judgments. I am sorry, but I simply do not believe that courts make these judgments at 3 am, and the upheaval of taking a returnee and his luggage off a flight confirm that both the bureaucratic and removal parts of the process need attention.
My second reason for moving the amendment is to ensure that what I and my commission have offered, as well as the Minister’s response to our proposal that a code of practice be drawn up and adopted, is recorded in Hansard so that both can be followed up. I know that the Home Office has appointed a commission to examine and authorise restraint techniques, though I regret that it continued the Home Office practice of calling on inappropriate Prison Service advice because restraint techniques are not used by detainee custody officers in custodial settings. It is almost a year since I and some of my fellow commissioners gave evidence to it, and I look forward to hearing when it will report. The Minister has also been kind enough to offer me the opportunity of visiting the new training arrangements that I understand are now being developed, which I look forward to doing.
I therefore ask him to consider redrafting paragraph 5 of Schedule 1, because the force used currently by immigration officers is neither clearly defined nor reasonable. I beg to move.
My Lords, the noble Lord has spoken very powerfully about this issue, today and previously. I hope that he will understand the spirit in which I make this point; I make it only in case we find that this is more than a probing amendment. Will he confirm that his amendment to take out this paragraph would still leave the reasonable force—or, as he might say, so-called reasonable force—provision in the immigration legislation because of the way in which the paragraph is worded, which essentially updates the references to the immigration Acts? As I say, I ask that very gently only in case we find that we are faced with a little more than his questions.
I am very grateful to the noble Baroness. We have “reasonable force” at the moment, but I am concerned that if we left it like that then we would have reasonable force that was unreasonable. I am therefore asking that the work should be done, consideration should be given to this and, if necessary, that it be mentioned in the wording that the reasonableness refers to what has been authorised as being reasonable within the Home Office.
My Lords, the noble Lord, Lord Ramsbotham, has spoken with his considerable knowledge of the enforced removal process and of restraint techniques. It is fair to say that his criticism is not confined to what he thinks is going on at the moment but extends to what has gone on under previous Governments as well. I do not think that his comments are geared to a particular Government; I think that they are geared to what has been happening over a period of years.
We are aware of what the noble Lord has proposed about a code of practice, and I have to say that there seem to us to be some fairly strong arguments for seeking to have such a code, in view of some of the terrible difficulties and events that there have been and to which the noble Lord has referred. He has referred today to the redrafting of paragraph 5, as I understand it from the closing words of his speech.
We on these Benches have sympathy with the arguments that he is putting forward, which are clearly addressed to trying to resolve the significant difficulties that have arisen, and may well continue to arise, with the current process and techniques. We very much hope that we will hear a helpful response from the Minister to the quite powerful points that the noble Lord has just made.
My Lords, I do not think that there is going to be any marked division in this House on this issue, to the extent that I think we are agreed that whatever is done in our name should be done in a civilised and proper fashion. I am grateful to the noble Lord for bringing this issue to the House’s attention through Amendment 7, but perhaps I might start by repeating what I previously said in Committee. The provision in Schedule 1 to extend the use of force affects only those powers exercised by immigration officers. It does not make any change to the separate statutory powers of detainee custody officers and escorts, who are private contractors, to use reasonable force in the exercise of their particular functions.
As the noble Lord kindly mentioned, last week the Minister for Immigration and Security, my honourable friend James Brokenshire, and I had a very helpful and thoughtful meeting with the noble Lord where we discussed the proposals in his draft codes of practice for enforced removals and where I believe we agreed that there are a number of areas of common ground where the Home Office is making improvements. I think the noble Lord will know that my honourable friend Mr Brokenshire and I share an interest in this matter. He kindly mentioned my trip on a removals flight, which I found extremely interesting. I feel much better informed through having made that journey.
The noble Lord has proposed in the draft code of practice on use of restraint that any use of force must be justifiable, proportionate, accountable, necessary, safe and supportive and must applied for only the minimum period necessary to achieve the lawful objective. Published enforcement instructions and guidance explain that the use of force must be proportionate, lawful and necessary in the particular circumstances, and also set out that force should be used for the shortest possible period, be the minimum needed, be used only when all other avenues of securing co-operation have been exhausted and should be de-escalated as soon as possible. Whether that use of force was reasonable must be justified by individual officers on a case-by-case basis. I can assure noble Lords that only those immigration officers who are fully trained and accredited may use force. Arrest training is currently provided by the College of Policing, and training on the use of force, including control and restraint techniques, is in line with ACPO standards.
If we were to accept this amendment, although it would maintain the status quo, there are half a dozen coercive powers which sit in the 2004 and 2007 immigration Acts, where there is no specific reference to the use of reasonable force. Although the use of force is currently implied in these arrest and entry powers, it is our intention that this should be set out explicitly in statute to ensure that there is greater transparency. I previously gave noble Lords the example of an immigration officer trying to safely arrest a person for the specific offence of assaulting him or her, under Section 23 of the UK Borders Act 2007, where it is not expressly stated in the legislation that an immigration officer can use reasonable force to restrain that person in doing so. The extension of the power for immigration officers to use reasonable force beyond that contained in the 1971 and 1999 immigration Acts will ensure that existing powers can be operated effectively and are in step with other law enforcement bodies’ powers and that current enforcement practices are not at risk of legal challenge on the grounds that the ability to use force is not explicitly set out in statute.
The noble Lord asked whether the Home Office monitored the restraint techniques used at Colnbrook removal centre in 2004, which led to the tragic death of a 16 year-old. I cannot answer that question at the Dispatch Box but will write to him and copy the letter to other noble Lords who have spoken in this debate.
With the assurance that we in the Home Office very much value the noble Lord’s input in this area, which reinforces our interest in making sure that these jobs are done in a proper fashion, I hope the noble Lord, Lord Ramsbotham, will fell able to withdraw his amendment.
My Lords, I am extremely grateful to the Minister for his considered reply and, indeed, for the meetings we have had. I admit that I was seeking an opportunity to raise this issue because it has gone on for too long. The procedures being exercised in our name have gone unchecked and unsupervised in a way that has allowed bad procedures to be passed from one contracted company to another contracted company over the years, which really ought to have been checked.
I like to think that the exercise that the Minister has outlined means that this will at last be put to an end. The people who have actually been served worst by this are Ministers, who have been put into embarrassing positions which they really should not have been. I am happy to withdraw the amendment because I think that the point has been made fully, and I am grateful to the Minister for doing so. I beg leave to withdraw the amendment.
Amendment 7 withdrawn.
Clause 5: Restrictions on detention of unaccompanied children
Amendment 8 not moved.
Clause 7: Immigration bail: repeat applications and effect of removal directions
Moved by Baroness Williams of Crosby
9: Clause 7, page 6, line 45, at end insert—
“(1A) In paragraph 16 (detention of persons liable to examination or removal) after sub-paragraph (4) insert—
“(5) A person detained under this paragraph must be released on bail in accordance with paragraph 22 no later than the sixtieth day following that on which the person was detained.””
My Lords, in moving Amendment 9, it is an honour to follow the noble Lord, Lord Ramsbotham, who I think always gives this House the benefit of an extraordinarily frank, honest and honourable speech, to which we can all listen with great advantage to ourselves. I share with him his courteous recommendation of, and congratulations to, the noble Lord, Lord Taylor, and the noble Earl, Lord Atlee, because of their extraordinary willingness to discuss with us the issues that we raise. I will certainly echo that before I embark on speaking to my amendment.
I declare an interest as a patron of the Gatwick Detainees Welfare Group, which commits itself to looking after those detained at that airport, by getting together a group of volunteers who make it their business to try to inform, calm and, for that matter, communicate with the large number of men and women there. I put on the record my extreme gratitude to them. They do it without being paid, they come from the local area and they are a fine example of the United Kingdom at its civic best.
The noble Lord, Lord Taylor, is an exemplification of that famous proverb, “A gentle answer turns away wrath”. Indeed, when I hear the noble Lord, Lord Taylor, my wrath diminishes as I listen. However, I also have the unhappy, almost aching, feeling that there is quite a big gap between what the noble Lord says—undoubtedly with all sincerity—and what I actually encounter in the real world. While I was listening to the noble Lord, Lord Ramsbotham, there was a certain gap between the assurances given by the Minister—I am sure in all good faith—and the daily set of newspaper stories, over and over again, about the particular treatment of detainees, not least of course by well known private companies now responsible for running detention centres. It does not all quite add up.
I shall therefore restrict my remarks today to a factual account, as far as I possibly can—not eloquence, not rhetoric, but a factual account—of why I think that the present situation cannot be sustained. First, on the numbers, some 30,000 people are detained every year as a result of extant investigations, connected in some cases with faulty immigration rules, in some cases with documents and in some cases with what all of us would of course recognise as criminal offences: 30,000. If you then ask how many have been detained for a year or more, the answer is reassuring: as of the autumn of 2013, it is 92. However, what you do not know until you investigate very carefully is that there are another 950 who are also detained, not in detention centres but in prisons. For some reason I do not understand, people detained in prisons for a year or more are not listed in the Home Office’s own statistics. I am told that there is an anomaly; it reports only those detained in detention centres. The 982 figure is very different from 95, and that difference has not been explored.
Thirdly, let us ask how much that costs the British taxpayer. The answer is that the cost of a year’s detention for each detained person is £36,000. However, that is only the beginning. At present there is a plan to build, at The Verne in the Isle of Wight, a new detention centre that will cost an estimated £30 million. That is also a cost over and above the cost of running the detention estate. We are therefore looking, on some estimates, at a figure of somewhere between £75 million and £100 million a year for a detention centre about which we must at least ask whether it is necessary, essential and justified.
That leads one to turn to the issue of how other European countries treat their detainees. With the Republic of Ireland, we are the only European Union member state that has detention with unlimited length. In France, the length of detention is 45 days, and in Germany it is three months. Those are broadly in line with the average for all other European member states. I repeat: only the UK and the Republic of Ireland have unlimited detention without trial. I find that deeply troubling.
Many years ago, when I was a young mum, I went on holiday with my family to Romania, which was still under the undoubtedly iron hand of Nicolae Ceau?escu. I spoke to the hotel clerk, and I will never forget what he said when I handed over my British passport to him, which was, “Ah, mater liberorum”—mother of the free. I have never forgotten that. He had been exiled to the Romanian mountains by his Government and was forbidden to speak out or to get newspapers, but somewhere inside him was the sense of the beacon quality of our own country. I never forgot that. That is why today, when we debate something such as the unlimited detention of detainees, I have to ask myself whether the country that I love for its belief in freedom is still the same country.
I will go back to the facts again. I have talked about the detention estate, but I will take it one step further. In 2010, to its credit, the European Parliament approved a “return directive”. Under its provisions, any person detained without trial had to be returned after a length of time no greater than six months. If investigations were needed—for example, because somebody might be accused of some sort of criminal offence—there was an extension under the EU directive to 18 months in all. The total maximum, therefore, even if the allowance of extra time is granted, is 18 months—and normally it is six months. The United Kingdom and the Republic of Ireland both opted out of that directive on the grounds that it interfered with our autonomy and freedom to run our own justice system. Would that we had opted out on rather different grounds—but we opted out, so the directive does not apply to the United Kingdom.
What else can we say about what we might do? Through the Gatwick detention centre—and I am sure that this is also true of other Members of this House—I have encountered, over and over again, the tragic situation of many of those detained. I will give the House two examples. The first is the example of people who cannot be returned, such as all Somalis who fled this country from the destruction of their own, because the United Nations High Commissioner for Refugees announced that to return them would be utterly unsafe. To our credit, we abide by that ruling and we do not forcibly return Somalis to what would almost certainly be a future of torture, if not death.
We have been much more sceptical about some other countries. I was closely associated with the attempt to support the famous MDC, the Movement for Democratic Change, in Zimbabwe—only to see, over my desperate protests, two people, including the youth officer of the MDC, returned to Zimbabwe on the grounds that they would be safe when they got there. They were both tortured to death in the airport within a few hours of being returned by us, the United Kingdom. As the noble Lord rightly said, that was under a different Government, but the arguments are the same regardless of party. So we cannot return some people; what we do is detain them—unlike the French who, if people cannot be returned, give them no more than 45 days in detention.
The second large group—and some of them will be familiar to noble Lords—are people who cannot be returned because they have no proper documentation and will therefore be rejected by the country to which they are returned. That undoubtedly presents the Home Office with considerable problems; I understand that. But the alternative to detention without limit in every other country in Europe, save the Republic of Ireland, is to investigate and review the case and decide whether people can be released and, if they cannot be released, to bring charges against them. Indeed, the striking fact about France—I take that as the closest example to us—is that more people have been voluntarily returned from France as a proportion of those detained than in the United Kingdom, by a very substantial margin. France has persuaded 81% of its detainees to return voluntarily—not at the end of a cosh, but voluntarily—to the countries from which they came, which in turn have been sussed out to make sure that they will not do damage to the returned deportees. What France does, we can do; there is no reason that we should not.
To conclude, we pay something of the order of £70 million or £80 million a year to sustain a system that is uncivilised, brutal, expensive and unfair. I plead with the House to consider very seriously whether we can go on supporting it and whether the time has not come for major reform of what I can describe only as a deplorable policy common to all parties in this House and to all of us, which we allow to continue year after year, even in the teeth of the United Nations Committee Against Torture, which specifically begs the United Kingdom to look very closely at what it has done and consider whether a limit should not now be brought in.
My Lords, I support the amendment for all the reasons given by the noble Baroness, Lady Williams, in her most eloquent speech. She has left it to me to say something about the law in this area—a somewhat duller subject, I fear. The basic legal principle involved is not in doubt. Executive detention in immigration cases is lawful if—but only if—there is a realistic prospect of removal within a reasonable time. That is the principle that was established in the case called Hardial Singh. If that principle does not apply, it is otherwise unlawful.
It may be supposed that the purpose of the amendment is to make indefinite detention unlawful—but it is not, because it already is unlawful. The purpose is quite different; it is to impose a statutory limit on lawful detention, which in this case is proposed at 60 days. The application of the general principle to which I referred is, of course, dependent on the facts of every particular case that comes before a judge. There was a time when it looked as though judges, left to themselves and applying that general principle, would reach a consensus on what should be the maximum period of lawful detention in ordinary cases. If they had, a statutory limit of 60 days would not be required.
Sadly, the most recent cases have shown that that is not going to be the way ahead. I refer to just two. In the Muqtaar case, decided in October 2012, the Court of Appeal dealt with a Somali ex-offender who could not be returned to Somalia. He was nevertheless held for three years and five months before being released. His claim for damages failed. It was held that there could be what was described as a realistic prospect of removal without it being possible to specify the period within which removal would reasonably be expected to occur. I find that pretty difficult to follow, but on any view it seems to deprive the principle to which I have referred of any real effect.
Another case was Francis, decided in July 2013. The claimant in that case was convicted of using a false British passport. He was recommended for deportation and was then detained for three years and nine months. At the hearing, the Secretary of State argued that the court’s recommendation created what was called a “statutory warrant for detention”.
The judge accepted that argument—otherwise, he said, he would have awarded substantial damages. I am not sure what the Secretary of State’s argument really meant but, happily, that case is going to the Court of Appeal and I hope that we will know what the position is.
I cite these cases because they have led me, with great reluctance, to the view that we cannot now look to the judges alone to arrive at a maximum period of detention in immigration cases. It is for that reason that I support a statutory maximum, as proposed in this amendment, for I am in no doubt at all that a maximum is required. No doubt some would like a maximum longer than 60 days and others a maximum shorter than 60 days. However, the existence of a statutory maximum is in my view essential to prevent detention in these immigration cases becoming in practice indefinite—or, at any rate, seeming to be indefinite—with all the suffering and misery that that involves.
The arguments in favour of a statutory maximum are set out in the report of the Bingham Centre for the Rule of Law in its safeguarding principle 17 at pages 82 to 87, and in the very excellent briefing provided by Detention Action. The arguments advanced there seem to me completely convincing and it would serve no purpose to repeat or summarise them. Therefore, I will add just two footnotes. Last week, as it happens, we debated a different form of indefinite detention—indeterminate sentences for the protection of the public, or IPPs. They were abolished by Parliament in 2012 because the consequences of the IPP system were so unjust. In the case of IPP, the detainees had all, of course, been convicted of a serious offence and were deemed to be dangerous. One may therefore ask how much more unjust is this detention in the case of would-be immigrants who have committed no offence at all?
Secondly, I have spent many hours wearying the House on the injustice of control orders, as your Lordships will remember. We were always told, in those days, that there was no alternative to control orders for these dangerous men who could not be convicted in the ordinary way. I was therefore very pleased when control orders came to an end and TPIMs were substituted, in particular because Parliament imposed a statutory limit of two years. Last week, the last of the TPIMs lapsed and, so far as I know, there was no immediate protest from the Home Secretary. That leads me to think that control orders and TPIMs were never really as necessary as people said and that, somehow or other, the Home Office has found another way around. I suggest that exactly the same will happen if we impose a statutory limit of 60 days on this form of detention. If necessary, the Home Office will always find some other way of dealing with the problem. For that reason, I shall vote for this amendment and hope that the House will do so, too.
My Lords, it is a privilege to follow my noble friend Lady Williams and the noble and learned Lord, Lord Lloyd, on a cause that is so right. Even those who try to defend the present system of indefinite detention must surely be uneasy of conscience that we are even contemplating such an approach.
“Lack of knowledge about the end date of detention is seen as one of the most stressful aspects of immigration detention, in particular for stateless persons and migrants who cannot be removed for legal or practical reasons”.
Indefinite detention is the worst type of punishment. Theologically, it is similar to the hell we were told about in the old days: it is not going to end. Waiting for removal or deportation, not knowing when it might happen or what a person’s fate might be, is unlimited hopelessness.
Some figures have already been mentioned. At the close of last year, in addition to the 220 people who had been in detention for six months or more, 11 had been detained for 24 to 36 months and one person had been in indefinite detention for between 36 and 48 months. Who is in detention? Many have no travel documents, while others are unreturnable because of conditions in their country of origin or because their nationality is disputed. The United Kingdom is the European Union’s biggest detainer of migrants. As already mentioned, a record 28,909 migrants were detained in 2012, most of whom are guilty of no crime and many of whom are being detained in conditions equivalent to high-security prisons.
We have heard about the Bingham Centre, the United Nations guidelines and the European Union directive, yet we are the country that refuses to do this. We have no moral right to put anyone through such prolonged punishment. I agree with the Chief Inspector of Borders and Immigration, John Vine, who said:
“Given that a criterion for maintaining detention is that there must be a realistic prospect of removal within a reasonable timescale”,
indefinite detention is, “a serious concern”. It is also totally unacceptable and completely inhumane. We are the only country in Europe, apart from the Republic of Ireland, and one of the few countries in the world not to operate a maximum timeframe for immigration detention. How can we point the finger at other countries for breaches of human rights law? Years ago, the United Kingdom was called the sick man of Europe. I hate to think that it could be termed that again. However, on the particular ground of indefinite detention, surely other countries and other people have a right to point the finger at us. The whole spirit of Magna Carta is rejected by this policy, but in this Bill we can remove the stain, especially before the celebration of Magna Carta next year. What better way to celebrate it than to end indefinite detention? That would be the real celebration.
Let us not forget the cost. Independent research by Matrix Evidence concludes, as my noble friend Lady Williams mentioned, that £75 million per year could be saved if asylum seekers who cannot be deported were released in a timely manner. Therefore, I urge the House to join me in expressing abhorrence of the terrible sentence of indefinite detention for people who have committed no crime whatever, and to resolve to put an end to it once and for all in the United Kingdom.
My Lords, I do not think that support for this amendment should be limited to my own Benches. I feel very strongly in favour of it and I congratulate those involved in drawing it up. I care passionately about the issues and values behind it but I want to make one other point, which I made in Committee. We are involved across the world in a struggle for values, and we like to hold to the principle that we offer values that present a better prospect for humanity. We try to contain extremism.
During my life I have come to recognise that those who advocate extremism do best in a climate of ambivalence—when there is doubt and cynicism on a significant scale. People who individually might never embrace extreme action nevertheless have a shadow of doubt: however distasteful they find the methods that the extremists use, perhaps these people are on their side. This may be a very dangerous thing to say but I sometimes wonder whether it is a bit too easy to refer to people as extremists. People who take that kind of position point to hypocrisy and inconsistencies and to examples where those whom they want to undermine do not, through their practice, begin to uphold what they advocate.
Therefore, I am totally concerned not only with the humanity and the principle behind the amendment but with its relationship to the struggle for security and stability in the world. We simply cannot afford to let areas of our administration and our justice system be a living example of contradiction of all that we have traditionally held dearest in our society. From that standpoint, as well as the one of values, I believe that it is a timely amendment and that it deserves support.
My Lords, I have added my name to the amendment because I absolutely agree with everything that has been said about unlimited detention, which is hinted at. First, I salute the noble Baroness, Lady Williams of Crosby, for the powerful and eloquent way in which she moved the amendment, and I salute the power with which my noble and learned friend Lord Lloyd of Berwick and the noble Lords, Lord Roberts and Lord Judd, have supported it.
I have three things to add. Recently, I have been privileged to be a member of a Select Committee of the House on soft power, chaired most admirably by the noble Lord, Lord Howell. One of the most powerful witness statements I remember listening to was by the high commissioner for Mozambique, who described the qualities that encouraged Mozambique to apply to join the Commonwealth. In particular, it was the qualities of Britishness, headed by the rule of law. The fact that that made so much of an impression on him and is why Mozambique made such a change suggests that we go against our reputation for the rule of law at our peril when we are trying desperately to think about how we project our image in the emerging world of the 21st century.
I used to inspect detention centres and they always worried me. They were bleak places, not designed for holding people for long periods. They were originally designed for only very short periods while documentation was checked. They are neither one thing nor the other. There is nothing to occupy people, and of course that is not good over time. Nor are they good at short-term holding, which is why we wait to hear what will happen about the short-term holding facilities so urgently required. The other thing about them is their staff. The trouble with the staff in such places is that they tend to turn over extremely quickly. They cannot communicate with the people there, and they cannot provide anything other than the normal meals and so on. They can provide none of the succour. Remember that the people there have come under some form of mental turmoil. The other thing that always worried me about detention centres is the absence of the proper medical treatment—in particular, mental health treatment—that so many of the people in them require, especially under the strain and stress of being held for an uncertain period while their circumstances are investigated.
Thirdly, at Second Reading a number of noble Lords drew attention to the millstone of the 500,000 unresolved cases with which the Home Office is currently faced. They said that until and unless that backlog is removed, you will never have a system where it is possible to process things and people quickly. That requires urgent remedial action. I should like to make certain that, in future, the stimulus of having to complete cases within a period of time is applied to the system so that we are never able to build up such a backlog again. That is bad not only for the system and the people concerned but also for the staff, who in no way can help people by giving them some indication of when and how they might be released from what they are doing.
My Lords, I speak very briefly in support of this amendment so that my noble friend Lord Judd is not on his own on these Benches in supporting it. The noble Lord, Lord Roberts, likened detention to hell, but it is probably more like purgatory because people are in limbo. The noble Lord, Lord Ramsbotham, referred to the mental health problems faced by people. Is it surprising that there are very serious mental health problems when people do not know how long they will be there? Just from common decency and humanity, I hope we will be able to support this amendment.
My Lords, nobody could be against the spirit in which this amendment was moved so persuasively and reasonably by my noble friend Lady Williams of Crosby, but I have one or two points to make. The Minister may wish to deal with them in summing up.
First, in relation to the European Union, there is probably a very good reason why the United Kingdom and the Republic of Ireland are the two countries which have not signed up to the return directive. That is because of our common law tradition. As the noble and learned Lord, Lord Lloyd of Berwick, very reasonably said, indefinite detention is unlawful, which is the position at the moment. People are able to apply for habeas corpus; to make, admittedly subject to the law, applications for bail; and are able to use judicial review. That is one reason at least why we appear to be out of line with other European Union countries on this point.
Secondly, as my noble friend Lady Williams very fairly set out, this amendment goes well beyond the return directive in its time period. Under the return directive, there is six months, and exceptionally 18 months, to deal with these issues, whereas this amendment proposes 60 days. I have concerns with that. Admittedly it is in a minority of cases but there are exceptional cases where individuals seek to play for close of play knowing that there is an automatic cut-off which is not subject to judicial process. If they can draw out the process for six months, they are automatically released, as it were, irrespective of the fact that a removal may be pending or that they may abscond. I have great sympathy with an automatic period, but 60 days is too short. It is in that spirit I put forward those points.
My Lords, when I raised issues about bail and mental health in detention at the previous stage, the Minister gave me assurances about the Home Office policy presumption in favour of release or temporary admission—a “presumption of liberty”, so called. He said:
“Wherever possible, alternatives to detention are used. Detention must be used sparingly and for the shortest period necessary”.—[Hansard, 3/3/14; col. 1163.]
As this is a more focused debate than in Committee, when we had, I think, six amendments and the Minister had to cover a lot of ground, perhaps I may ask him some questions of which he is aware.
Can the Minister expand on the criteria applied for detention or conversely release, and say something about Home Office guidance and case law? The issue of the periods applied by other EU member states has also been raised. Like the noble Lord, Lord Bourne of Aberystwyth, I am curious not just about the periods but the legal systems within which those periods sit and how other countries deal with the “abscond” risk. Although I suspect not, does the Home Office have any profile of those who are detained for more than the 28 days that we discussed previously and the more than 60 days we are considering now?
Finally, I cannot resist sharing with your Lordships a case study from the Movement Against Xenophobia, which is one of the many very helpful briefings that we have received. It refers to a man who had been born in the Ukraine and had moved to Poland. He was unable to get a passport and bought a false passport. He was picked up and imprisoned. One might say, “Fair enough”. After his imprisonment, he was held in detention. Post the imprisonment sentence, the detention was 18 months. Eventually, he was successful in challenging that. The irony is that he was trying to leave the UK when he was picked up.
My Lords, we have heard some extremely powerful speeches in today's debate, especially on the concerns about overlong detention. Some of the individual cases that we have heard about strike the humanity of all noble Lords—to take a phrase from my noble friend Lord Judd. We certainly understand the reasons for the amendment and agree that it should always be the objective to reduce the length of time that any individual is in detention. I would hope that in the vast majority of cases it is possible to deal quickly with the process for individuals or find alternatives to detention. As we have heard, that is in the interests of the individuals detained—we have heard that there are 30,000 detainees each year—and in the interests of the taxpayer.
The comments of the noble Lord, Lord Ramsbotham, and my noble friends Lord Judd and Lady Lister, led to a greater concern about the regime of detention centres and the way in which rules are enforced. We agree that immigration rules must always be enforced, but the responsibility of government is to ensure that all detainees are treated humanely, with high standards and safeguards in place. As this amendment seeks to draw attention to, the process of administrating and assessing claims or arranging deportation should be undertaken as quickly and as fairly as possible.
Long delays and long periods of detention bring with them other problems. I am sure that the Minister is aware of the research undertaken by Women for Refugee Women which illustrates concerns about access to healthcare and support for physical and mental health. Only this week, we heard the extremely sad and distressing account of a woman of 40 who died at Yarl’s Wood detention centre. I was pleased that yesterday the Minister announced an investigation and review into that sad and tragic death.
Will the Minister also confirm that there will be a full investigation into the reports of sexual abuse of vulnerable women at Yarl’s Wood by Serco employees? What action has been taken as a result of the report of the inspector who said that abused and trafficked women are being held at Yarl’s Wood? The chairman of the Home Affairs Select Committee in the other place said yesterday that Serco has confirmed to him that in the past few years seven employees had been dismissed for inappropriate behaviour. The Minister will also be aware that there are ongoing police investigations and criminal proceedings, although Nick Hardwick, in his most recent inspection report, said that—I paraphrase—good progress was being made but more needs to be done. There are real concerns that have been illustrated across the House today.
However, that is not the amendment before us today. This is specifically about the length of time an individual can be held, and we heard examples of overlong detention from the noble Baroness, Lady Williams, and the noble and learned Lord, Lord Lloyd. My concern about the amendment is that it is slightly clumsily worded and does not necessarily achieve what it sets out to do. It has an arbitrary time limit of 60 days. Within that, there is no risk assessment of the issues of whether or not someone is likely to abscond or any assessment of the reasons for the delay.
More importantly, and this gives us the most concern, foreign criminals who have completed their sentences may be detained while they await deportation. That may take a little longer than 60 days to resolve—to get all the paperwork in place, ensure that they are treated properly and make an assessment of where they can be deported to. We would then be faced with the prospect of releasing those who do not have a legal right to be in the UK and who have become convicted offenders who have received a custodial sentence. That could lead to complications in the paperwork or the complex nature of the deportation. If the amendment were passed today as it stands, we could have a difficulty with former offenders who have been held in detention prior to deportation.
Unless I have missed something, there is no process in the amendment to allow for any extension in any circumstances, whether for a genuine risk of absconding or because of deportation for previous criminal offences. There is no qualification at all in the amendment as it stands. Having said that, I think it was my noble friend Lord Judd who used a phrase—which is well worth this House returning to on a number of occasions—about the humanity and the principle of the issue. The noble Lord, Lord Ramsbotham, referred to the amendment being a “stimulus”, because the Government should be aiming to achieve far shorter detention periods.
I fully appreciate that this amendment could focus the Government’s attention on being far more efficient in dealing with cases but there is a risk here, as I have outlined, and I am not convinced that the Government would necessarily take note in that way. I would like to hear some assurances from the Minister that action will be taken to deal with any abuses of the rules and regime in any detention centre. I hope that he will not dismiss the objectives of the amendment before us today because, whatever flaws there may be in the detail, this amendment raises issues of serious concern across your Lordships’ House, as he has heard, that have to be addressed. Although we cannot support this amendment as it stands, we would hope for a very sympathetic and helpful response from the Minister.
My Lords, I am very grateful to the noble Baroness for that contribution. I think she recognises the burdens on the Government in dealing with this matter. I also say to her that, clearly, if there is evidence of wrong-doing at a detention centre, it will be investigated. However, I would like to write to the noble Baroness in more detail on that because I cannot address from the Dispatch Box the particular issues that she raises.
However, as to the general principle, we have had a really good debate today on detention. The truth of the matter is that no Government want to detain people more than they have to. I think the figure was quoted of £36,000 per annum for each detainee, which is enough incentive for any Government, not just on humanitarian grounds but on hard-nosed business terms. We do not want people detained, but these are difficult issues and we have vested, quite rightly in my view, the determination of these matters in the courts. It is the courts that determine the period of detention. Although the noble and learned Lord, Lord Lloyd of Berwick, has talked about the legal background to these issues, this is a case where that balance between the Executive and the court system determines outcomes.
I will now try to address the issues in the amendment, which my noble friend Lady Williams characteristically presented with the passion that has driven her through a most distinguished political career. Amendment 9 would require the release of any individual in immigration detention subject to a removal decision after 60 days’ detention, no matter how imminent their removal was. Removal might be due after 62, 64 or 70 days, but 60 days would be the effective limit.
There is an absconding risk in that, which I think noble Lords will recognise. Having a finite limit would give people an incentive not to co-operate with removal. Much of what we have been discussing here has been discussed in very high-minded terms, but there are people in detention who will do everything that they can to ensure that they are not removed. If an individual refused to co-operate with arrangements for their removal—for example, in obtaining a travel document, which requires the co-operation of the detainee—they would be able to benefit from their non-compliance when making a bail application after 60 days of detention, even if the sole reason for their detention and for their not being removed was their lack of compliance. Even if a limit were to be imposed, 60 days is not the right limit, and I hope I can convince noble Lords of that. The Government’s view is that it is not appropriate to legislate to set a time limit for immigration detention.
It is a basic principle of English law, as has been alluded to by a number of noble Lords today, that the burden is on the person who is exercising any power to detain to show that the lawful authority to detain exists. This right is ancient in origin: from habeas corpus to Magna Carta to the 1688 Bill of Rights. There is active judicial oversight to police and protect this basic principle. As was referred to by my noble friend Lord Bourne of Aberystwyth, the well established common law and case law, coupled with active judicial oversight and the Home Office’s own published policies and procedures, mean that detention is used proportionately.
A number of noble Lords, including my noble friend Lady Williams, referred to Hardial Singh. Removal must be possible within a reasonable time—that is the principle that underlies the Hardial Singh judgment. The noble and learned Lord, Lord Lloyd, mentioned Hardial Singh as well. The principles underlying that judgment were endorsed by the Supreme Court; for example, in the judgment in Lumba. The courts have been satisfied for some 30 years that the Hardial Singh principles are appropriate and do not lead to what might be described as indefinite detention.
I hope that I have given some background to the legal framework. Much of it derives from our common-law principles and lies in the relationship between the Executive, the citizens and the courts that resides in common law. I must correct my noble friend on one point of fact; we have checked this. Germany actually has a full 18-month minimum detention period—of course, I mean maximum; even the German economy could not withstand that in all cases.
Perhaps I can also help noble Lords by putting this matter in perspective. A large majority of people leaving immigration detention in 2013—81%—had been in detention for two months or less. During the same period, less than 1% of those leaving the immigration detention estate had been detained for a year or more. Those in long-term detention will be mostly foreign national offenders, who pose a public protection risk, and their detention would have been prolonged by their failure to comply with the removal process. I think I gave noble Lords some numbers on this in Committee. Case law recognises that detention longer than 60 days may be appropriate in some cases and that the legality of detention is highly fact-specific. It is an issue that cannot and should not have an arbitrary upper time limit imposed.
To illustrate that, I will give the example of the recent case of R (Robert Kajuga) v Secretary of State for the Home Department. His Honour Judge Blackett reflected on when detention is reasonable when an individual refuses to co-operate with removal. I hope that noble Lords will excuse me for paraphrasing, but His Honour Judge Blackett came to the conclusion that if a person obstructs the removal process and fails to co-operate, the reasonable period will be longer—probably much longer—so long as the Secretary of State makes real and continuing efforts to ascertain where the detainee has come from and should be returned to. The judge concluded his remarks by observing that, if the period of reasonable detention was not extended by non-compliance of the returnee, those liable to deportation could frustrate the process and work it to their advantage by failing to co-operate with the authorities.
Immigration law is very settled in this area. In my belief, there is no need to legislate. By legislating, we would remove discretion from the judiciary to decide when detention under immigration powers was reasonable. We should not undo such settled case law lightly. Therefore, despite the eloquence with which she has moved her amendment, I call on my noble friend to withdraw it.
I have to say that, for me, this is a heartland issue of conscience, as it must be for many other Members of the House. I therefore beg to hear the opinion of the House on this matter.
Clause 15: Right of appeal to First-tier Tribunal
Moved by Baroness Berridge
10: Clause 15, page 13, line 39, leave out from “unless” to end of line 40 and insert “the Tribunal is satisfied that the matter is within its jurisdiction and there were good reasons for not raising the matter before the Secretary of State”
My Lords, I declare an interest as a trustee of the think tank British Future. I apologise that this my first speech in your Lordships’ House on the Bill although I am a member of the Joint Committee on Human Rights and have been involved in considering this Bill from an early stage. I have been grateful for the comments of my noble and learned colleagues, and I accept that the amendment is not perfect. It was intended to raise this matter in Committee, but unfortunately your Lordships went rather quickly and a time limit was missed.
I thank the Minister for the lengthy and detailed correspondence that he has engaged in with the Joint Committee on Human Rights. As I hope noble Lords will realise, there are important points of principle in Amendment 10. There is no suspicion of the matters that were properly raised by the noble Baroness, Lady Smith. I think all parties share the concern about the difficulties that are faced in deporting foreign criminals, but that is not part of the principled and mature correspondence that has passed between the JCHR and the Government.
This amendment reflects the view of the Joint Committee on Human Rights and provides a more appropriate solution to a problem that it is accepted has arisen in the tribunal. The tribunal hears appeals from immigration decisions made by the Home Office. The Bill in my view breaches a constitutional principle that you cannot be both a party to a case and determine how it is heard. In colloquial terms, you cannot be both the football referee and the captain of one of the teams.
The problem that has arisen in the tribunal is that the law changed in 2002 and introduced the one-stop appeal notice, which meant, sensibly, that the tribunal should deal with all the immigration issues concerning the person before it in one hearing. This has largely prevented the proliferation of appeals from different claims made consecutively by the same person that was bogging down the immigration appeals system.
However, following the statutory instructions to hear everything together, the tribunal has developed the practice of hearing new matters that have arisen, perhaps even on the morning of the hearing, there and then. The new matter is determined by the tribunal without the Secretary of State first having made a decision on it.
I always find it hard to grasp issues in the abstract, and I thank the practitioners who make their living going daily in and out of the First-tier Tribunal for having helped me enormously in the past few days. A typical case might be where a person is appealing a Home Office decision to refuse an asylum case; for instance, because they fear persecution as a Baha’i believer from Iran. However, they come to the hearing with a new wife who is a British citizen, meaning that they now have a Human Rights Act claim in addition to the asylum claim. Sometimes the tribunal will adjourn the asylum appeal to give the Secretary of State an opportunity to make a decision on the new claim for family life, but it may say that as everyone is there, all the evidence is present in court and the appellant has a serious illness it should get on with it and decide the matter there and then.
It is this situation that the Government wish the Bill to change. Section 84(5) will meant that the tribunal must not consider the new matter—the claim to family life—unless the Secretary of State has given consent for it to do so, so a party to the proceedings has to consent to the judge hearing that new matter. The scope of the tribunal’s jurisdiction is dependent on the consent of the respondent to the appeal. If I am counsel in the case, I feel I must turn away from the judge towards my opponent and start making submissions, pleading for consent for the new matter to be raised. That would be a most unusual situation. That was conceded by the Government in a response to a question by the Joint Committee, in which they stated,
“as far as the Home Office is aware there are no other similar provisions in other statutory contexts”.
This would be new law.
There has been one other attempt by the Government to have control over the way the court operates when they are party to proceedings. As your Lordships may remember, in the Justice and Security Bill the Government, as party to the proceedings, tried to determine whether a closed material procedure would be used. This Chamber said that that was a matter for the judge to determine, and the Government conceded the point.
That opposing sides require an independent adjudicator in charge of proceedings is a fundamental common law principle. It extends across the board to disciplinary proceedings for staff in the workplace. Imagine if FIFA were to say that some of the referee’s powers were indeed held by the captain of one of the teams.
I also struggle with the assumption underlying the Bill that it is always the fault of the appellant or their legal representatives that the tribunal has new matter to deal with at the last minute. Imagine if my client is a gay Ugandan claiming persecution if he were to return home. He puts all his claims in the one-stop notice, but the Home Secretary refuses grounds for protection. He comes to a pre-hearing conference at my chambers with a partner. He now has a family life claim, so I want the Secretary of State to make a decision on this, and I want the hearing vacated. I want my client to have, in effect, two bites at the cherry: a decision from which, if we are unsuccessful, he can appeal. I get the evidence from my client in that fortnight, and I take to the phones and to e-mail. I try to get hold of the Home Office in order to vacate the hearing, but I cannot do so, so everyone has to turn up at the tribunal, and unfortunately the presenting officer first saw the file at 5 pm the night before. Why should the court not say that it will deal with all this today? It is the fault of the Home Office as it could have had the opportunity of making a new decision if it had picked up the phone. By the way, since I saw my client in conference two weeks earlier, he has developed cancer. In these rare situations, the tribunal should be able to determine what is just in the matter between the parties. It should not be left to my opponent to have to consent.
The Government give four reasons for their needing this power to consent. I shall deal with them briefly. First, they are being usurped as the primary decision-maker on new matters. The fallacy in this argument is that, due to sometimes poor-quality decision-making at first instance, the tribunal has become the primary decision-maker in all but name. To give you an example, a Christian convert from Iran is asked by the Home Office questions such as, “What is Lent?”, which is unknown in Iran. It refuses permission. By the time the new evidence is on appeal, you have half a church congregation, the vicar, the baptismal certificate and all kinds of testimony, so more than 95% of the evidence is completely new. In all but name, that is being the primary decision-maker.
Secondly, the Government argue that the tribunal is a statutory creature and not like a court. As the noble and learned Baroness, Lady Hale, said in Saleem v Secretary of State for the Home Department:
“In this day and age a right of access to a tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the ordinary courts”.
Thirdly, the Government say that they are not stopping the claim being determined; it is just a matter of the timing of the decision. In the example I outlined where illness befalls someone, timing can be critical. The tribunal should also be the final arbiter on the timing in this regard. I am also told by practitioners that if, like a game of snakes and ladders, you have to go right back to the beginning to take the new matter, that can mean many months of delay and you also incur a fee, which I am told is now £518, to take that new matter back.
Fourthly, the assertion is that the appellants are still playing the system. Yes, some are, but many are not represented, and the fact that they do not know that their claim that they fear for their life from attack in a family feud if they were to return to, say, Sri Lanka is not an asylum claim but a human rights claim can be forgiven. Will the Minister outline who determines what is and is not a new matter? It is often not clear on the paperwork, as in the example that I have outlined. Is that or is that not a new matter? We have never had to plead the law. If all the facts are there, has it not already been raised? Do we not run the risk of mini-trials on what is and is not a new matter? Of course, I can ask for the decision not to consent to be judicially reviewed. I thought that satellite judicial review went against what the Government were seeking to achieve through their changes.
I agree with my noble friend the Minister that the tribunal needs restrictions on these new matters and that it has perhaps done more than what the statutory one-stop appeal envisaged. However, there are rare cases where justice demands that a new matter is heard, and they should have a narrowly defined discretion in which to hear those cases.
As I say, Amendment 10 is not perfectly drafted and I am aware that it might not quite hit the spot, but I hope that my noble friend will respond and think again on the important constitutional principle that is raised by this. I hope that Her Majesty’s Government will come back with a perfectly drafted, tightly worded amendment at Third Reading, rightly restoring the place of the tribunal in controlling its own jurisdiction—if not, merely for emphasis, we could adjourn for 30 minutes and tour the Victoria Tower. There is not another example of this on our statute books at present. I ask noble Lords not to create such a precedent. I beg to move.
Clause 15 removes the right of appeal to the tribunal from all immigration decisions except those dealing with protection and human rights. In those remaining cases, new Section 85(5) of the Nationality, Immigration and Asylum Act, inserted by Clause 15, requires the Secretary of State’s consent for a new matter to be raised before the tribunal, as it frequently is because new evidence comes to light following the original decision; my noble friend has given examples of how this can happen. We also heard from my noble friend that in the opinion of the JCHR it should be for the tribunal itself to decide whether the new matter is within its jurisdiction and, if so, to consider it on appeal, with the Secretary of State responding to it as she normally does.
It is not suggested that the tribunal has allowed the abuse of its own process in the past, or that it has treated the Secretary of State unfairly, or that the existing process is inefficient. What can happen not infrequently, however, is that the Secretary of State withdraws her decision, saying that she wishes to reconsider the case, and then returns several months later with a new decision very similar to the previous one, wasting the time and money of both the appellant and the tribunal. The Tribunal Procedure Committee is consulting on a rule for the First-tier Tribunal similar to the one that prevents the Secretary of State from putting a stop to an appeal in the Upper Tribunal by withdrawing her decision. The Immigration Law Practitioners’ Association suspects that the subsection we seek to amend is designed to thwart such a change.
My noble friend referred to the Constitution Committee, which has drawn the attention of your Lordships to what it and the JCHR both consider to be a serious question in relation to Clause 15(5): whether it undermines the common law right of access to justice. The Government’s case is that appellants may be able to get to the court by way of judicial review, and no doubt some will do so in spite of the financial obstacles created by the abolition of legal aid. However, this conditional route does not satisfy the common law, and that will no doubt be tested in the courts. The judicial review cases will be more expensive and take longer than appeals, even though it will now be the tribunal that hears them because Treasury solicitors and counsel will have to be employed; they are very expensive people. Have the Government made any estimate of the number of JR cases and the reduction in the savings that were otherwise expected arising from the JR cases that were otherwise to be heard?
In the remaining cases, now to be dealt with via administrative review, a smaller proportion of those concerned will be successful than if they had been able to appeal. That is the whole point of the exercise: not to simplify the way the cases are handled but getting to the same outcomes.
Like my noble friend, I object to a proposal which gives the Executive power to intervene in the procedures of a court of law, and particularly so when it is one of the parties to the case in question. I hope that the Government will think again.
My Lords, having spent some five years as Treasury counsel, periodically attempting to remove illegal immigrants, and then having spent some decades as a judge lamenting the absurdly over-elaborate appeals systems under which those resisting removal could string out a whole series of appeals for years on end, I can readily see—to use an inelegant colloquialism—where the Government are coming from in Clause 15(5). It is now some dozen years since the so-called one-stop appeal was sought to be introduced. Now, of course, the Government are intent, yet more fundamentally, on substituting in large part administrative reviews for appeals in all but the comparatively few cases where truly basic freedoms are at issue: refugee status, humanitarian protection and human rights.
For my part, I am not against this general reduction in appeal rights, although I may not go quite so far as to vote against the next proposed amendment, which is to remove the entirety of Clause 15. Nor am I against, as I made plain in Committee, what is now Clause 18, which to some extent may be expected to constrain the court’s readiness to allow Article 8 considerations to frustrate attempts to remove foreign criminals and others who are here in violation of immigration controls. I interpolate only that Clause 18 will of course be informed by Amendment 58, tabled by the Minister and the noble Earl, Lord Listowel, to safeguard the welfare of children.
I am, however, strongly against Clause 15(5), to which this amendment goes. This provision seems to me to represent a bridge too far. The noble Baroness, Lady Berridge, has already clearly explained the basic objections to this provision and has noted that serious reservations have been expressed about it: expressed twice now by the Joint Committee on Human Rights and yet more recently by the Select Committee on the Constitution. It would not be helpful for me to restate all these objections in detail. Suffice it to say that it seems intrinsically objectionable for the Government, one of the parties before the tribunal on the appeal, themselves to have the last word with regard to what the tribunal may or may not consider.
By all means let the Government object to a new ground of appeal or some new reason for the appellant seeking to stay if they are genuinely unable to deal with it or, indeed, if they are genuinely unable to reach and declare their own decision on it by the time it is raised. Indeed, the tribunal may well hold that the Government are entitled to an adjournment if, in truth, they are prejudiced by the point being taken late. However, it is quite another thing to say, as Clause 15(5) does, that the Government can deny the tribunal the right to deal with a new matter on the appeal before it, and thus force the appellant—assuming that he wishes to pursue the point—to start all over again, with all the delay and, as we have heard, the prohibitive expense that that would necessarily involve. That, I respectfully repeat, goes altogether too far. Your Lordships should prefer instead wording which—if not here in perfect formulation—is in some way akin to that here proposed, which, heaven knows, is a modest enough power to confer on the tribunal itself.
My Lords, I support the amendment moved so ably by the noble Baroness, Lady Berridge, who is a colleague on the Joint Committee on Human Rights. I shall simply quote from what the committee said as I think it sums up the case now being made:
“we remain concerned, even after considering the Minister’s explanation of the purpose of the provision, about whether it is compatible with the right of access to court, the principle of equality of arms and the rule of law for the court’s power to consider a new matter to depend on the ‘consent’ of the Secretary of State. We are struck by the fact that the Government could not identify any other similar provisions in other statutory contexts”— as the noble Baroness has already pointed out—
“which confirms our sense that this provision crosses a line which has not previously been crossed”—
I think that is a very good point—
“in relation to an aspect of a tribunal’s jurisdiction being dependent on the consent of the Minister who is the respondent to the appeal”.
There is a basic principle here about justice being seen to be done. If this provision goes through as it stands, I do not think that justice will be seen to be done. As the noble Baroness said, perhaps the answer is for the Minister to give a commitment to come back at Third Reading with an amendment that is better expressed. However, I hope that the Government are listening and will respond positively to the amendment.
My Lords, I, too, support this amendment, which raises a short but vital issue of principle, which is whether it is consistent with the rule of law for one party to the proceedings to have the power to determine the scope of the jurisdiction of the tribunal before which it appears. So far as I am aware there is no precedent for such provision, for the very good reason that it is objectionable in principle. It should be a matter for the tribunal to apply whatever criteria Parliament thinks appropriate to determine whether the tribunal can hear an appeal that raises new grounds. I simply cannot understand why the Secretary of State does not trust the tribunal to decide on the application of the criteria which Parliament sees fit to lay down. I, too, hope that the Minister will be able to tell the House that, in the light of the concerns expressed this afternoon, the Government will think again on this important matter before Third Reading.
My Lords, I have the disadvantage of not seeing this matter quite in the way that my colleagues have seen it. This tribunal is an appeal tribunal from a judgment of the decision of the Secretary of State. This clause deals with a situation in which it appears, in the course of the proceedings or perhaps before they start, that there is a new ground of decision that has not as yet been dealt with by the Secretary of State. It is the Secretary of State’s jurisdiction to decide that, and the appeal tribunal’s jurisdiction is to consider appeals that arise from the decision of the Secretary of State. Therefore the essence of this particular procedure appears to be that a new decision is called for from the Secretary of State on a matter which has not been before the Secretary of State previously.
I do not see how that is in any way a breach of principle, but I know from experience long past that the way in which immigration tribunals deal with these matters has been a cause of great difficulty.
During my time there were great accumulations of arrears in the immigration tribunals, and all sorts of efforts were made to try to deal with that. One of my successes, which I cherish, was to get money from the Treasury to set up new immigration appeal tribunals in the hope that that would reduce the number of cases waiting. Like all such efforts, that does not seem to have worked, as the list of appeals still seems to be pretty long.
That seems to be the essence of this issue. I agree that there are problems when this sort of thing arises in the course of an appeal on an earlier decision, but the fact that that happens is something which has to be dealt with. One of the difficulties that my noble friend Lady Berridge referred to was that it is often very difficult, in the course of these proceedings, to get in touch with the Home Office representative before the case starts; the case goes ahead without anyone getting in touch with them. That is not a new difficulty, and I suppose that this amendment is intended to deal with it to some extent. There is an underlying difference in principle between the way in which my colleagues look at this and the way I think it is possible to look at it.
My Lords, this is a matter in which I, like the noble and learned Lord, Lord Brown, have had considerable practical experience, first as a Treasury junior, who for years advised and acted for the Government on these problems that arise in immigration matters, which can be very frustrating indeed.
I have been delighted at the steps that were taken, with the encouragement of the judiciary, to transfer matters which previously went before the courts on judicial review to tribunals. We have to recognise that there are situations within the court system where tribunals are better equipped to deal with matters than the courts are, because the tribunals’ knowledge and experience is so considerable. Because of that, this process has continued. I am happy to say that the noble and learned Lord, Lord Mackay, does himself an injustice when he suggests that what he sought to do has not produced positive results. It has, and I can say to the House with confidence that if we had not built up the tribunal system in the way it has been built up, from a practical point of view judicial review would be an area of great difficulty in the courts today.
It is therefore very important that we do not do something that is contrary to principle and which reflects adversely on the tribunal system. Of course, that was not the intention of those who were responsible for drafting the amendment now under consideration. However, the transfer from the tribunal that has jurisdiction to deal with matters of this sort, for the sort of reasons that have been put forward, to one of the parties of the proceedings, is just totally and utterly contrary to principle and it should be and can be rectified in a way that is acceptable.
The noble Baroness, Lady Berridge, was very modest about her amendment; she said that it may not be perfect, and she may be right about that, but this matter certainly warrants consideration. It would be a very undesirable precedent indeed to create a situation where one of the parties to the proceedings has in effect to give its consent to the other party doing something that justice may require. In addition, the suggestion that something should go back to the beginning is just out of accord with what is now the practice in the courts. It is true that the real decision-making body is the Minister and not the courts, but for years, in my experience, the courts, when a new point has arisen, have taken the view that it is more practical and more in accord with common sense for the tribunal that is dealing with the matter to continue to deal with the new matter, if it thinks that it is right to do so, rather than to send it back to the Secretary of State, who is technically the decision-making body under the legislation.
With respect to the noble and learned Lord, Lord Mackay, to whom I bow in these matters, because he has been such a benign influence in the development of our court system, on this occasion the difference that he has with the noble and learned Lord, Lord Brown, and myself is misplaced and is not in accord with the practice adopted by the courts today, when a matter comes before them that should technically go back and discretion is exercised by the court to save everybody’s time and money by dealing with it themselves. So I urge the Minister to have another look at this matter, consult on it and come back at Third Reading.
I shall say a few words in support of the noble Baroness’s amendment. I thought that she made a very valuable point when she referred to the issue as raising an issue of constitutional principle, because it goes right back to the formation and foundations of the rule of law, where one of the two basic principles is that no man should be a judge in his own court. This was long before the referees got on to the football pitch, but it is absolutely basic rule of law teaching, and it acquires particular force as a principle when the party that one is talking about is the Executive. One is taught that there should be a separation of powers between the judiciary and the Executive, and one can think of many countries that one would not wish to live in where the Executive are able to dictate to the courts whether or not they will entertain an argument. It is that kind of spectre that is raised by the proposal in the Bill, which I hope that the Minister will look at again, more carefully.
As for practice in the courts, as the noble and learned Lord, Lord Woolf, was indicating, it is quite common in judicial review for fresh grounds to call for a fresh decision in the course of the same process. The courts do not as a matter of practice send the whole thing back to the beginning so that it has to start off with a fresh writ, to begin all over again. They are well used to this—and, indeed, the kind of test in the amendment is one that is commonly applied by the courts every day in deciding whether or not fresh grounds should be argued.
I have two points respectively on the wording of the amendment. First, when I read the amendment for the first time it occurred to me that I would have liked to see the word “previously” at the very end of it, just to make it clear that the issue is whether there were good grounds for not raising the matter before the Secretary of State on the previous occasion when he was looking at the issue. Secondly, the test that is put in the amendment is relatively mild—“good reasons”. There would perhaps be room for looking at that test again and deciding whether it should be put slightly higher, if the Secretary of State is concerned that the court is not applying the kind of test that he would like to be applied—“very good grounds” or “extremely”, or something of that kind. One cannot draft on the Floor of the House.
The way of doing it to fit in with the constitutional principle, which surely a Government who believe in the rule of law would wish to uphold, is to put the test that the Secretary of State would wish the tribunals to apply into the Bill at the appropriate standard and then, of course, the Secretary of State can be represented and present the argument to the effect that that test is not being satisfied. So I respectfully suggest that it would be dangerous to create what is plainly a precedent, and the wrong kind of precedent to set. It would be a disaster if one found committees in later days trawling through the statute and saying, “You can find it in the Immigration Act 2014, so it’s all right”. I suggest that that is the last thing that we would want to create as a precedent.
Those remarks are just a supplement to the reasons carefully advanced by the noble Baroness. I hope that the Minister will look more carefully at this matter.
My Lords, it is very risky for a non-lawyer to intervene in such a debate, but I would be most grateful if my noble friend on the Front Bench and, indeed, my noble friend proposing the amendment, would relate new subsection (5), which Clause 15(5) will substitute for Section 85(5) of the 2002 Act, to new subsection (6) because, if I have read it right, new subsection (6) attempts to define “new matter” in a rather narrow way and not in one that means that just anything can be considered by the Secretary of State to be a new matter and therefore referable back to the beginning. I feel that I need enlightening on the relationship between those two proposed new subsections.
The reason why I suggested the word “previously” is because that is in new subsection (6) and would link in new subsection (5) with new subsection (6) to show that what one is talking about is exactly the kind of matter being referred to in the definition in new subsection (6).
My Lords, I rise briefly to comment that the noble Baroness, Lady Berridge, has done a service to your Lordships’ House because she has given the Minister the opportunity to think again and to take advice from some of the best legal minds that the country has. I hope that he will take that opportunity.
I am not a lawyer, but one thing that strikes me is the issue of fairness. The noble Baroness, Lady Berridge, raised the point when she used a football analogy—not something that I would normally do in any event whatever. My noble friend Lord Bach laughs, because he knows my loathing of the obsession with football.
But the idea that the scope of the tribunal’s jurisdiction should depend on the consent of one of the parties to the appeal is something that offends a great many noble Lords and their sense of justice and fairness.
My only question to the noble Baroness, which I asked her when saw that she had raised this matter, was whether the Government had ever raised any concerns and whether this proposal would make it more difficult for them, given their problems in deporting foreign criminals. She was able to assure me that it has never been raised by the Government as causing any concern whatever. I think that the Minister should take the opportunity that has been presented to look at this again. The noble Baroness says that the amendment is not perfect, but it does not need to be perfect to take it away and give some further consideration to what has given a lot of concern to noble Lords across the House.
My Lords, I am grateful to my noble friend Lady Berridge for introducing this amendment, which, as the noble Baroness, Lady Smith, said, has given rise to many learned contributions in the course of debate. As has been indicated, the amendment would place the tribunal in a position of the primary decision-maker; it would allow matters to be considered and decided by the tribunal without the Secretary of State having considered and decided them.
The tribunal exists to consider appeals against the refusal of an application by the Secretary of State. That is why the Bill provides that the tribunal may not consider matters that have not first been considered by the Secretary of State unless the Secretary of State consents to it doing so. Picking up the point made by the noble and learned Lord, Lord Woolf, nothing in the proposal in any way reflects on the work that has been done by the tribunal. Indeed, the point he made from experience about it being more appropriate than the cases that went to court is in no way a reflection on the tribunal.
The Joint Committee on Human Rights stated in its report that the provision relating to the Secretary of State’s consent may not be compatible with the principles of equality of arms, right of access to a court and the separation of powers because it allows one of the parties to an appeal, the Secretary of State, to determine the scope of the tribunal’s jurisdiction. Of course, ultimately Parliament sets the jurisdiction of the parameters within which the tribunal will operate.
However, the principal reason why the Government have proposed this measure is that we do not believe it is right for the tribunal to be the primary decision-maker. I certainly will reflect on the points made on that principle. I noted that the noble and learned Lord, Lord Woolf, said that it was more practical for the tribunal to deal with this matter although, technically, the decision-making body was the Secretary of State. I think that my noble and learned friend Lord Mackay of Clashfern made the point that the primary decision-maker in these matters is the Secretary of State. Therefore, I do not think it is such a clear question of principle as perhaps has been suggested. The noble and learned
Lord, Lord Woolf, maintained that there were compelling practical reasons. However, the primary decision-maker is, indeed, the Secretary of State. The role of the Secretary of State—
Perhaps the noble and learned Lord will ponder on the following. Although, of course, the Secretary of State must be the primary decision-maker, the Secretary of State may not be content for the tribunal to deal with a matter and may think it is much better that it should not do so, even though it would give the greatest attention to the fact that there is an objection to the matter being dealt with by it on the very ground the Minister sets out. The matter he sets out is just the sort of matter which you can rely on the tribunal to take into account at its discretion when deciding whether to send it back to the starting point. I refer to delay in this context. It is also just the sort of matter which the Court of Appeal, for example, will take into account in considering whether it will send a matter back to the Secretary of State or deal with it itself because it is in a better position to deal with it than anybody else.
My Lords, I hear the point which the noble and learned Lord makes. It is also important to recognise that we have to look at where this matter might best be dealt with. The Secretary of State can still consent to the new matter being determined within the context of the existing appeal. That is obviously an issue that the Secretary of State would have to consider in deciding whether or not to give that consent.
I again apologise for interrupting, but will the noble and learned Lord bear in mind that the Secretary of State in this context means the person who is conducting the case on behalf of the Secretary of State in the tribunal on the day of the hearing? If he has not already received instructions on how to deal with it, all he can do is ask for an adjournment so that the matter can be referred back to those who have more authority than he has to decide what course to take. That will mean that, inevitably, the ability of the court—or, in this case, the tribunal—to deal with it in a sensible and summary way is in fact not going to happen in practice.
My Lords, one of the examples given by my noble friend Lady Berridge was that a matter may suddenly be raised. It is important to make the point that we are not talking about the appellant relying on new evidence to support a ground already before the tribunal. I know that the noble and learned Lord accepts and understands that. For example, if there was an appeal about refusal of the family life settlement, new evidence on family life would obviously be something which could be led. Nor will the clause prevent access to the court, because the individual would still have an appeal against the refusal. If the new matter on which an application was made was refused, then obviously that matter could be appealed to the tribunal.
I note what the noble and learned Lord says, but my noble friend Lady Berridge talked about a new ground of appeal which the Home Office may have found out about only the night before. When people talk about equality of arms, I am not necessarily persuaded that someone going into the tribunal will find that there is a completely new ground of appeal which they only learnt about within the previous 12 hours. That is an inequality of arms. My noble friend and my noble and learned friend Lord Mackay of Clashfern commented on whether or not the Home Office had been answering the telephone. These are practical issues that ought to be addressed, but I do not think they go to the principle we are discussing.
I am always wary—as was the noble Baroness, Lady Smith—of using football analogies, but they were mentioned by my noble friend in moving her amendment. If an FA Cup match went to penalties, it would not be for one party to say, “By the way, we will just go to the referee and say, ‘If we are having a penalty shoot-out, it will do for the other cup tie that we are to play next week. We will just do the two in one’”. If it is a completely new case, it is not reasonable that that should happen. I stress that this is not a situation where a person is going to be denied the opportunity to bring a separate case on a new matter. They would still be able to bring it and, if they were dissatisfied with the decision made by the Secretary of State, the appeal route would still be open to them.
The proposed measure could create an incentive for appellants to raise new matters at a late stage because they could try to persuade the tribunal that the matter should be heard despite the Secretary of State not having considered and decided the issue. The Secretary of State will have to strike that balance, depending on whether or not she wishes to give her consent—if, indeed, the case was adjourned. Documents may suddenly have been produced the veracity of which the Secretary of State will have had no opportunity to examine. If it is a new ground of appeal, the Government argue that the primary decision-maker is the Secretary of State and the proper role of the tribunal is to hear appeals against a decision of the Secretary of State, if the applicant is dissatisfied with the original outcome. As the noble and learned Lord, Lord Hope, said, I do not see that that is a case of being a judge in one’s own cause because the cause that is properly before the tribunal is one in which both parties will argue their case.
When a new cause is introduced, the Secretary of State makes a decision on it through his executive function. What in fact is being suggested is that that decision should not be made by those from the executive branch but should be a judicial decision. I think that there is a blurring there. If we are arguing as a matter of fundamental principle that a decision is one for the Executive, the question is whether, indeed, the primary decision should be made by the judiciary. I cannot ignore the force of the comments that have been made. The noble and learned Lord, Lord Hope, helpfully suggested where this might be amended. I should make it very clear that I cannot give any guarantee that the Government will come back at Third Reading with an amendment. However, it is only proper that we reflect on the very important issues that have been raised.
I wish to make a suggestion. The noble and learned Lord rightly emphasises that the Secretary of State is the primary decision-maker. However, a way forward might be to give the tribunal some power to overturn a decision of the Secretary of State on a matter of this sort if the Secretary of State is acting unreasonably. That would recognise the primary role of the Secretary of State. What is objectionable is that the Secretary of State must give his or her consent in this context.
My Lords, I appreciate the noble Lord’s comments and help, which I know are made with a view to trying to resolve this matter. I assume the noble Lord means that his suggestion would be preferable to judicial review. The withholding of consent by the Secretary of State would, of course, be challengeable by judicial review but one is well aware of the attendant costs of that and a new application and appeal to the tribunal may well be cheaper and, possibly, quicker.
I must make it very clear that I am not giving any undertaking to bring this back at Third Reading, but I do undertake that it is fair and proper to reflect on the comments that have been made. On that basis, I invite my noble friend to withdraw the amendment.
My Lords, I thank the mainly noble and learned Lords who have spoken, predominantly in support of the amendment. I am obviously disappointed by the Minister’s response to the concerns which have been properly outlined. He cites that it is a clear question of principle that the principal decision-maker is the Secretary of State, but the overriding interest in this matter is the principle of justice. As in the circumstances that I outlined, a matter may remain before the tribunal solely because a barrister makes every effort to avoid being at the hearing and cannot get hold of the Home Office to get a fresh decision made, and yet the tribunal is not allowed to take that conduct into account at all in determining whether the court can take the new matter—which may be impinged on by illness—into account. In these circumstances, one can only imagine the sense of injustice that will be felt, not only by the appellant but by their legal representatives who have gone to every effort to avoid that situation occurring.
I have listened carefully to my noble friend who says that there is no guarantee about bringing this back at Third Reading but that the Government will reflect on this matter. My knowledge of the Companion is not detailed enough for me to understand whether I am entitled to bring it back at Third Reading to determine the matter because I have never heard that phrase before in my three years in your Lordships’ House.
I thank my noble friend for his clarification. I also ask the Minister to consider the resources that will have to be put behind presenting officers and barristers, who are often very junior. If consent has to be given on the day of the hearing you are going to have to get hold of the Home Office to get instructions on whether to give consent there and then, otherwise we can have yet another thing clogging up the system. I have tried to be generous to the junior barristers: there is nothing worse than getting the papers at 5 o’clock the night before and trying to do the best you can for your client.
Finally, I am incredibly disappointed because, as a Conservative, I believe in a small state. I never thought that I would have to defend the state trying to dip its toe into interfering with judicial proceedings. I thank noble Lords for their support but, with the clarification that we can, perhaps, bring this matter back at Third Reading, it is with great regret that I beg leave to withdraw the amendment.
Amendment 10 withdrawn.
Moved by Baroness Smith of Basildon
11: Clause 15, leave out Clause 15
My Lords, we now return to what many consider one of the most controversial clauses in the Bill. Noble Lords will recall that we had a number of debates on this clause in Committee. We raised our concerns about the principle of removing the right to appeal against an application to refuse a visa. We saw that against the backdrop of what appears to be poor-quality decision-making, when so many appeals succeed.
In the debate last week on the Question for Short Debate introduced by the noble Lord, Lord Steel, the noble Earl, Lord Attlee, referred to the decision-making process as a matter of judgment and said that when a tribunal overturns an original decision by a caseworker that does not mean the original decision is wrong, merely that a different judgment has been made. He was very clear that these are balanced judgments. The noble Lord, Lord Steel, made a helpful point that, on the issue of judgment, the caseworker should be able to go back to the sponsors of an application to double-check its veracity. The noble Earl, Lord Attlee, agreed to write to us on that and I look forward to receiving his reply. The point made by the noble Lord, Lord Steel, contributes to our discussions today. Despite the Minister’s best efforts, both in your Lordships’ House and in writing, and the generosity with their time of the noble Lord, Lord Taylor, and the noble Earl, Lord Attlee, in meeting to discuss this and other issues, he has failed to convince us of the need to remove the right of appeal and replace it with an internal, administrative review. We remain of the view that the efforts and resources would be better employed ensuring accurate, timely initial decisions.
We remain deeply concerned about the clause and have therefore retabled our amendment to delete it from the Bill. We have also tabled Amendment 13 to ensure that appeal rights cannot be abolished until the quality of Home Office decision-making for managed migration is deemed, by the Independent Chief Inspector of Borders and Immigration and the Secretary of State, to be efficient, effective and fair. This reinforces my previous point about our priority being the quality and accuracy of judgment on initial decisions.
As your Lordships will know, only three types of decision will remain appealable under this clause: a decision to refuse a claim of asylum or humanitarian protection; a decision to refuse a human rights claim; or a decision to revoke asylum or humanitarian protection. A decision by the Home Office to refuse an application which does not involve one of these claims but is made, for example, on erroneous grounds or without reference to highly relevant information, could not be challenged before a tribunal. That even includes a simple mistake being made or not including a document that should have been included. As noble Lords who have been through this process with anybody or advised them on it will know, it is sometimes very difficult to know all the documents that should be included. Instead, the Government plan to set up an administrative review system which will provide a proportionate and less costly mechanism for resolving caseworking errors. We obviously support a process that gives timely, accurate decisions with a facility to swiftly address any errors. However, taken in context, this clause does not do that.
In Committee, we heard about the impact that the clause might have on students, undermining our attractiveness to the best students in the world. We heard about the impact that it would have on children, and noble Lords will also be aware of its impact on businesses. Organisations representing students’ best interests and student bodies fully support Amendment 11 as the preferred way of dealing with this. This may offer reassurance to the noble Lords who have spoken specifically about students.
The system that provides for appeals is even more essential, given that we know how flawed the current system is: the balance of judgment referred to by the noble Earl, Lord Attlee. It is well documented that the department is already struggling to deliver a high-quality service and there are huge casework backlogs. In Committee, I provided some shocking statistics to show how serious the situation is. I do not intend to repeat those today but it is clear from the evidence that there are huge pressures on the service and on those whose job it is to clear the backlog and assess new applications. Yet the Government now propose a new administrative review system with no additional staff. We should not be surprised, or allocate blame to individuals working under such pressure, that so many decisions are overturned on appeal. The latest statistics that I have seen show that 32% of deportation decisions, 49% of managed migration appeals—that is, work and student appeals—and 49% of entry clearance applications were successfully appealed last year.
Although the department had no statistics on why those appeals were granted, since then it has, rightly, undertaken an exercise looking at a sample of 2% of cases, which showed that 60% of appeals allowed are due to casework errors. Extrapolating that figure indicates that almost a third of all appeals allowed are due to casework errors. In Committee, the noble and learned Lord, Lord Wallace, said that these figures had to be looked at,
“from the perspective of the end-to-end immigration system”,
and that the majority of applications are successful. What he meant was that the majority of applications are not appealed against.
However, what matters here is the principle. When so many decisions are found to be flawed and when even the Minister acknowledges, as he puts it,
“historic problems with decision quality”—[ Official Report , 3/3/14; col. 1195]— should we really be trying to remove the current system of appeals and replace it with administrative reviews? I have said before, and I think it still holds, that it cannot be right that the Home Office’s response to its own inefficiency is simply to stop people challenging that inefficiency. I come back to my earlier point, which makes all the more sense to us: the Government should be focusing on improving the efficiency of those initial decisions and making sure that there is little need for appeals in the first place.
As evidence of the appropriateness of the new system of administrative appeals, the Government rely on its use overseas by people who are refused entry clearance. However, as the Government themselves have admitted, not only are these very different decisions with fewer grounds—and so, it is hoped, with fewer mistakes made—but just 21% of original decisions are overturned in that process against the 50% of appeals granted under the current system. Therefore, given the difference in the types of decisions and the fact that less than half the number of overseas administrative reviews are successful compared with appeals, I am not convinced that the Government’s reliance on that as evidence for making the change is sound.
The Government have said time and again that the person reviewing the decision will not be the person making the original decision, but the reviewers will still be a cohort of immigration staff drawn from the initial decision-makers, so it is not an independent process.
In his response to me in Committee, the noble and learned Lord, Lord Wallace, insisted that the administrative review process will be quicker and less costly. He said:
“Immigration judges at the tribunal will no longer need to consider caseworking errors. Applicants will have those errors considered faster and more cheaply, and those types of case will be removed from the tribunal system, which will reduce overall expense”.—[Official Report, 3/3/14;. col. 1191.]
That is all very well: who would not want a system that is simple, fast and cheaper? However, do we not also want one that is accurate? If mistakes are being made one way, with people being denied visas when they should have received them, can we be certain that no mistakes are being made in the other direction—that is, people being granted visas when they should not be? People are certainly not going to appeal against that. Therefore, we need a system that gets it right.
I think that our comments and concerns have been taken on board to some extent, particularly with regard to the lack of oversight. The noble and learned Lord, Lord Wallace, quoted the statement of intent in relation to the Bill, saying:
“‘Within a year of the … review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan’”—[Hansard, 3/3/14; col. 1196]— and that the chief inspector could have the power to undertake an inspection off his own bat. A government amendment was tabled to that effect, and another not dissimilar amendment will be coming soon from the noble Baroness, Lady Hamwee. However, that remains after the event. Why not have a review first to see where improvements can be made? Alternatively, we can monitor those improvements before forging ahead and adding another layer of chaos to an already overstretched service.
The Government have also relied on the availability of judicial review as a recourse, despite the change that they are making to judicial review and despite the fact that the impact assessment could not make a proper assessment of the cost. However, this process has the potential to be far more expensive, despite the noble and learned Lord’s comments about it being cheaper and quicker. The Government’s own assessment shows that an extra 5,600 reviews and up to 1,000 judicial reviews could be granted. That would cost more than appeals, and costs can be sought from the other party and damages may be claimed.
The noble and learned Lord, Lord Wallace, said on a number of occasions in our previous debate that he understood the concerns in relation to the clause and he understood the reservations that were expressed about decision-making in immigration cases. Despite that, the Government are still ploughing ahead with a radical reform. We have not seen the evidence for this clause and we do not believe that the evidence is there. It is ill thought-out and unfair, and I hope that, even at this late stage, the Government will be prepared to consider the points that have been made throughout the passage of the Bill. I hope that the Minister can give greater reassurances on this issue than he has been able to provide so far. I beg to move.
My Lords, I have added my name to this amendment to remove Clause 15 from the Bill. A system of internal review is not a substitute for the right of appeal. The right to appeal confers a right to a decision by an independent adjudicator, but it is more than that. There is a public hearing with witnesses and with submissions on both sides. There is a public reasoned decision as a result of the process. I fear that, without independent appeals, the already poor standards of administration in relation to immigration decisions—the noble Baroness, Lady Smith of Basildon, has referred to the lamentable figures—will get even worse.
I do not think that another layer of internal decision-making through an administrative review can possibly be as effective a mechanism for improving standards and ensuring correct decisions as an independent and public appeal process. I welcome, of course, the Government’s decision to invite the Independent Chief Inspector of Borders and Immigration to review the new administrative review process. This will introduce some independent scrutiny of the process, but the chief inspector is not going to assess the substantive merits of individual cases in the way that the tribunal does.
The Government have emphasised that an individual dissatisfied with the internal review process—and there will be many of them—will have legal redress by way of judicial review. But of course a judicial review, unlike an appeal, is not an assessment of the merits of the case; it is a limited assessment of a fair process and of legal errors. In any event, I simply cannot understand any more than the noble Baroness, Lady Smith, why the Government are seeking to push these cases—and there will be many of them—into judicial review when, at the same time, the Lord Chancellor is bringing forward legislative proposals to reduce the number of judicial reviews. Indeed, as the noble and learned Lord, Lord Woolf, explained in speaking to the previous amendment, the whole thrust of reform in recent years has, rightly, been to remove immigration cases from judicial review and to have them decided before tribunals.
The Minister, the noble Lord, Lord Taylor—like other noble Lords, I am very grateful to him for having meetings and correspondence on these issues—has previously emphasised that administrative review is cheap and quick. He is right, but there is nothing to stop the Home Office introducing a quick, cheap and effective process of administrative review. If it were to do so, no doubt it would find that a very large proportion of appeals would become unnecessary. My objection to the clause is the removal of the right to an independent appeal in cases which are not adequately addressed by a process of administrative review. That is why I oppose Clause 15.
My Lords, I apologise to the House for not having spoken before on this Bill. I will be brief. I have put my name to this amendment and want to talk about fairness.
As the noble Baroness, Lady Smith, mentioned, we had an excellent debate on immigration last week in the name of the noble Lord, Lord Steel. Much of that debate was full of individual cases. Someone afterwards said that it was a sad debate because of the frustration felt on all sides of the House for those they knew or knew of who suffered difficulties or injustices as a result of the immigration system or regulations as they currently stand, or as likely from mistakes being made. The large proportion of appeals that succeed is testament to that.
Those who work in the area of our domestic legal process, which has developed over centuries, understand well that the system is not perfect, that it can be improved, that mistakes are made and, more than that, that significant safeguards need to be built in that are, crucially, an open aspect of the system. As a society, we are by and large grown-up and realistic enough to accept that. Surely those principles that currently exist in relation to immigration appeals and have now stood for more than four decades should in the same way be, at the very least, preserved and protected. The Government may baulk at the openness of the tribunal system when so many mistakes are clearly revealed to the public, but if the process is taken back in-house—as it were—as an administrative review, we will lose that openness, independence and accountability that we currently have, as my noble friend Lord Pannick said.
The Government wish to replace the current system with one that will be more complicated and inefficient. In addition to limiting the process, it will fragment it and be desperately unfair for the person concerned because that person would quite rightly—this should be a democratic right—want to hear the entirety of their case presented at a tribunal. I can understand the desire of the Government here. They are under considerable pressure to get immigration right, get a grip on it and put an authoritative stamp on it. However, if that is a spurious authority, which, through lack of independence, institutionalises mistakes—that is what will happen—it will be worthless. Whatever good intentions the Government may have, Clause 15 remains on Report a threat to our fundamental notions of fairness in this country. There is a world of difference between aiming for a perfect system, which is laudable, and attempting to construct in the here and now a system that assumes perfection. If we so significantly limit the right of appeal to tribunals, we will surely set off down the latter, dangerous and misguided, road.
My Lords, I was not sure whether to speak yet; I was looking for a Bishop. Amendment 14 in this group is in my name and that of my noble friend Lord Avebury. I have been torn over this issue. Of course, the lawyer in me wants to see access to the courts or tribunals but the pragmatist in me says, “Get it right first time”, especially when it is something where arguably the person involved does not start with having rights. I distinguish between human rights interests, family interests and, at the other end of the spectrum, perhaps permission to come and work in a different country. At issue here is a very wide range of types of decision. Also, of course, the pragmatist says, “Find ways to improve the process to get it right”.
I have to assume that the Secretary of State is satisfied on the basis of the current out-of-country process that what is proposed will be “efficient”, “effective” and “fair”—in the words of one of the amendments. I hope that effectiveness always means fairness. I do not know that one can become satisfied that the process is efficient, effective and fair on the issue raised by the possibility of shadow working and the two systems working in parallel. I know that there are different views about that. Frankly, I doubt that it is practicable. At the previous stage, I raised the issue of reviews of procedures and—particularly important to me —independent oversight and reports to Parliament. I welcome government Amendment 12. Could my noble friend confirm, because it does not quite say this, that what is intended is a report on the first year? It says that, “Before the end of” a year the Secretary of State will commission a review.
My Amendment 14 would introduce a two-stage process, the second of which would be the chief inspector reviewing the first year of operation, and the first of which would be an opportunity for Parliament to consider the procedures after the Government have consulted on them. I am grateful to my noble friend for a letter that I received following Committee and which was copied to other noble Lords. I hope that this will be a useful opportunity for him to explain from the Dispatch Box the Government’s proposals for consultation on the proposed rules—a targeted consultation, as I understand it. There might be, if you like, a pre-consultation of noble Lords as to who might be involved in that process. I am sure we would all have ideas as to who could usefully contribute.
Since Committee, I have seen the information given to those who seek an administrative review out of country under the current procedure. I had been concerned about how representations could be made to the reviewer and what representations could be made. I can infer that from the current information but I am sure that there is scope for spelling it out more clearly. That is a matter for the practitioners, really. I was also relieved to see information on something that had popped into my head and bothered me a lot: whether there would be a charge for an administrative review. I see that that is not the case. That reminded me that this is another reason for the Home Office getting it right first time, as it will not be able to get any income from that administrative review. As it were, it funds it—rightly—from its internal resources.
My Lords, as the noble Baroness, Lady Smith, indicated, we debated this matter at some length in Committee. We will necessarily go over some of that ground again but I appreciate the opportunity to do so and to inform the House why we believe that it is helpful and a positive development that we should move to this system of administrative review.
Obviously, the noble Baroness’s Amendment 11 would remove Clause 15 from the Bill. In doing so, it would retain the current appeals system, which we believe is too complex and does not provide the most appropriate and effective remedy in each case against refusal decisions. I understand the reservations that have been expressed here—we rehearsed a number of the issues in Committee—about decision quality in immigration cases. First, it is again important that those concerns are seen in context. As I said—and as was once said back to me—the great majority of decisions are not refused in error. The majority of applications are successful. The noble Baroness quoted me on that. Of decisions taken in the United Kingdom, only 10% were refused in 2012. Therefore, when the majority are successful, it is not about an absence of appeals. The noble Baroness asked if some of these decisions had been wrong, too. I suspect we will never know because people tend not to appeal against decisions when they have been successful. Some 51% of that 10% that were refused in 2012 succeeded on appeal. Therefore, 5% of the total decisions taken succeeded on appeal. Of that 5% of decisions, 60% succeeded because an error was made. By my calculation, we are down to 3% of all decisions in managed immigration cases being attributable to an error.
We believe that retaining the current system, as would be the consequence of the noble Baroness’s amendment, would not improve decision quality. It would mean that people continued to wait longer and incur more expense for errors to be corrected than under the system established by Clause 15. Under Clause 15, where a claim based on a fundamental right is refused—I think we heard about some of those under the previous amendment—it can be appealed and the fundamental rights are set out in the Bill. It is right that a full-merits appeal should be available for these cases. Where the claim is not based on fundamental rights, we can indeed show that 60% of cases that succeed on appeal do so because of a working error. It is also worth reflecting that the kinds of cases we tend to deal with are those that are a matter not of judgment but of the application of objective rules. If the rules are met, leave is granted. If they are not met, leave is refused. That type of decision is well amenable to administrative review. As the noble Baroness said, the process will be quicker and cheaper than an appeal.
In the statement of intent, the Home Office sets out that it would have an expectation of decisions being taken within 28 days of an administrative review being sought. Paragraph 8 of the statement of intent refers to,
“28 days to complete an administrative review. This is faster than the current average 12 weeks (published statistics for first quarter 2013) it takes for a managed migration appeal to be heard”.
Before coming into the Chamber today, I was advised that management migration appeals to the tribunal took an average of 19 weeks to be resolved in the period from July to September 2013. I have no doubt that I have heard on numerous occasions in your Lordships’ House that justice delayed is justice denied. If some of these 60% are dealt with in 28 days rather than 19 weeks, that is very much in the interests of the applicants.
The noble Baroness anticipated what I would say with regard to the fact that administrative review already operates overseas and we believe that it works. From April to December 2013, 93% of these administrative reviews were completed within 28 days and 21% of administrative reviews requested resulted in the original decision being overturned. It has not been said today but I think it has been said in previous debates: there are those who think that there will be apprehension over people within the Home Office overturning a decision made by someone else within the Home Office. That simply has not been the case. Just over one in five resulted in the original decision being overturned. I believe I have said before that I am never quite sure whether it is better if the number is higher or lower. If it is higher, it might be said that people are less afraid to overturn their colleagues’ decisions or perhaps that it is inefficient, whereas if the number is lower it might be said that they are afraid to challenge their colleagues. However, it may just be that more often they are getting it right.
Administrative review will be central to improvement in decision-making quality.
The figures that the noble and learned Lord has just given are interesting. He said that 21% of administrative reviews uphold the appeal, whereas earlier he said that 51% of those reviews succeeded on appeal in 2012. Does that not illustrate the anxiety everyone feels that when an appeal system is replaced with an administrative review, the rate of success goes down not for any objective reason but just because the administrative review is less favourable to the applicant?
My Lords, I am almost tempted to say that you are damned if you do and damned if you do not. That 51% included those cases where there was administrative error. If one wishes to drive to improve the quality of decision-making, inevitably the number of successful appeals will go down.
In Committee, concern was expressed about the opportunities for scrutiny of the Immigration Rules. I am pleased to confirm that we are committing to publishing draft rules no later than the Summer Recess. I hope that that reassures my noble friend Lady Hamwee about what I have said in my letter to her. I am happy to repeat that those rules will be the subject of a targeted consultation with key interested parties, including the Immigration Law Practitioners’ Association and Universities UK. We certainly are open to discussions with noble Lords and organisations to which noble Lords consider this consultation should be addressed. The aim of the consultation will be to ensure that all relevant views are taken into consideration before the rules are finalised. The consultation will offer an opportunity for the rules to be scrutinised and potentially amended before they are laid before Parliament in accordance with Section 3(2) of the Immigration Act 1971. Clause 15 creates a better process for all concerned—applicants, decision-makers and the court system. It will help to address the legitimate concerns raised about decision quality.
Amendment 13, which stands in the name of the noble Baroness, Lady Smith, would impose three conditions that would need to be met before the appeals provisions in Clause 15 came into force. The proposed sunrise clause would require: that the Chief Inspector of Borders and Immigration must first report on decision-making for entry clearance and managed migration; that the Secretary of State must be satisfied that decision-making for entry clearance and managed migration is efficient, effective and fair; and that the order to commence Clause 15 must be laid before and approved by both Houses. My noble friend Lady Hamwee raised the possibility that, to be able to do that, we might need to have a shadow operation, which probably would be an administrative nightmare.
I submit that we already have reports from the chief inspector on decision-making in entry clearance and managed migration. In 2013, he reported on investor and entrepreneur applications, concluding that 91% of decisions on investor applications were reasonable. That report recommended that the overseas approach of sharing administrative review outcomes to improve decision quality should be adopted in-country. That recommendation of an approach recommended by the chief inspector has informed the changes which this Bill seeks to implement through Clause 15.
The inspection of entry clearance decision-making in Warsaw in December 2013 of out-of-country administrative reviews concluded that the service was efficient and consistently meeting service standards for completing decisions. In 88% of cases reviewed, the report concluded that the right decision had been reached. We accept that this report made five recommendations for improvement. We have accepted all of these either in whole or in part.
I assure your Lordships that the Home Office takes the chief inspector’s inspections and reports seriously. A dedicated team manages the implementation of his recommendations. In his spot-checking report of August 2013, the chief inspector considered the progress that had been made against recommendations from three earlier inspections and was pleased to see evidence that the Home Office was acting upon his recommendations. We already have evidence from the chief inspector who has looked at the administrative review procedures that are applied at present for out-of-country cases of managed migration. He appears to confirm that, in the cases that were reviewed, the right decisions had been reached. As I have said, in Warsaw that was in 88% of cases.
However, we recognise the concerns that prompted Amendment 13. Therefore, we have brought forward a government amendment which takes a different but effective approach to address those concerns. Amendment 12 in the name of my noble friend Lord Taylor imposes a specific obligation on the Secretary of State to secure an independent review of administrative review. It looks forward and will review new processes. The new clause requires the Secretary of State to commission the independent chief inspector within a year of Clause 15 being commenced to prepare a report on administrative review.
My noble friend Lady Hamwee asked for confirmation that it was intended that the report would be on the first year although commissioned ahead of the first year. As I have said, the report will be commissioned within 12 months of administrative review being implemented. The Secretary of State will ask the chief inspector to complete the report within the first 12 months of the operation of administrative review. In timing the commissioning of the report, we want to strike a balance between a desire for an early report on how administrative review is working and the need to let the process operate for a period before a meaningful report can be prepared. It is therefore intended that the Secretary of State asks the chief inspector to undertake his report once administrative review has been in operation for six months and to complete his report within the first year of the operation of administrative review. The chief inspector should build flexibility into his inspection plans to allow such specific requests.
The new clause requires that the Secretary of State commissions that report and the report must address specific concerns. If noble Lords look at the terms of the amendment, they will note that the specific concerns that the chief inspector is being asked to address are ones that quite fairly reflect some of those raised in your Lordships’ House in Committee—namely, the effectiveness in identifying and correcting case working errors and the independence of the person conducting the administrative review in terms of their separation from the original decision-maker.
Will the chief inspector look at the substantive elements of the case rather than just the procedural review of the case and whether that has been effective? Will he also assess the merits of the case in the samples that he takes?
My Lords, I mentioned to my noble friend the report on out-of-country cases in Warsaw in December last year which concluded that in 88% of the cases reviewed the right decision had been reached. You can do that only if you actually look at the subject matter. Therefore, I would fully expect that the chief inspector, in undertaking his report, would have to be able to give some indication as to whether there was greater efficiency and greater accuracy in decision-making. You would have to look at sample cases to see whether the right decisions had been reached.
Amendment 14, in the names of my noble friends, requires the Government to consult on the immigration rules for administrative review. As I have already indicated, the Government will undertake a targeted consultation on the immigration rules establishing administrative review before those rules are laid before Parliament. It is not necessary to place an obligation to consult on the face of the Bill as the Government have already committed to doing so. The proposed new clause also seeks to ensure that administrative review is the subject of an early inspection and report by the Independent Chief Inspector of Borders and Immigration. As my noble friend Lady Hamwee acknowledged, Amendment 12, tabled by the Government, requires the Secretary of State to commission such a report from the chief inspector.
My noble friend raised the out-of-country administrative review note that she received. She saw the same point that I had noticed, which indicated that out-of-country reviews are free. I then noted that the statement of intent, which was published along with the Bill, indicated that there would be a fee of £80. I have queried why that is the case. I understand that a separate charge for an administrative review is incorporated into the visa application charge. To do that for in-country reviews would require increasing visa charges. I rather suspect, given what has been said in a number of other debates, not least with regard to students, that that would not be the most popular course to go down. The review is free, but the cost is already incorporated within the visa charge.
I believe that we have accepted a recommendation emanating from the chief inspector about how administrative review can work. I believe that it will work because we are following up on recommendations that have been made about how these decisions can be made more efficiently. Where we have heard evidence of administrative review working for out-of-country applications, there has been a significant improvement over the 60% of errors that were identified in that period with regard to in-country appeals. Therefore, particularly with regard to the huge difference between 28 days and 19 weeks—I suspect overall that it will be cheaper if one does not have to engage learned counsel—we are proposing something here that will be of benefit not only to applicants but to the general administrative procedure as a whole.
Therefore—I suspect without any success—I ask the noble Baroness to withdraw her amendment and to recognise that the Government have listened to what was said in many cases in Committee. We are putting on the face of the Bill an obligation on the Secretary of State to commission a report from the chief inspector and particularly to have regard to the specific concerns raised in Committee. I therefore hope that she will withdraw her amendment.
My Lords, I am grateful to the Minister for his full explanation. He is right: there has been some movement to address the concerns that we raised in Committee, and I welcome the Government’s new clause. I must admit that he has gone further tonight than I thought when I read the new clause when he said in response to the noble Baroness that the chief inspector would look at the substantive issues and not just those such as the effectiveness mentioned in the amendment. That is certainly welcome. I wonder whether the inspector will be able to deal with possibly thousands of cases every year.
Although the Minister says that the majority of applications are successful, it remains that a third of all appeals succeed due to casework errors. I take his point about speed. It seems that the Government are more concerned with the cost and speed of decision-making than with accuracy and fairness. I would point to the system at the Department for Work and Pensions, where there is a process for administrative review but that does not prevent an appeal taking place as well if that remains the decision of the person who was refused. I have already said that I think the Government’s reliance on the overseas system of administrative review is flawed for a number of reasons. I am also surprised that the Minister seems to be at odds with the noble Earl, Lord Attlee, who referred to case working decisions being a judgment decision on a balanced decision, yet the Minister referred to it as following rules. We seem to be being informed about two different systems.
As much as I welcome the comments that the Minister has made—and I am grateful to the noble Lord, Lord Pannick, the noble Earl, Lord Clancarty, and the right reverend Prelate the Bishop of Leicester, who is unable to be with this us at the moment—I feel that the Minister has not really addressed the reasons why the Government are removing a fundamental right of appeal for judicial review. The explanation and the evidence were not there and I feel that I have to test the opinion of the House on this issue.
Moved by Lord Taylor of Holbeach
12: After Clause 15, insert the following new Clause—
“Report by Chief Inspector on administrative review
(1) Before the end of the period of 12 months beginning on the day on which section 15 comes into force, the Secretary of State must commission from the Chief Inspector a report that addresses the following matters—
(a) the effectiveness of administrative review in identifying case working errors;
(b) the effectiveness of administrative review in correcting case working errors;
(c) the independence of persons conducting administrative review (in terms of their separation from the original decision-maker).
(2) On completion of the report, the Chief Inspector must send it to the Secretary of State.
(3) The Secretary of State must lay before Parliament a copy of the report received under subsection (2).
(4) In this section—
“administrative review” means review conducted under the immigration rules;
“case working error” has the meaning given in the immigration rules;
the “Chief Inspector” means the Chief Inspector established under section 48 of the UK Borders Act 2007;
“immigration rules” has the same meaning as in the Immigration Act 1971.”
Amendment 12 agreed.
Amendments 13 and 14 not moved.
Consideration on Report adjourned until not before 8.27 pm.