Immigration Bill — Committee (3rd Day) (Continued)

Part of the debate – in the House of Lords at 7:15 pm on 1 February 2016.

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Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland 7:15, 1 February 2016

I am obliged to the noble Baroness and to noble Lords for their observations on this part of the Bill and on bail. I notice that we have all referred to “bail” throughout the debate. Going back through various parliamentary reports over many years, the references are consistently to “bail”. It is a term that we understand in this context. That is important because, as the noble Baroness observed, the use of language is significant in this context. It is as well to bear that in mind.

I shall look first at Amendments 215A and 216A on the use of the term “immigration bail”. Let us be clear: no one is seeking to criminalise immigration or to treat immigrants as criminals. It so happens that the term “immigration bail” has come into common parlance in this context. Clause 32 and Schedule 7 are intended to simplify the current powers on bail and temporary release contained in various Immigration Acts, effectively reducing six different forms or statuses to one. The description “immigration bail” was chosen because it is a well-understood concept. The statutory underpinning for criminal bail and immigration bail are in entirely different pieces of legislation. The naming of immigration bail is not about criminalising people. It is about being clear about an individual’s situation. The term “temporary admission” could have been chosen, but it is a less accurate way of describing the status as it would not capture, for example, the circumstances of individuals encountered in the UK without leave or those who had leave but are subject to a deportation order. In these circumstances, we resist the suggestion that “immigration bail”, which is widely understood by those who engage in this debate, should be replaced by “temporary admission”, which is less exact and less accurate as a means of describing the relevant status.

Amendment 217 is on automatic bail hearings. It would require a bail hearing in the tribunal after eight days of detention, then after 36 days and every 28 days thereafter. The Government take matters of liberty seriously and have made clear in the recent Written Ministerial Statement by my right honourable friend the Minister for Immigration that changes to policy and the operational approach to detention should lead to a reduction in the number of those detained and in the duration of detention before removal, especially for the most vulnerable. However, the Government do not consider that introducing mandatory and scheduled bail hearings will aid these reforms. There is already well-established judicial oversight available. Individuals detained under immigration powers have unrestricted opportunity to apply to the tribunal for bail at any time. They can also apply for a judicial review of their detention or for a writ of habeas corpus to the High Court, again at any time.

The current system is flexible by design, both in the interests of justice and in allowing the detainee ready access to the tribunal. Introducing automatic bail hearings at set periods in all cases would be a significant resource burden on the tribunal at the expense of the taxpayer and would take valuable judicial time that could be spent on other matters, potentially prolonging the time spent in detention and denying other appellants timely access to justice. Mandatory bail hearings at set intervals were placed on a statutory footing, as a noble Lord observed, the last time the Opposition formed a Government, being legislated for in Part III of the Immigration and Asylum Act 1999. However, they were never brought into force and were repealed in the Nationality, Immigration and Asylum Act 2002. What was the reason for the repeal? The plans were unworkable in practice and would have been a significant resource burden. That remains the position today, so we resist the amendment.

Amendment 221A would remove the requirement to consider the public health implications of bailing an individual. It is not about incarceration. In order to detain pending removal, there must be a realistic prospect of removal in a reasonable timeframe. Paragraph 3 of Schedule 7 sets out a number of factors that the bailing authority must have regard to when considering whether bail is appropriate and the conditions of bail that should be imposed. Naturally, risk to the public and community is a paramount consideration, whether that is the likelihood of the person committing an offence, the likelihood of the person absconding or the likelihood of the person’s presence in the UK being a danger to public health. This would, for example, be a consideration if there were a pandemic and an individual were infected and detained pending removal. Clearly it would not be possible to detain under immigration powers if the sole consideration was protecting public health and there was no underlying immigration justification for the exercise of the detention power. It is a justifiable power in the context of protecting public health.

Amendment 221B would remove the requirement to consider whether it is in a person’s best interests to be detained before being released on bail. I understand the reason why this amendment has been laid, as when could it ever be in anyone’s best interests to be detained? First, let me be clear on a point of principle. It is the Government’s policy that there is a presumption of liberty and that immigration detention should be used as a last resort. This is long standing and will not change. It is important to put that on the record and I am sure that the whole Committee will agree that this is right.

The thinking behind this provision is simple. When detaining under immigration powers, normally for examination purposes, there will be a very limited number of cases where the Home Office’s duty to safeguard individuals at risk—both adults and children—will mean that a very short period of detention may be justified while arrangements are made for an individual to be transferred to appropriate care. For example, a very short period of detention may be necessary for safeguarding reasons where an unaccompanied child arrives at a port, especially late at night, with uncertain or no care arrangements. At present there would be no lawful basis for detaining the child for their own benefit and their own protection.

I want to be clear to the Committee that detention under immigration powers to ensure that an individual is not put at risk and is safeguarded should be used in only a limited way, for the shortest period possible and only when there is a lawful underlying immigration power to detain. We are talking about a period of hours, not of days or weeks. Again, we resist this amendment.

Amendments 221C and 221D would make changes to the arrangements in support of electronic monitoring conditions and how they operate. These amendments are not necessary. The language on electronic monitoring in paragraph 4 of Schedule 7 is virtually a word-for-word reproduction of the current electronic monitoring power in Section 36(6) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It is simply a case of importing the existing provisions into the new bail power.

Amendment 224, spoken to by the noble Lord, Lord Kennedy, concerns accommodation and support provided to anyone released on bail. This would be an unnecessary provision. Paragraph 7 of Schedule 7 provides a power for the Secretary of State to ensure that a person can meet bail conditions by paying for the costs of their accommodation and travel expenses in appropriate circumstances. It is not right to mandate in statute that the Secretary of State must pay for accommodation and travel costs, particularly in these times of austerity.

The arrangements in the Bill are designed to replace Section 4(1)(c) of the Immigration and Asylum Act 1999, which is repealed under the Bill but which to date has been used to provide accommodation for persons released on bail in the limited circumstances where it is felt that that would be appropriate. The repeal is part of the wider changes to support provision for failed asylum seekers and other irregular migrants. The power is deliberately drafted in a narrow way because it will not generally be necessary to arrange accommodation for those on bail or to pay for travel expenses. The individuals will usually be expected to accommodate themselves—for example, with friends or relatives. This is not any different from the way in which Section 4 is currently used. If the person really is unable to arrange their own accommodation, the powers can be used to provide it on a case-by-case consideration of the particular circumstances, including whether they are able to avoid the consequences of being left homeless by returning to their own countries.

The noble Lord, Lord Alton of Liverpool, made a point with regard to restrictions on studies and the provisions in Schedule 7. This existing power is used only in the context of a terrorism-related issue which is subject to SIAC provisions. I would be content to write and elaborate on that in due course. I had not anticipated that the point would be raised, but I emphasise that this is an existing power used only in the most exceptional circumstances pertaining to terrorism. If the noble Lord wishes me to write further on that, I would be glad to do so.