I thank the noble Lord, Lord Ramsbotham, for securing this debate. I want to say at the outset that I appreciate his insight into this issue of immigration detention and the concern that he has consistently shown for the welfare of detainees. I also thank other noble Lords from all sides of the House for their contributions.
We put significant effort into encouraging individuals to comply with the Immigration Rules and to support those with no right to remain to leave the UK voluntarily. Unfortunately, a minority of individuals refuse to comply, and detention can be a necessary and proportionate tool for enforcing their return.
As I have said, detention is used sparingly, and we operate a strong presumption in favour of not detaining. At any one time, of those people with no lawful basis of stay in the UK and who are liable to removal, 95% are managed in the community and not in detention. The number of individuals whom we detain has decreased. In the year ending March 2018, there was an 8% reduction in the number of people entering detention compared with the previous year.
For every individual detained, there must be a realistic prospect of removal within a reasonable timescale. As part of the decision to detain, there should be an assessment as to the likely duration of detention. In addition, alternatives to detention will have been considered, or will have failed, in each case.
The majority of people are held for short periods. Ninety-one per cent of those leaving detention in the year ending March 2018 were detained for less than four months and 64% for 28 days or less.
As the noble Lord, Lord Rosser, mentioned, the welfare of vulnerable people in immigration detention is of the utmost importance to the Home Office. Where it is necessary to detain people to remove them, a number of safeguards are in place. One of these is the adults at risk in immigration detention policy, referred to by the noble Lord. Others include the presence of healthcare staff in all immigration removal centres and residential short-term holding facilities; a comprehensive suite of published guidance and operating procedures to govern conditions in centres and support the well-being of detainees; regular reviews of detention by senior officers to ensure that detention remains appropriate; and independent judicial oversight of immigration detention.
The adults at risk policy, implemented in September 2016, provides a vital safeguard. It was a key part of our response to Stephen Shaw’s review of the welfare of vulnerable people in immigration detention commissioned by the Prime Minister when she was Home Secretary. Under this policy, vulnerable people are detained, or their detention continued, only when the immigration considerations in their case outweigh the evidence of vulnerability—the balance that the noble Baroness, Lady Hamwee, talked about. Detention decisions are made on the basis of all available evidence. Cases are reviewed at regular intervals and whenever new evidence comes to light in respect of removability and vulnerability.
That brings me to the new definition of torture in the context of immigration detention. I do not think that anyone would dispute that victims of torture—and, indeed, all those identified as vulnerable—should be considered to be particularly at risk of harm in immigration detention. But it is not, and has never been, government policy that such individuals should never be detained. There is no absolute exclusion from detention for any category of person. However, for individuals considered to be at risk, the policy strengthens the presumption against detention. It carefully balances an individual’s vulnerability considerations against the immigration considerations so that detention is considered in individual cases only when immigration considerations outweigh the risk identified.
The way in which torture is defined in the context of immigration detention has a long history. We currently use the EO definition established in case law in 2013. This is a broad definition which led to some cases being inappropriately considered as torture, thereby diverting attention from the most vulnerable. As a result, the Home Office brought into force the United Nations Convention against Torture definition of torture, with the introduction of the adults at risk in immigration detention policy in 2016. Following a judicial review of the policy, and as an interim relief measure, the High Court ordered the Home Office to revert to the EO definition, and we did so in December 2016. The court subsequently declared the UNCAT definition to be unlawful when used for the purposes of immigration detention. However, it declared that the adults at risk policy was inherently sound and lawful.
In addition, the court further stated that the EO definition was deficient for the purposes of immigration detention. The judge set out his carefully considered view of what a rational definition should look like in this context, taking into account the impact of acts of harm on those in detention. He came to this view having heard a wealth of expert evidence, including that provided by experts associated with the litigants, Medical Justice. We have used the judge’s clearly expressed view as the basis for the definition set out in the statutory instruments laid before Parliament on
The court also said that the broad safeguarding provisions were not effective and the guidance needed to be amended. The statutory instrument bringing into force the revised statutory guidance meets this requirement.
Noble Lords have said that the Home Office should have waited for Stephen Shaw’s follow-up report to be published before making any amendments to the definition of torture. Let me be clear: the changes we are making are to implement the court’s judgment in full, with the reasonable timescales it set out. Until Mr Shaw’s report has been formally published, I cannot discuss its contents. However, I can say that officials kept Mr Shaw’s team informed of the work they were doing to implement this new definition while they engage with the NGOs on this issue.