Moved by Baroness Hamwee
39: After Clause 4, insert the following new Clause—“Time limit on immigration detention for EEA and Swiss nationals (1) For the purpose of this section, a person (“P”) is defined as any person who, immediately before the commencement of Schedule 1, was—(a) residing in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052); (b) residing in the United Kingdom in accordance with a right conferred by or under any of the other instruments which is repealed by Schedule 1; or(c) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, by virtue of section 4 of the European Union (Withdrawal) Act 2018 (saving for rights etc. under section 2(1) of the ECA), to be recognised and available in domestic law after exit day.(2) The Secretary of State may not detain P under a relevant detention power for a period of more than 28 days from the relevant time.(3) If P remains detained under a relevant detention power at the expiry of the period of 28 days then—(a) the Secretary of State must release P forthwith; and(b) the Secretary of State may not re-detain P under a relevant detention power thereafter, unless the Secretary of State is satisfied that there has been a material change of circumstances since P’s release and that the criteria in section (Initial detention: criteria and duration) are met.(4) In this Act, “relevant detention power” means a power to detain under—(a) paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal);(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation);(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal); or(d) section 36(1) of the UK Borders Act 2007 (detention pending deportation).(5) In this Act, “relevant time” means the time at which P is first detained under a relevant detention power.(6) This section does not apply to a person in respect of whom the Secretary of State has certified that the decision to detain is or was taken in the interests of national security.”Member’s explanatory statementThis new Clause places a limit on the length of time EEA or Swiss nationals may be held in immigration detention of 28 days.
This is the first of many new clauses which noble Lords have tabled to become part of the Bill after Clause 4. I am moving Amendment 39, which is part of a package with Amendments 40, 41 and 94; all four should be read together. Also in this group is Amendment 70 in the name of the noble Lord, Lord Ramsbotham, and in my name, which raises important aspects of detention.
As with other amendments, because the Bill relates to EEA and Swiss citizens, the amendments themselves are necessarily limited. It may seem unlikely that issues around detention will arise in their case but, as I said on an earlier amendment, it is not impossible that asylum will be sought in the UK from harsh regimes in some EU states. I mentioned Hungary and Poland, which are moving politically, and my noble friend Lord Paddick dealt with the attempted dismissal of that notice.
However good the EU settlement scheme, after June there will probably be many thousands of people in the UK with insecure status—not settled, because for one reason or another they have not put in a claim, and not citizens. Indeed, the detention of EU citizens has risen over the past 10 years. Noble Lords will remember the attempts to sweep up homeless people from the EU.
I expect the Minister to tell us that most people are released from detention after a very short time, but what about those who are not? What about those who do not know how long they will be in detention? I invite noble Lords to imagine that uncertainty, that draining away of hope. What about the continued prospect of detention or re-detention as applicants report regularly, as they are required to do, and then one day they are taken from reporting to what feels like a prison? They may be released and re-detained—a modern version of the cat and mouse Act. Asylum seekers waiting for a decision talk about always taking a bag with a change of clothes and toiletries in with them when they report, in case they are taken straight from reporting to a detention centre. When I was a member of the Joint Committee on Human Rights, we heard of people being picked up in the early hours and taken off in their nightclothes.
Of course, all this is about practice, as indeed is the length of time which decisions on asylum applications take. However, that makes having a clear statutory structure all the more important. These amendments have been drafted by practitioners, and that is important because they see the impact of the current practices. They work on applications on behalf of detainees with, I have to say, a very high success rate, so they know the technicalities. They have achieved compensation for their clients totalling millions of pounds, and that does not make them bad people.
The provisions are ones that have been called for by a range of civil society organisations which recognise that indefinite detention is inhumane and in itself causes harm to detainees. There are rules about the treatment of vulnerable adults in detention, but there is a lot of concern about how those work in practice. For myself, I reckon the very fact of indefinite detention makes someone vulnerable by definition. Many detainees have certainly suffered significant ill treatment too, often torture, something that we in the UK find difficult to envisage. Many suffer with significant and chronic health problems. The organisation Detention Action reports a crisis of self-harm with a steady increase in suicidal ideation and suicide. Children are harmed. Indefinite detention means that families are separated indefinitely.
My honourable friend, as she was in the formal sense as well as the normal one, Sarah Teather, as a Minister in the coalition Government, achieved a limitation on the detention of children and established Cedars, a centre for families who were very immediately about to be returned from the UK. Those limitations were incorporated in the Immigration Act 2014. I understand that the Home Office has in fact recently announced that it will be detaining unaccompanied asylum-seeking children because Kent County Council is overwhelmed by them. That is very alarming.
Amendment 39 would impose a time limit of 28 days and specify that the detainee may not be redetained unless there has been a material change in circumstances. There is an exclusion where detention is in the interests of national security.
Amendment 40 sets out criteria that must be met for detention in the first place. Currently, there are common law principles, and I will come to those in a moment, but in the new clause proposed in the amendment the criteria are that the Secretary of State is satisfied that the person can shortly be removed from the UK, that detention is strictly necessary to effect the person’s deportation or removal, and that the detention is “in all circumstances proportionate”.
The common law principles, which come from the Hardial Singh principles—named after the case that established them—are that
“the Secretary of State must intend to deport the person and can only use the power to detain for that purpose … the deportee may only be detained for a period that is reasonable … if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention … the Secretary of State should act with reasonable diligence and expedition to effect removal.”
Putting those principles into statute would make the matter much clearer for everyone, including caseworkers.
Amendment 41 would provide for bail hearings during the initial detention period of 96 hours. Noble Lords will understand the importance of judicial oversight and the need for it to be applied very early on, not after two or four months with what I have heard can be a formulaic and rather perfunctory approach.
Amendment 94, which would bring the provisions in after six months following the enactment of the Bill, would give time for the necessary regulations and other preparation—for instance, in the Tribunals Service.
Detainees are not criminals. Seeking asylum is just that—seeking asylum. The small numbers who are to be deported after conviction for a crime and imprisonment should be deported immediately after they have served their sentence. The criminal justice system has safeguards: immediate access to legal advice and representation; a limit on pre-charge detention; and a sentence with an upper time limit.
I have heard it argued that applying 28 days as a time limit would mean that most people would be detained for 28 days, whereas now they are not. I hope that the amendments that I have explained would make it clear that that should not, and could not, be the case.
We talk of detention centres because that is what they are, but formally they are immigration removal centres, because that is what they should be. We should put as much energy into working with people in the community to persuade them by discussion and not by force—as is done elsewhere—to return if they do not have a good claim as the energy that is put, at considerable cost, into holding and damaging this large cohort of people further. I beg to move.
My Lords, I shall speak to Amendment 70, which is in my name and those of the noble Baronesses, Lady Hamwee, Lady Lister of Burtersett and Lady Jones of Moulsecoomb. I also wish to support Amendments 39, 40, 41 and 94, so ably introduced by the noble Baroness, Lady Hamwee. I should also like to thank and commend the charity Medical Justice, which has briefed me on this amendment and has long worked in this field.
As I said at Second Reading, our use of segregation in detention is unique in Europe. It is usually achieved by placing detainees in a special unit in an immigration removal centre. Segregated detainees can be locked in their cells for up to 23 hours a day. This treatment is described as inhuman when used on prisoners who have broken the law. How much worse is it, when used on innocent asylum seekers or people who are seeking to immigrate into this country?
During the preparation of Amendment 70, I had much discussion about the phrase “removal from association” which comes from the Detention Centre Rules 2001, when I meant, quite specifically, segregation. The Minister will, no doubt, point out that staff must be able to take action against detainees who are at risk of harming others or themselves. I hope that that eventuality is covered by the wording of the amendment. Segregation is often inappropriately used as a way to manage people with severe mental health conditions. This highlights the lack of medical treatment facilities in too many detention centres. Far from being used sparingly, data shows that in 2019 alone, there were over 900 cases of the use of segregation.
Her Majesty’s Chief Inspector of Prisons has reported that 50% of adults detained are classified by the Home Office as “adults at risk”. Detention, an unnatural situation, is bound to cause deterioration in the mental health condition of a detainee. Segregation, being a most severe and, indeed, draconian measure, can only exacerbate that deterioration, which is why its use should be limited to 24 hours at most.
I must admit that the Minister confused me in her reply to the first group of amendments, discussed by the Committee on Monday. She said, first, that the whole point of this Bill is that the whole world is treated the same. She followed that almost immediately by saying that she did not think it was the right Bill to make any changes in enforcement, which would need to cover both EEA and non-EEA citizens, because it is limited to immigration changes as a result of our exit from the EU. I put it to her that the use of segregation affects the treatment of citizens of the whole world, as she put it, and is not limited to those from the EEA. I therefore ask whether it is included in the long-awaited review of the whole immigration system.
As a proud British citizen I was very sad to see, in this morning’s Times, the former Prime Minister, Theresa May, questioning how this country could be trusted to abide by the legal obligation of an agreement that it had signed, and the chairman of the Justice Committee warning that the rule of law was non-negotiable. I fear that if we do not amend the way we currently detain immigrants, we shall lose, in addition to trust and respect for preserving the rule of law, any reputation that we have built up for the decent, humane and civilised way we treat people who want to come to this country. As I say, we are unique in Europe in using segregation on detainees.
My Lords, we need to bring our proceedings to an end for this evening, so I beg to move that the debate on this amendment be adjourned.