Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Committee (3rd Day)

– in the House of Lords at 3:03 pm on 14th September 2020.

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Relevant document: 11th Report from the Constitution Committee

Photo of Baroness Henig Baroness Henig Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, hybrid proceedings will now resume. Some Members are here in the Chamber, respecting social distancing, and others are participating remotely, but all Members will be treated equally. If the capacity of the Chamber is exceeded, I will immediately adjourn the House.

This is day three in Committee on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. I will call Members to speak in the order listed in the annexe to today’s list. Members are not permitted to intervene spontaneously; the Chair calls each speaker. Interventions during speeches or “before the noble Lord sits down” are not permitted.

During the debate on each group, I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request and will call the Minister to reply each time.

The groupings are binding and it will not be possible to degroup an amendment for separate debate. A Member intending to press an amendment already debated to a Division should have given notice in the debate. Leave should be given to withdraw amendments. When putting the question, I will collect voices in the Chamber only. If a Member taking part remotely intends to trigger a Division, they should make this clear when speaking on the group. We will now begin.

Debate on Amendment 39 resumed.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I rise to support Amendment 70, to which I was pleased to add my name, but I will first speak in support of other amendments which provide for a time limit for detention.

I first encountered this issue as a member of the inquiry into detention by the APPGs on Refugees and Migration, which reported in 2015. The evidence we received convinced me of the case. It is frustrating that, despite a wide consensus in favour of a time limit—including among a number of very senior Conservative MPs—we are still having to argue the case five years on. I hope that the Minister is not going to trot out the usual Home Office line that the law does not allow for indefinite detention, an assertion based on semantics. She knows full well that by “indefinite”, we mean “without fixed or specified limit”—to quote one dictionary definition.

It is the absence of a fixed or specified limit that is so problematic. In particular, it has been shown to contribute to serious mental distress among detainees, a point made in the literature review conducted for the original Shaw report, and reinforced by subsequent reports, including by the Joint Committee on Human Rights, the Home Affairs Committee and, most recently, by the Jesuit Refugee Service this year. That report emphasises the trauma experienced by detainees, which stretches beyond the period of detention itself and is relived indefinitely over the years to come. It found that the lack of a time limit laid down was particularly problematic, and that

“not knowing when one would be released was central to an uncertainty that pervaded the experience of detention. Both long detention and the indefinite nature of detention were also seen as increasing the injustice of its practice.”

When debate on this amendment started, the noble Baroness, Lady Hamwee, asked the Committee to imagine how we would feel with that uncertainty—that draining away of hope. Gabby—not her real name—a woman helped by Women for Refugee Women, to which I pay tribute for its work in this area, put it powerfully. She said that

“indefinite detention destroys people. People who are imprisoned in detention already have mental health issues when they get locked up—and the longer you stay there, the worse it gets. My hair started falling out, and I had flashbacks to what happened to me before”— she was referring to having been trafficked—

“Not knowing when you will be released had such an effect on me. I kept thinking: will I be kept here forever?”

I know the Minister will retort that no one is detained for ever—her definition of “indefinite”—but that is how it can feel when you do not know when it will end, which is the usual definition of “indefinite” in this context. Gabby was in Yarl’s Wood, and it is welcome that no woman is now being held there. Can the Minister say if any women are being detained elsewhere and, if so, where and how many? If she cannot answer now, will she write to the Committee afterwards?

The release of many detainees into the community in recent months demonstrates that detention does not have to play such a significant role in the immigration system—a point made powerfully by the noble Baroness, Lady Hamwee, the other day. In this context, will the Minister update the Committee on how the alternatives to detention pilot is going?

Turning to Amendment 70, damage to mental health is a common thread in the case for all these amendments. It was referred to by the noble Lord, Lord Ramsbotham, when he introduced the amendment. Medical Justice, to which I am also grateful for a briefing, wrote about the “devastating” health impact of segregation. It says that it has been found to lead to increased rates of anxiety, perceptual disorder, hallucinations, paranoia and suicidal thoughts, as well as serious physiological effects. The mental health risks for those with pre-existing conditions and other vulnerabilities are especially high. In particular, anyone who has suffered segregation as part of past torture might be re-traumatised by it.

Medical Justice also makes the point that segregation can be counterproductive. The Government’s argument that restrictions on segregation would jeopardise IRCs’ safety and security serves to ignore the deeper systemic problems that contribute to the “need” to remove people from association—for example, poor standards of healthcare, abusive or bullying attitudes or behaviour, oppressive regimes and the impact of indefinite detention itself. If the Home Office addressed these systemic problems, fewer people might behave in such a way as to call for segregation. The Home Office does not publish data on the use of segregation of vulnerable people. Could the Minister explain what they do not and commit to publishing this data?

Finally, as I read the Minister’s complacent response to the amendment in the Commons Committee alongside the briefing for Medical Justice, it seemed like the Minister was living in a parallel universe from the organisation on the ground. Indeed, the Member who moved the amendment made a similar point. I am confident that the noble Baroness will not display the same complacency, but I hope she will accept that there is a real problem here that must be addressed, even if she is not willing to accept the amendment itself.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

My Lords, the campaign for a time limit on detention has deservedly gathered pace over the past 10 years. As the noble Baroness, Lady Lister, mentioned, two parliamentary committees reporting in 2019—the Joint Committee on Human Rights and the Home Affairs Committee—urged a 28-day limit. The Joint Committee on Human Rights made two important points. The first was that indefinite detention—the noble Baroness dealt with that term—

“causes distress and anxiety and can trigger mental illness and exacerbate mental health conditions where they already exist.”

Secondly, it pointed out that

“the lack of a time limit on immigration detention reduces the incentive for the Home Office to progress cases promptly which would reduce both the impact on detainees, and detention costs.”

It therefore called for a 28-day limit.

The Home Affairs Committee pointed out that some people are being held for more than three years, which is intolerable. It said:

“Failure to provide justification for continued detention will only compound detainees’ frustration and may lead to self-harm and violence in immigration removal centres.”

It welcomed the Home Secretary’s commitment at the time that he—that must have been Mr Javid—would

“consider ending indefinite immigration detention in response to Stephen Shaw’s follow up report.”

It went on to say that

“a maximum immigration detention time limit is long overdue … lengthy immigration detention is unnecessary, inhumane and causes harm.”

I understand that the Government’s policy guidance says that there should be no detention without a realistic prospect of removal, but this appears to be routinely breached.

Subsection (3) of Amendment 39 is designed to prevent cat-and-mouse detention by barring re-detention unless there is a material change of circumstances. Amendment 40 would impose important tests of “strictly necessary” and the ability to be removed “shortly” on a person’s detention. Amendment 41, to introduce a requirement for early judicial oversight, would bring in an important safeguard. Amendment 70, introduced by the noble Lord, Lord Ramsbotham, and signed by my noble friend Lady Hamwee and others, would impose a test of necessity on segregation.

It is worth bearing in mind that many millions of pounds are paid out every year as compensation for illegal detention. Someone recently received £22,000. Given the noble Lord the Minister’s insistence in our discussions last week on fees that the Home Office had to watch the pennies, it seems reckless to waste public money because of unnecessary and unjustified detention. I hope the noble Baroness the Minister will respond positively to these amendments.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 3:15 pm, 14th September 2020

My Lords, this amendment is about basic human decency; I am very pleased to support it. Personally, I would like to scrap immigration detention altogether. It is inhumane that we as a country are doing this to people. Convicted murderers and paedophiles get better treatment than refugees and asylum seekers fleeing war, famine and persecution, often as a result of our own foreign policy. They just want to find a better life.

This amendment would place important restrictions on the dehumanising practice of solitary confinement. Solitude is often used as a psychological torment to break a person’s spirit and enforce compliance. It should be used in only the most extreme cases, as set out in the amendment, and be subject to many safeguards. The noble Baronesses, Lady Lister and Lady Ludford, covered some of the issues I wanted to talk about, including time limits, so I will cut my remarks short. Will the Minister please take all these amendments away and work with your Lordships ahead of Report? I hope she will be able to give that assurance.

Photo of Lord Green of Deddington Lord Green of Deddington Crossbench

My Lords, I shall also speak to Amendments 39 to 41. I say from the start that I broadly support the Government’s policy on all these matters. All these amendments would have a similar effect. They would make it very difficult to detain a person who claimed asylum for more than a few days, irrespective of the facts of the case. It is surely perfectly obvious that such measures will make it extraordinarily easy for any claimant simply to disappear into the very large community of illegals—perhaps 1 million—that we already have in the UK.

We have to consider these amendments against the background of current events. A substantial and growing inflow of migrants across the channel is, understandably, very unwelcome to the public. They rightly perceive that they have nearly all come from a country that is safe, whether France or Belgium, and that they are not in fear of their lives. This is confirmed by Home Office evidence to the Home Affairs Committee on 3 September, which said that, of those crossing this year, 98% claimed asylum, half of which had been considered so far, and 80% of that number had been refused. Some 71% were refused because we are not the responsible country. That, of course, is because they travelled through a safe country before they arrived here.

It follows that for those who are concerned about genuine asylum seekers—I of course accept that many noble Lords and noble Baroness are concerned about them—the situation has to be tackled if public support for the asylum system is to be maintained. However, limiting detention to 28 days, as proposed in Amendment 39, would exacerbate the crisis of immigration enforcement and undermine support for asylum generally.

People need to feel confident that the asylum system, which costs the taxpayer £1,000 million per year, is producing a worthwhile result. The main effect of a 28-day limit on detention is that false asylum claimants would have only to spin out their claim or make some false statement that could not be refuted in the allotted time before being released and potentially disappearing. Indeed, the Independent Chief Inspector of Borders and Immigration has found

“little evidence that effective action was being taken to locate the vast bulk of absconders”.

It follows that illegal immigration—which, by the way, 77% of the public consider a serious problem—would intensify. The credibility of the immigration system as a whole would also be further undermined.

Some Members will remember that, on the first day of Committee, the noble Lord, Lord Adonis, rightly pointed to the crucial importance of the integrity of the immigration system in the eyes of the public at large. It is a continual surprise to me that others in the political arena seem to have failed to get this absolutely central point.

Photo of Lord Judd Lord Judd Labour

My Lords, this is a very important amendment. So many of those involved have been through unspeakable, disturbing—even horrific—experiences. Detention is really not appropriate for any of them but, if there is detention, it must be strictly monitored and should certainly be for only a limited period of time; 28 days is surely more than long enough for the authorities to be able to establish reasons for declining residency to people who are in detention.

The practice of detaining people, as referred to by Amendment 70, is unspeakable when you think of the kind of backgrounds many have come from. The other practical point I make is that, in the overwhelming majority of cases with which we are dealing, people are ultimately released from detention. This makes it all the more obvious that something is wrong. The system needs very close attention; these amendments help us to provide that kind of focus.

Photo of The Bishop of Durham The Bishop of Durham Bishop

My Lords, I speak in favour of this group of amendments and, in particular, address my comments to Amendments 39 and 40. I concur with the excellent points made by the noble Baroness, Lady Hamwee, in the introduction to this debate, as well as those made by the noble Lord, Lord Ramsbotham, and others who have spoken since.

I would like to further emphasise the human and moral cost of our current and proposed detention system. The effect of indefinite detention, which lasts in some cases for months or even years on end, is devastating on the mental and physical health of detainees. Hopelessness promoted by a lack of knowledge over what comes next and flashbacks to past trauma are common experiences.

I offer an illustrative example, collected by the Jesuit Refugee Service, of the impact of our present system. Oliver was conscripted into the army at 17. He had no choice—he was taken off the street one day on his way home from school. He managed to escape after eight years but was captured, imprisoned underground and tortured. He was the victim of human trafficking twice, once being sold into slavery and once when he was taken to Europe. He arrived in the UK in July 2015, immediately made himself known to the authorities and claimed asylum. He was taken into immigration detention at Dover and moved to Harmondsworth IRC.

Oliver spoke no English. He had committed no crime. The incarceration triggered flashbacks to his imprisonment underground in his home country. He was examined by doctors and found to be suffering from PTSD. He had clear injuries on his body, which were ratified by a medical examination as being signs of torture conducive with his experience. After three months in detention, he was released to Section 4 accommodation in Cardiff. A year later, he was suddenly detained again and taken by taxi from Cardiff to Dorset. This time he was released after 18 days and finally granted indefinite leave to remain in 2019.

I could have filled a much longer speech with many other examples, including those of children, victims of trafficking, slavery and sexual abuse, and of people repeatedly detained in a highly traumatic environment that served no purpose in protecting the wider public. These amendments do not dispute that detention can serve a valuable, even critical, purpose, including—in a small number of cases—the protection of the public. What these amendments would do, however, is demand that the purpose of detention is clear and justifiable in each case, and cannot be of unlimited duration or used repeatedly in ways which have been shown to be immensely harmful to detainees. Unlike the noble Lord, Lord Green of Deddington, I believe that the public recognise that detention for long periods is not the way that we treat human beings in our country. We all want a better, respected asylum system, but detention detracts from that. I hope that the concerns in these amendments can be addressed.

Photo of Baroness Barker Baroness Barker Liberal Democrat Lords Spokesperson (Voluntary Sector), Deputy Chairman of Committees

My Lords, it is quite some time since my colleague and noble friend Lady Hamwee introduced this group of amendments with such eloquence and in her customary informed, thorough way. I would contrast her remarks with the assertions made by the noble Lord, Lord Green of Deddington. In speaking on this group of amendments, I wish to take us away from the traditional route of making policy by assertion and look towards some evidence.

In normal times, there are usually between 1,500 and 2,000 people detained under immigration powers at any one time. When the pandemic kicked in earlier this year, in March, there were about 1,400. According to Detention Action, that number then fell because of the fears of Covid striking in both prisons and IRCs. By 21 April, the total number of people had fallen to 708; 368 of those were detained in IRCs and 340 under immigration powers in prisons. So the number of people had roughly halved in a very short period of time.

What was the effect of that—on public safety, on levels of absconding or on anything at all? We all know the public cost of detention; it is about £30,000 per person per year. We know from the eloquent testimonies across the House about the cost to the health of individuals of being detained—and, principally, of being detained indefinitely for long periods. Can we begin to talk about the cost and benefit to the Government of indefinite detention? We hear very little about that.

As I will not be speaking again, I want to address one other issue. The Minister quite rightly told us at the beginning of our debates that this legislation was simply a matter of unifying the way in which the country treats people making asylum or immigration claims from the EEA and Switzerland with those from the rest of the world. She will not be surprised to hear that I think we treat LGBT asylum seekers from all over the world appallingly. We have spoken about this many times.

Can the Minister tell us whether, since the initial round of training, which she was once responsible for, there has been any further training for immigration staff on the handling of LGBT issues? Will the training be repeated and updated to deal with the numbers of people who may be making asylum appeals on the grounds that they come from countries such as Poland and Bulgaria, where the treatment of LGBT people daily becomes worse, and in some cases murderous?

Photo of The Earl of Sandwich The Earl of Sandwich Crossbench 4:30 pm, 14th September 2020

My Lords, here we are again. I recall many occasions like this in the past, and I see some familiar faces. This is my first intervention on this Bill, and in view of what has already been said, I will be very brief.

As we have heard, these amendments contain the accumulated wisdom of several legal experts and several trusted organisations over many years. Put simply, not only is it wrong and inhumane under our normal rules and customs to lock up detained people for long periods, we do not have to do it, except in very few cases. The right reverend Prelate made it clear that people must not be locked up indefinitely. Look at the consequences: the noble Baronesses, Lady Hamwee and Lady Lister, mentioned cases of self-harm, trauma and suicide.

No one should be redetained. Removals are necessary—they have to be done—but they must be arranged more efficiently so that the relevant documents are in place. If they cannot be so arranged, and removal is not imminent, there must be an automatic bail hearing with judicial oversight.

This generous amendment, which has been carefully crafted, provides six months’ grace for the Government and will save them a lot of money. I know immigration is causing a lot of problems, but surely the Home Office should finally accept this amendment now or before we have a vote on Report, which otherwise seems inevitable.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, I apologise for not taking part in this Bill until now—perhaps a relief to your Lordships. However, I would like to emphasise that the hybrid proceeding is no way to conduct the Committee stage of a Bill with so many implications. I asked the usual channels to look seriously at what the noble Lord, Lord Cormack, said last Monday on returning to more normal procedures.

I support Amendment 39 and the others in this group. In connection with bail, is there now a backlog in applications for bail from immigration detainees? If so, what are the Government doing to ensure that such applications are promptly heard?

These amendments point to a much wider need to reduce the use of immigration detention, which is expensive and harms the mental health of detainees, sometimes leading to suicide. I understand that the UK is the only European state to allow detention for an unlimited period. Even in the case of foreigners convicted and jailed, with a recommendation for deportation, better co-ordination between the Ministry of Justice and the Home Office should ensure that deportation takes place immediately on release from prison. I hope to have a positive reply on this point to a Question for Written Answer recently tabled.

In conclusion, I note that the June report from the National Audit Office stated that total voluntary and forced returns to other countries had fallen dramatically since 2015. This is perhaps understandable, given coronavirus and a lack of flights. The report also spotted regional variations in enforcement. Much intelligence is still not being assessed or used. I trust, therefore, that enforcement will soon improve and that official statements will avoid terms that increase fears and xenophobia, such as the labelling of all unofficial landings or arrivals as “illegal”. I trust that progress will be made on all angles of this group before Report.

Photo of Baroness Henig Baroness Henig Deputy Chairman of Committees, Deputy Speaker (Lords)

The noble Baroness, Lady Jolly, does not wish to speak. I call the noble Lord, Lord Kennedy of Southwark.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing)

My Lords, this debate has focused on several new clauses which are to be inserted after Clause 4. I have signed up to Amendments 39, 40, 41 and 94, along with my noble friend Lord Rosser and the noble Baronesses, Lady Ludford and Lady Hamwee, who opened this debate last Wednesday. I am also supportive of Amendment 70, in the name of the noble Lord, Lord Ramsbotham.

The risk here—it is all about risk—is that many people will not have their status sorted and will not have put a claim in, and are then at risk of detention. Immigration detention is something that should happen only in the most necessary cases and for the shortest period of time possible. My noble friend Lady Lister of Burtersett set out, with examples, the effect of detention and the damage of not knowing when you are going to be released on individuals and their mental health. We need to think about that: we can all accept that being locked up and not knowing when it is going to end is not a good place to be.

Taking that into account, can the noble Baroness, Lady Williams of Trafford, when she responds to the debate, tell us what safeguards will be put in place to ensure that the minimum number of people are detained and for the shortest possible time? The noble Baroness, Lady Hamwee, said she expected to be told that most people are released from detention after a short period of time, but we need to think about those who are not.

There is also the risk of redetention: when a person reports who is required to do so and then finds themself detained by the authorities. How long will it take for an application to remain to be considered? As we have heard, Amendment 39 would impose a strict time limit of 28 days and ensure that detainees could not be redetained unless—I emphasise “unless”—there has been a specific change in circumstances.

Amendment 40 sets out the conditions for a person to be detained in the first place and Amendment 41 provides for bail hearings during the initial detention period of 96 hours. Amendment 94 brings in the provision six months after the Bill comes into force. This gives the Government time to get all the procedures and regulations correct. I agree with the comments made in that respect by the noble Earl, Lord Sandwich.

As I said earlier, I am supportive of Amendment 70, spoken to by the noble Lord, Lord Ramsbotham, and others. This amendment raises the issue of those individuals in immigration detention who are segregated and at risk of being locked in their cells for up to 23 hours a day. I fully accept that there must be rules and that people must be protected from either themselves or from others, or from causing harm to others. However, we also must be mindful of the effects that detention—of being locked in a cell for long periods of time—can itself have on someone’s mental health. Again, my noble friend Lady Lister of Burtersett made reference to this in her contribution. I look forward to the response from the noble Baroness.

The right reverend Prelate the Bishop of Durham said in his contribution that these people have committed no crime. They themselves may be the victims of horrific crimes, and periods of detention can be long and re-detention is a real risk. When considering these amendments, we have to think about the effect of the risk of being re-detained on individuals who may, in the end, be given leave to remain in the United Kingdom. We must remember that these people have committed no crime here in the UK.

I will leave my remarks there; I look forward to the Minister’s response.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, I thank all noble Lords who have spoken in this debate. To address the point made by the noble Lord, Lord Hylton, about regretting the hybrid procedures, I am very glad of them; they protect noble Lords from the numbers, which are clearly going up.

This is another group of amendments that are not relevant to the Bill. I am sure that noble Lords know that, and I know that they are keen to discuss this issue. They feel very strongly about immigration detention, which has been discussed at great length in this Chamber, but that makes it no less important.

We must have an immigration system which encourages compliance and protects the public. Where people no longer have the right to be in the UK, we must be able to carry out their removal if they do not take the opportunities we provide them to leave the UK voluntarily.

The noble Lord, Lord Kennedy, and the noble Baroness, Lady Lister, talked about the concept of unlimited detention. The noble Lord asked me to list the safeguards to ensure that decisions to detain and to maintain detention are not unlimited. When someone is referred for detention, an independent detention gatekeeper assesses that person’s suitability for detention. Since 2016, the gatekeeper has rejected more than 2,300 referrals for detention. After an individual is detained, their continued detention remains under regular review at increasing levels of seniority, especially where there are any significant changes in circumstance.

Anyone detained can apply to either the Home Office or the courts to be released on immigration bail at any point during their detention. In addition, independent panellists and specialists within case progression panels provide really important oversight of the appropriateness of anyone being detained under immigration provisions at three-monthly intervals. Automatic referrals for bail also occur at the four-month detention stage for non-foreign national offenders, providing additional external oversight of detention decision-making. Immigration removal centres also provide those who are detained with access to legal advice should they need it.

The introduction of a detention time limit would severely limit our ability to remove those who refuse to leave voluntarily, as the noble Lord, Lord Green of Deddington, pointed out. It would encourage and reward abuse and, as I have said, there are a number of measures in place to safeguard against any prolonged or unnecessary use of immigration detention.

The decision to detain people who no longer have the right to be in the UK is an integral part of the removal process, but we do not detain indefinitely. There must always be a realistic prospect of removal—I see the noble Baroness, Lady Lister, shaking her head—within a reasonable timescale, and this requires a case-specific assessment to be made for every single person whose detention is considered. It is already used sparingly: 95% of people who are subject to removal from the UK are at liberty in the community, and the detention estate is now almost 40% smaller than it was five years ago, with 8,000 fewer people entering detention in the year ending December 2019 than in 2015.

The noble Baroness, Lady Barker, rightly pointed out that during Covid the detention figures were right down. That is because we detain people for the purposes of removal and do not detain them indefinitely. She asked, rightly, about the upshot and what we have seen as a result. If I have some of that data, I will send it to the noble Baroness and others, but I suspect that we have not quite seen the whole picture, given that it appears we are still in the middle of the pandemic. Any additional information that I can get her, I will. The noble Lord, Lord Hylton, talked about a backlog. Because we have not been detaining as many people, I suspect that there is no backlog in that sense, but I will also get information to him.

Only in the most complex cases, most frequently those involving foreign national offenders, where serious criminality is involved, does detention exceed 29 days. Some 74% of people were detained for less than 29 days in the year ending December 2019, and only 2% were detained for more than six months.

As the noble Baroness, Lady Lister, mentioned, we do consider alternatives to detention, including satellite tracking to monitor foreign national offenders on immigration bail. She mentioned the pilot scheme; in fact, I understand that there have been several pilot schemes, and the UNHCR has appointed the National Centre for Social Research to independently evaluate them. An inception report was published on 28 August, and we expect the full evaluation of the pilot to be available next spring. Most importantly, we expect those results to contribute to some of the global research on detention alternatives. I hope we will have a very good outcome from that.

The noble Baroness also asked about women; she recognised that none were being held at Yarl’s Wood. I have not got the figures on women and where they are being held, but I will get that information for her and make it available to others as well.

We take protection of the vulnerable extremely seriously. The right reverend Prelate the Bishop of Durham outlined a really moving story to us, and we take this terribly seriously. The adults at risk in immigration detention policy has strengthened the presumption against the detention of vulnerable people, ensuring that people are detained only where evidence of their vulnerability is outweighed by immigration considerations. The noble Baroness, Lady Barker, asked for an update on training. I have not got it to hand, but I will let her know what is happening at the moment.

Everyone in detention has access to round-the-clock healthcare at the standard that can be expected in the community. We have also increased the ratio of staff to detained individuals in immigration removal centres, to ensure that people can access support and advice should they need it. Of course, I have referenced access to legal advice as well.

Noble Lords have spoken of their shame that we are the only European country without a time limit on detention. However, no other European country has adopted anything close to a time limit as short as that which is proposed in these amendments. Acknowledging the complexity of securing arrangements for the return of people with no legal right to remain, the European Commission itself recently proposed that a new minimum detention period of three months be put in place. Other comparable jurisdictions, such as Australia and Canada, have also not imposed time limits.

Under these amendments, foreign national offenders would automatically be released after 28 days, regardless of the risk that they pose to the public, even when they have deliberately frustrated the removal process by physical disruption, or otherwise refused to comply with the Home Office’s lawful instructions. A snapshot of those offenders from the EU who were detained at the end of December 2019 found that, if a 28-day limit were in place, we would have been required to release into the community 127 foreign national offenders who were being held under immigration powers to effect their deportation. To go directly to the point made by the noble Baroness, Lady Jones of Moulsecoomb, of these offenders, 25 had committed some very serious crimes, including rape, offences against children and other serious sexual or violent offences. Letting these offenders on to our streets seriously reduces our capacity to deport them and undermines our commitment to public safety. That said, I take the point made by the noble Lord, Lord Kennedy, that many people are completely innocent, but there is a cohort who you would not want to be back on our streets.

Finally, these amendments would establish an intolerable prejudice against people who are not EEA or Swiss citizens. The amendments would impose a time limit on detention for people of those nationalities but not others. At the heart of this Bill is a commitment to open and equal treatment of immigrants from all nationalities as we exit the transition period. The amendments would be a great injustice and lead to an unequal system that would provide for differential treatment of people based only on their nationality, regardless of the facts of the case. The amendments, and the time limit that they would introduce, would impose a significant restriction on the UK’s ability to effectively and fairly remove people who have no right to be here. It would allow those who wish to frustrate the removal process to run down the clock until the time limit is reached and release is guaranteed, regardless of the circumstances of the person’s case. It would potentially place the public at higher risk, in particular through the release of more foreign national offenders into the community.

I briefly move on to the proposed new clause on the arrangements for removing people from association and the use of temporary confinement within immigration removal centres. Again, I make it clear that this amendment is not relevant to the purpose of this Bill and the ending of free movement for EEA citizens, but I think that noble Lords know that. Removal from association is only ever used as a last resort when other options have been tried—almost to quote word for word the noble Lord, Lord Kennedy—but failed, and only as an effective response to the safety and security risk presented by an individual in detention.

The current immigration detention centre rules already set out the strict basis on which removal from association will be considered

“where it appears necessary in the interests of security or safety.”

The rules are supported by further, more detailed guidance within a detention services order. The published guidance makes it clear that other options should be considered before removal from association is considered, based on specific circumstances. Other options might include transfer to another residential unit within the centre, transfer to a different centre or closer supervision on normal location. The focus throughout is on a positive engagement with the person involved to ensure that they are able to return to the normal regime as soon as possible.

This amendment seeks to unnecessarily amend the criteria for considering removal from association and would require all those subject to these provisions to be returned to association with others after an absolute maximum of 24 hours, regardless of any continuing risk that they pose to themselves or others. This is an unacceptable risk and one that could place both detained individuals and staff working within removal centres at risk. If an EEA citizen poses a risk to the safe and orderly running of an immigration removal centre, it cannot be right that options for managing this risk should be constrained, as compared with the options for managing risks posed by a detainee who does not benefit from the provisions of this proposed new clause. To do so could endanger the safety and security of detainees in a centre generally including, paradoxically, other EEA citizens.

The noble Baroness, Lady Lister, asked me for numbers. I have management information—so they are not official numbers—that in the three months of January to March 2020, removal from association was used 184 times within the detention estate, and the average duration was 45 hours.

I hope that, with those explanations, the noble Baroness will be happy to withdraw her amendment.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing) 3:45 pm, 14th September 2020

I thank the Minister for her detailed explanation. The problem that I have here is that this Bill will become an Act of Parliament, things will move along very happily and then, many years from now, when we are all no longer doing what we are doing now, all these problems will arise whereby things are not done properly. We could have immigration centres with Italian and French citizens, people who have lived here but have not regularised their situation, being locked up and held for days and things—and that is just an anathema. My worry is that sometimes things are done and then, many years later, different people come along, things are not done so well, and there is a problem.

I am concerned about the innocent people. I am not concerned about people who have committed offences, who need to be dealt with—this is about innocent people who have done absolutely nothing wrong. They potentially could have been our friends and neighbours, living in our country, who have not regularised their situation. Unfortunately, mistakes happen, for all the assurances, and people find themselves taken away, probably quite unfairly, locked up and stuff. I want to hear a bit more about how we are going to deal with those sorts of situations. I am talking about the innocent people. How are we going to look after those people, who have done nothing wrong? We are all agreed on those who are criminals and have done bad things, but what about the innocent people, who are treated unjustly? That is what I want to hear about.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

We will be talking about the EU settlement scheme in future groups. As I will go on to explain, the scheme does not end, in the sense that, if people are here, certainly between now and 2020, and want to regularise their status, they can do. Of course, the reasonable excuses rule will go on indefinitely as to why people have not regularised their status.

Obviously, these amendments have nothing to do with the Bill, but I hope that I have outlined the various degrees of safeguards that will guard against people being detained indefinitely. We will go on to talk about the EU settlement scheme and some of the safeguards that go around that, particularly ongoing, with people who have missed the boat. I hope, with those explanations, the noble Lord is happy.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, the noble Lord, Lord Kennedy, is absolutely right about the numbers of people who may find themselves in a situation—and not even be aware of it—which is not regularised. Yes, we will come on to talk about the settlement scheme, and perhaps we will pick up the Minister’s words about the possibilities of applying some way into the future.

The Minister started as I expected, by saying that these amendments are not relevant to the Bill and that if we were to include them, we would be discriminating against people who are not from the EEA or Switzerland. It is entirely open to the Government to apply these provisions to everyone, as I think they should be. They are relevant to the Bill. My noble friends Lady Barker and Lord Paddick made it clear on an amendment last week.

We started debate on this group of amendments late on Wednesday and as a result some noble Lords were unable to take part, or cannot participate today. Two have asked me to make a short comment on their behalf. I hope noble Lords will indulge me if I include them now.

The noble Lord, Lord Cashman, said: “It is now time for the Government to put our values on civil liberties and human rights at the heart of our immigration and asylum policies and start treating others as we would want our citizens to be treated. Indefinite detention must be brought to an end.”

The noble and learned Baroness, Lady Neuberger, said: “Detention is so deleterious to mental health.” She quoted the Centre for Mental Health, which tells us:

“The longer someone spends in detention, the more negative an impact it has upon their mental health.”

That is why detention must be limited, as the noble Baroness, Lady Lister of Burtersett, made clear. The noble Baroness, Lady Lister, also talked about loss of hope. She referred to the Jesuit Refugee Service’s report, which is very powerful, as did the right reverend Prelate, who talked about the moral case and the current situation being inhumane. The noble Baroness, Lady Jones of Moulsecoomb, also spoke of this.

Segregation is particularly deleterious to mental health. I said at the start of this group that I supported the amendments in the name of the noble Lord, Lord Ramsbotham.

I reiterate that Amendments 39 to 41 and 94 are a package. Amendments 40 and 41 deal with criteria and applications for bail. I make the point they are a package in case we come back to the issue on Report.

It is suggested that people would disappear if they were not held in detention with an indefinite period. I do not understand that to be the experience elsewhere. I do understand the UK to be something of an outlier, which is not consistent with the Minister’s view, though I dare say we will find that we are both right. Most people are held for a short time and return to the community and do not disappear—a point made by the noble Lord, Lord Judd—so I do not think that the argument holds. I disagree with the noble Lords, Lord Green of Deddington and Lord Adonis, that the public should have confidence in our immigration and asylum system. That does not detract from the arguments in support of the amendments.

We have heard from the Minister about the effectiveness of the gatekeeping system—in fact, when I was a member of the Joint Committee on Human Rights, it found the contrary—and that the situation will be kept under review, but the problems will remain and we would reward abuse. I reject that; there is a legal position people can take advantage of. They should be allowed to and be protected by lawyers who are not gaming the system, they are applying the law. We should by now have a handle on the effect of releases because of positions taken at the start of the Covid lockdown.

I now have so many notes scribbled on the bottom of my paper that I can hardly read them. I think they amount to: I do not agree with what we have been hearing from the Government Bench.

On Wednesday I referred to evaluating how to deal with people in the community. I am glad to hear that there is an evaluation of the pilot. We need to get on with this. However few people are subject to detention for more than 28 days, without knowing when that will come to an end, this is a cohort of individual people for each of whom we should have concern. We have heard the argument that our amendment would allow very dangerous criminals to be released on to the street. For criminals who have committed crimes—that would be the definition—and who have been sentenced, if they are eligible for deportation, that is what should happen. The noble Baroness, Lady Lister, was shaking her head; I am too. But my conclusion must be at this point that I beg leave to withdraw the amendment.

Amendment 39 withdrawn.

Amendments 40 and 41 not moved.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords) 4:00 pm, 14th September 2020

We now come to the group beginning with Amendment 42. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division, should make that clear in the debate.