Amendment 20

Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Report (2nd Day) (Continued) – in the House of Lords at 11:00 pm on 5th October 2020.

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Baroness Hamwee:

Moved by Baroness Hamwee

20: 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residing in the United Kingdom in accordance with a right conferred by or under any of the other instruments which is repealed by Schedule 1; or(c) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, by virtue of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.

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

My Lords, Amendment 20 is in a package with Amendments 21, 22 and 31. I will be seeking to test the opinion of the House on Amendment 20, and I understand the Government accept that the other amendments would be treated as consequential. I have had to edit these remarks very heavily because of the time, and I apologise to all those who have made such good points to me that I will not be able to include them in what I suspect will be a somewhat disjointed speech.

The use of detention for immigration purposes, in part because of the Windrush scandal, is attracting increasing concern across civil society. These amendments address one particular aspect: that it is indefinite. The amendment would impose a time limit of 28 days; there could not be re-detention—cat and mouse—without a material change in circumstances; and there is an exclusion where detention is in the interests of national security.

Amendment 21 sets out the criteria for detention, including that the detainee can shortly be removed from the UK. Noble Lords will be aware that places of detention, apart from when a prisoner remains locked up after serving his sentence, are actually immigration removal centres. The detention must be proportionate and strictly necessary. Amendment 22 provides for bail hearings.

It is no answer to say that most detainees are released within 28 days. That does not make detention for a longer period defensible in the case of those who are held for longer, and for all detainees it is the uncertainty —not knowing when the end might come—that is the issue.

It may seem rather trivial, but we have all recently experienced being, and are currently, confined to our own homes. That is nothing in comparison: in our own homes, speaking the language of those around us and with means of communication. The noble Lord, Lord Dubs, in an earlier debate talked about having no hope—that no hope for the future feels like no future. That applies to detainees in this situation. The very great majority of detainees are not foreign national offenders. Dealing with them really is, or should be, something for the criminal justice system, including probation.

The impact of detention, and the prospect of re-detention, is an extraordinary burden. People are picked up from living in the community in what seems quite a random fashion, and people are taken straight from their regular and proper reporting into detention. It takes its toll on people who are, by definition, almost to some extent vulnerable; some are highly vulnerable and traumatised by their experiences.

The Minister in Committee said that a time limit would reward abuse. There must be many detainees who, not having sought to go underground and having conducted themselves as required—I have mentioned reporting—must feel that detention is a reward for compliance. They continue to show their compliance when they are released; they do not disappear.

The right to apply for bail, as currently, is not an adequate safeguard. Most detainees cannot advocate for themselves. The amendment provides for automatic hearings by the tribunal, which is experienced in immigration matters.

I was a member of the Joint Committee on Human Rights when it produced a report supporting the 28-day time limit. To answer another point made in Committee, the evidence that we had then was that the gatekeeping function, relatively recently introduced and intended to assess suitability for detention, was generally perfunctory and inadequate.

I must tell noble Lords that the majority of people detained—almost two-thirds according to the last figures—are ultimately released into the community. That prompts the question: if they are suitable to be released into the community eventually, why do they need to be detained for any longer than 28 days?

I know that noble Lords want to see a humane asylum system that they can defend and asylum claims dealt with in a reasonable time, and I do not accept the argument that delays are due to lawyers gaming the system. I hope that noble Lords, with that short explanation and with many of them no doubt having previously encountered descriptions and concerns about the issue, will wish to support these amendments. I beg to move.

Photo of The Bishop of Southwark The Bishop of Southwark Bishop

My Lords, I wish to speak in favour of Amendment 20, which the right reverend Prelate the Bishop of Durham—he regrets that he is unable to be with your Lordships today—has put his name to, together with the noble Baroness, Lady Hamwee, who has just spoken, the noble Lord, Lord Kennedy of Southwark, and the noble Baroness, Lady Bull.

The process of detention is an intensely dispiriting one. It is often accompanied by a physical denial of hope and attendant mental distress. We have heard of extensive periods of internment, just as we have heard from the Minister of expeditious dealing with detainees. We have heard, too, from her that detention cannot be indefinite because the Secretary of State’s power is constrained by common law. That is undeniably correct. However, for an individual who is affected by this and who might be unaware of how and when a caseworker will weigh the different elements of Hardial Singh, that is no comfort.

The Government are right in saying that detention is subject to the courts. However, although the application of common law brings many benefits—and there will be those in your Lordships’ House who will think it little enough used—those who are subject to sudden detention are not the sort of people who can summon the resources to apply to a court for redress. That is a key failing of any attempt to justify the present arrangements. The problem with the immigration and asylum system is not, as some allege, overtly complex legal safeguards for unworthy individuals; it is less contentious and more straightforward than that—it is simply that too few individuals have the resources to access the legal help necessary to ensure them fair consideration. The number of cases which the Home Offices loses and which go to tribunal demonstrates the human cost of that. It is an indictment that this inhibits the operation of justice for all.

The Government have had ample opportunity to bring forward their own amendment to put the terms of detention on a statutory footing. In the absence of that, I trust that the House will take the opportunity to give this amendment a generous consideration. I shall vote for it.

Photo of Baroness Bull Baroness Bull Crossbench

My Lords, it is a privilege to speak in support of these amendments, so ably introduced by the noble Baroness, Lady Hamwee, and so well supported, not only across all parts of this House and the other place, but by legal and medical experts, civil society organisations and religious leaders, and by the Home Affairs Select Committee and the Joint Committee on Human Rights.

These amendments respond to the moral imperative to treat people fairly according to principles of non-discrimination. Having a system that departs from the principles of the UK’s criminal justice system, in which judicial oversight is required after days and individuals are released from detention after 96 hours without charge, is antithetical to the principle of the Universal Declaration of Human Rights that:

“All are equal before the law and are entitled without any discrimination to equal protection of the law.”

Setting no time limit on immigration detention impacts on some of the weakest members of society, who already have fewer rights and have likely been under extraordinary physical, mental and economic duress. It effectively pushes people into limbo, taking away their agency and capacity to ensure the well-being of themselves and the people they love.

The negative impact of immigration detention on mental health is well documented in research, with the duration of detention associated with severity of symptoms. A systematic review of the literature found that asylum seekers are likely to have a pre-existing vulnerability to mental health problems, which will be further exacerbated by detention.

As we have heard, the Minister said in Committee that setting a detention time would “encourage and reward abuse” of the immigration system. This proposition tears at the presumption of innocence, replacing it with suspicion and an assumption of guilt. It risks lawmaking being in the service of punishing the many for the crimes of the few. We are not talking here about offenders who should rightly be dealt with by the criminal justice system; we are talking about people who have suffered unimaginable hardships and have come to the UK to escape violence and persecution, in the hope of a better life. Detaining them with no prospect of when they might be released is not the behaviour of a democracy. We are better than this, and it is surely not how we want British citizens to be treated elsewhere.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, it is a pleasure to follow the noble Baroness, Lady Bull, who spoke very eloquently. The noble Baroness, Lady Hamwee, was also very eloquent, in spite of her brevity. This Government are famous for their hostile environment. This is really the most inhumane immigration system, and Britain deserves better. We do not even have parliamentary oversight of this system, which is an appalling lack of democracy. I have signed three amendments in this group, all of which are valid and should be taken seriously by the Government and put into the Bill. Amendment 20 is particularly valuable, and my noble friend Lady Bennett and I will be voting for it.

Moving on from the concept of parliamentary oversight, we need a few things in the Bill. We need time limits on detention and a test of necessity and proportionality. People should be detained only when necessary. As we have clearly heard, detention is often unnecessary. We need a right to bail, with a process in place to facilitate it, and a ban on solitary confinement unless absolutely necessary—and I do mean absolutely necessary. These measures should be applied to all immigration detention, and I call on the Government to bring a Bill to reform the whole system. They have already said that they will do that, but I think the reform I have in mind is not what the Government have in mind. I just repeat that the system we have is inhumane; we need one we can feel proud of.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I shall speak to Amendment 23, which I described in Committee, and in support of Amendment 20—so ably moved by the noble Baroness, Lady Hamwee—and Amendments 21, 22 and 31. When I was Chief Inspector of Prisons, with responsibility for inspecting what were then called immigration detention centres, because the Prison Service at that time was still part of the Home Office, I found that the majority of the management of the immigration system came from there. Most worrying was that there appeared no difference between immigration centre and prison rules, which my inspectorate corrected by rewriting them to better reflect UN and European immigration rules.

We found that a common factor behind all disturbances at immigration centres was disaffected foreign national offenders, who should not have been in them anyway, being sent there only after completing their prison sentence to have their deportation processed. I recommended more than 20 years ago that, as I found happening in Abu Dhabi and Dubai, for example, they should have their deportation processed while in prison so that at the end of their sentence they were taken straight to an airport and out. My recommendation fell on deaf ears then and has still not been acted on, demonstrating yet again the confusion in Home Office minds over the difference between an immigration system, involving innocent people, and a criminal justice one.

With the greatest respect to the Minister, she was briefed to fall into the same trap in her response to these amendments in Committee. Very few detainees satisfy her claim that detention is used:

“Only in the most complex cases, most frequently those involving foreign national offenders, where serious criminality is involved”, so as not to reward the abuse of the system. She also claimed that segregation, which, as many noble Lords pointed out, often results in damage to already fragile mental health, was

“only … used as a last resort when other options have been tried … but failed”.—[Official Report, 14/9/20; cols. 1019-20.]

Her claim that all detainees had access to mental healthcare equivalent to standards in the community has been shown to be, at best, specious in numerous inspection reports.

I must admit that the first I heard of a specialist Home Office team to trace and locate absconders, which I thought was a police responsibility, was in the Minister’s letter of 28 September. Ever since I was chief inspector, I have been recommending a root-and-branch review of the whole immigration system; I still do. I intend to test the opinion of the House. Until then, I beg that this amendment be accepted.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour 11:15 pm, 5th October 2020

My Lords, I support Amendment 23, to which I have added my name, and the others in the group. Since Committee, the Public Accounts Committee’s report has come out —we have heard about it—and it was highly critical of the lack of evidence informing immigration enforcement policy. That has to raise a big question mark over the Minister’s claim, in her letter to Peers, that:

“Detention plays a key role in maintaining effective immigration controls and securing the UK’s borders”.

We have to ask: what is the evidence supporting that claim?

PAC also expressed disappointment that the Home Office is still not sufficiently curious about the impact of its actions, and that little evidence exists that the department actively seeks to identify or evaluate that impact. This is highly pertinent to the impact of segregation and the indefinite detention of detainees, while not knowing how long that detention will last. We have already heard about the lack of hope that means. In both cases, as I documented in Committee and as the noble Baroness, Lady Bull, has done tonight, the impact on mental health is a particular concern. This lack of curiosity around impact might account for the parallel universe that I identified in Committee, in which the Minister’s picture of detention and its effects is light years away from that documented by organisations on the ground.

Another example is the Minister’s claim in Committee —to which the noble Lord, Lord Ramsbotham, has already referred—that

“Removal from association is only ever used as a last resort when other options have been tried … but failed, and only as an effective response to the safety and security risk presented by an individual in detention”.—[Official Report, 14/9/20; col. 1020.]

However, as Medical Justice—which I thank for its support—points out, over 900 incidents of segregation in 2019 alone does not seem indicative of a “last resort”. Medical Justice maintains that it is simply not true that segregation is used only in response to security and safety risks. It has experience of it being used as punishment or to manage detainees with mental health problems, of whom far too many are still being detained. In doing so, segregation is aggravating these mental health problems, which could also have been aggravated by the lack of a time limit, and it is diverting attention and energy from addressing underlying systemic problems that contribute to the behaviour that prompts segregation.

I will ask a couple of data-related questions. I thank the Minister for the management information she gave me on the use of association between January and March 2020. However, I also asked why the Home Office does not routinely publish these data once they can be treated as official. I would be grateful if she could look into this, perhaps, in the interests of transparency. I also thank her for the information on female detainees in her letter to Peers, but those data go up to only 30 June—they are the latest published quarterly statistics—which is three months ago. Is management information available on the current situation; namely, on how many women are currently detained in Dungavel House, Colnbrook, IRCs or prison?

In conclusion, I will argue that nothing in the Minister’s response in Committee or her subsequent letter makes me rethink my support for the amendment, and I hope that others will join me in voting for it in the name of fairness, humanity and the compassion that is supposed to be the future hallmark of Home Office culture.

Photo of Baroness Meacher Baroness Meacher Crossbench

My Lords, I add my strong support to this group of amendments. The noble Baroness, Lady Hamwee, argued cogently—as she always does—in support of these changes to the Bill.

In her helpful letter, the Minister suggests that

“Detention is used sparingly and for the shortest period necessary.”

Detention Action tells a very different story. One of the most important elements of these amendments is that they would end indefinite detention. As someone who worked in mental health services for many years, I am acutely conscious of the appalling consequences of detaining people without any indication of the length of time involved. Many detained indefinitely and for long periods—and, indeed, re-detained—have already suffered severe mental health problems due to their appalling experiences. Even with professional treatment, these problems may take many years to resolve. In my view, it is unforgivable for us, as a nation, to disregard this suffering.

As Detention Action has told us, in a recent case, the High Court found three separate periods of unlawful detention in respect of a vulnerable autistic person, in breach of Article 8 of the ECHR. This is a shocking example of what can happen under the current law. The importance of these amendments is that they would prevent that from happening in the future.

I want to put on record that our Minister was wrongly briefed when she suggested that detention of more than 28 days was limited to those who have committed serious offences. In reality, people with no offending history are regularly detained for periods exceeding 28 days—and even re-detained. These amendments would put an end to these unacceptable practices. The right to apply for bail is no solution for these vulnerable people; they do not all have access to professional legal representation, and many do not speak English. Of course, the most vulnerable—those with mental health problems—are the least able to advocate for themselves.

Another crucial element of the amendments is the commitment to ensuring that re-detention cannot happen unless there is a material change in the detained person’s circumstances. The case of Oliver—quoted in Committee —underlines the cruelty of re-detention. Oliver, as noble Lords will remember, suffered with PTSD, having been imprisoned and tortured in his home country and trafficked twice, yet he was re-detained a year after his release from initial detention. How can we do this to such a vulnerable person?

Of course, not all immigrants have a history as bad as Oliver’s but many detainees have experience of torture or ill treatment and have significant and chronic health problems. Noble Lords know that attempted suicides are commonplace in detention centres and actual suicides have been on the increase in recent years. Some 68% of detained immigrants are not removed from the UK. Surely their detention has been pointless and therefore unjustified. As Detention Action argues, the current system is ineffective, inefficient, harmful and costly. We spend £100 million a year on detention. As we emerge from Covid we can ill afford to be throwing money away. This amendment is a gift to the Chancellor. I was pleased to read that the Home Office is considering alternatives to detention. If the Government also want to avoid detention except when it is absolutely necessary, I hope that the Minister will be able to table amendments at Third Reading to achieve the objectives that I believe we all want to achieve.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords)

The noble Baroness, Lady McIntosh of Pickering, has withdrawn, so I now call the noble Lord, Lord Roberts of Llandudno.

Photo of Lord Roberts of Llandudno Lord Roberts of Llandudno Liberal Democrat

What a privilege it is to share these arguments with people some of whom have been here for many years. I must say how much I appreciate the work that my noble friend Lady Hamwee has done over the years in leading the Liberal Democrat camp.

What sort of world are we aiming for? When we look at what the present Home Secretary proposes, it is even more harsh. She does not propose any end to detention—it is indefinite. Instead she is leading a discussion—I hope it does not come to more than that—on transporting or deporting people to distant islands. The whole thing breaks the spirit of all those people who for some reason or another have found themselves in this detainee situation. The UK should be the leader in building a humanitarian approach to what will be an increasingly difficult situation as climate change and other things affect the areas of Africa that grow the grain and feed the people. The people will move. They will want a new home. Should the UK not join other nations in leading to try to find an honourable way, not one that is so heart-breaking to so many people? I ask the Government to take another look. Let it be a humanitarian look and let us go on to be rather proud not of what we have done in hostility but of what we have done in caring and hospitality.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

I support Amendment 20 and will address the asylum angle. Ms Patel is quite right that the asylum system is broken, but the repairs that are required need not—must not—mean recourse to water cannons or wave machines, disused oil rigs or ferries, Ascension Island or Papua New Guinea, all of which would mean further breaches of international law, this time the refugee convention.

The problem is not the one that Ms Patel addressed yesterday. The realm is not at risk from the summer surge in small boat arrivals. Although as a proportion more are coming that way, overall numbers of asylum applications are sharply down—by 40% compared to one year ago. No doubt that is partly related to Covid-19, but it shows how absurd is talk of invasion. The real problem is how to make the system more efficient and more humane. Ms Patel does not need to think outside the box. The tools are in her hands now. Making it more efficient means putting more resources into tackling the backlog and reducing the queue and providing better guidance to those who have to take the decisions.

The Home Office used to aim to process all straightforward asylum cases within six months. Today, the queue is over 100,000 people, 54,000 of whom are awaiting an initial decision, and 38,756 of the people waiting—72%—have been waiting for more than six months, an increase of 57% compared with this time last year. That too will no doubt be partly virus-related, but the remedy is in the hands of the Home Office.

As for better guidance for those who must decide on asylum applications, it is remarkable that over 40% of initial refusals are overturned on appeal. That rather suggests that instructions to the decision-takers need rapid and comprehensive review. There must be lessons to be learned from losing so many cases on appeal.

Cutting the queue through greater efficiency would be the main thing to do, and so would release from detention within 28 days, as proposed by the noble Baroness, Lady Hamwee, in her amendment. But let us not pretend that we treat asylum seekers humanely even when they are not in detention. They are not allowed to work, and anyone paying an asylum seeker commits a criminal offence, which in my view makes it inhumane to expect asylum seekers to live on £5.66 a day. When, because of the virus, universal credit payments went up by £20 per week, the Refugee Council and others pressed the Government to do the same for asylum seekers. The Government agreed to increase the payment. They increased it from £37.75 to £39.60 per week—an increase of 20p per day.

It cannot be very easy to live off £5.66 per day. In an unfamiliar country, where one may not know the language, the temptation to take a paying job in the black economy must be huge. It is not the asylum seeker’s fault that the queue for a decision, in which he is stuck, is so long. It is the system that is unfair to them. It is as inhumane as it is inefficient, and because it is inefficient, it is inhumane. The amendment tabled by the noble Baroness, Lady Hamwee, and the other amendments in this group, all of which I support, would make it marginally less inhumane.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union) 11:30 pm, 5th October 2020

My Lords, I want to take up just two themes that wove through the debate in Committee. The first was about UK practice compared to that of other European countries. The Minister said in her response to the debate in Committee that

“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.”—[Official Report, 14/9/20; col. 1019.]

I fear that the Minister might have got tripped up by the Brussels phenomenon known as “minimum maximum”, whereby the formulation “maximum of not less than” is part of a directive—or maybe a word got lost from the Minister’s speech, because the Commission’s proposal for the recast of the returns directive—a directive to which the UK of course has not opted in—actually reads:

“Each Member State shall set a maximum period of detention of not less than three months and not more than six months.”

In other words, member states should set a maximum period of detention in their national laws. That maximum period can be between three months and six months. There is no requirement in existing or proposed EU law for individuals to be detained for a minimum of three months, which the Minister’s words might have implied, no doubt inadvertently.

The second theme I will mention is the Government’s contention that detention is a necessary part of efficient and effective immigration enforcement. The report on immigration enforcement from the National Audit Office in June, to which reference was made in Committee, said:

Immigration Enforcement … cites an increase in individuals making late or spurious claims for asylum … It believes many of these claims are used to delay removal but noted in 2019 that it did not have a strategy across the work of Immigration Enforcement and the rest of the Department to mitigate the abuse or to tackle the backlogs being caused by associated delaying tactics. We have not seen any systematic analysis designed to help the Department understand why claims are increasing, or to rule out if Immigration Enforcement’s own actions might have contributed to the increase.”

So my conclusion is that the Government have a lot of work to do across the whole field of immigration enforcement and removals. While they can rely on indefinite detention, they are not doing the work necessary to improve their systems to avoid unnecessary detention. To that end, a limit of 28 days would focus their mind on the other tools they need to have at their disposal and return detention centres to the genuine immigration removal centres that they should be.

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, I intend to be brief, as this has been a long debate and the time is getting on. Amendment 20, moved by the noble Baroness, Lady Hamwee, along with her other amendments in this group, are ones that I support. My Benches will support the noble Baroness when she divides the House. The amendment would limit detention to a maximum of 28 days. As we have heard, people are often released into the community anyway. As the noble Baroness said, that begs the question of why they need to be detained in the first place.

Huge strain, stress and anguish are placed on those who find themselves detained with no clear idea of when that will end. As the right reverend Prelate the Bishop of Southwark said, the Government have had ample opportunity to bring forward an amendment of their own to deal with this issue. I will point out that there is not a single government amendment at this Report stage, and I do not think—I am sure I will be corrected if I am wrong—that there were any government amendments in Committee either. Sadly, that says to me that the Government have learned nothing, and that the hostile environment is alive and well. Despite the lateness of the night, I hope that the amendment is carried by a large majority.

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

My Lords, I too shall try to be as brief as possible. We must have an immigration system which encourages compliance and provides opportunity for people to leave voluntarily, but, where they refuse, we must have the ability to enact that removal. We do not detain indefinitely: there must always be a realistic prospect of removal within a reasonable timescale, and this is a complex process which requires a case-specific assessment to be made for every single person whose detention is considered.

The noble Baroness, Lady Ludford, argued that we were the only European country without a time limit on detention. It is of course more complex than that. I note that no European country has adopted anything close to a time limit as short as that which is proposed in these amendments, as she outlined. I did not get her maximum/minimum point—maybe because it is just too late in the evening—but the EU seems to be very opaque in that regard. Of course, jurisdictions comparable to ours such as Australia and Canada have not gone down this route.

We have a duty to those in the immigration system, but we also have a duty to protect public safety. The introduction of a detention time limit would severely limit our ability to remove those who refuse to leave voluntarily and would encourage and reward abuse, in some cases from individuals who present a genuine threat to the public. It would also 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 that person’s case, potentially placing the public at higher risk through the release of more foreign national offenders into the community.

Immigration detention is a limited but necessary aspect of the removal process. We agree that it should be used only where necessary, for the minimum number of people and the shortest possible time. 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.

Safeguards are central to our commitment to ensure that decisions to detain, and to maintain detention, are properly scrutinised. When a person is referred for detention, an independent detention gatekeeper assesses their suitability for it. Since 2016, this gatekeeper has rejected more than 2,300 referrals for detention.

Case progression panels provide important guidance on the appropriateness of anyone detained under immigration provisions at three-month intervals. We have responded to Stephen Shaw’s recommendations in 2018 and piloted the participation of independent members in these panels, increasing their diversity of professional and cultural expertise, and demonstrably raising the quality of their insight. We are now moving to make this independent element a permanent feature.

Automatic referrals for bail occur at the four-month detention stage for non-foreign national offenders, providing additional external oversight of detention decision-making. It is worth noting that automatic bail referrals are an additional safeguard and do not affect the rights of all detainees to apply for bail at any time, regardless of the timeframe for automatic referrals. Due to the pandemic, bail hearings previously held in court are temporarily being dealt with by remote means, using videolink et cetera. Our response to these unique circumstances has ensured that there is no resulting backlog in bail applications.

The adults at risk in immigration detention policy has strengthened the presumption against detention for vulnerable people, ensuring that people are detained only when evidence of their vulnerability is outweighed by the immigration considerations. Everyone in detention has access to round-the-clock healthcare of the standard that can be expected in the community. Over the last few years, we have increased the ratio of staff to detained individuals in immigration removal centres to ensure that people can access support and advice should they need them. We constantly review and amend staff training materials on the care of vulnerable people.

Detention is already used sparingly and, as noble Lords have said, we continue to pursue alternatives wherever possible; 95% of people who are liable to removal from the UK are managed in the community while their cases are progressed. We are piloting a scheme for vulnerable women who would otherwise be detained at Yarl’s Wood immigration removal centre to be housed and supported in the community prior to their removal.

I need to differ from the noble Baroness, Lady Meacher. In the current immigration system, it is only in the most complex cases—most frequently, though not always, foreign national offenders where serious criminality is involved—that detention exceeds 29 days. In the year ending December 2019, 74% of people were detained for less than 29 days; only 2% were detained for more than six months.

The noble Lords, Lord Kerr and Lord Roberts of Llandudno, talked about the number of cases that we lose on appeal; they are absolutely correct. Many people lodge claims right at the last minute and this makes it very difficult, but there are ways in which we are trying to limit that, for example by dip sampling cases after the two-month point to see if we can expedite them.

Under the amendments, foreign national offenders and others will be automatically released after 28 days, regardless of the risk they pose to the public, even where 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. Of these offenders, 25 had committed some very serious crimes, including rape, offences against children and other serious sexual or violent offences. I do not think any noble Lord would say that letting these offenders out on to our streets would seriously help our public safety efforts.

I 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 the Bill and the ending of free movement for EEA citizens. Removal from association is only ever used as a last resort when other options have been tried, but failed, and only as an effective response to the safety and security risk presented by an individual in detention.

The noble Baroness, Lady Lister, asked me for figures on detention. She will know that the figures change every day, so we would rather rely on published figures than management information. I am sure she understands that. The next quarterly release is at the end of this month, if that helps.

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 they pose to themselves or others. It is an unacceptable risk and one that we cannot accept. As I know that the noble Baroness will press her amendment, it is probably best if I sit down at this point so that she can.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration) 11:45 pm, 5th October 2020

My Lords, I apologise to the noble Lord, Lord Ramsbotham. I share his concerns about segregation; my heavily edited speech was almost illegible by the time I made it, so I crossed out one of the wrong bits.

I thank noble Lords who have supported these amendments and packed so much into what they have said. The noble Lord, Lord Kerr, packed in a lot of criticisms of the whole system, and I agree with every word he said. I hope I anticipated a number of the Minister’s arguments, because they were made in Committee—although I was probably pretty telegraphic in the way I did so.

The Minister said the amendment encourages compliance; the very fact that individuals are plucked out of the community, and do not disappear underground, shows that they comply. The amendment includes in its criteria that detention should be proportionate, which meets the point. It also meets the point about the need to protect public safety. Frankly, it is adding insult to injury—and it really is injury—to the majority of asylum seekers, who are not violent criminals. They are not criminals at all.

However, all this misses the point. It is about detention being indefinite. The Minister says that it is not indefinite; it always has an end and that is not the same as being indefinite. The individuals do not know when it must end. It is that uncertainty and loss of hope which are so inhumane and damaging. I beg to test the opinion of the House.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords)

I apologise, but the noble Lord, Lord Green of Deddington, wished to have a word after the Minister. I ask him to be brief.

Photo of Lord Green of Deddington Lord Green of Deddington Crossbench

I was dropped accidentally—I was due to speak after the noble Baroness, Lady Ludford. I shall be extremely brief.

We have now had a very full and effective response from the Minister. We should be in no doubt: these amendments sound humanitarian and are no doubt well-intentioned, but in practice they would be wrecking amendments. It is surely obvious that anyone subject to removal would only have to prevaricate for 28 days, perhaps with the help of a lawyer, and he or she would then be released and free to join the very large number of illegal immigrants already in this country.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

My Lords, I am sorry to interrupt the noble Lord but there is capacity for him to ask a short question of elucidation at this point, and that is all. If the noble Lord has a question, he is welcome to ask it, but I am afraid that that is all that is possible after the Minister.

Photo of Lord Green of Deddington Lord Green of Deddington Crossbench

I will just say that I will vote against this amendment.

Ayes 184, Noes 156.

Division number 7 Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Report (2nd Day) (Continued) — Amendment 20

Aye: 184 Members of the House of Lords

No: 156 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Division conducted remotely on Amendment 20

Amendment 20 agreed.