Amendments 21 and 22

Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Report (2nd Day) (Continued) – in the House of Lords at 12:03 pm on 5th October 2020.

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Baroness Hamwee:

Moved by Baroness Hamwee

21: After Clause 4, insert the following new Clause—“Initial detention: criteria and duration (1) The Secretary of State may not detain any person (“P”) to whom section (Time limit on immigration detention for EEA and Swiss nationals) applies under a relevant detention power, other than for the purposes of examination, unless the Secretary of State is satisfied that—(a) P can be shortly removed from the United Kingdom;(b) detention is strictly necessary to effect P’s deportation or removal from the United Kingdom; and(c) the detention of P is in all circumstances proportionate.(2) The Secretary of State may not detain P under a relevant detention power for a period of more than 96 hours from the relevant time, unless—(a) P has been refused bail at an initial bail hearing in accordance with subsection (5)(b) of section (Bail hearings); or(b) the Secretary of State has arranged a reference to the Tribunal for consideration of whether to grant immigration bail to P in accordance with subsection (2)(c) of section (Bail hearings) and that hearing has not yet taken place.(3) Nothing in subsection (2) authorises the Secretary of State to detain P under a relevant detention power if such detention would, apart from this section, be unlawful.(4) In this section, “Tribunal” means the First-Tier Tribunal.(5) In this section, “relevant detention power” has the meaning given in section (Time limit on immigration detention for EEA and Swiss nationals).”Member’s explanatory statementThis new Clause is linked to new Clause “Time limit on immigration detention for EEA and Swiss nationals” by specifying certain criteria that must be met during the initial detention and that the initial detention period should be no longer than 96 hours.

22: After Clause 4, insert the following new Clause—“Bail hearings (1) This section applies to any person (“P”) to whom section (Time limit on immigration detention for EEA and Swiss nationals) applies and who is detained under a relevant detention power.(2) Before the expiry of a period of 96 hours from the relevant time, the Secretary of State must—(a) release P; (b) grant immigration bail to P under paragraph 1 of Schedule 10 to the Immigration Act 2016; or(c) arrange a reference to the Tribunal for consideration of whether to grant immigration bail to P.(3) Subject to subsection (4), when the Secretary of State arranges a reference to the Tribunal under subsection (2)(c), the Tribunal must hold an oral hearing (“an initial bail hearing”) which must commence within 24 hours of the time at which the reference is made.(4) If the period of 24 hours in subsection (3) ends on a Saturday, Sunday or bank holiday, the Tribunal must hold an initial bail hearing on the next working day.(5) At the initial bail hearing, the Tribunal must—(a) grant immigration bail to P under paragraph 1 of Schedule 10 to the Immigration Act 2016; or(b) refuse to grant immigration bail to P.(6) Subject to subsection (7), the Tribunal must grant immigration bail to P at a bail hearing unless it is satisfied that the Secretary of State has established that the criteria in subsection (1) of section (Initial detention: criteria and duration) are met and that, in addition—(a) directions have been given for P’s removal from the United Kingdom and such removal is to take place within 14 days;(b) a travel document is available for the purposes of P’s removal or deportation; and(c) there are no outstanding legal barriers to removal.(7) Subsection (6) does not apply if the Tribunal is satisfied that the Secretary of State has established that the criteria in subsection (1) of section (Initial detention: criteria and duration) above are met and that there are very exceptional circumstances which justify maintaining detention.(8) In subsection (6), “a bail hearing” includes—(a) an initial bail hearing under subsection (2); and(b) the hearing of an application for immigration bail under paragraph 1(3) of Schedule 10 to the Immigration Act 2016.(9) In this section, “Tribunal” means the First-Tier Tribunal.(10) The Secretary of State shall provide to P or P’s legal representative, not more than 24 hours after the relevant time, copies of all documents in the Secretary of State’s possession which are relevant to the decision to detain.(11) At the initial bail hearing, the Tribunal shall not consider any documents relied upon by the Secretary of State which were not provided to P or P’s legal representative in accordance with subsection (10), unless—(a) P consents to the documents being considered; or(b) in the opinion of the Tribunal there is a good reason why the documents were not provided to P or to P’s legal representative in accordance with subsection (10).(12) In the Immigration Act 2016, after paragraph 12(4) of Schedule 10 insert—“(4A) Sub-paragraph (2) above does not apply to the refusal of bail within the meaning of section (Bail hearings) of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.””Member’s explanatory statementThis new Clause is linked to new Clauses “Time limit on immigration detention for EEA and Swiss nationals” and “Initial detention: criteria and duration” by providing for bail hearings during the initial detention period of 96 hours.

Amendments 21 and 22 agreed.

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

We shall not be moving Amendment 23 tonight.

Consideration on Report adjourned.

House adjourned at 12.05 am.