Lord German:

Moved by Lord German

131: Clause 41, page 36, line 8, leave out subsection (17)Member's explanatory statementThis Amendment removes the retrospective element of the changes made by this clause.

My Lords, in moving Amendment 131, I will also speak to Amendments 132 to 135 and Amendment 210 in my name. First, this amendment would provide a time limit of 28 days’ detention for persons detained for immigration purposes; secondly, it would introduce general criteria for detention to ensure that detention for the purpose of removal would be used only when strictly necessary and proportionate, and when the person can be shortly removed; thirdly, it would ensure effective judicial oversight of detention via the First-tier Tribunal, with automatic bail hearings after 96 hours of detention.

I tabled this amendment because, having engaged with the findings of the Brook House Inquiry, visited immigration detention centres and spoken to current and ex-detainees, I believe that it is a change that needs to happen. When I visited an immigration removal centre last year and spoke to detainees and staff, it was made clear to me that case progression for immigration detainees is slow and hampered by staff shortages. Further to this, detainees were unaware of the progress on their cases and when they could expect to leave detention or be removed. Communication to them was minimal and this clearly led to despair and frustration with the lack of hope for the future.

In its 2025 report on the progress of Harmondsworth IRC, the inspectorate noted that case progression was poor in six of the eight cases reviewed. The inspectorate reports common reasons for excessive periods of detention as including

“poor case progression; delays obtaining travel documentation; delays in securing appropriate release accommodation; and failures or delays in recognising high levels of vulnerability.”

With no limit on how long someone can be detained and no set time for their detention, there is no incentive for or pressure on the Home Office to make swift, accurate decisions.

A time limit set at 28 days, together with automatic bail hearings, would ensure sufficient time for the Home Office to proceed with removal in circumstances where impediments to these processes, such as outstanding legal appeals or unavailability of travel documents, have already been resolved.

In 2024, more than 50% of people held in immigration detention by the Home Office were later released back into the community under some form of immigration bail—a clear indication that the detention was likely unnecessary or even unlawful. According to the most recent Home Office annual report and accounts published on 17 July, from 2024 to 2025 the Government paid out compensation for unlawful wrongful detention in 334 cases, totalling £10.4 million. In 2023-24, there were 838 cases, totalling £11.8 million. This is clear evidence that significant numbers of people are detained wrongly or unlawfully each year. Without their having access to appropriate legal appeals or processes, the Home Office could have continued to detain them.

These amendments intend to significantly reduce the incidence of unnecessary detention and reduce the considerable suffering and inefficiency inherent in the current detention system. This would help to ensure that immigration detention is used only when a person has exhausted all appeals and removal is imminent and no viable alternatives are available. I appreciate that the Government will state that immigration detention is not indefinite. Indeed, the Minister for Border Security and Asylum recently stated:

“Immigration centres are not used for indefinite detention. We can only keep anyone in detention in an immigration centre if there is a reasonable prospect of their removal. If there is not, they have to be released”.—[Official Report, Commons, 2/6/25; col. 18.]

The point here, of course, is that for the individual that experience can be indefinite, but there is certainly no straightforward answer when people ask that question.

The call for a statutory time limit on immigration detention has been made consistently by lots of expert bodies, including, of course, the Home Affairs Select Committee of the other place, the Joint Committee on Human Rights, the Chief Inspector of Prisons, the Independent Monitoring Boards, the British Medical Association, the Equality and Human Rights Commission, the Bar Council and, of course, the Brook House Inquiry. So against that, there is a mound of evidence in favour of these amendments.

Even in the most serious criminal cases, judicial oversight of detention is required after 36 hours and individuals must be released from detention after 96 hours if charges are not laid. Those suspected of terrorism offences can be held for a maximum of 14 days. Further to this, the statutory purpose of immigration detention is to effect removal, not to serve as indefinite detention to prevent reoffending.

Conditions in IRCs are often harsh and prison-like, with people routinely locked in cells for up to 12 hours a day. In a recent report on an IRC, the Chief Inspector of Prisons noted:

“A longstanding and fundamental problem was that all immigration detainees at Brook House, who should be held in relaxed conditions with minimal restrictions, were instead in an institution that looked and felt like a prison”.

The centre simply did not have enough space or experienced staff to manage an increasingly vulnerable population. Behind that, of course, we have the Brook House Inquiry, published in 2023, which recorded over a five-month period 19 incidents or acts of omission capable of amounting to mistreatment in breach of Article 3 of the ECHR.

Reducing the period of detention is therefore important in reducing harm. When this proposal has been debated previously, the concern has been expressed that detainees will run down the clock to frustrate removal and subsequently be granted release. But the amendment permits re-detention beyond the period of 28 days when there has been a material change of circumstances which could, for example, include a situation when an individual’s appeal rights are exhausted or a travel document is issued.

There are, however, a range of criminal sanctions available under Section 26 of the Immigration Act 1971 that enable anyone seeking to frustrate the system to be prosecuted. Under these proposals, the tribunal can refuse to grant bail if removal restrictions are set and removal is to take place within the following 21 days. Further, these proposals do not impact the broad powers of the First-tier Tribunal to set conditions for immigration bail under paragraph 2 of Schedule 10 to the Immigration Act 2016. These include reporting and residence conditions, financial conditions and such other conditions as it deems fit. These proposals all exempt cases where the Secretary of State has certified that the decision to detain was taken in the interest of national security.

I would like to probe the Minister on another avenue to reducing time in immigration detention. For people serving a sentence of imprisonment who have been issued with a deportation notice in prison, custodial sentences provide sufficient time for immigration cases to be resolved. In this time, the Home Office can obtain the travel documents and make arrangements to facilitate a person’s lawful and efficient deportation on release from prison—in other words, a straight-through process without having to go through the intermediary steps and the time that that takes.

As a way of reducing the cost and harm of immigration detention, will the Minister consider the merits of progressing individuals’ criminal deportation cases while they are serving their sentences? Further to this, the Independent Chief Inspector of Borders and Immigration, following his inspection in 2022-23, stated that the Home Office was “not making best use” of the early removal scheme or the facilitated return scheme. These schemes could also reduce numbers entering immigration detention.

With all that in mind, I hope that these amendments will enable us to understand how the information that has been provided by such a wide range of organisations will enable the Government to look at changing the measures that they currently use and to implement measures, such as those contained in these amendments, both to increase the number of people who voluntarily return to their home who are detained for the purpose of removal and to ensure that we do not have the ins and outs of a continuing cycle of removal and bail in immigration detention, with people going in and out without seeing an end in sight. There is a lot to be dealt with here. A lot of expert independent inspection advice has been given to the Government and made available to both Houses through our Joint Committee on Human Rights and the Home Affairs Committee in the House of Commons. It requires action, which these amendments seek to fulfil in this part of the Bill.

My Lords, I shall make my remarks as brief as possible. We on this side of the House oppose Amendment 131 on the grounds that it undermines a key provision of the borders Bill and creates a two-tier system where some people are rightly subject to stricter conditions but others are not. The amendment would, in effect, disapply these provisions from individuals who ought to be subject to them. If these provisions are, as noble Lords rightly recognise, necessary to strengthen our ability to act, then surely they should apply equally to all relevant cases from the moment the Act comes into force.

We on this side also oppose Amendment 132, which would result in the release of people from detention possibly before any determination had been made on them and before we could be assured that it was safe and in the national interest to do so. This would result in the release of people when their identities remained unclear and we did not know why they were here or what threat they might pose to the country. We know of cases where people who arrived here illegally went on to plan and very nearly execute major terrorist attacks sponsored by hostile foreign states, as happened in May last year. It would be deeply irresponsible to allow such individuals to walk free while essential checks were still ongoing.

Amendment 140 in the name of my noble friend Lord Swire, who I note is not present in his place, would require the Secretary of State to make a biannual report on the number of foreign criminals detained awaiting deportation under any authority broken down by nationality, and on the number of illegal entrants detained for any purpose under any authority broken down by nationality. This amendment would provide much-needed clarity on who was being detained and goes to the heart of a point that we on these Benches have raised consistently.

The British people have a right to know who is being detained and where they are from. If we are to foster good will towards those who genuinely need our help, this must be done in a framework of trust and openness between the Government and the public. For these reasons, while we welcome Amendment 140 for the clarity and transparency it brings, we cannot support the Majority of the amendments in this group. They would weaken key provisions, create loopholes and make it harder for us to maintain the strength and integrity of our immigration and asylum system.

The challenge we face is significant and demands a robust response. No one will benefit in the long term if we fail to take control now. The British people will lose patience, trust will erode and good will towards migrants who genuinely need our help will diminish. Once that good will is lost, it cannot easily be recovered. We must bring the public with us, not alienate them, and that requires a system that is both strong and fair. These amendments do not achieve that.

What a note to finish the evening on. I find myself in agreement with the tone of the noble Lord, Lord Davies, and I find myself not in agreement, I am afraid, with the noble Lord, Lord German, so it is an interesting end to a long day of debate.

Immigration detention is an issue that I know noble Lords feel strongly about. The purpose of Clause 41 is to clarify the existing statutory powers of detention where the Home Office is considering whether deportation is conducive to the public good, and the consequential amendments to existing powers to take biometrics and searches upon being detained for this purpose. It is the Home Office’s position that the current detention power is lawful. This clause provides greater legal clarity regarding its application. Without the retrospective effect of this clause, individuals could challenge the lawfulness of their detention. Such claims risk undermining the integrity of past deportation proceedings and frustrating future deportation proceedings.

Amendment 131 in the names of the noble Lord, Lord German, and the noble Baroness, Lady Brinton, seeks to remove that retrospective effect. I do not believe that is a productive way forward because, as I mentioned, Clause 41 clarifies these powers. The Home Office already detains individuals at the first stage of deportation. Clause 41 is not expected to increase the use of detention powers but is intended to remove ambiguity and ensure that existing practices are legally robust.

On Amendment 132, tabled by the noble Lord, Lord German, with support from other noble Lords, it is important to make clear the Government’s position that a statutory time limit on detention will not, in our view, be effective in ensuring that those with no right to be in the UK actually leave the UK. The Government have been clear that we are committed to increasing removals of people who have no right to be here. That is what the public expect and, in that vein, I am on the same page as the noble Lord, Lord Davies.

In the year ending March 2025, there were 8,600 enforced removals—a 22% increase on the previous year—and that would not be possible with a time limit on detention because it would simply not be possible to achieve that level of numbers. It is crucial that we have an immigration system that encourages compliance. Under a 28-day time limit, people who have no legal right to be in the UK—including, as the noble Lord, Lord, Davies, mentioned, some who potentially have committed serious crimes—would be automatically released after 28 days, regardless of whether they have actively obstructed removal efforts or pose a clear risk to the public. We have a duty to protect the British public, and it is simply not safe to have an automatic release date, particularly because foreign national offenders, who may have committed serious criminal offences, would benefit from this amendment equally to anybody else.

Additionally, such a time limit is likely to encourage and reward abuse of the system by allowing those who wish to guarantee their release to frustrate removal processes until they reach that 28-day limit. It would encourage late and opportunistic claims to be made that would potentially push people over the 28-day limit, and this would undermine effective immigration control and potentially place the public at risk.

Amendment 133 requires that, after 96 hours of detention, a person may continue to be detained only if they have been refused bail by the First-tier Tribunal or are awaiting a scheduled bail hearing. This would again, in my view, place significant additional burdens on an already-stretched tribunal service, and the increases would simply be unsustainable.

There are a number of safeguards in the detention process—I hope this will reassure the noble Lord—including access to the courts by judicial review; bail applications, which can be made at any point; and automatic referrals for consideration of bail for those detained for slightly longer periods. With these mechanisms in place, the transfer of these powers to the tribunal is not necessary.

I recognise and understand that there are concerns about prolonged periods of time in detention. The law is currently clear that we have powers to detain people only for a reasonable period to carry out a specific purpose, either to examine a person on their arrival, to remove or to deport. We have a number of safeguards in place, and I assure noble Lords that, where removal cannot be achieved within a reasonable timeframe, these safeguards ensure that people are released. I know that will not satisfy the noble Lord, but I put that for him to consider today in order to withdraw the amendment, which we can return to later.

I know the noble Lord, Lord Swire, has tabled Amendment 140. Sadly, he has not managed to be here this evening, but when he looks at Hansard in the cold light of day tomorrow morning, he will see that we include data which includes illegal entrants. We also produce and publish additional statistics on the number of foreign national offenders subject to removal and deportation, so that amendment is unnecessary. With that, I hope the noble Lord, Lord German, will withdraw his amendment.

My Lords, I am obviously disappointed that the evidence produced by the inspectorate and many other bodies, including the House of Commons Justice Committee and our own committee on human rights, if not exactly thrown out of the window, has not necessarily received the full consideration we are speaking of. I hear what the Minister says, and I will reflect on that. I and the other supporters of this issue may well come back to it later. With that, I beg leave to withdraw my Amendment.

Amendment 131 withdrawn.

Clause 41 agreed.

Amendments 132 to 135 not moved.

House resumed.

House adjourned at 11.27 pm.