Part of Border Security, Asylum and Immigration Bill - Report (2nd Day) – in the House of Lords at 4:30 pm on 3 November 2025.
Lord Hanson of Flint
The Minister of State, Home Department
4:30,
3 November 2025
I am grateful to the noble Baroness, Lady Jones of Moulsecoomb, for her amendments and how she presented them. She said that she was trying to be helpful and supportive on these matters, and I am grateful for that.
Amendment 28 seeks to add Section 12 of the Illegal Migration Act to the list of sections of that Act being repealed under this Bill. Section 12 of the Illegal Migration Act establishes that it is for the Home Secretary, rather than the courts, to determine what is a reasonable period to detain an individual for a specific statutory purpose, such as for removal. The noble Lord, Lord Harper, raised a point that I would wish to set out: the Home Secretary is a Member of the House of Commons, and I answer for the Home Secretary in this House on matters to do with the Home Office. Therefore, we are accountable to Parliament for the decisions that are taken.
The important point that I want to put to the noble Baroness is that, even with Section 12 in force, the courts will continue to have significant oversight over detention. That goes to the point that the noble Lord, Lord German, made today and my noble friend Lady Lister made in Committee. Individuals detained under immigration powers may apply at any time to the First-tier Tribunal Immigration and Asylum Chamber for immigration bail, where a judge will assess whether their continued detention is justified. If they consider that it is not, they will grant immigration bail. Therefore, the Home Secretary will have more discretion, but there will still be judicial oversight of immigration bail.
Additionally, as I said in Committee, individuals can challenge the legality of their detention through a judicial review in the High Court, where the court will consider whether the Secretary of State made a reasonable decision in detaining a person or in continuing their detention. If the court considers that the Secretary of State did not act reasonably, it will ensure that that person has access to an appropriate remedy, including ordering a release if appropriate. Again, there will be greater discretion for the Home Secretary, but there will also be strong judicial oversight and parliamentary oversight of this matter.
Section 12 simply makes it clear that the Secretary of State’s judgment of what is a “reasonable” period of detention should have more weight. That is logical, since the Home Office is in full possession of all the relevant facts and best placed to decide whether continued detention is reasonable in all the circumstances. That could include safeguarding the public, safeguarding an individual or the issues of cost that have been mentioned. Ultimately, the Home Secretary will determine what is reasonable based on the information before her. The noble Lord, Lord Sandhurst, from the Opposition front bench, added his voice to those general concerns.
Section 12 also provides for detention to continue for a reasonable period while arrangements are made for a person’s release. That is particularly important when, for example, we need foreign national offenders to be accommodated in a specific location in accordance with their licence conditions, or to make safeguarding referrals for vulnerable people. Previous case law established the principle of a grace period to enable a person’s release, and Section 12 now provides legal clarity by placing that on a legislative footing.
Section 12 applies to all immigration detention powers. The noble Baroness’s Amendment 30, which is consequential to Amendment 28, seeks to ensure that the provisions that apply to Section 12 are repealed. Although I know that the noble Baroness is trying to be helpful on this matter, for the reasons I have just set out, it is right that Section 12 is retained for all immigration detention powers, to give the Secretary of State an additional discretion. None the less, that will be subject to parliamentary oversight and judicial oversight.
The noble Baroness’s Amendment 32 seeks to remove the retrospective effect of Clause 41. As Members have discussed, Clause 41 clarifies the existing statutory powers of detention where the Home Office is considering whether deportation is conducive to the public good and consequential amendments to existing powers to take biometrics and searches upon being detained for this purpose.
I argue that it remains the Home Office’s position that the current detention power is lawful. This clause provides greater legal clarity regarding its application. The key challenge of not having the retrospective effect—this is the key point that a number of noble Lords have mentioned in their contributions—would be that such claims risk undermining the integrity of past deportation proceedings and frustrating future deportation proceedings. Clause 41 clarifies these powers. It is not expected to increase the use of detention powers, but it is intended to remove ambiguity and ensure that existing practices are legally robust.
The noble Lord, Lord German, asked when and how we can review this matter. We will keep all matters under review. There are further potential issues around immigration and asylum trailed with the immigration white paper. We have got to keep these matters under review at all times. I would argue to both him and the noble Baroness, Lady Jones of Moulsecoomb, that the extension of the Secretary of State’s powers is still subject to all the legal oversight that she would wish it to have and is ultimately still subject to parliamentary scrutiny on how those powers are exercised. I will answer to this House if there are any abuses of that power that Members wish to draw to the attention of either House—to the Home Secretary or to me, as the Minister accountable in this House. I therefore urge the noble Baroness to withdraw the amendment.
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