See explanatory statement for Amendment 113.
Amendment 131, in schedule 5, page 80, line 15, leave out ““bail condition”, in relation to a person on immigration bail, means a condition to which the person’s bail is subject.” and insert ““temporary admission condition”, in relation to a person on temporary admission bail, means a condition to which the person’s temporary admission is subject.”.
Thank you, Mr Owen. It is a daunting list of amendments; I am sure those on the Government Benches are asking themselves whether I intend to push each of them to a vote, which would probably take us most of the rest of the afternoon.
These amendments are all directed to the concern that there is a merging in the Bill of immigration bail into what is, in truth, temporary admission. Temporary admission, temporary release and bail are being replaced by one form of admission, subject to conditions, which is being called “immigration bail”. The purpose of the amendments is to re-name “immigration bail” as “temporary admission”. Not only will that accurately reflect the status of the individual; it carries with it presumptions and assumptions about the way they are to be treated. The best example of that I can give is that, in relation to temporary admission, the presumption is in favour of temporary admission. By re-naming it immigration bail, the presumption—not in the Bill, I accept, but in practice—is one of detention, to which bail is the exception. This will obviously affect a wide category of individuals, including refugees, children, survivors of torture, trafficked persons and so on. Those presumptions and assumptions make a real difference on the ground and these amendments address that concern.
It is important to remember that not all people who are being detained in detention centres are criminals or offenders. With that in mind, the wording and terminology is extremely important as we do not want to create a system or a process that gives a false, misleading or wrong impression. The Bill removes the concept of temporary admission and creates a situation whereby anyone without leave who is waiting for a decision on their application will be on immigration bail. Therefore, saying that someone is on immigration bail implies that they have conducted a criminal act of some sort, and that they are on temporary release from their place of imprisonment. However, as has been pointed out by the helpful House of Commons Library paper, people can be detained for a number of innocent and excusable reasons, such as detention until such time as a person’s identity or basis of claim has been established—asylum seekers, stateless citizens and so on. It is not right to claim that such people are on bail, since they are innocent people who have not done anything wrong. As such, “temporary admission” is a more fitting and appropriate term.
The Immigration Law Practitioners’ Association and others make the important point that:
“The terminology of ‘immigration bail’ suggests that detention is the norm and liberty an aberration and also suggest that persons seeking asylum are a form of criminal”.
Liberty also makes the point that:
“A large number of asylum seekers, previously granted temporary admission will now be seen exclusively through a prism of detention and bail, casting aspersions of illegitimacy and criminality”.
I thank the hon. and learned Member for Holborn and St Pancras and the hon. Member for Paisley and Renfrewshire North for their contributions to this debate. As has already been alluded to, clause 29 simplifies the current complex legal framework contained in schedule 2 and schedule 3 to the Immigration Act 1971 that allows individuals to be released while liable to immigration detention. The clause brings into force schedule 5 to the Bill which replaces six separate existing bail, temporary admission and release on restriction powers with a single clear framework setting out who can be bailed under immigration powers; the conditions that can be imposed on individuals; and the consequences if an individual breaches bail conditions.
The administration of the system will be largely unaffected by the changes. Rather, it is the underlying power that is being modified. The role of the Home Office and the tribunal would be largely unchanged and processes will remain the same. In responding to the amendments, it is important to understand that we do not seek to change anything as a consequence of this in terms of the treatment of people. It is important to spell out that clause 29 and schedule 5 do not effect any change in policy. Our policy remains one under which there is a presumption of liberty.
As hon. Members have highlighted, the amendments essentially serve the same purpose. They rename immigration bail “temporary admission”. It has been said that the use of the term bail may give some criminal context to individuals. I reject that view. The concept of immigration bail is long established and there should not be any confusion with criminal bail, which is provided for under an entirely separate legislative framework. We heard in evidence to our Committee that Schedule 5 simplifies a number of these provisions. We believe it will make these structures and systems more understandable and easier to follow by having them in the one place and presented in the way that they are. Individuals will have a much better understanding of the system and of their position.
It has also been said that the reference to immigration law reflects a change in policy, perhaps indicating that there is some emphasis that is taking us in a different direction. That is absolutely not the case. There is no presumption for immigration detention. I want to be clear that that is not the case. Our policy remains as it is on the presumption of liberty with the use of detention only as a last resort.
I note the point on the terminology of immigration bail. We reflected on the language and determined to choose it, because we believe that it is already commonly understood among practitioners in the system and should therefore aid attempts to understand the system better. It is not in any sense an effort to give some sort of criminal context nor to change policy in any way. It is, rather, using a term that is already used in many contexts that would continue to be covered in respect of the provisions that clause 29 and schedule 5 seek to operate.
I recognise the extension that has been highlighted in the different forms of leave. In our judgment, it would make it more complex to try to self-categorise and we therefore, in drafting the Bill, felt that the term bail reflected the right approach and terminology. I take on board the genuine sentiment behind the amendments, but with the clarity that I have given on there being no change in emphasis, policy or the manner in which anyone would be viewed or treated under the provisions, I hope that Members will withdraw their amendment.
Sarah Champion rose—
The Minister is extremely generous. I think the Minister understands where we are coming from. We have an international reputation for our human rights and for the progressive way in which we treat immigration issues. But there has been an undercurrent of language that has been used by the Government and has also been cropping up in this Committee. The language is more aggressive in tone and we have been told that it is about putting out statements to prevent people coming here. While I completely agree with the Minister’s logic, I think the use of the term “bail” has criminal connotations in the general population.
The tone the Committee has adopted towards the measures in the Bill has been that they should be firm but fair. That is the approach that I have sought to provide. Yes, this is about sending a clear message that those who have no right to be in the country should leave, and we will support and facilitate that. With regard to the specific provision, it is not a pejorative term. The term immigration bail is already used and I have sought to distinguish it from criminal bail. That is understood in respect of the differences in the system.
The hon. Member for Paisley and Renfrewshire North was right that people who might be subject to an Immigration Act might not have committed a criminal offence. Detention can be and is used properly for the removal of someone who does not have the right to be in the country to their home country. Bail may be appropriate if it is determined that the principles that underpin detention—often referred to as the Hardial Singh principles—are not adhered to. In such circumstances, bail or continued detention may not be appropriate.
It is understood in that context, rather than having any negative sense. I certainly would not wish to communicate to the Committee—and I do not think I have—any negative approach or term by the use of the word bail in the context of this provision. I do understand the sentiment and the point made by hon. Members across the Committee. With that clarity of intent and approach towards the provisions, I hope that the hon. and learned Member for Holborn and St Pancras will withdraw the amendment.
I rise briefly to speak to clause 29 as I know that the more substantive debate will be on the underlying schedule—schedule 5. I emphasise that the proposal is intended to give clarity to the circumstances in which immigration bail is intended to operate. There are various lines of cases that operate in this sphere, in particular a current Court of Appeal case that has suggested that immigration bail conditions could be applied only when there was a right to detain. That certainly goes against existing understanding and practice and pre-existing law. That particular case is subject to appeal to the Supreme Court and has been stayed, so it does not have immediate effect.
Our judgment is that the provisions in clause 29 and schedule 5 give further clarity and are important in the context not only of simplification, putting everything into one place and promoting better understanding, but of providing clarity and certainty in law. That is why I hope that the Committee will be minded to include the clause in the Bill.