Schedule 5 - Immigration bail

Part of Immigration Bill – in a Public Bill Committee at 4:15 pm on 3rd November 2015.

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Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 4:15 pm, 3rd November 2015

I am grateful for that intervention; it certainly clarifies the issue and deals with part of my concern. As the Minister will know, the High Court looked at this in 2010. The case then went to appeal and its decision was upheld. The High Court said that,

“the use of immigration detention to protect a person from themselves, however laudable, is an improper purpose” and that,

“there are alternative statutory schemes available under section 48 of the Mental Health Act 1948 or under the Mental Health Act 1983” for people with acute and real mental health issues. Notwithstanding the intervention, the concern is that on their face, the provisions are wide enough to enable an individual to be detained in such circumstances. I will wait to hear what the Minister says about how his assurance will be carried into effect in practice, because the provisions are currently wide in the Bill.

I conclude by asking the Minister two questions. First, in what circumstances, if not the harm to self or harmed by others examples—classic criminal justice examples—is it envisaged that the provisions would be used? Secondly, how does the Minister intend to put his assurance, or at least his statement of intention, into practice to ensure that it is not used in the way that the High Court thought inappropriate, as endorsed by the Court of Appeal in 2011 and 2014, and is now considered inappropriate in a criminal justice context? I will wait for the Minister to deal with those two questions before saying any more on that.

Amendment 204 is intended,

“to restore the power provided by Section 4(1)(c) of the Immigration and Asylum Act 1999 for the Secretary of State to provide such accommodation pursuant to a detainee’s application for bail to the Tribunal.”

It is a practical amendment. In part 5 of the Bill, the Home Office is making changes to arrangements for support to be applied to persons under immigration control. We will get to that part of the Bill in due course. One set of circumstances in which support is provided is in the case of persons who might be released on bail who would otherwise be destitute. In other words, section 4(1)(c) of the Immigration and Asylum Act 1999 is used to enable an individual to be granted bail. The concern is that in the absence of that support, the individual will not be able to propose a bail address to the tribunal. If that is the case, they will be detained in circumstances where they would not otherwise be detained.

I am not sure whether that was the intention of those drafting the Bill, but it appears to be one of the consequences. If we are wrong about that, we will reconsider the amendment, but it seems that the consequence could be that a number of people who under the current system would be granted bail without difficulty, because they can provide an address because of the support they have received, will now not be able to do so and will not be bailed, to their detriment and to the detriment of public expense.

Amendment 206 picks up the same theme. It is intended:

“To provide a right of appeal to the First-Tier Tribunal (Asylum Support) where the Secretary of State decides not to provide support or to discontinue support under this Part to enable a person to meet bail conditions”.

I think that the background points are pretty much the same as the points that I have just made.

Amendment 205, linked to the previous two amendments, would remove the purported limitations on the use of powers to provide support to people to enable them to meet bail conditions to situations where the Secretary of State considers that there are “exceptional circumstances” justifying its use. We have similar concerns here. We wait to hear what the Minister has to say on those three amendments. If our concerns about possible unintended consequences are allayed, it may be sufficient for us to have set out the concerns.

Finally, amendment 207 would provide that a person arrested without a warrant and detained because it was considered that they had breached bail, or there were reasonable grounds for suspecting that, is brought before a tribunal. The amendment almost speaks for itself. In a number of contexts, individuals are released on bail or condition. It happens frequently in the ordinary criminal justice arena. It also operates for those released from prison on condition. In most circumstances, where someone is arrested and re-detained on the basis that they have breached bail conditions, there is usually a provision for a tribunal before which that individual can argue that they had not in fact breached bail. There are thousands of cases, year in, year out, where on examination by a tribunal it is found that the suspected breach of bail is not made. The person concerned is usually put back in the position they were in before being arrested for breach of a bail condition. The amendment would align the provisions with that common-sense approach that prevails elsewhere. That brings me to the end of this group of amendments.