Schedule 5 - Immigration bail

Part of Immigration Bill – in a Public Bill Committee at 4:30 pm on 3rd November 2015.

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Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration) 4:30 pm, 3rd November 2015

I appreciate the manner in which the hon. and learned Gentleman has sought to raise this issue. As I have tried to elucidate, there has to be an examination on a case-by-case basis but, to return to the principles, the purpose of immigration removal centres and of detaining somebody should be for removal. However, there may be public protection issues as well, particularly if we are looking at foreign national offenders, for example. There are other elements which sit alongside this. There could be someone who is potentially dangerous, and obviously balancing decisions must be taken on the use of immigration detention for public protection reasons.

I understand the point that the hon. and learned Gentleman makes about whether, from the utility of a public protection standpoint, the provisions and the conditions for immigration bail might be triggered purely on the basis of the individual’s state of mind. I am happy to reflect further on that. Certainly, as I have set out, the approach and the intent concerns what is an appropriate setting for someone. I will look at what the hon. and learned Gentleman has said in Committee and, if there is some further clarification that I can offer, I will certainly review that. There is a sense of the most appropriate setting, and immigration removal centres have to meet certain criteria. The normal Hardial Singh-type principles on detention operate. The hon. and learned Gentleman has made a specific point on mental health, and I will reflect further on whether there is anything I can add to what I have said.

Amendment 199 would require a bail hearing in the tribunal after eight days, after 28 days, then every 28 days thereafter. As I have highlighted to the Committee, the Government take matters of liberty extremely seriously, but we do not consider that there is a need for mandatory judicial oversight of detention in terms of the checkpoints that the hon. and learned Gentleman outlined. There is already well-established judicial oversight available. Individuals detained under immigration powers have unrestricted opportunity to apply to the tribunal for bail at any time. They can also apply for a judicial review of their detention, or for a writ of habeas corpus to the High Court, again at any time.

The current system was designed to be flexible in the interests of justice, and allows the detainee ready access to the tribunal. Legal advice and legal aid remain available for challenges to immigration detention. All detainees are made aware of the ability to apply for bail, but there is obviously a need to strike a balance. Introducing automatic bail hearings in all cases would be a further significant burden on the tribunal, with potential financial  loss to the taxpayer, and would utilise time that could be spent on other matters. That could prolong the time spent in detention, and could deny other appellants timely access to justice.

It is interesting to note that the House has considered this issue before. The hon. and learned Gentleman may indeed wish to reflect on the comments of his hon. Friend the Member for Wallasey (Ms Eagle) when the Nationality, Immigration and Asylum Bill was in Committee. In respect of the repeal of an uncommenced provision that then existed, the hon. Lady, who was then a Home Office Minister, said:

“We concluded that it would be a logistical nightmare that would divert scarce resources from processing asylum applications. That would make it harder for us to complete the asylum process as speedily as all members of the Committee want…We have to be honest and open about these issues. The administrative consequences of automatic bail hearings are substantial. Given the figures and the potential for bringing the whole system to a halt, it was our reluctant judgment that unfortunately it would not be realistic for us to introduce part III bail hearings. We thought it more open and transparent to repeal those provisions, as the amount of available funding and the priorities we have for getting asylum claims through the system would not allow us sensibly to bring them into effect without that having an adverse or catastrophic effect on our system.”—[Official Report, Standing Committee E, 14 May 2002; c. 256-57.]

Although I understand the intention behind amendment tabled by the hon. and learned Gentleman, it is worth understanding the history and, equally, the challenges of automatic hearings.

During our evidence sessions, much was made of the Home Office seeking to take control of bail from the tribunal, and I want to assure the Committee that that is not the case. It is an inaccurate description of the effect of the bail clause and the schedule. I want to make it clear that the Home Office is already responsible for the management of the vast majority of cases on conditions imposed by the legislation that is being consolidated.

I turn to amendment 200, which would prevent the detention of an individual on bail unless it was thought that they intended to breach, or had breached, their conditions. I think that I understand the intention of the amendment. I underline the purposes for detention, primarily on removal but equally there might be public policy conditions. I suppose what the hon. and learned Gentleman asks is whether we can do more to achieve removal from this country of people who should not be here, without the necessity of detention. That might, in part, underline some of his thinking. Our approach to immigration enforcement seeks to promote and encourage more facilitated or encouraged removals, rather than simply to use detention as a means of achieving the outcome that I think people would want to see. Certainly that is an approach—an embodiment—that we seek to take with our removal strategy. The hon. Member for Rotherham made a point about not only the cost but the efficiency and effectiveness of the system.