Schedule 5 - Immigration bail

Part of Immigration Bill – in a Public Bill Committee at 4:45 pm on 3rd November 2015.

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Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration) 4:45 pm, 3rd November 2015

If we are talking about detention, we are in many respects back to some of the basic principles as to why detention would be used, such as the immediacy of removal. Alternatively, we are talking about some other public policy objection on the basis of established legal principles around the matter. Those principles are what guide the potential use of the power, in addition to the obvious example of a change in circumstance.

Amendments 210 and 211 are probing. The Committee wants to better understand why there is a need for a restriction on study and what other conditions are envisaged on immigration bail, and when they may be imposed. We have chosen to include a restriction on study as it is something that may be considered under  the bail powers. Like the other conditions listed, a restriction on study is only an option that is available; it is not a mandatory requirement and can be imposed as appropriate.

The power is not, as was suggested, about trying to deny education. If a child can lawfully access education services, we will not seek to disrupt that by using restrictions under the bail power to place a prohibition on them attending. We also do not intend to impose through the use of the power a blanket ban on asylum seekers accessing education. Where the power could have utility, however, is on specifying the place at which someone can study, for example. That would mean knowing where they are and saying that they are permitted to study, but only at a particular institution. For example, the wrap-around for a particular family group may be most appropriately provided for by conditions that are allied to a child going to a particular school. I point to it in that way. We have other regimes where conditions can be attached to study that are more towards that stance and approach.

On the broader power to impose conditions as appropriate, it is designed to maintain current flexibility in the ability to impose bail conditions specific to the facts of the case. That is most readily seen in Special Immigration Appeals Commission bail, but it is also seen in some of the most harmful foreign national offender cases. SIAC bail conditions are often bespoke, based on the risk the individual poses. Some cases will require specific conditions to mitigate specific risks. For example, we may want to impose an overnight curfew based on the risk posed, or it may be appropriate to create an exclusion zone if a convicted paedophile is bailed pending deportation.

A slightly more general point I would make is on the question posed on the general conditions that can be attached. The hon. and learned Gentleman sought to argue that that should be limited. My understanding and advice is that that is already maintained in the existing legislative framework and is in essence a read-across from pre-existing legislation. The power to impose any conditions appearing to be likely to result in the appearance of the person answering bail is currently in primary legislation at paragraph 22(2) of schedule 2 to the Immigration Act 1971. I think it is to maintain the existing flexibility that that applies.

Amendments 201, 202 and 203 would remove the ability of the Secretary of State to require a residence condition or the imposition of an electronic monitoring condition as a condition of tribunal bail, undermining the Government’s commitment to deliver electronic tagging as part of our manifesto commitments. If we did not take this power, the tribunal could in theory decline to impose a tag. During the evidence sessions earlier in Committee, it was suggested that these provisions make the role of the tribunal meaningless. Let me assure the Committee that that is not the case. The tribunal will still be able to order the release of an individual on bail and will still be able to impose the conditions it sees fit, subject to the specific point that I have highlighted on requiring that an individual resides at a certain address or wears an electronic monitoring device where the tribunal has declined to impose such a condition when granting bail. We expect this power to be used very rarely, as the tribunal would normally impose a residence condition or tag when one is requested. If the Home  Office seeks to impose a condition where the tribunal earlier declined to impose one, such a decision would be challengeable by way of judicial review. The Secretary of State would need to justify why the condition was imposed.