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

I think the hon. and learned Gentleman has set out what I have just indicated to the Committee. It is that sense of requiring. We have looked at, for example, foreign national offender-type cases. Our judgment is that foreign national offenders who are in this country unlawfully should be subject to ongoing monitoring through electronic tagging. It is that clear policy intent that we judge, but, as I have indicated, there would be a right of challenge by way of judicial review.

There is a precedent for such a power. The House passed a similar provision in the Immigration Act 2014; the Secretary of State is required to consent to the release of an individual on bail by the tribunal when removal is 14 days or fewer away. The Secretary of State already has that mechanism—in, I accept, a slightly different situation—and that sets a precedent on how the Secretary of State has a direct interest.

Amendments 212, 213 and 214 remove the requirement to consider whether it is in a person’s best interests to be detained before releasing on bail. I understand that these are probing amendments to understand when it will ever be in anyone’s best interests to be detained under immigration powers. First, I want to repeat that it is the Government’s policy that there is a presumption of liberty and that immigration detention should be used as a last resort. I make no apologies for stating that fact again and I hope that the Committee welcomes that clear and unequivocal statement. However, there may be some cases in which immigration and detention powers have to be exercised while arrangements are made for an individual to be transferred to appropriate care. I have given some examples of that in my earlier comments. I want to be clear that the power should only be used in a limited way and for the shortest period possible, but I hope that the Committee understands that that may be needed in those exceptional circumstances.

Amendments 204 and 206 relate to accommodation arrangements for individuals who are on bail. Amendment 204 would create a duty to provide accommodation to anyone released on bail even if they had the funds to secure their own accommodation. Amendment 205 would remove the term “exceptional circumstances” from the new power in the Bill and amendment 206 would create a right of appeal against refusal to provide accommodation to a person released  on bail. Schedule 5, paragraph 7 provides a power to allow the Secretary of State to meet accommodation costs and travel expenses for those granted immigration bail. That arrangement is designed to replace section 4(1)(c) of the Immigration and Asylum Act 1999, which is repealed by the Bill, but to date has been used to provide accommodation for persons released on bail in the limited circumstances where we judge that that is appropriate. The repeal is part of the wider changes to support provision for failed asylum seekers and other irregular migrants which will be debated later, so I hope to leave detailed debate on that until we get to schedule 6, when we can have a much fuller debate.

The power is deliberately drafted in a restricted way as in general, individuals seeking bail are expected to accommodate themselves or arrange accommodation through friends or relatives. This is no different from the way the section 4 power is currently used. It is clearly inappropriate to spend public money providing accommodation for people who do not need it. It should therefore only be in exceptional circumstances that the Secretary of State should pay for the accommodation of people seeking release from detention on bail. If the person is truly unable to arrange their own accommodation, the powers can be used to provide it on a case-by-case basis, considering the particular circumstances, including whether they are able to avoid the consequences of being left homeless by returning to their own country. It would be unnecessary to use the power to accommodate asylum seekers, as section 95 or section 98 of the Immigration and Asylum Act 1999 are already available for this group.

On amendment 205, the concern expressed about the provision appears to be based on the assumption that there will be increased use of detention for a longer period, because bail can only be granted when an address is available. The new bail powers contain the concept of conditional bail, at paragraph 3(8). That will allow the tribunal to grant bail conditional on arrangements specified in the notice being in place to ensure that a person is able to comply with the conditions. Where a residence condition has been applied, it will be for the individual to find a suitable address during the period of conditional bail and, if a suitable address cannot be found, for them to go back to the tribunal for a further hearing. If the person is unable to find an address, consideration will be given to using the powers in paragraph 7 to provide one. We do not consider it necessary to add further complexity to the process by creating a specific right of appeal against refusal to provide an address. Any claim that there has been a refusal to provide an address could be challenged by way of judicial review.