I do not support the new clause. I am certain that the intention behind it is not to undermine immigration control or to reward those who make spurious claims about being a victim of hideous events to avoid enforced removal when they refuse to leave the UK voluntarily. Sadly, those cases exist, which is why this is difficult territory and regrettably, that may be the practical effect of the new clause. However, I recognise that the issue of vulnerable people in detention is a major concern to MPs and to many people outside the House. I therefore ask that the Government are given time fully to consider Stephen Shaw’s review before the House legislates on a very complex issue.
New clause 3 would introduce a statutory time limit on detention unless the individual was listed in the regulations as being exempt from the time limit. There is a common misconception that detention under immigration powers is indefinite. I want to make it clear to the Committee that that is not the case. Although there is no fixed statutory time limit on the duration of detention under immigration powers, it is not the case that there is no time limit. It is limited by statutory measures, the European convention on human rights, the common law, including principles set out in domestic case law, and the legal obligations arising from the Home Office’s published policy, which states:
“Detention must be used sparingly, and for the shortest period necessary.”
I will highlight something, because some have suggested that there is a desire to extend detention and the process is in essence an aid to that. Published statistics show that the majority of individuals leave detention after 28 days or less, with more than 90% of them leaving detention within four months. Therefore, the facts do not bear out the contention that immigration detention is indefinite.
I ask the Committee to reflect on the fact that if all individuals complied with the notice that they should leave the UK, there would be little need for immigration detention—certainly limited need for detention beyond a short period. However, some individuals choose not to comply with the law and do not leave the UK when they should. For that reason, the time limit on detention is not fixed at a specified value, but is measured by reasonableness and all the circumstances of the individual case. It has been administered by judges case by case, and they will order an individual’s release if the time limit is reached or exceeded.
There is also a practical disadvantage in an arbitrary time limit. People in a non-compliant removal case could simply disrupt their removal for 28 days in the knowledge that they would be released from detention. Sadly, there are people who play the system in that way.