Time limit on detention for EEA and Swiss nationals

Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee at 9:25 am on 5th March 2019.

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“(1) The Secretary of State may not detain any person (“P”) who has had their right of free movement removed by the provisions of this Act under a relevant detention power for a period of more than 28 days from the relevant time.

(2) If “P” remains detained under a relevant detention power at the expiry of the period of 28 days then—

(a) the Secretary of State shall release P forthwith; and

(b) the Secretary of State may not re-detain P under a relevant detention power thereafter, unless the Secretary of State is satisfied that there has been a material change of circumstances since “P’s” release and that the criteria in section [Initial detention for EEA and Swiss nationals: criteria and duration] are met.

(3) In this Act, “relevant detention power” means a power to detain under—

(a) paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal);

(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation);

(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal); or

(d) section 36(1) of UK Borders Act 2007 (detention pending deportation).

(4) In this Act, “relevant time” means the time at which “P” is first detained under a relevant detention power.”—

Brought up, and read the First time.

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

I beg to move, That the clause be read a Second time.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

With this it will be convenient to discuss the following:

New clause 2—Initial detention for EEA and Swiss nationals: criteria and duration—

“(1) Any person (“P”) who section [Time limit on detention for EEA and Swiss nationals] applies to may not be detained under a relevant detention power other than for the purposes of examination, unless the Secretary of State is satisfied that—

(a) the person can be shortly removed from the United Kingdom;

(b) detention is strictly necessary to affect the person’s deportation or removal from the United Kingdom; and

(c) the detention of “P” is in all circumstances proportionate.

(2) The Secretary of State may not detain any person (“P”) who section [Time limit on detention for EEA and Swiss nationals] applies to under a relevant detention power for a period of more than 96 hours from the relevant time, unless—

(a) “P” has been refused bail at an initial bail hearing in accordance with subsection (4)(b) of section [Bail hearings]; or

(b) the Secretary of State has arranged a reference to the Tribunal for consideration of whether to grant immigration bail to “P” in accordance with subsection (1)(c) of section [Bail hearings] and that hearing has not yet taken place.

(3) Nothing in subsection (2) shall authorise the Secretary of State to detain “P” under a relevant detention power if such detention would, apart from this section, be unlawful.

(4) In this section, “Tribunal” means the First-Tier Tribunal.

(5) In this section, “relevant detention power” has the meaning given in section [Time limit on detention for EEA and Swiss nationals].”

This new clause is consequential on NC1.

New clause 3—Bail hearings for EEA and Swiss nationals—

“(1) Before the expiry of a period of 96 hours from the relevant time, the Secretary of State must—

(a) release any person (“P”) who section [Time limit on detention for EEA and Swiss nationals] applies to;

(b) grant immigration bail to “P” under paragraph 1 of Schedule 10 to the Immigration Act 2016; or

(c) arrange a reference to the Tribunal for consideration of whether to grant immigration bail to “P”.

(2) Subject to subsection (3), when the Secretary of State arranges a reference to the Tribunal under subsection (1)(c), the Tribunal must hold an oral hearing (“an initial bail hearing”) which must commence within 24 hours of the time at which the reference is made.

(3) If the period of 24 hours in subsection (2) ends on a Saturday, Sunday or Bank holiday, the Tribunal must hold an initial bail hearing on the next working day.

(4) At the initial bail hearing, the Tribunal must—

(a) grant immigration bail to “P” under paragraph 1 of Schedule 10 to the Immigration Act 2016; or

(b) refuse to grant immigration bail to “P”.

(5) Subject to subsection (6), the Tribunal must grant immigration bail to “P” at a bail hearing unless it is satisfied that the Secretary of State has established that the criteria in subsection 1 of section [Initial detention for EEA and Swiss nationals: criteria and duration] are met and that, in addition—

(a) directions have been given for “P’s” removal from the United Kingdom and such removal is to take place within 96 hours;

(b) a travel document is available for the purposes of “P’s” removal or deportation; and

(c) there are no outstanding legal barriers to removal.

(6) Subsection (5) does not apply if the Tribunal is satisfied that the Secretary of State has established that the criteria in subsection 1 of section [Initial detention for EEA and Swiss nationals: criteria and duration] are met and that there are very exceptional circumstances which justify maintaining detention.

(7) In subsection (5) above, “a bail hearing” includes—

(a) an initial bail hearing under subsection (2) above; and

(b) the hearing of an application for immigration bail under paragraph 1(3) of Schedule 10 of the Immigration Act 2016.

(8) In this section, “Tribunal” means the First-Tier Tribunal.

(9) The Secretary of State shall provide to “P” or “P’s” legal representative, not more than 24 hours after the relevant time, copies of all documents in the Secretary of State’s possession which are relevant to the decision to detain.

(10) At the initial bail hearing, the Tribunal shall not consider any documents relied upon by the Secretary of State which were not provided to “P” or “P’s” legal representative in accordance with subsection (8), unless—

(a) “P” consents to the documents being considered; or

(b) in the opinion of the Tribunal there is a good reason why the documents were not provided to “P” or to “P’s” legal representative in accordance with subsection (8).

(11) The Immigration Act 2016 is amended as follows—

(a) After paragraph 12(4) of schedule 10 insert—

“(4A) Sub-paragraph (2) above does not apply if the refusal of bail by the First tier Tribunal took place at an initial bail hearing within the meaning of section [Bail hearings for EEA and Swiss nationals] of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2019.”.”

This new clause is consequential on NC1.

New clause 4—Commencement of provisions on detention of EEA nationals—

“(1) Sections [

This new clause is consequential on NC1.

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

Good morning, Mr Stringer. The Bill has the far-reaching potential to make many more people liable to immigration detention. Despite estimating that 26,000 more people could be liable, the Government have carried out no assessment of the Bill’s impact on the detention estate. Our detention system is broken. Its most glaring failure is the lack of a time limit on detention. We are the only country in Europe that detains people indefinitely.

The Minister has previously shown some openness on the issue. She will be well aware of the breadth of support for a time limit, including from members of her own party. Labour’s new clauses have been signed by the SNP, the Green party, the Liberal Democrats and Conservative MPs. I am keen to work constructively with the Government. The new clauses set out the position that we want, whereby independent checks and balances ensure that immigration detainees do not have fewer rights than people in the criminal justice system.

As is clear from the new clauses that I have tabled, our preference is for a time limit on detention for everyone, no matter what country they are from, but to get the provision within the scope of the Bill, we have narrowed it to just those who lose their right to free movement as a result of the Bill. I will confine my remarks today to that group.

I am grateful to all the organisations that have been making the case for a time limit on immigration detention and, in particular, to Detention Action, Liberty and Refugee Tales for their help with the drafting of the provision.

Before getting into the detail of the new clauses, I will give some background to the arguments for a time limit on immigration detention. Labour has been making the case for a time limit for some time. We called for one in our 2017 manifesto. The argument can be made from multiple angles. This is a rule-of-law issue. The Immigration Law Practitioners’ Association, the Bar Council and the Law Society all support a time limit. Wherever the state deprives someone of their liberty, as happens with immigration detention, there should in principle be independent judicial oversight and time limits at every stage. Detention is currently an administrative process whereby the Government are allowed to mark their own homework. The detention of Windrush people showed that current oversight is severely lacking.

This is a health issue. The British Medical Association supports Labour’s proposal. Its report entitled “Locked up, locked out: health and human rights in immigration detention” states:

“Depression, anxiety, and post-traumatic stress disorder…are the most common mental health problems, and women, asylum seekers, and victims of torture are particularly vulnerable. Even if it does not reach a clinical threshold, all immigration detainees will face challenges to their wellbeing during their time in detention.”

Those issues are worsened when detention is indefinite. There is a widespread crisis of self-harm in immigration detention. Stephen Shaw’s report on the issue found that the current safeguards for vulnerable people were not working effectively enough.

This is an equalities and human rights issue. The Joint Committee on Human Rights has called for a 28-day time limit and recommends using the Bill to implement it. The Equality and Human Rights Commission and Liberty support our new clause. The EHRC’s briefing for the debate points to various human rights articles violated by indefinite detention, including the European convention on human rights, the international covenant on civil and political rights and the United Nations convention against torture.

This is also a cost issue, as immigration detention simply does not work; the majority of people in immigration detention will later be released back into the community. That point was made by Her Majesty’s inspectorate of prisons and the independent chief inspector of borders and immigration in their joint report, as well as by the all-party parliamentary groups on refugees and on migration. The detention estate costs £30,000 per person detained per year, and a 2015 estimate put the total annual cost at £164.4 million. In addition, the Home Office last year announced that it had paid out £21 million in just five years for wrongfully detaining 850 people in immigration removal centres.

So there is a wealth of evidence from a number of different angles on the need for a time limit on immigration detention. The next question is why Labour has tabled these new clauses in particular. There is a lot in this group of new clauses, so if the Committee will allow me, I will briefly go through what each one would do and why it is needed.

New clause 1 prescribes an overall time limit of 28 days for all immigration detention, after which a person must be released and cannot be re-detained unless there is a material change of circumstances. We need this provision to avoid a cat-and-mouse situation in which the Government can detain someone for 28 days, release them and then immediately detain them for another 28 days.

The reason for 28 days, as opposed to some other time limit, came up in evidence sessions and has been questioned elsewhere. Home Office guidance says that detention should be used only when removal is imminent—defined as three to four weeks—which is a maximum of 28 days, so 28 days is really the Home Office’s definition. Although, since 2015, the detention population and average length of detention have decreased, the number of people detained for longer than six months has increased. The new clause would put the commitment to detain only if removal is imminent on a statutory footing for the first time.

New clause 2 sets out the general criteria for detention, preventing detention unless a person can shortly be removed from the United Kingdom and their detention is strictly necessary to effect their deportation or removal from the United Kingdom, and stating that their detention must in all circumstances be proportionate. This is intended to ensure that detention will be used only when really necessary.

New clause 3 provides for a system of automatic bail hearings. There is currently an immigration bail provision at four months, and the Government are piloting a two-month timeframe. However, we believe that that should come in much sooner—after 96 hours—to bring immigration in line with the criminal justice system. Bail hearings after two or four months are often too little, too late. We also believe that bail hearings should allow for release; at the moment, a detainee may only be bailed or detained following a hearing. The president of the first-tier immigration appeal tribunal said in evidence to the JCHR that the tribunal would need few additional resources to review all immigration detention cases. He favoured such a review to limit the use of detention and ensure that it is used for the shortest time necessary.

Before I conclude, I will touch briefly on foreign national offenders, who also came up during our evidence sessions. Labour’s view is that we should not have an immigration detention system that treats foreign national offenders differently from everybody else. First, many people detained as foreign national offenders will in fact be victims of trafficking and modern-day slavery who were coerced into criminality. The Government have made a lot of noise about their commitment to tackling modern-day slavery, but the fact is that victims are still routinely detained for extended periods, despite showing extreme signs of distress and vulnerability.

Secondly, to go back to the rule of law argument, people who have been convicted of a criminal offence will have served their sentence. Continued detention, and therefore punishment, cannot be justified by their initial trial and sentencing, unless otherwise specified by a judge or similar. Thirdly, in practical terms, the Government will have had ample time, while someone is serving their custodial sentence, to prepare for deportation upon their release.

There is a separate issue about people who are deemed to be a risk to national security. There currently exists a separate system for immigration detention cases that relate to national security. Bail applications are heard through the Special Immigration Appeals Commission, rather than the normal First-tier Tribunal, and separate law, regulations and case law govern the commission’s operation. Although the SIAC system is in need of reform—we believe that indefinite detention is not justified in any circumstances—there is a case for this to be addressed and reformed separately. We would be happy to make that clear in our new clause on Report.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

It is good to see you in the Chair again, Mr Stringer. I have spoken many times about immigration detention. I will essentially echo all the shadow Minister’s points, so I will be brief. As he said, there is cross-party support for these new clauses, and the Scottish National party is four square behind them.

Immigration detention for too long has become an accepted part of life, at least among politicians, but, for the reasons that the shadow Minister gave, I detect that that is changing, and not before time. Politicians have probably been out of step with the public in that regard. Every time I have a discussion with members of the public and explain to them the existing system of detention, they are actually quite horrified to hear what goes on out of sight and out of mind. Ultimately, we are talking about the indefinite deprivation of liberty in what are basically private prisons. There is little in the way of independent oversight, and all of this is done for administrative reasons. That is a huge invasion of fundamental rights.

We detain far too many people. The Minister will often say that the vast majority are not detained but are managed in the community. However, that is not the point. We are still talking about significant numbers of people—25,000 or so every year. That is a welcome improvement on previous years—let me put that on record—but there is a long way to go before we are anywhere near an acceptable position. We have a bloated immigration estate compared to many of our European neighbours, and we are still detaining far too many vulnerable people. The changes made in light of the first Shaw report have not made the difference that we would have expected or wanted so far.

As the shadow Minister said, half of all these people are released. Detention should be a matter of absolute last resort, but instead we are detaining so many people that we just release half of them again. That is completely unacceptable. The UK is an outlier in terms of international practice. This country has a long history of being very precious about the right to liberty, with severe and strict safeguards on the Government’s power to interfere with that.

We all know—I think it is inarguable—that detention is harmful. One key harm inflicted on detainees is the uncertainty—as has been evidenced in all sort of reports—of not knowing when their detention will come to an end. For all the reasons that the shadow Minister has given, there are no excuses for applying different rules to different people, and foreign national offenders should be included in the regime that we are proposing. We also need greater scrutiny of who goes into detention. Safeguards in relation to vulnerable people are still not working. Gatekeeping is not working.

These new clauses achieve two goals. They put in place a time limit and significantly improve oversight of who is being detained. I want to put on record my gratitude to all the organisations involved in drafting the new clauses, and to all sorts of organisations who, for many years, have documented the harm that is done by immigration detention and have kept it on the agenda, even when it was at severe risk of falling off.

There is a breadth of support for this new clause. The time limit is overdue. I think it will happen this time—I hope that is the case. Like the shadow Minister, I am keen to work with all parties, including the Government, to ensure that we put in place a system that is robust and fair but respects people’s right to liberty rather than detaining them for administrative reasons.

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

I want to add my voice to support my colleagues on this, because in 2014 I was vice-chair of a cross-party inquiry into immigration detention. Although the focus of this Bill, and therefore of this new clause, is European economic area nationals, any decision that we make in relation to them should be seen as a stepping-stone to progress.

This is something on which I am confident we will make progress—I hope that we can make progress this morning—because there is not only strong cross-party support but very considerable support on the Conservative Benches, as the Minister knows, from Mr Grieve through to Mr Davis; I do not think we could get much broader than that in the Conservative party at the moment.

On our inquiry team there were parliamentarians from both Houses and all the main parties, who brought in huge experience. They included a retired law lord and a former chief inspector of prisons. There were more Government Members among the inquiry team than those of us from the Opposition, including Dame Caroline Spelman, with whom I have met the Minister to talk about these issues, as well as David Burrowes and Richard Fuller, who are no longer Members of the House, but to whose work I pay tribute.

The panel was brought together by the all-party parliamentary group on migration, which at that time I chaired, although it is now more ably chaired by my hon. Friend the Member for Stretford and Urmston, who is not in her place at the moment, and by the all-party parliamentary group on refugees, which is currently chaired by my hon. Friend Thangam Debbonaire, who I am pleased to see joining us in the gallery today. I also pay tribute to Sarah Teather, who chaired the inquiry throughout its eight-month period of evidence taking.

After that eight-month period, our recommendations, which included the limit on detention contained in new clause 1, were endorsed by the House of Commons on 10 September 2015. It is thus disappointing that, although there is growing recognition of the issue in the Home Office and there have been some welcome moves, we have not seen progress on the central recommendation of introducing a statutory time limit on detention. We are unusual in this country in not having one, and without it we have become increasingly dependent on detention.

Detention takes place within immigration removal centres—it is important that we listen to those words, because the clue is in the title. They are intended for short-term stays, but we have become increasingly reliant on them. I recognise that we have done so under successive Governments; I am not pinning the responsibility for it on the current Government. In 1993 we had 250 detention places in the UK. By 2009, it had risen to 2,665 and by 2014, when we conducted our inquiry, it was almost 4,000. The number of people entering detention in the latest year for which figures are available, through to June 2017, was 27,300. That is a slight drop from the previous high of 32,000, but by contrast, Sweden detains something like a 10th of that number and Germany around a fifth.

Home Office policy states:

“Detention must be used sparingly,” but the reality is clearly very different. Hon. Members will be aware of a number of high-profile incidents in immigration removal centres, including deaths and allegations of sexual assault. That was reflected in the evidence that our joint inquiry heard over three oral evidence sessions and more than 200 written evidence submissions.

At our first oral evidence session, we heard from non-governmental organisations and medical experts, but we most powerfully heard from three people directly detained at that time. We questioned them over a phone link in their detention centres. One young man, who was from a disputed territory on the Cameroon-Nigeria border, told us that he had been trafficked to Hungary as a 16-year-old, where he had been beaten, raped and tortured. He had managed to escape and eventually made his way to Heathrow using a false passport, which was discovered on his arrival, and he was detained. We then asked him how long he had been detained and he told us three years—three years in an immigration removal centre. His detention conflicts with three stated aims of the Home Office: that those who have been trafficked should not be detained; that those who have been tortured should not be detained; and that detention should be for the shortest period possible.

Time and again, we were told that detention was worse than prison. Initially, that was puzzling, but it was explained to us that, in prison, people at least know when they are going to get out.

Photo of Nicholas Dakin Nicholas Dakin Opposition Whip (Commons) 9:45 am, 5th March 2019

At the British Film Institute last week, I saw a documentary called “Island of Hungry Ghosts”, which I commend to all Committee members. It is about the Australian Government’s approach to detention on Christmas Island. The big issues are indefinite detention, not knowing what has happened and the lack of control, which are exactly what my hon. Friend is pointing out.

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

My hon. Friend makes a powerful point, and I will make sure to see the film.

The point was driven home by a detainee who said to us:

“The uncertainty is hard to bear. Your life is in limbo. No one tells you anything about how long you will stay or if you are going to get deported.”

Medical experts told us that that sense of being in limbo—of hopelessness and despair—leads to deteriorating mental health. One expert from the Helen Bamber Foundation told us that those who are detained for more than 30 days, which is relevant to the limit we are looking for, had significantly higher levels of mental health problems.

New clause 1 would have an impact beyond those who are detained. A team leader from the prisons inspectorate told us that the lack of time limit encourages poor caseworking in the Home Office. He said that a quarter of the cases of prolonged detention it had considered were a result of inefficient caseworking.

Prolonged detention does not happen because it is inappropriate for people to be released. Despite these places being called immigration removal centres, we have found—everybody needs to focus on this fact—that most people are released from detention for reasons other than being removed from the UK. They are released back into the community.

The system is not only bad for those who are involved, but expensive, as my hon. Friend the Member for Manchester, Gorton pointed out. The recommendation in new clause 1 for a maximum time limit to be set in statute is about not simply righting the wrong of indefinite detention, but changing the culture that is endemic in the system.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

I commend my hon. Friend on his speech; he is demolishing the case for indefinite detention. Does he agree that it is not just about the welfare of the individuals involved—although, clearly, the limbo they have been left in is unacceptable—but about improving the way that the Home Office works?

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

I agree with my hon. Friend. Although that was not the reason why we conducted the inquiry, it became clear through the inquiry that there would be significant benefits in terms of the Home Office’s operation, as well as cost and compliance, which I will come to. Those benefits underlined the recommendation, which had initially been driven by common humanity and the way the system operates.

In trying to change the culture that is endemic in the system, we are trying to meet the aims of the Home Office’s own guidance, with detention used more sparingly and only as a genuine last resort. The proposed time limit is 28 days, which reflects best practice in other countries and is workable for the Home Office. Home Office guidance describes detention as being for imminent removal and defines “imminent” as four weeks—that is, 28 days. That is the recommendation of the report and the principle behind new clause 1.

Deprivation of liberty should not be a decision taken lightly or arbitrarily. Currently, decisions are taken by relatively junior Home Office officials, with no automatic judicial oversight. Without a time limit, it simply becomes too easy for people to be detained for months on end with no meaningful way of challenging continued detention.

The introduction of a time limit and the reduction in reliance on detention would be a significant change because, to detain fewer people for shorter periods, the Government would need to introduce a wider range of community-based alternatives. It was interesting to hear my hon. Friend the Member for Scunthorpe talk about Australia, which is often seen as a hard-line country on immigration. Some of the detention practices there are abhorrent, but there is wider use of community-based alternatives to detention than in the UK. I appreciate that the Home Office is running a pilot about that—as I said earlier, I met the right hon. Member for Meriden and the Minister, and we had a really useful discussion—and I am certainly convinced that it is putting genuine effort into developing community-based alternatives in a thoughtful way.

There is a precedent in the UK. When the coalition Government committed to reducing the number of children detained, they introduced a family returns process, which the House of Commons Library described as intended

“to encourage refused families to comply with instructions to depart from the UK at an earlier stage, such as by giving them more control over the circumstances of their departure.”

It worked; there was a dramatic fall in the number of children detained, and the Home Office’s own evaluation of the scheme found that most families complied with the process, with no increase in absconding.

In conclusion, I quote Nick Hardwick, who was Her Majesty’s chief inspector of prisons at the time of our inquiry. After he made an unannounced inspection of Yarl's Wood, he said that

“well-respected bodies have recently called for time limits on administrative detention…In my view, the rigorously evidenced concerns we have identified in this inspection provide strong support for these calls, and a strict time limit must now be introduced on the length of time that anyone can be administratively detained.”

In supporting new clause 1, we are not proposing to end indefinite administrative detention simply because that would be the just and humane thing to do—although, for goodness’ sake, that is a good enough reason—but because it would be less expensive, improve procedures in the Home Office and be more effective in securing compliance.

Photo of Tracey Crouch Tracey Crouch Conservative, Chatham and Aylesford

I rise briefly to raise a specific issue that a constituent has brought to me, but also to recognise that the Home Office has done a significant amount of work to reduce the time people are in detention. I am sure members of the Committee are aware that 42% of detainees spend between one and 28 days in detention, which is much better than in 2017, when it was only 30%. However, the statistics show that 33% still spend one to three months in detention, and 13% still spend three to six months in detention. I have sympathy with a new clause that limits detention time, although I still need to be persuaded on the issue of excluding foreign national offenders.

From the evidence session and the questions that Tory colleagues asked, I recognise that there is a measure of sympathy on this issue. The hon. Member for Manchester, Gorton was correct when he talked about the impact on mental health, and there are colleagues who recognise that detention has a damaging impact on people’s mental health. Whether there is indefinite detention or a specific time limit is something that still needs to be discussed, although I am aware that in the public health, counter-terrorism and criminal justice systems, where individuals face the possibility of detention without charge, 28 days or lower is considered sufficient time. There is further debate needed as to whether it has to be 28 days, or whether it could be 30 or 40 days. That is an issue we still need to consider carefully.

My constituent Dane Buckley is the support services co-ordinator for the UK Lesbian & Gay Immigration Group and specifically wanted me to raise the issue of detention of lesbian, gay, bisexual, transgender, queer, intersex + people. I am sure that the Minister is aware that in 2016 UKLGIG and Stonewall published research, called “No Safe Refuge”, on the experiences of LGBTQI+ people seeking asylum while in detention. The report highlights the systemic discrimination, abuse and harassment that they face from staff and people who have been detained. It contains shocking examples of acts committed by fellow detainees and staff, and incidents where staff have failed to protect individuals.

In June 2016 the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, alongside the chair of the UN Committee against Torture and the chair of the board of trustees of the UN voluntary fund for victims of torture, called on member states to redouble their efforts to prevent ill treatment or torture of LGBTQI+ people in places of detention. The ninth annual report of the sub-committee on prevention of torture and other cruel, inhuman or degrading treatment or punishment raised similar concerns, stating that LGBTQI+ people were

“at the bottom of the hierarchy” in detention. I think we are all acutely conscious of the vulnerability of LGB asylum seekers in detention, and recent court cases have asserted that.

My constituent suggests that detention has a direct impact on the prospects of LGBTQI+ people to claim asylum successfully. To convince the Home Office or a tribunal that they are LGBTQI+ as claimed, asylum seekers must be in a situation of trust and security, in which to consider and discuss their sexual orientation or gender identity. That can be extremely difficult if someone comes from a country where persecution has meant they have never spoken about their sexual orientation or gender identity, or if they have experienced trauma. It can be an impossible task in detention, where fear of discrimination or harassment requires them to conceal their identity as much as possible. In obtaining a legal aid lawyer, people are limited to the specific contractors for each detention centre. With the greatest respect, those advisers do not necessarily have the specialist knowledge required for asylum claims based on sexual orientation or gender identity.

Added to that is the difficulty in amassing the kind of corroborating evidence that decision makers routinely expect when someone is in detention, especially if the person is trying to avoid being outed to staff and other detainees. Home Office caseworkers and decision makers frequently ask, or indeed expect, LGBTQI+ asylum seekers to offer witnesses, including ex-lovers, who will attest to knowledge that the asylum seeker is LGBTQI+ as claimed. Clearly that can be incredibly difficult if the person does not live openly in their home country because of the fear of persecution. An additional issue is the fact that the Government do not keep statistics on the number of LGBTQI+ people who are detained. Perhaps the Minister could address that.

I wanted to raise that particularly sensitive issue of sexual or gender orientation of people in detention on behalf of my constituent and to offer sympathetic support to the idea of making sure there is a time limit on detention, for the mental health and wellbeing of those detained. Whether that is 28 days is a matter that still needs to be bolted down, but I do not personally support including foreign national offenders in that; we still need to consider that further.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I am grateful to the hon. Member for Manchester, Gorton for tabling the new clauses. I note that they are supported by other right hon. and hon. Members, including other members of the Committee. I am grateful to those who have spoken.

The new clauses raise an incredibly important issue, and I am grateful for the opportunity to speak about immigration detention. We certainly do not take the issue lightly, and we recognise that the deprivation of liberty for immigration purposes is a significant use of state power, with potentially life-changing implications for those involved. It is vital to have a detention system that is fair to those who may be detained, that upholds our immigration policies, and that acts as a deterrent to those who might seek to frustrate those policies. At the same time, the welfare of detainees is a priority for us, and we believe that the use of detention should always be open to scrutiny and, indeed, reform.

Last July my right hon. Friend the Home Secretary set out to Parliament an ambitious programme of reform, based on four key areas. First, we are doing more on alternatives to detention, including piloting a scheme to manage vulnerable women in the community who would otherwise be detained at Yarl’s Wood immigration removal centre. Secondly, we are working to ensure that the most vulnerable and complex detained cases get the attention they need. Last month, we launched a two-month auto-bail referral pilot, which builds on measures introduced in the Immigration Act 2016 to refer cases to tribunal at the four-month point of detention.

Thirdly, we are bringing greater transparency to immigration detention. As part of that, the independent chief inspector of borders and immigration will complete his first annual review of the operation of the adults at risk policy later this year. This might be an opportune moment for me briefly to refer to the comments made by my hon. Friend the Member for Chatham and Aylesford about LGBTQI+ individuals in the detention estate. I reassure her that transgender individuals are specifically covered by the adults at risk policy, and at-risk individuals will be detained only when immigration considerations outweigh the evidence of vulnerability. That follows recommendations made by Stephen Shaw in his first report. He did not, however, make a similar recommendation for LGBQI individuals, who do not fall specifically within the adults at risk policy. My hon. Friend made important points about mental health impacts and the ability of detainees freely to discuss their asylum claim and status. I would like to follow up some of those important points with her, and potentially with her constituent—I think it was Dane Buckley—if that would be helpful.

My fourth point regards our new drive for dignity in detention. We have made significant changes to detention in the UK in recent years. By this summer, the immigration detention estate will be almost 40% smaller than it was four years ago and of significantly higher quality. By December 2018, the number of individuals in detention had reduced by 30% compared with the previous year. At any one time, 95% of those who are liable for removal are managed within the community. We are committed to going further and building on the significant recommendations made by Stephen Shaw.

Successive Governments have pursued a policy of seeking to enforce the return of individuals who have no right to remain and who have been through due process and refused to leave voluntarily. Successive Governments have also recognised the importance of detention in effecting return and maintaining the integrity of immigration law. In 2018, there were 9,474 enforced returns from the UK, and 8,578 of those individuals were in detention prior to their return, representing more than 90% of all enforced returns.

The Government’s view remains that a time limit is not only unnecessary but would severely limit our ability to use detention as an effective means of enabling removal. It would encourage those who might seek to frustrate the removal process and run down the clock until the time limit is reached, with release therefore guaranteed, regardless of the merits of the case. The main rationale put forward in support of a time limit is that, in the absence of one, individuals are detained indefinitely, but that is simply not the case, as the law does not permit indefinite detention.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control) 10:00 am, 5th March 2019

That argument was made by successive Ministers, but the idea that there is no indefinite detention because Home Office guidance says somebody cannot be detained forever is nonsense. Folk do not know how long they are being detained for; that is what is harmful —indeed, it is harmful for everyone, whether or not they are detained for more or less than 28 days. There is indefinite detention—this is surely a matter of semantics.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I do not think it is a matter of semantics. Since becoming Minister, I have been careful to ensure that, in cases when people have been in detention for a long time—there are some, and they are almost exclusively cases of foreign national offenders—we regularly review and carefully consider the circumstances of those whom we seek to remove from the country but whom, for reasons of public protection, we deem it would not be appropriate to manage in the community. Last year, 92% of those detained left detention within four months, and 69% in less than 29 days, which demonstrates our commitment in this regard.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

We are still talking about huge numbers of people—I think 10,000 or so were detained for over 28 days in 2017—but this is not just about those detained for more than 28 days. Whether people are detained for five, 10, 15 or 20 days, not know when they are getting out is harmful to their mental health, so this applies to everybody in detention.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I thank the hon. Gentleman for making that point. I am conscious that there are strong feelings on this issue. I am also conscious that in this country we have an ability to remove that in some cases is significantly better than that of our European counterparts and that we do succeed in removing people directly from detention. However, there are a number of challenges, which I will come to.

One significant challenge, and why I have such grave concerns about 28 days, is the time that it often takes to document individuals who may not have evidence of their identity or a travel document from their home country. It would be ideal if we could document people easily without their needing to be present, but unfortunately the vast majority of cases will require a visit from a foreign consulate, which takes time to arrange. In many instances, foreign consulates will not consider a visit until they know the individual is in detention. Although these are only management statistics, it has been indicated to me that it takes in the region of 30 days for an individual to be documented. In those circumstances, when it takes in the region of 30 days to get somebody with the appropriate travel document to be able to return, a time limit of 28 days would simply be unworkable.

Photo of Nicholas Dakin Nicholas Dakin Opposition Whip (Commons)

The Minister is making a good point in response to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, but is she indicating that some sort of time limit that was practical would be helpful to everybody?

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I will come to time limits. We have seen from the amendments that have been tabled and from the commentary that there is no widespread agreement on what the time limit should be. If we look at countries around the European Union, there are differing time limits. One example that springs instantly to mind currently has a limit of 45 days, which is about to be doubled to 90 days.

Stephen Shaw looked at time limits in his re-review and made some comments about that, as Members will have seen. There is certainly scope, as I am sure my right hon. Friend the Home Secretary agrees, for us to look closely not only at different time limits around the world, useful though they are, but at some of the challenges we face in the UK with the documentation of individuals, so that we can best understand, were a time limit to be introduced, what the range might be.

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

The Minister referred to European countries. Is it not important to acknowledge the difference between two legal systems? The European system is more civil law-based, whereas others are more common law-based. They are not the same thing.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

The hon. Gentleman is absolutely right to point out that they are not the same thing. While we might draw on the experience and evidence from other countries, it is important that we have a system that works within our own legal system.

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

The Minister was talking about expert evidence and the importance of the view of our legal system. Does she note that the Bar Council recommends a 28-day time limit?

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I certainly welcome the Bar Council’s views feeding into this debate. However, very few countries have a time limit as short as those proposed in these new clauses. While some have time limits, recognising the practical challenges in effecting successful returns, some are looking at the issue again.

For example, the European Commission has recently proposed a new detention time limit of at least three months to give member states sufficient time to carry out return operations. In comparison with other countries, the UK performs well in achieving the removal of individuals who have no right to stay. I agree with Stephen Shaw when he said that he had yet to see a coherent account of how a proposal for 28 days had been reached. That different time limits have been proposed in different amendments shows that identifying an appropriate time limit might not necessarily be a simple exercise.

Photo of Maria Caulfield Maria Caulfield Conservative, Lewes

My hon. Friend the Minister is saying that there seems to be a growing cross-party consensus on the issue of a time limit. Does she not agree, therefore, that it would be wise to take this back to the Floor of the House before making a final decision on a time limit that could be accepted?

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I thank my hon. Friend for that intervention. I suspect that she is correct that, ultimately, we might decide this matter on the Floor of the House. It is important that we reflect carefully on the evidence and weigh our own practical and legal considerations. While I am as one with Stephen Shaw when he makes his commentary on 28 days, I have heard representations from Members in this Committee and more widely as well. We have heard reference to my right hon. Friend the Member for Meriden, who has been forceful on this issue, and to Ms Harman, who had me before her Committee towards the tail end of last year. We had a useful and constructive conversation around detention.

It is well documented and reported in the media how much I enjoy a Select Committee appearance—that one I actually did. I felt it was constructive, Members had given the issue significant thought, and we had a constructive conversation. I am aware of the amendment tabled by the right hon. and learned Member for Camberwell and Peckham that has been supported by many Members from this side of the House with much enthusiasm and determination.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

The argument the Minister is using is about the length of time and the limit. Can we take it from her that she is not opposed to the principle of having a limit, even though there may be debate about its length?

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

The debate is ongoing. Members have made some forceful arguments in favour of a limit and, in the Home Office, we have considered reflecting on those very carefully indeed.

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

Is the Minister aware that Parliament has considered this idea for the limitation? Recently, there was a discussion on 90 days, and then 42 days, and this was for terror suspects. Both were rejected by the House. Does she not think that if 42 days for terrorists was rejected, we should not be have it this for immigrants?

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

Perhaps the hon. Gentleman has made the point that there is not yet any agreement on reasonable time limits, given that, with both 90 days and 42 days—in this new clause we are discussing 28 days—there is a wide range of opinion on what a reasonable time limit might look like.

I wish to address—as I am sure the Chairman wants me to—the individual elements of the new clauses. First, and this has already been referenced, they would apply only to EEA and Swiss nationals. The effect of these new clauses would be to introduce a system that imposed time limits on the detention of individuals of certain nationalities but not on others. As I have said in relation to other amendments and clauses limited to EEA nationals, this would clearly be discriminatory on nationality grounds, going against Parliament’s proud history of promoting laws that protect human rights and protect individuals from discrimination. I cannot see any justification for Parliament to depart from those principles in the way proposed.

While new clause 1 would introduce a 28-day longstop time limit for exceptional cases, new clause 3 would provide for a 96-hour time limit. Both would have a major impact on our ability to remove and on the processes on which removal action is dependent. For example, in 2018, there were more than 8,500 removals directly from detention. More than 2,700 individuals were removed from the UK, having been detained for 29 days or more. We believe that introducing a 28-day longstop time limit would encourage people to change behaviours, so as to run down the clock to secure release. As it stands, a presumption of release after 96 hours, other than in the most restrictive of circumstances, would make it extremely difficult to remove any individuals from the UK.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

Surely it is unfair to characterise the 96 hours as a time limit. It is simply a deadline within which there should be a bail hearing. I do not see how anyone can argue, if they support strongly the presumption of liberty, that there should not be some sort of judicial oversight about whether or not someone is entered into detention in the first place.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration 10:15 am, 5th March 2019

I will come to that point shortly. There was an example that I wanted to use to demonstrate to Members some of the challenges faced, including the many claims for asylum made by people who had opportunities to raise those issues earlier, with some even claiming asylum on the steps of a plane. I will illustrate our concerns with reference to a case study provided to the Joint Committee on Human Rights in December. In that case, a failed asylum seeker absconded for nine years before re-establishing contact with the Home Office and lodging a new claim. This was unsuccessful, as were all the subsequent appeals and further submissions. The individual was detained after having been encountered working illegally. He then disrupted attempts to effect removal by refusing to leave the centre until removal was eventually achieved. It took 54 days to remove the individual from the point of detention, which would not have been possible had the time limits enshrined in these new clauses been in place.

Moving on to the further details of the new clauses and the point raised by the hon. Member for Manchester, Gorton, the requirement for the judiciary to be involved in consideration of the case at or around the 96-hour point of detention would place significant additional burdens on the tribunal service. As it stands, bail cases are normally listed within three to six days. That means that a significant number of cases would fall outside the 96-hour period, and that is without taking into account the fact that there would be a dramatic increase in the number of cases being referred to the tribunal.

Such an increase would make the system unsustainable without significant reform, which could not be achieved within the three months before commencement proposed by new clause 4. However, the proposal would also require a different type of decision by judges, which would need careful consideration by the judiciary, given their independence.

We should not forget that detainees can apply for bail at any time of their choosing. Automatic referral for bail occurs at the four-month stage, and we are currently piloting automatic referral at two months. These bail hearings are supplemented by regular reviews and by case progression panels for those held in detention beyond three months. The new clauses would allow for an individual to be detained beyond the outcome of the initial bail hearing, though only for a maximum of 28 days in total, and only in very exceptional circumstances. These circumstances are not defined. I ask the hon. Member for Manchester, Gorton to consider whether he has in mind individuals seeking to frustrate the removals process. If so, what activity is regarded as frustrating the removal process, or does he have in mind individuals who are criminals? If so, how serious would the criminality have to be to justify continued detention? These matters are not clear, but they are fundamental to managing a detention system.

On the subject of criminality, let us assume that foreign criminals are intended to be included in the category of “very exceptional” circumstances, for the moment. The provision would allow the Government to detain such individuals for up to 28 days. At that point there would be no option other than release. No exceptions for dangerous criminals are built into the provision. If we could not deport individuals within 28 days, they would be released on to the streets, even if they presented a danger to the public.

The Government are under a statutory duty to deport foreign national criminals under the UK Borders Act 2007, and this duty would be seriously undermined if detention could not be used to effect removal. The same sort of issues would apply in respect of national security cases. The new clauses provide that an individual cannot be re-detained once the 28-day time limit has been reached unless there is a material change in their circumstances. What constitutes a material change is not defined. Again, these are serious matters on which the new clauses are not clear. For example, would it be possible to re-detain an individual who had been deported from the UK, but had re-entered in breach of the deportation order?

Would the failure of the person to comply with reporting requirements, or a breach of bail conditions, amount to “very exceptional’ circumstances? Finally, the three-month implementation timescale enshrined in new clause 4 is likely to be unworkable given the extensive changes to the immigration and judicial systems necessary to implement the envisaged changes.

The Government are of the view that the new clauses would significantly impair the UK’s ability to proportionately and efficiently remove from the UK individuals who have no right to be here and who, in some cases, represent a danger to the public.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

I suspect that the Minister anticipated lots of interest in these new clauses. I want to take her back to the issue of foreign national offenders, which she went through very quickly. She must agree that it is not acceptable to detain low-level foreign national offenders for months or years on end.

What exceptions does she think are necessary in order to make general inclusion of foreign national offenders in a time limit acceptable to the Government? We cannot detain everybody for ever simply because the Home Office fails to remove them by the end of their sentence.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I thank the hon. Gentleman for that intervention. Of course it is not just unacceptable but it is not lawful, in the case of foreign national offenders, to detain people for very long periods with no realistic prospect of removal. The Home Office works incredibly hard, sometimes in difficult circumstances, to seek documentation from different Governments in order to be able to effect the removal of foreign national offenders.

I do not pretend that any of this is easy. However, an amendment to the Bill—tightly drawn as it is to end free movement—is perhaps the wrong place to seek to implement such a significant change. That does not mean that my mind is closed; far from it. From the views that have been expressed to me over the past 12 months and this morning, I appreciate that we certainly need to do more. That is why I welcome the proposals that Stephen Shaw put forward in his re-report last year. Indeed, the Home Secretary grasped those changes with enthusiasm. There will always be more to do on the issue of detention, and I am absolutely committed to doing it. As Stephen Shaw said in his recent report, the call for the 28-day time limit,

“has been articulated more as a slogan than as a fully developed policy proposal”,

and I am inclined to agree with him. I therefore respectfully ask the hon. Member for Manchester, Gorton to withdraw his amendment.

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

I thank the Minister for putting forward the Government’s position. We have had a good debate on the new clauses, but at this stage I am not minded to push for a vote. We will review the matter on Report. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.