For too long, individuals with no right to remain in the UK, including foreign criminals, have been gaming the system in order to get released from detention and frustrate their removal. We have seen individuals making asylum claims while in detention, but then delaying the resolution of that claim through their own deliberate actions, such as refusing to be interviewed. The current system incentivises non-compliant behaviour. By creating obstacles, bail is more likely to be granted due to the time it will take to resolve the claim and any subsequent appeals. It is not right that a person’s non-compliance enables their release.
Similarly, an individual may refuse to provide fingerprints for a travel document or may lie about their true nationality, thereby obstructing the returns documentation process. This again makes the prospect of removal more remote and increases the likelihood that bail may be granted. From an operational perspective, non-compliance is difficult to tackle and becomes much harder to counter once individuals are released from detention into the community, where they have the ability to abscond or continue with non-compliance. Therefore, eliminating the risk and impact of non-compliance is a key benefit that arises from the use of immigration detention if appropriate in the individual case.
We must have an immigration system that encourages compliance. The purpose of clause 45 is to ensure that, so far as possible, appropriate weight is given to evidence that a person has not been co-operative with the immigration or returns processes without reasonable excuse when making immigration bail decisions. This is currently not explicitly referenced as one of the specific mandatory criteria for considering whether to grant immigration bail.
The Minister did seem to accept that all those factors can be taken into account already if they are relevant to the question of whether the person is going to be removed in a reasonable time or whether they will abscond. Surely those are the only two questions. This is not necessary at all and seeks to use immigration detention as a form of punishment.
I do not accept that depiction. We are requiring decision makers to take into account co-operation with removal proceedings and immigration processes when considering applications for immigration bail. We are mindful that non-compliance may already be considered, and that the tribunal takes such behaviour into account when deciding whether to grant bail. However, the intention behind the provision is that there be the same focus on evidence of non-compliant behaviour as there is on those factors already particularised and considered in every case. As we have always made clear, we do not detain indefinitely, and the clause will not mean that people will be detained solely due to non-compliance, as there must always be a realistic prospect of removal within a reasonable timescale.
We will oppose the clause. It makes it more difficult for individuals to get bail and leaves them stranded in immigration detention indefinitely.
The clause would require decision makers to consider previous failure “to cooperate with” certain immigration processes when considering whether to grant immigration bail. That is extremely vague and broad language. There is a risk of it being misconstrued and used to penalise those who use their legal rights to resist or appeal against immigration decisions made against them.
The Public Law Project has stated that if detainees are given the impression that any resistance to a decision of the Home Office may be held against them, it would increase unfairness and have a significant chilling effect on those bringing legitimate legal challenge. There is already an uneven playing field; the clause risks tipping things still further in the Home Office’s favour. The Home Office is expanding its powers of detention, while preventing independent judicial oversight of its decisions to detain.
Immigration detention is a harsh measure. It has no time limit and little judicial oversight, and should be used only when necessary and for the shortest time possible. The Government hold vulnerable people in prison-like immigration detention centres for periods ranging from days to several years. That includes people who have lived in the UK since childhood, people fleeing war and persecution, torture survivors and victims of human trafficking. Such vulnerabilities cannot be managed in detention and will no doubt be worsened by the prospect of bail being denied.
Since 2000, 49 people have died in immigration detention centres, and incidents of self-harm are now recorded at more than one a day. The Home Office’s immigration detention facilities are not fit for purpose, and narrowing the availability of immigration bail will only make the situation worse.
The uncertainty of indefinite detention is cruel not only for the detainee, but for family members waiting for them at home. Research by Bail for Immigration Detainees, which helps 3,500 detainees to apply for bail every year, shows that children of detainees are often British citizens, and suffer a range of physical and mental effects due to separation from their parent. Those are compounded by further, unexpected separation. For those children, cutting off the prospect of bail will lead to further mental ill health and suffering.
The majority of people in detention do not need to be there. More than 60% of people taken into detention are eventually released, their detention having served no purpose, at a cost of £76 million a year, according to Matrix Evidence research. BID has said that the Home Office repeatedly breaks the law and detains people unlawfully. In the past two years, the Home Office has paid out £15.1 million to 584 people whom it had detained unlawfully.
The clause will make it tougher for people to get bail and leave them trapped in detention for longer. The Government have committed to reducing detention, but this measure is counter to their own rhetoric. It means less justice for detainees, more harm for vulnerable refugees and more wasted costs for the taxpayer. That is why Labour opposes the clause.
As I said in my intervention on the Minister, the decision has to be based on whether there is a reasonable prospect of imminent removal, and included in that is the question of the likelihood of the person absconding if bail is granted. If any historical non-compliance has any sort of relation to that question—if it is relevant—the tribunal will obviously already be able to take it into account. Today, the Minister is asking us to tell the decision makers to take into account historical non-compliance even where it has absolutely no bearing, in the decision maker’s view, on the fundamental question of whether someone should be interned. That is moving from weighing up those considerations in the question about removal to using detention almost as a form of punishment. It is completely unjustified, and I echo what the shadow Minister has said.