With this it will be convenient to discuss the following:
This amendment is consequential on an Amendment 109.
Amendment 109, in clause 70, page 59, line 9, at end insert—
“(5) Sections 27 to 35 may not be commenced before—
(a) the Secretary of State has consulted with such parties as the Secretary of State considers appropriate on—
(i) the compatibility of each section with the Refugee Convention; and
(ii) the domestic and international implications of the UK adopting each section;
(b) the Secretary of State has laid before Parliament a report on the outcome of that consultation stating which parties were consulted, and stating in respect of each section—
(i) the views of the parties consulted on its compatibility and implications;
(ii) the differences between the interpretation of the Convention provided by the section and any interpretations provided by the higher courts before the passing of this Act;
(iii) the reasons why the Secretary of State concludes that the section should be commenced; and
(c) both Houses of Parliament have considered that report and approved the commencement of each of the sections that is to be commenced.
(6) For the purposes of subsection (5)—
“interpretation provided by the higher courts” means an interpretation provided by any judgement of the High Court or Court of Appeal in England and Wales, of the Court of Session in Scotland, of the High Court or Court of Appeal in Northern Ireland or of the United Kingdom Supreme Court that has not been superseded.”
This amendment would require the Secretary of State to hold consultations on the compatibility of Clauses 27 to 35 with the Refugee Convention, and to report to Parliament on such consultations, before the relevant Clauses enter into force.
God loves a tryer, and I do try. The amendments are another attempt to encourage the Government to set out their legal thinking on the compatibility of the clauses cited in amendment 109 with the refugee convention. How do the Government think that the provisions in clauses 27 to 35 can be consistent with the refugee convention?
There is significant concern among some Members from all parties on this issue. So far, we have been told repeatedly by a Minister that the Government are committed to living up to their international obligations, and we have had a lot of assertions that the Bill is consistent with those obligations. However, as I have said, I am not aware of any lawyer with expertise in the area who supports that conclusion.
On the contrary, we have a detailed published opinion from Matrix Chambers that the Bill is absolutely not compliant with the refugee convention. Alongside that, organisations such as the Immigration Law Practitioners Association and various others have come to the same conclusion. Crucially, the ultimate authority on the convention, the UNHCR, published detailed reasoning for its view that certain clauses do not comply with the convention.
In the circumstances, I might be asking a little too much to expect a detailed legal treatise from the Minister today. However, he must at least accept that this state of affairs is not good enough. On the one side, we have extensive published arguments that the Bill breaches the refugee convention and, on the other side, we just have assurances that everything is in accordance with our international obligations. If MPs are to make a properly informed judgment on this on Report and Third Reading, it is incumbent on the Government to provide their legal arguments in more detail.
We have listened carefully to the arguments in favour of amendments 107 to 109, which I will speak to collectively. I thank hon. Members for moving and tabling them, and I agree that it is important that the United Kingdom continues to meet its obligations under the refugee convention and other international conventions and treaties.
I am taking amendments 107 to 109 together because they all seek to achieve the same goal. We do not support them. They seek to delay the commencement of clauses 27 to 35 until their compatibility with the refugee convention has been consulted on and reported to Parliament. As the Committee knows, the UK has a proud history of providing protection to those who need it, in accordance with our international obligations under the convention. I assure hon. Members that every clause in the Bill, including clauses 27 to 35, adheres to our obligations under the refugee convention.
There is no uniform international interpretation of many of the key concepts in the refugee convention. That is an inevitable result of the very nature of international conventions. They are designed to be applied to a range of systems and scenarios across the globe, and to achieve consensus between many signatory states. Each signatory therefore needs to interpret the convention based on a range of sources and information to determine its meaning in good faith. That is not a black-and-white exercise, but one that the Government considered carefully before bringing the Bill to the House and one that we have now entrusted to Parliament in its consideration and considerable scrutiny of the Bill.
The legislative process, in which we are all so engaged today, is in itself a transparent and fully consultative process, as demonstrated by the several reports that the Committee has received on the compatibility of several clauses of the Bill with the refugee convention and other international obligations—including from the United Nations High Commissioner for Refugees.
Clauses 27 to 35 are drafted to create clarity on what the key concepts of the refugee convention mean, driving improved consistency among Home Office decision makers and the courts, with the ultimate aim of making accurate, well-reasoned decisions quicker. That can only be beneficial for all who are involved with asylum seekers.
In the light of the points that I have made, I hope that hon. Members will agree not to press these amendments going forward.
I have not succeeded in what I wanted to do, which was to move beyond assertion that there is compliance with the refugee convention and to hear a little more about why the Government think that that is the case. I accept the point that different countries have slightly different interpretations of certain provisions; that is legitimate. But there are clear arguments that what the Government are doing in relation to the evidential threshold, their definition of “particular social group” and, in particular, their total rewriting of article 31 on immunity from penalties is inexcusable and way beyond any margin of appreciation that Governments enjoy. I tried. I failed. I will accept that. In the meantime, I beg to ask leave to withdraw the amendment.
Amendments 76 to 78, which relate to clause 57—interpretation of part 4—will ensure that the regulation-making power in this clause will come into effect at Royal Assent to the Bill rather than two months after Royal Assent. This is to ensure that the regulations that will define “victim of slavery” and “victim of trafficking” have time to progress through Parliament and themselves come into force by the time the remaining clauses relating to modern slavery commence. As currently drafted, clauses 16, 17 and 23 come into force two months after Royal Assent. Amendment 123 ensures that these clauses, which relate to priority removal notices, come into force by commencement regulations aligning with other provisions relating to priority removal notices. This is to ensure that all provisions relating to priority removal notices can commence simultaneously.
Amendment 191 removes the commencement provision regarding clause 42, as the clause is intended to be replaced entirely by new clause 20. Amendment 167 removes the commencement provisions regarding marker clauses 58 to 61—about age assessments, processing of visa applications from nationals of certain countries, electronic travel authorisations and the Special Immigration Appeals Commission—as these clauses have been removed and replaced by substantive clauses.
Clause 70 sets out the commencement of the clauses in the Bill. As currently drafted, the majority of the provisions in the Bill will be brought into force by regulations on a day appointed by the Secretary of State, with the exception of those in part 6, which commence on Royal Assent, as is usual, and those that come into force two months after Royal Assent.
Amendment made: 77, in clause 70, page 58, line 34, at end insert—
“(a) section 57 (interpretation of Part 4), for the purposes of making regulations under that section;” —
This amendment brings the power to make regulations defining “victim of slavery” and “victim of human trafficking” into force on the day on which the Act receives Royal Assent.
“(b) section (Notice of decision to deprive a person of citizenship)(1) and (5) to (7) (effect of failure to give notice of pre-commencement decision to deprive a person of citizenship);”
This amendment brings subsections (1) and (5) to (7) of NC19 (concerning the effect of a failure to give notice of a pre-commencement decision to deprive a person of citizenship) into force on the day on which the Bill receives Royal Assent.
New clause 19 allows the Secretary of State to amend section 40 of the British Nationality Act 1981 to permit that in certain limited circumstances a notice of deprivation does not have to be given to the person concerned, either where there is no way of communicating with them or where to make contact would disclose sensitive intelligence sources. To deprive someone of British citizenship is very serious and is rightly reserved for those whose conduct involves very high harm or who obtained their citizenship by fraudulent means. However, it cannot be right that the proper functioning of the immigration and nationality system grinds to a halt because an individual has removed themselves from contact with the Home Office, there is otherwise no other method of communication, or because our knowledge of a person’s whereabouts comes from sensitive intelligence sources which we do not wish to disclose.
New clause 19 is therefore necessary to avoid the situation where we could never deprive a person of British citizenship just because it is not practicable, or not possible, to communicate with them. Preserving the ability to make decisions in this way is vital to preserve the integrity of the UK immigration system and protect the security of the UK from those who would wish to do us harm. However, we do not wish to deny a person their statutory right of appeal where we have made a decision to deprive, so the amendment also preserves that right. In cases where we have already made a decision to deprive but for one reason or another have not notified the person, the clause also ensures that such decisions, as well as the subsequent deprivation order, are still lawful.
It is important that deprivation orders made before this Bill comes into force remain valid, otherwise individuals who the Home Secretary has already decided should be deprived of their British citizenship because it is conducive to the public good would have their citizenship effectively reinstated and could therefore freely travel in and out of the UK. This could have detrimental consequences for national security. We need amendment 121 so that the relevant provisions of the new clause are enacted at the earliest opportunity.
I will not say too much, because I need to give new clause 19 further consideration and to speak with stakeholders about it. Circumstances in which service is difficult because a person is out of contact happen pretty regularly in legal disputes that go through the courts. Rather than just shortcutting by having no procedure at all, what happens is that an alternative method is proposed, such as displaying a notice in newspapers. That was back in the old days; I assume that things have moved online since the dim and distant past when I was a practising solicitor. I wonder if there is a better way that does not result in someone being deprived of citizenship—which, as the Minister said, is a very serious matter—without any procedure having been followed at all.
It is controversial to retrospectively decide that decisions to deprive people of nationality are fine, even though they may not have complied with the laws that were in force at that time. Although provisions of this sort are necessary, I still have concerns that the circumstances in which no service would be required are drawn too broadly and that there may be other ways of doing this that do not undermine the clauses, without depriving people of having notice altogether. I leave it at that just now.
Amendments made: 122, in clause 70, page 58, line 36, at end insert—
“(za) section (Notice of decision to deprive a person of citizenship)(2) to (4) (modifications of duty to give notice of decision to deprive a person of citizenship);”.
This amendment brings subsections (2) to (4) of NC19 (modifying the duty to give notice of a decision to deprive a person of citizenship) into force two months after the Bill receives Royal Assent.
Amendment 123, in clause 70, page 58, line 37, leave out paragraph (a).
This amendment will secure that clauses 16, 17 and 23 of the Bill (evidence in asylum or human rights claims) will be brought into force by regulations rather than coming into force automatically two months after Royal Assent to the Bill.
Amendment 124, in clause 70, page 59, line 2, at end insert—
“(fa) section (Working in United Kingdom waters: arrival and entry), for the purposes of making regulations;”.
This amendment brings NC20 into force, for the purposes of making regulations (under the new section 11B for the Immigration Act 1971), two months after Royal Assent to the Bill. The rest of the clause will be brought into force by regulations.
Amendment 191, in clause 70, page 59, line 4, leave out paragraph (h).
This amendment is consequential on the amendment removing clause 42 from the Bill.
“(ia) section (Counter-terrorism questioning of detained entrants away from place of arrival) (counter-terrorism questioning of detained entrants away from place of arrival);”.
This amendment provides for NC12 to come into force two months after Royal Assent to the Bill.
Under schedule 7 to the Terrorism Act 2000, counter-terrorism police have the power to stop, question and if necessary, detain and search individuals travelling through UK port and border areas for the purposes of determining whether a person is or has been involved in terrorism. Currently, officers may exercise schedule 7 powers only when an individual is located within a port or border area and their presence in such an area is as a result of them entering or leaving the UK.
The rise in numbers of those attempting to cross the channel illegally, particularly via small boats, means it is impractical to keep large numbers of people, some of whom are minors or in need of medical assistance, at a port or piece of coastline without adequate facilities. Transporting these individuals to locations once they have been detained or arrested under the immigration Acts often means that examining them under schedule 7 is not possible as they are no longer within a port.
New clause 12 seeks to extend the scope of schedule 7 so that individuals who are in detention under immigration provisions are eligible for examination at the location they are taken to following their initial apprehension under immigration powers. Individuals at these locations will be eligible for examination, provided the officer believes they arrived by sea, were apprehended under the immigration Acts within 24 hours of their arrival and it has been no more than five days since they were apprehended. The full suite of powers and safeguards under schedule 7 will apply, including access to legal advice for those detained over an hour. In line with amendment 79, the new clause will come into force two months after the Bill receives Royal Assent.
The new clause will add a further layer to protect our national security by ensuring those who arrive in the UK illegally by sea can be examined for the purpose of determining their involvement in terrorist activity under the same power as if they had passed through conventional border controls.
Amendments made: 167, in clause 70, page 59, line 7, leave out paragraph (j)
This amendment is consequential on the amendments removing Clauses 58 to 61 of the Bill.
Amendment 168, in clause 70, page 59, line 7, at end insert—
“(ja) section (Interpretation of Part etc) (1) to (4) (interpretation of Part 3A);
(jb) section (Use of scientific methods in age assessments)(1) to (3) and (8) (regulations about use of scientific methods in age assessments);
(jc) section (Regulations about age assessments) (regulations about age assessments);”
This amendment means that amendment NC33 (regulations about age assessments), and the regulation-making power in amendment NC32, will be commenced automatically, two months after Royal Assent, as will the clause that defines certain terms used in the regulation-making power.
Amendment 80, in clause 70, page 59, line 7, at end insert—
“(ja) sections (Removals from the UK: visa penalties for uncooperative countries) and (Visa penalties: review and revocation) (visa penalties);”
This amendment provides for NC9 and NC10 to come into force two months after Royal Assent to the Bill.
‘(5) Sections [Time limit on immigration detention], [Initial detention: criteria and duration] and [Bail hearings] come into force six months after the day on which this Act is passed.“
This amendment would bring NC38, NC39 and NC40 into force six months after the day on which the Bill is passed.
New clause 38—Time limit on immigration detention—
“(1) This section applies to any person (“P”) who is liable to detention under a relevant detention power.
(2) P may not be detained under a relevant detention power for a period of more than 28 days from the relevant time.
(3) If P remains detained under a relevant detention power at the expiry of the period of 28 days then—
(a) P shall be released forthwith; and
(b) P may not be detained under a relevant detention power thereafter, unless the Secretary of State or an immigration officer, as the case may be, is satisfied that there has been a material change of circumstances since P’s release and that the criteria in section [Initial detention: criteria and duration](1) are met.
(4) In this section, “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 the UK Borders Act 2007 (detention pending deportation).
(5) In this section, “relevant time” means the time at which P is first detained under a relevant detention power.
(6) This section does not apply to a person in respect of whom the Secretary of State has certified that the decision to detain is or was taken in the interests of national security.”
This new clause would prevent people who are liable to detention under a relevant power from being detained for longer than 28 days.
New clause 39—Initial detention: criteria and duration—
“(1) A person (“P”) to whom section [Time limit on immigration detention] applies may not be detained under a relevant detention power other than for the purposes of examination, unless the Secretary of State or an immigration officer, as the case may be, is satisfied that—
(a) P can be shortly removed from the United Kingdom;
(b) detention is strictly necessary to effect P’s deportation or removal from the United Kingdom; and
(c) the detention of P is in all the circumstances proportionate.
(2) P may not be detained 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 (5)(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 (2)(c) of section [Bail hearings] and that hearing has not yet taken place.
(3) Nothing in subsections (1) or (2) authorises 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” and “relevant time” have the meanings given in section [Time limit on immigration detention].”
This new clause sets out the circumstances in which a person to whom NC38 applies may be held in initial detention, and the maximum duration of such detention.
New clause 40—Bail hearings—
“(1) This section applies to any person (“P”) to whom section [Time limit on immigration detention] applies and who is detained under a relevant detention power.
(2) Before the expiry of a period of 96 hours from the relevant time, the Secretary of State must—
(a) release P;
(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.
(3) Subject to subsection (4), when the Secretary of State arranges a reference to the Tribunal under subsection (2)(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.
(4) If the period of 24 hours in subsection (3) ends on a Saturday, Sunday or Bank holiday, the Tribunal must hold an initial bail hearing on the next working day.
(5) 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.
(6) Subject to subsection (7), 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: 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 14 days;
(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.
(7) Subsection (6) 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: criteria and duration] above are met and that there are very exceptional circumstances which justify maintaining detention.
(8) In subsection (6), “a bail hearing” includes—
(a) an initial bail hearing under subsection (2); and
(b) the hearing of an application for immigration bail under paragraph 1(3) of Schedule 10 of the Immigration Act 2016.
(9) In this section, “Tribunal” means the First-Tier Tribunal.
(10) The Secretary of State shall provide to P or to 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.
(11) 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 to P’s legal representative in accordance with subsection (10), 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 (10).
(12) 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] of the Sovereign Borders Act 2021.”.”
In respect of people to whom NC38 applies, this new clause would require the Secretary of State to either release them, grant immigration bail or arrange a reference to the Tribunal within 96 hours.
This group of amendments and new clauses is not new. It was proposed in similar words in the most recent immigration Bill by, I think, Mr Davis, but I may be wrong. No Bill passes through this Parliament on immigration and nationality law that does not include amendments and debate about immigration detention. Perhaps, after the last couple of years, Members are more than ever acutely aware that the deprivation of people’s freedoms is keenly felt and should not occur without evidence as to its necessity.
We are talking here about the deprivation of liberty not because people have committed a crime but, essentially, for the convenience of the Home Office. The new clauses contain measures to end what is indefinite detention in the UK, whatever the Home Office says to the contrary, and to implement a workable system that ensures detention is used only as a last resort to effect lawful removals from the UK. That is what the situation should be. The existing power to detain without prior judicial authority would be retained but there would be important safeguards: a 28-day time limit, judicial oversight by way of bail hearings after 96 hours with clear criteria for continued detention and re-detention only when there is a material change in status or circumstances.
Immigration detention has declined over the last several years, which is very welcome. Nevertheless, there is no release date for immigration detainees, which is incredibly severe, particularly in terms of mental ill health. Although numbers have been falling, the length of time that people are detained has not fallen. The fact of falling numbers does not reduce the need for a time limit. We are talking about several thousand individuals leaving detention every year who have been detained for longer than 28 days and hundreds who have been detained for more than six months. In a minority of cases, detention lasts for years rather than months.
Why 28 days? It is not a number that has been pulled from thin air. It is already in Home Office guidance, which requires caseworkers to consider whether removal is imminent and goes on to define imminence in the following terms:
“Removal could be said to be imminent where a travel document exists, removal directions are set there are no outstanding legal barriers and removal is likely to take place in the next four weeks.”
This is a recommendation that has been made by many organisations with expertise in the area, including the Joint Committee on Human Rights, the Home Affairs Committee, the Bar Council and the all-party parliamentary groups on refugees and on migration.
As vice-chair of the inquiry to which the hon. Gentleman referred, may I ask whether he will add the House of Commons to the list of those bodies that have endorsed this? When our recommendation was considered on a votable motion in a Backbench Business debate, it was approved by the House.
I am grateful to the hon. Gentleman and the other hon. Members involved for their work on that report, which was incredibly thorough. We then had a Backbench Business debate and the Government did not oppose it, because there was clearly a majority in the House of Commons at that time for such a time limit.
Finally, I want to say why 28 days should be the limit. There is a body of evidence that the effect of indefinite detention on mental health in general is very negative, but that after a month the deterioration is particularly significant. We recognise that there will be a minority of cases where people will try to play the system and use the time limit to frustrate lawful removal, but the amendment allows for re-detention if there is a material change in status or circumstances. Other sanctions are also open to the Government in such circumstances.
If none of that appeals to the Government, I will briefly mention the argument that consistently over half those detained are then released into the community, so it is a completely inefficient system that costs an absolute fortune. There are alternatives that are not only better for the individuals concerned, but easier on the taxpayer. I hope the Government will give serious thought to the amendments. The issue has been championed by Members of all parties for a considerable period. It is now time to see a step change in the Government’s approach to the use of immigration detention.
I want to be clear from the outset that this Government’s position is that a time limit on detention simply will not work and will not be effective in ensuring that those with no right to be here in the UK leave.
One of the issues highlighted by the report referred to by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, which had genuine cross-party engagement, was that the UK is an outlier in having no limits on detention. Every other country in Europe has a limit. Why does the Minister think it will not work here?
Our immigration system must encourage compliance with immigration rules and protect the public. Those who have no right to be in the UK should leave voluntarily, but where the opportunities to do so are not taken, we have to operate a system to enable us to enforce removal and deport foreign national offenders who would otherwise remain in the UK.
I also want to be clear that we do not and cannot detain people indefinitely. It is not lawfully possible to do so.
I think what the hon. Member has asked me to do is put a time limit on this, and I have already said clearly that just does not work. We have a duty to those in the immigration system, but we have a duty to protect the public too. The introduction of a 28-day detention time limit would severely limit our ability to remove those who refuse to leave voluntarily, and would encourage and reward abuse, to answer the question raised by the hon. Member for Sheffield Central, in some cases from individuals who present a genuine threat to the public, which is not the effect I consider the hon. Members intend with new clause 38.
Does the Minister not think that if someone represents a threat to the public, they would be in jail? If they are not in jail, there is no evidence that they represent a threat to the public.
The hon. Lady is absolutely right, but we are talking about those who are a threat to the public. We have to have a duty of care. In fact, the first role of the Government is to protect their own citizens.
New clause 38 would allow those who wish to frustrate the removal process to run down the clock, in answer to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, until the time limit is reached and release is guaranteed. It would encourage late and opportunistic claims to be made simply to push them over the 28-day limit.
New clauses 38 to 40 are at total odds with the main objectives of the Bill, which will streamline the asylum process, ensuring that outstanding claims and appeals are dealt with much more effectively, with access to legal advice, while enabling us to remove more easily those with no lawful right to remain in the UK. In summary, it is the firm view of this Government that the introduction of a time limit would significantly impair the UK’s ability to proportionately and efficiently remove individuals who have no right to be here and who, in some cases, represent a significant danger to the public. I therefore respectfully ask the hon. Member to withdraw the amendment.
I do not know where to start with that response, although it is very similar to those we have had in previous debates. The bogey card is always that foreign national offenders are a serious risk, yet the Government have the power to deport folk straight from prison. That is the power they should use in those situations.
What we are talking about, very often, is people who have committed no crime, or represent absolutely no risk to the public. They are detained for extraordinary periods of time, and face extraordinary hardship. Anyone reading the report by Stephen Shaw, commissioned by the former Home Secretary and former Prime Minister, Mrs May, will see what it does to people. There is also the APPG report, which has already been referred to.
The idea that these amendments somehow undermine the Government’s ability to enforce immigration rules is completely at odds with the evidence from around Europe. Other countries have at least as much success—and often far greater success—in enforcing immigration rules and getting people to leave the country if they have no leave, without having to resort to endless and routine immigration detention. For all those reasons, I very much regret what we have heard from the Minister. However, I will not put the amendment to a vote today; we shall keep that for another time. I therefore beg to ask leave to withdraw the amendment.