Session 2015-16
Internet Publications
Other Bills before Parliament


 
 

 

Immigration Bill

LORDs INSISTENCE, reason, NON-INSISTENCE AND AMENDMENTs IN LIEU

[The page and line references are to HL Bill 79, the bill as first printed for the Lords.]

LORDS AMENDMENT 84

After Clause 30

84

Insert the following new Clause—

 

         

“Immigration detention: time limit and judicial oversight

 

(1)    

Subject to the provisions of this section, a person may not be detained

 

under any of the relevant powers—

 

(a)    

for a period longer than 28 days; or

 

(b)    

for periods of longer than 28 days in aggregate.

 

(2)    

The First-tier Tribunal may—

 

(a)    

extend a period of detention; or

 

(b)    

further extend a period of detention,

 

for such a period as is determined, on application made by the Secretary of

 

State, on the basis that the exceptional circumstances of the case require

 

extended detention.

 

(3)    

The First-tier Tribunal has the power to review an extended period of

 

detention without requiring the Secretary of State to make a new

 

application.

 

(4)    

This section does not apply to a person who—

 

(a)    

has been sentenced to a term of imprisonment for a term of 12

 

months or longer; or

 

(b)    

the Secretary of State has determined shall be deported.

 

(5)    

Rules of procedure for the purposes of this section may be made by the

 

Lord Chancellor.

 

(6)    

In this section—

 
 
Bill 16956/1

 
 

2

 
 

“First-tier Tribunal” means—

 

(a)    

in the case of an appeal against a decision on an asylum

 

application which has not been determined, the chamber of

 

the First-tier Tribunal dealing with the appeal; or

 

(b)    

in any other case, such chamber of the First-tier Tribunal as

 

the Secretary of State considers appropriate;

 

“relevant powers” means powers to detain pursuant to—

 

(a)    

paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration

 

Act 1971,

 

(b)    

paragraph 2(1), (2) or (3) of Schedule 3 to that Act,

 

(c)    

section 62 of the Nationality, Immigration and Asylum Act

 

2002, and

 

(d)    

section 36(1) of the UK Borders Act 2007.

 

(7)    

In the case of a person to whom section 3(2) of the Special Immigration

 

Appeals Commission Act 1997 applies (detention on grounds of national

 

security), the Commission established under that Act shall be substituted

 

for the First-tier Tribunal.”

 

COMMONS DISAGREEMENT AND AMENDMENT IN LIEU

 

The Commons disagree to Lords Amendment No. 84, but do propose Amendment 84A in

 

lieu—

84A

Page 108, line 7, at end insert—

 

“Duty to arrange consideration of bail

 

      (1)  

Subject as follows, the Secretary of State must arrange a reference to the

 

First-tier Tribunal for the Tribunal to decide whether to grant bail to a

 

person if—

 

(a)    

the person is being detained under a provision mentioned in

 

paragraph 1(1)(a) or (c), and

 

(b)    

the period of six months beginning with the relevant date has

 

elapsed.

 

      (2)  

In sub-paragraph (1)(b) “the relevant date” means—

 

(a)    

the date on which the person’s detention began, or

 

(b)    

if a relevant event has occurred in relation to the person since that

 

date, the last date on which such an event has occurred in relation

 

to the person.

 

      (3)  

The following are relevant events in relation to a person for the purposes

 

of sub-paragraph (2)(b)—

 

(a)    

consideration by the First-tier Tribunal of whether to grant

 

immigration bail to the person;

 

(b)    

withdrawal by the person of an application for immigration bail

 

treated as made by the person as the result of a reference under

 

this paragraph;

 

(c)    

withdrawal by the person of a notice given under sub-paragraph

 

(6)(b).

 
 

 
 

3

 
 

      (4)  

The reference in sub-paragraph (3)(a) to consideration of whether to

 

grant immigration bail to a person—

 

(a)    

includes such consideration regardless of whether there is a

 

hearing or the First-tier Tribunal makes a determination in the

 

case in question;

 

(b)    

includes the dismissal of an application by virtue of provision

 

made under paragraph 9(2).

 

      (5)  

The reference in sub-paragraph (3)(a) to consideration of whether to

 

grant immigration bail to a person does not include such consideration

 

in a case where—

 

(a)    

the person has made an application for bail, other than one

 

treated as made by the person as the result of a reference under

 

this paragraph, and

 

(b)    

the First-tier Tribunal is prevented from granting bail to the

 

person by paragraph 3(4) (requirement for Secretary of State’s

 

consent to bail).

 

      (6)  

The duty in sub-paragraph (1) to arrange a reference does not apply if—

 

(a)    

section 3(2) of the Special Immigration Appeals Commission Act

 

1997 (persons detained in interests of national security etc)

 

applies to the person, or

 

(b)    

the person has given to the Secretary of State, and has not

 

withdrawn, written notice that the person does not wish the

 

person’s case to be referred to the First-tier Tribunal under this

 

paragraph.

 

      (7)  

A reference to the First-tier Tribunal under this paragraph in relation to

 

a person is to be treated for all purposes as an application by that person

 

for the grant of bail under paragraph 1(3).”

 

LORDS INSISTENCE AND REASON

The Lords insist on their Amendment 84 for the following reason—

84B

Because Commons Amendment 84A does not make adequate provision for time limiting

 

and judicial oversight of immigration detention.

 

 

LORDS AMENDMENT 85

After Clause 31

85

Insert the following new Clause—

 

Detention and bail

 

Guidance on detention of vulnerable persons

 

(1)    

No person whom the Secretary of State knows, or could reasonably be

 

expected to know, is pregnant shall be detained.

 
 

 
 

4

 
 

(2)    

The Secretary of State must issue guidance specifying matters to be taken

 

into account by a person to whom the guidance is addressed in

 

determining—

 

(a)    

whether a person (“P”) would be particularly vulnerable to harm if

 

P were to be detained or to remain in detention, and

 

(b)    

if P is identified as being particularly vulnerable to harm in those

 

circumstances, whether P should be detained or remain in

 

detention.

 

(3)    

In subsection (2) “detained” means detained under—

 

(a)    

the Immigration Act 1971,

 

(b)    

section 62 of the Nationality, Immigration and Asylum Act 2002, or

 

(c)    

section 36 of the UK Borders Act 2007,

 

    

and “detention” is to be construed accordingly.

 

(4)    

A person to whom guidance under this section is addressed must take the

 

guidance into account.

 

(5)    

Before issuing guidance under this section the Secretary of State must lay a

 

draft of the guidance before Parliament.

 

(6)    

Guidance under this section comes into force in accordance with

 

regulations made by the Secretary of State.

 

(7)    

The Secretary of State may from time to time review guidance under this

 

section and may revise and re-issue it.

 

(8)    

References in this section to guidance under this section include revised

 

guidance.”

 

COMMONS DISAGREEMENT AND AMENDMENTS IN LIEU

 

The Commons disagree to Lords Amendment No. 85, but do propose Amendments 85A and

 

85B in lieu—

85A

Page 38, line 7, at end insert the following new Clause—

 

“      

Guidance on detention of vulnerable persons

 

(1)    

The Secretary of State must issue guidance specifying matters to be taken

 

into account by a person to whom the guidance is addressed in

 

determining—

 

(a)    

whether a person (“P”) would be particularly vulnerable to harm if

 

P were to be detained or to remain in detention, and

 

(b)    

if P is identified as being particularly vulnerable to harm in those

 

circumstances, whether P should be detained or remain in

 

detention.

 

(2)    

In subsection (1) “detained” means detained under—

 

(a)    

the Immigration Act 1971,

 

(b)    

section 62 of the Nationality, Immigration and Asylum Act 2002, or

 

(c)    

section 36 of the UK Borders Act 2007,

 

    

and “detention” is to be construed accordingly.

 
 

 
 

5

 
 

(3)    

A person to whom guidance under this section is addressed must take the

 

guidance into account.

 

(4)    

Before issuing guidance under this section the Secretary of State must lay a

 

draft of the guidance before Parliament.

 

(5)    

Guidance under this section comes into force in accordance with

 

regulations made by the Secretary of State.

 

(6)    

The Secretary of State may from time to time review guidance under this

 

section and may revise and re-issue it.

 

(7)    

References in this section to guidance under this section include revised

 

guidance.”

85B

Page 38, line 7, at end insert the following new Clause—

 

“      

Limitation on detention of pregnant women

 

(1)    

This section applies to a woman if the Secretary of State is satisfied that the

 

woman is pregnant.

 

(2)    

A woman to whom this section applies may not be detained under a

 

relevant detention power for a period of—

 

(a)    

more than 72 hours from the relevant time, or

 

(b)    

more than seven days from the relevant time, in a case where the

 

longer period of detention is authorised personally by a Minister of

 

the Crown (within the meaning of the Ministers of the Crown Act

 

1975).

 

(3)    

In subsection (2) “the relevant time” means the later of—

 

(a)    

the time at which the Secretary of State is first satisfied that the

 

woman is pregnant, and

 

(b)    

the time at which the detention begins.

 

(4)    

A woman to whom this section applies who has been released following

 

detention under a relevant detention power may be detained again under

 

such a power in accordance with this section.

 

(5)    

This section does not apply to the detention under paragraph 16(2) of

 

Schedule 2 to the Immigration Act 1971 of an unaccompanied child to

 

whom paragraph 18B of that Schedule applies.

 

(6)    

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);

 

“woman” means a female of any age.

 
 

 
 

6

 
 

(7)    

The Immigration Act 1971 is amended in accordance with subsections (8)

 

and (9).

 

(8)    

In paragraph 16 of Schedule 2 (detention of persons liable to examination

 

or removal) after sub-paragraph (2A) insert—

 

  “(2B)  

The detention under sub-paragraph (2) of a person to whom

 

section (Limitation on detention of pregnant women) (limitation on

 

detention of pregnant women) of the Immigration Act 2016

 

applies is subject to that section.”

 

(9)    

In paragraph 2 of Schedule 3 (detention or control pending deportation)

 

after sub-paragraph (4) insert—

 

“(4ZA)  

The detention under sub-paragraph (1), (2) or (3) of a person to

 

whom section (Limitation on detention of pregnant women)

 

(limitation on detention of pregnant women) of the Immigration

 

Act 2016 applies is subject to that section.”

 

(10)    

In section 62 of the Nationality, Immigration and Asylum Act 2002

 

(detention by Secretary of State) after subsection (7) insert—

 

“(7A)    

The detention under this section of a person to whom section

 

(Limitation on detention of pregnant women) (limitation on detention

 

of pregnant women) of the Immigration Act 2016 applies is subject

 

to that section.”

 

(11)    

In section 36 of the UK Borders Act 2007 (detention) after subsection (2)

 

insert—

 

“(2A)    

The detention under subsection (1) of a person to whom section

 

(Limitation on detention of pregnant women) (limitation on detention

 

of pregnant women) of the Immigration Act 2016 applies is subject

 

to that section.””

 

LORDS NON-INSISTENCE AND AMENDMENT IN LIEU

 

The Lords do not insist on their Amendment 85, do agree with the Commons in their

 

Amendment 85A, do disagree with the Commons in their Amendment 85B, and do propose

 

Amendment 85C in lieu of Commons Amendment 85B—

85C

Page 38, line 7, at end insert the following new Clause—

 

“      

Limitation on detention of pregnant women

 

(1)    

This section applies subject to the over-riding principle that no pregnant

 

woman shall be detained under a relevant detention power save in the

 

most exceptional circumstances.

 

(2)    

This section applies to a woman if the Secretary of State is satisfied that the

 

woman is pregnant.

 

(3)    

A woman to whom this section applies may not be detained under a

 

relevant detention power for a period of—

 

(a)    

more than 72 hours from the relevant time, or

 

(b)    

more than seven days from the relevant time, in a case where the

 

longer period of detention is authorised personally by a Minister of

 
 

 
 

7

 
 

the Crown (within the meaning of the Ministers of the Crown Act

 

1975).

 

(4)    

In subsection (3) “the relevant time” means the earlier of—

 

(a)    

the time at which the Secretary of State is first satisfied that the

 

woman is pregnant, and

 

(b)    

the time at which the detention begins.

 

(5)    

A woman to whom this section applies who has been released following

 

detention under a relevant detention power may be detained again under

 

such a power in accordance with this section.

 

(6)    

A pregnant woman may only be held under a relevant detention power in

 

a short-term holding facility within the meaning of Part 8 of the

 

Immigration and Asylum Act 1999, or pre-departure accommodation

 

within the meaning of section 147 of that Act, where her needs can be met

 

and provision made for her medical care, except where the woman is being

 

transferred to or from a short-term holding facility or pre-departure

 

accommodation in a manner which makes provision for her care and

 

where the journey does not exceed one hour.

 

(7)    

This section does not apply to the detention under paragraph 16(2) of

 

Schedule 2 to the Immigration Act 1971 of an unaccompanied child to

 

whom paragraph 18B of that Schedule applies.

 

(8)    

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);

 

“woman” means a female of any age.

 

(9)    

The Immigration Act 1971 is amended in accordance with subsections (10)

 

and (11).

 

(10)    

In paragraph 16 of Schedule 2 (detention of persons liable to examination

 

or removal) after sub-paragraph (2A) insert—

 

  “(2B)  

The detention under sub-paragraph (2) of a person to whom

 

section (Limitation on detention of pregnant women) (limitation on

 

detention of pregnant women) of the Immigration Act 2016

 

applies is subject to that section.”

 

(11)    

In paragraph 2 of Schedule 3 (detention or control pending deportation)

 

after sub-paragraph (4) insert—

 

“(4ZA)  

The detention under sub-paragraph (1), (2) or (3) of a person to

 

whom section (Limitation on detention of pregnant women)

 

(limitation on detention of pregnant women) of the Immigration

 

Act 2016 applies is subject to that section.”

 
 

 
Back to StartNext
 

Revised 27 April 2016