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'whom the Secretary of State is lawfully entitled to remove'.
Amendment No. 169, in page 30, line 4, after 'persons', insert—
'over the age of eighteen'.
Ms Winterton: Many hon. Members who served in Committee will recall that, in response to points from the hon. Members for Sheffield, Hallam (Mr. Allan) and for Woking (Mr. Malins), we agreed to consider whether it was necessary to specify in the Bill that the force that could be used by an escort had to be "reasonable". Although we remain of the view that the only force that may lawfully be used is reasonable force, we are content to make that explicit. We have tabled the necessary amendments to effect that.
The power in clause 50 is linked to paragraph 17(2) of schedule 2 to the Immigration Act 1971, which provides for police or immigration officers to enter premises to execute a warrant. That provision uses the same wording as the original clause 50. In the interests of consistency, we have tabled new clause 9, which will add the qualification "reasonable" to the use of force that is authorised in paragraph 17 of schedule 2.
Clause 58(1) creates a new power to allow removal directions to be given for the family of the person who is being removed as an illegal entrant, or following refusal of leave to enter. The immigration Acts contain no power to detain such people. Without such a power, it may not be possible to enforce removal in accordance with the directions. The new power that clause 58(1) creates would therefore be empty. Amendment No. 103 plugs the gap and will enable directions to be enforced if necessary.
Amendment No. 104 is a consequential amendment to section 24 of the Anti-terrorism, Crime and Security Act 2001. It ensures that the bail provisions that apply to suspected international terrorists who are detained under the Immigration Act 1971 would apply to such people who might be detained under clause 49. Section 24 of the 2001 Act currently refers to a suspected international terrorist who is detained under the powers in the 1971 Act. Amendment No. 104 would add detention under the Bill. It places those who are detained under clause 49 on the same footing as those who are detained under the powers of detention in the 1971 Act.
Jeremy Corbyn (Islington, North): How does the amendment apply to foreign nationals who are detained under the new terrorism legislation, which does not require any rules of evidence to give information to defendants about the reason for their detention?
Ms Winterton: The changes that we are introducing will enable those who are suspected of international terrorism to apply for bail. I believe that they will be welcomed because they bring that group of people into line with others.
I hope that hon. Members will support the Government amendments. I shall, of course, respond to points about the other amendments later.
Mr. Humfrey Malins (Woking): We welcome new clause 9. I recall vividly a long discussion in Committee on the use of force. Anxiety was expressed that, increasingly, a wider variety of people in society can use force, including police, immigration officials and security officers. The debate was important and many Opposition Members wanted to include "reasonable" before "force". I am therefore pleased that the Government have introduced the new clause, for which I thank them.
I want to consider the amendments that we have tabled: Nos. 139 and 141. Amendment No. 139 applies to clause 49, and would include the words, "for a reasonable period".
3.45 pm
The Bill, as framed, appears not to set a limit on the period of detention. The purpose of our amendment is to make it clear that the period of detention must be reasonable, and that the likely period for which a person is to be detained is a consideration that the person making the decision must take into account when making that decision and at any subsequent review of someone's continued detention.
The amendment places the concept of reasonableness in the statute itself. I refer the Minister to the House of Lords judgment in the case of Saadi, which I think is
about to come out. The case was heard in May. In the administrative court in September 2001, Mr. Justice Collins ruled that the detention of persons for only seven days at Oakington was unlawful, as it contravened article 5 of the European convention on human rights. His judgment was reversed in the Court of Appeal, but Lord Justice Phillips, obiter, indicated that detention could become unlawful under article 5 if a person was detained for longer than was reasonable to effect the purpose for which he was detained.I apologise to the House for quoting from Lord Justice Phillips's judgment at some length, but this is an important point of principle. He said:
- "It seems to us that the Court is considering as lawful detention pending the consideration of an application for leave to enter or the making of arrangements for deportation and not applying a test of whether the detention is necessary in order to carry out those processes. The inroad that we believe the European Court has made into the right of immigration authorities to detain aliens pending consideration of the applications for leave to enter, or their deportation, is that these processes must not be unduly prolonged. It is in relation to the duration of detention that the question of proportionality arises. Although Collins J. held that detention at Oakington did not fall within Article 5(1)(f) at all, he went on to consider proportionality. In so doing the test that he applied was whether detention was proportionate to the need to process applicants speedily. He decided that it was not because he was not satisfied that it was necessary to achieve that object. We consider that the test of proportionality required by Article 5(1)(f) requires the Court simply to consider whether the process of considering an asylum application, or arranging a deportation, has gone on too long to justify the detention of the person concerned having regard to the conditions in which the person is detained and any special circumstances affecting him or her. Applying that test no disproportionality is demonstrated in this case. The Secretary of State has determined that, in the absence of special circumstances, it is not reasonable to detain an asylum seeker for longer than about a week, but that a short period of detention can be justified where this will enable speedy determination of his or her application for leave to enter. In restricting detention to such circumstances he may well have gone beyond what the European Court would require. We are content that he should have done so. The vast majority of those seeking asylum are aliens who are not in a position to make good their entitlement to be treated as refugees. We believe, nonetheless, that most right thinking people would find it objectionable that such persons should be detained for a period of any significant length of time while their applications are considered, unless there is a risk of their absconding or committing other misbehaviour."
Our amendment No. 141 applies to clause 52, which defines a "removal centre" as
- "a place which is used solely for the detention of detained persons but which is not a short-term holding facility, a prison or part of a prison".
- "'removal centre' means a place which is used solely for the detention of detained persons whom the Secretary of State is lawfully entitled to remove".
We had many discussions in Committee about the names of the various centres, and the change from "detention centre" to "removal centre". We may return to that issue in our debate today. Detaining asylum seekers
is a sensitive issue, and detention should be used with the greatest sensitivity. Detaining persons whom the Secretary of State is not entitled to remove is an unhappy concept for many Opposition Members.It is not many months since the fire at Yarl's Wood. Unless I am mistaken, a Home Office website note said that Yarl's Wood was used for the detention of people whose asylum applications had failed and who were about to be removed. However, Yarl's Wood contained a mixture of people. It could take about 900, but at the time of the fire it held only about 400 or slightly fewer. The key point is that they were not all being detained prior to removal. We would have a greater understanding of the situation if that were the case. We know that the Government want to develop the detention estate to about 4,000. We understand the reasoning behind that, but it is important to focus on exactly who will be detained. At Yarl's Wood, dozens of people were being detained whose asylum appeals were under way rather than exhausted. If current asylum seekers are detained, rather than persons whom the Secretary of State is lawfully entitled to remove, that creates a problem.
If a person is not lawfully removable, it is strongly arguable that he should not be placed in a removal centre. It is wrong to put other people, such as those awaiting the initial consideration of their asylum applications, into a centre that is now to be designated as a removal centre, as that sends a message that their application will not be considered in an open-minded and fair manner.
Imagine the scene: a lawful applicant whose process is under way is, without good cause—the Government will probably dwell on the question of what is and what is not good cause—placed in somewhere called a removal centre. What message does that send about the Government's attitude? Some people argue that that could be in breach of article 5 of the European convention on human rights. I am not sufficiently expert to pronounce on that, but I wonder whether the Minister has taken expert advice and whether she can reassure the House. Furthermore, placing people who are at considerably different stages of the determination process in the same detention environment creates irreconcilable problems for the managers of the detention facilities over the type of regime that should be in place. It may also mean that very vulnerable asylum seekers who, when their cases come to be considered, are found to be refugees will have to spend a lot of time among, not separate from, other types of immigration detainee, and will have to experience an inappropriately high level of security.
This makes sense, does it not? As we all know, even those remanded in custody in criminal cases before being tried are kept in different circumstances from those serving a sentence following conviction, with very different privileges, entitlements and so forth.
A person whose claim for asylum has not been fully determined, or whose appeal is outstanding, cannot lawfully be removed. I understand, incidentally, that in a fairly recent case handled by a very senior and established non-governmental organisation, a client was removed while his appeal was pending, and the Home Office had to bring him back to the United Kingdom.
I feel, therefore, that amendment No. 141 is as important as amendment No. 139.
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