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Standing Committee Debates
Nationality, Immigration and Asylum Bill

Nationality, Immigration and Asylum Bill

Column Number: 233

Standing Committee E

Tuesday 14 May 2002


[Mr. Alan Hurst in the Chair]

Nationality, Immigration and Asylum Bill

Clause 45

Detention by Secretary of State

4.30 pm

Mr. Humfrey Malins (Woking): I beg to move amendment No. 238, in page 24, line 40, leave out subsection 8.

Welcome back to the Chair, Mr. Hurst. We come now to the important aspects of detention and removal. As the Minister will know, detention is a power to be used sparingly and only by those who are trained to use it. Given that the power of detention is now extended further, not only to immigration officers and the judiciary, but to the Secretary of State and, by definition, his caseworkers, I hope that Minister can confirm that they will be fully trained in all such matters.

This probing amendment would delete subsection (8), which is unsatisfactory as the Bill does not explain it properly. The meaning of ''of a particular kind'' is not clear, nor is the meaning of ''of that kind''. In fact, the more I read the subsection, the more mystified I am about its meaning. Would the Minister be kind enough to explain it?

The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): The Government accept the comments of the hon. Member for Woking (Mr. Malins) about the power to detain. It is a serious matter that raises important issues. The problem is that, although the Immigration Act 1971 had a clear division of powers and duties in that respect—immigration officers dealt with people seeking to enter the United Kingdom and the Secretary of State dealt with those already here—the distinction has since become rather blurred, especially as a consequence of certain changes made under the Immigration and Asylum Act 1999.

New section 3A of the 1971 Act allows the Secretary of State to grant, refuse or vary leave to enter the UK in the circumstances set out under the Immigration (Leave to Enter) Order 2001, a function that was previously reserved to immigration officers. Section 10 of the 1999 Act transfers to an immigration officer the power previously held by the Secretary of State to remove overstayers and certain other types of immigration offender.

Our practical difficulty is that in the case of, say, an illegal entrant who claims asylum, a caseworker in the integrated casework directorate can decide the asylum application on behalf of the Secretary of State, but cannot authorise detention if that is considered appropriate. Furthermore, the caseworker cannot authorise release subject to reporting conditions in other cases. The file has to be passed to an

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immigration officer to make that decision and then passed back. The position is different for an on-entry applicant. The ICD caseworker can authorise temporary admission subject to conditions, but cannot authorise detention.

The clause will overcome what we believe is an inefficient way to proceed. It will allow the Secretary of State to authorise detention and grant release subject to conditions in the following cases: when the Secretary of State has power to set removal directions, and when he has power to grant or refuse leave to enter. We are trying to simplify the process.

I understand the hon. Gentleman's points about the importance of such decisions. They will always be reviewed by a senior officer, and I confirm that appropriate training will continue to be provided, although in many senses the criteria will not differ. It is the group of people to whom they apply who will be slightly different.

If the amendment were accepted, no minor who is liable to removal as an illegal entrant under section 10 of the 1999 Act powers or following a refusal of leave to enter could be detained on the Secretary of State's authority. However, an immigration officer's power to detain someone under the age of 18 would not be affected. Obviously, detaining a child is not done lightly, but it is sometimes necessary to allow the removal of a family group to take place smoothly. It may also be necessary in other exceptional circumstances, such as when a child arrives unaccompanied late at night and it is impossible for local social services to make suitable arrangements. Detention in such cases would usually be overnight while alternative care arrangements were made.

The hon. Gentleman asked for examples of decisions ''of a particular kind''. That refers to the sort of decisions allowed under the clause: for example, subsection (2)(c) allows detention pending a decision by the Secretary of State to give legal directions. Under subsection (8), the power to detain under subsection (2)(c) can be exercised pending a decision by the Secretary of State to set removal directions when he has grounds to suspect that he may make a decision to set removal directions.

I emphasise that detention in family cases would be used only when necessary and not for an excessive period. As I said, limiting the power to detain under the clause in the manner proposed would not prevent the detention of a person under 18 by an immigration officer using powers contained elsewhere, in the 1971 Act. I hope that with that explanation the hon. Member for Woking will consider withdrawing the amendment.

Mr. Malins: I am greatly assisted by the Minister's response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 291, in page 24, line 46, at end add—

    '( ) Section 53 of the Immigration and Asylum Act 1999 (c.33) (bail) shall be amended as follows—

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    (a) at the end of subsection (1) add ''or under section 45 of the Nationality, Immigration and Asylum Act 2002'', and

    (b) at the end of subsection (3)(a) add ''or under section 45 of the Nationality, Immigration and Asylum Act 2002''.

    ( ) Section 23(2) of the Anti-terrorism, Crime and Security Act 2001 (c.24) (detention of suspected international terrorist) shall be amended as follows—

    (a) omit ''and'' after paragraph (a), and

    (b) after paragraph (b) add—

    '', and

    (c) section 45 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State).'''.—[Ms Rosie Winterton.


Mr. Malins: I beg to move amendment No. 237, in page 24, line 46, at end add—

    '(10) For the purposes of this section no person under the age of 18 shall be detained in accordance with its provisions'.

Under the amendment, no person under the age of 18 would be detained. It is a probing amendment. I understand that in the real world minors have to be detained from time to time, albeit only in the most exceptional circumstances, whereas the amendment would prevent the Government from detaining minors in any circumstance.

The Government have often said that minors should not be detained, but more family detention places are being built. The half of Yarl's Wood that burned down provided 450 places for families. I remind the Government that they signed the United Nations convention on the rights of the child, but to the great upset of many non-governmental organisations and others, the Government maintain their reservation on article 22 so that children can be detained.

The Ministers will have read the special report entitled ''Refugees in Britain'' by Martin Bright in The Observer on Sunday 12 August 2001. He gave many examples of youngsters who ended up in adult accommodation—some were even detained in prison. I will not go into details, but there were some sad and sorry tales. The 1997 detention instructions state that minors are

    ''unsuitable for detention in Immigration Service Accommodation''.

However, we still detain minors in the United Kingdom, contrary to the convention on the rights of the child and UNHCR guidelines.

The Minister will probably not be able to tell me how many minors are currently detained—the figure may vary from week to week. However, I seek from her an assurance that the Government will strive mightily never to detain minors, and an undertaking to write to me as soon as she can with an update on the numbers involved. Will she also tell the Committee that it is the Government's intention to reduce the number of minors in detention to zero or the nearest possible number to zero?

Ms Winterton: For the reasons I have already given, I cannot give a complete assurance that minors will never be detained. In some cases, detention is necessary in the best interests of the child—for example, overnight detention. Minors may also be detained when appeals have been exhausted and a family has been refused asylum.

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It is difficult to state the exact number of children detained, because that number changes almost daily. Although it is not possible to give accurate figures, I stress that we will do all that we can: for example, in cases involving unaccompanied asylum-seeking children, the Government will seek to ensure that local authorities provide the necessary facilities for them so that, as often as possible, they need not be detained overnight.

I cannot accept the amendment. If the intention is to prevent the detention of anyone under 18, the amendment would not achieve it. It would prevent detention by a Secretary of State, but not by an immigration officer. Again, I stress that detention of minors is not done lightly, but it cannot be wholly avoided. With that reassurance, I hope that the hon. Gentleman will withdraw his amendment.

Mr. Malins: The purpose of my amendment was to flag up the Opposition's concern about the detention of minors, which has troubled us for a long time. I listened to what the Minister said, and although it was not entirely satisfactory, I understand to some extent the logic of her argument. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45, as amended, ordered to stand part of the Bill.

Clause 46


4.45 pm

Ms Winterton: I beg to move amendment No. 252, in page 25, line 8, leave out 'arrests' and inserts 'detains'.


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