Nationality, Immigration and Asylum Bill

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Mr. Allan: I agree with the hon. Gentleman. We have sat through the same debates, and he and hon. Members of all parties told the Government why automatic bail hearings were essential if we were to have a system of administrative detention for immigration purposes that complied with the European convention on human rights and commanded respect as being fair. The principle of the bail hearing to check automatically at a reasonable interval whether an individual is detained properly is essential, because in practice individuals are detained for long periods without access to proper legal advice. The bottleneck is caused when people in the legal establishment, whether they work for voluntary sector organisations or pro bono, are not immediately able to get round to see people in detention. Many people were not seen.

The Government's concession in introducing the automatic bail hearing during consideration of the 1999 Act was significant, and they claimed credit for that at the time. It is extremely disappointing for anyone sitting here three years later to see the withdrawal of the Government's concession before it was ever implemented. One wonders what one must do to make an argument that sticks with the Government, rather than one that they will accept when convenient in order to get a Bill enacted.

Angela Eagle: I do not think for one minute that that thought was in the minds of the Ministers who put

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part III in the 1999 Act. I shall explain in due course why we have decided to repeal it. I hope that the hon. Gentleman will not think that the insertion of part III was a cynical ploy to keep people happy, because that is not my understanding of what happened.

Mr. Allan: I have clearly watched too many episodes of ''Yes, Minister'' and other programmes that create cynicism about the machinations of Government. I accept the Minister's assurances that there was a genuine intention to implement the provision, and I look forward to her account of why that has not occurred.

Like the hon. Member for Walthamstow, I understand that if the regime were changed to one in which the vast majority of those held in removal centres had finished the process and were about to be removed, the automatic right to bail might be less necessary. However, the Government have not suggested that there will be a change to stop many people being detained for long intervals without having committed a crime—such people should have their cases reviewed at appropriate intervals. We have a legislative framework for the new concept of removal centres in which the vast majority of people await removal and questions of bail may be less necessary. However, there is no sign that administrative practice will change in such a way that we can expect removal centres to contain only those people. Instead, they will continue to contain many people who are detained for various immigration reasons and to whom bail provisions would apply.

It was suggested that lawyers considered alternatives to bail, such as judicial review and habeas corpus, but none proved as satisfactory as the automatic right to bail. That is why Ministers and members of the relevant Committees accepted the logic in 1999. The withdrawal of the provision concerns us. Will the Minister tell us why she believes that it is justified? I will explain our gentle amendment No. 266, which would reverse the sense of the clause by bringing the bail provisions immediately into effect, rather than repealing them. We still believe that those bail provisions should be brought into effect.

Mr. Lazarowicz: Hon. Members have received many representations from NGOs and voluntary organisations, which appear to oppose almost universally the provisions that would repeal those in part III of the Immigration and Asylum Act 1999. I note especially that the UNHCR believes that the provisions for routine bail hearings are essential to safeguard against arbitrary detention. That is why I share hon. Members' concerns. I understand that there are proposals to simplify the general appeal procedures. If so, there may be an opportunity to revise the system of routine bail hearings as part of that simplification process, which I hope the Minister will consider.

Angela Eagle: I shall share with the Committee some of the thinking behind the decision to repeal the routine bail provisions in part III. As hon. Members pointed out, those provisions were never implemented.

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I remind hon. Members that they would have required a first referral for all detainees in the system before the eighth day of detention, and a hearing before the 10th day. They would also have required a second referral by the 36th day of detention, with a hearing by the 38th day. They were not brought into effect, as we have been trying since the 1999 Act to work out the frequency and logistical implications of automatic bail hearings for each detainee. We concluded that it would be a logistical nightmare that would divert scarce resources from processing asylum applications. That would make it harder for us to complete the asylum process as speedily as all members of the Committee want.

We sometimes have to be open about such administrative decisions, and I intend to be open with the Committee. Implementing the part III bail provisions would significantly increase the burden on the Immigration Appellate Authority. If one listened to some people, one would think that no bail is allowed. Hon. Members have pointed out fairly that bail hearings can be granted under the existing system. Between April 2001 and March 2002, there were 8,498 bail hearings before adjudicators, of which 1,740 were granted. That is with a nominal removal estate of 2,800 places, and 700 hearings a month. It does not include the bail applications to immigration officers, as those records are not kept. We can assume, therefore, that more such applications are made that do not go to adjudicators. Those may be processed routinely and bail granted.

With the increase to 4,000 removal places, we estimate that under the existing arrangements there will be 12,000 bail hearings before adjudicators, which puts the figure up from 700 to 1,000 per month. In anticipation of putting part III into effect, we did a great deal of work to try to estimate what the implications would be of routine bail hearings for everybody in detention. We came to the conclusion that that would create a further 2,100 hearings per month. The Immigration Appellate Authority had a total of 74,144 hearings in the period from 1 April to 31 March 2002. Of those, 59,779 were asylum hearings, 8,206 were immigration hearings, 5,271 were visit-visa hearings and 888 were human rights hearings.

An average of 5,000 asylum hearings and an average of just over 6,000 appeal hearings take place per month. Were automatic bail hearings under part III of the 1999 Act brought into effect, the percentage increase would be substantial. That is why amendment No. 266, which would bring them into effect now, would grind the system to a halt.

We have to be honest and open about these issues. The administrative consequences of automatic bail hearings are substantial. Given the figures and the potential for bringing the whole system to a halt, it was our reluctant judgment that unfortunately it would not be realistic for us to introduce part III bail hearings. We thought it more open and transparent to repeal those provisions, as the amount of available funding and the priorities we have for getting asylum claims through the system would not allow us sensibly to

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bring them into effect without that having an adverse or catastrophic effect on our system.

Mr. Gerrard: Those were very interesting figures, particularly the number of bail hearings that occurred in the year. That tells us something about the figure, which is often quoted, of 1,800 asylum seekers in detention at any one time compared with the number of people in detention at some point during their claim.

I have looked at the figures and weighed up possible actions. Rather than repealing this provision, have the Government considered keeping automatic bail hearings for people who are detained before an initial decision has been made on their claim, especially if the intention is that detention should mainly be at the end of the process?

Angela Eagle: I hope that we are not mixing up the lawfulness of detention—which can be challenged by judicial review and habeas corpus—and decisions about compliance with bail conditions. The two matters are separate. Judicial review and habeas corpus exist for challenges on lawfulness. We have already had challenges on the Oakington process, which have now proceeded to the House of Lords.

Detained persons are notified of their right to apply for bail on the form that advises them of the reasons for their detention. They are also advised to contact either the IAS or the Refugee Legal Centre for free advice, and are given telephone numbers and information leaflets when they go into detention centres. To argue that they are ignorant of their rights would be wide of the mark.

6.15 pm

Mr. Allan: I am grateful to the Minister for her comprehensive response, and it is helpful to have the facts and figures. I have a couple of points to place on record, although I do not expect an immediate response. First, judicial review or habeas corpus procedures are not a substitute for bail hearings. The Minister accepted that they are different. I hope that she will not suggest that they would provide an alternative, because they are about lawfulness rather than bail conditions.

Secondly, if individual detainees are to be given reasons for their detention and told about their right to bail, that is a useful step forward from the 1999 Act. The Minister said that there would be huge administrative difficulties if the number of bail hearings increased, so how will it work? If individual detainees want to exercise their right to bail, and do so in increasing numbers, will that not have the same administrative effect as having automatic bail hearings?

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