Immigration Bill

Supplementary written evidence submitted by Immigration Law Practitioners’ Association (IB 45)

IMMIGRATION BILL

ILPA BRIEFINGS TO AMENDMENTS FOR HOUSE OF COMMONS COMMITTEE STAGE

PART 1 REMOVAL AND OTHER POWERS

Removal Directions

Clause 1 Removal of persons unlawfully in the United Kingdom.

AMENDMENT 15

Mr David Hanson

Helen Jones

Phil Wilson

Clause 1, page 1, line 10, after ‘it’, insert ‘and the Secretary of State has given the person written notice of his liability to removal’.

Purpose

To ensure that a person must be given notice of their removal.

Briefing

ILPA supports this amendment. Primary legislation should specify that notice of a decision to remove must be served on a person. It should not be left to guidance or rules to determine whether a person is to be given notice of a decision. As Lord Steyn said in R(Anufrijeva) (on the application of) v. Secretary of State for the Home Department & Anor [2003] UKHL 36

Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system

The current section 10 of the Immigration and Asylum Act 1999 says

"10(3) Directions for the removal of a person may not be given under subsection 1(c) unless the Secretary of State has given the person written notice of the intention to remove him."

Section 105 of the Nationality Immigration and Asylum Act 2002 and the Notices Regulations made under that provision (Immigration (Notices) Regulations SI 2003/658, as amended) are the laws on which the current obligation to give notice is based. For example, the regulations provide:

5.  (1)  A notice given under regulation 4(1) is to-

a)is to include or be accompanied by a statement of the reasons for the decision to which it relates; and

(b)if it relates to an immigration decision specified in section 82(2)(a), (g), (h), (ha), (i), (ia) (j) or (3A)of the 2002 Act-

(i)shall state the country or territory to which it is proposed to remove the person; or

(i)may, if it appears to the decision-maker that the person to whom the notice is to be given may be removable to more than one country or territory, state any such countries or territories.. "

(2) A notice given under regulation 4(2) is to include or be accompanied by a statement of the reasons for the rejection of the claim for asylum.

(3) Subject to paragraph (6), the notice given under regulation 4 shall also include, or be accompanied by, a statement which advises the person of-

(a)his right of appeal and the statutory provision on which his right of appeal is based;

(b)whether or not such an appeal may be brought while in the United Kingdom;

(c)the grounds on which such an appeal may be brought; and

(d)the facilities available for advice and assistance in connection with such an appeal.

(4) Subject to paragraph (6), the notice given under regulation 4 shall be accompanied by a notice of appeal which indicates the time limit for bringing the appeal, the address to which it should be sent or may be taken by hand and a fax number for service by fax. […rest of paragraph omitted]

If the current section 82 goes, as this Bill proposes, there will no longer be a statutory obligation to give notice of the kind of decisions listed in section 82. Removal Directions, mentioned elsewhere in the clause, are directions served on the captain of a ship or aircraft not on the person facing removal. Not to give notice would be contrary to the constitutional principle referred to above.

If the Government is not minded to accept the amendment, then in any event, pending returning to the matter on report, assurances should be sought from the Minister that:

· All persons facing removal under this clause will be given notice of their removal

· That notice will be in writing

· The notice will be in a language that they understand and/or explained to them in a language that they understand

· The notice will inform recipients of the right of appeal on asylum and human rights grounds

· The notice will inform recipients of the availability of judicial review.

The legislation should provide for the notices to include information about the remedies available, in particular, judicial review which will be the only remedy before an independent decision-maker available to those with no right of appeal. They should be informed of the same kind of matters in respect of judicial review as the current notice regulations inform about appeals.

The 10 October 2013 Government factsheet about this clause says that a single decision will be made telling a person that they have no leave (and to see a lawyer sooner rather than later) and making it possible for an immigration officer to remove them. The face of the Bill simply renders a person liable to removal if they require leave but do not have it.

It is vital that notice be given of any decision affecting a person’s status. Those facing removal under this clause will be liable to arrest, search and detention [1] and force can be used against them. Consequences of the decision to remove could include not being entitled to rent property, open a bank account or retain a driving licence. If clause 11 of this Bill becomes law, many will have no right of appeal against the decision, however erroneous it is.

Removal without any notice at all in certain cases was Home Office practice until it was declared unlawful in the Court of Appeal in R (Medical Justice) v Secretary of State for the Home Department [2011] EWCA Civ 1710. The Court said:

… to have effective access to the courts, the person served with removal directions… needs to have a reasonable opportunity to obtain legal advice and assistance.

In that case, the Secretary of State for the Home Department’s policy was quashed as unlawful because it "…abrogated the constitutional right of access to justice".

The Medical Justice case was preceded by the cases of T et ors v SSHD [2010] EWHC 3572 (Admin). [2] The child T had been removed to Italy, a country where she had been in street prostitution. T was brought back to the UK following the decision of the Court.

The history of debates on the question of notice of removal was traced back to 2005 in ILPA’s Response to the Consultation on the Draft Practice Direction on applications for permission to apply for judicial review in immigration and asylum cases. [3]

Even where notice is given, the Home Office Enforcement guidance and Instructions, Chapter 60, say

Where there is a threat of JR, removal directions must remain in place until a Crown Office reference or injunction is obtained in accordance with 4.1 above. However, even if a complete JR claim is submitted, removal directions can be maintained where certain exceptions apply and the JR would not be barrier to removal (see Sections 6 and 7). All threats of JR must be referred to OSCU who will consider whether it is appropriate to maintain removal directions.

In all removal cases, if a person is unable to file a claim because the Administrative Court office is closed, you must still consider whether deferral is appropriate where a copy of detailed grounds is provided to UKBA and lodged with the court at the earliest opportunity. A decision on whether to defer in these circumstances will be taken by OSCU [4]

The person must find a lawyer, in many cases a lawyer prepared to act for free, given that there is no longer any legal aid for immigration as opposed to asylum cases, and that lawyer must be able to get enough information from them to lodge a sensible application with the court if the Home Office is to consider deferring removal in accordance with the above.

In 2009 ILPA provided a witness statement and evidence in the Nyombi case (R(N) v Secretary of State for the Home Department [2009] EWHC 873 (Admin)). Mr Nyombi was unlawfully removed to Uganda while he had an application for judicial review outstanding. There he was detained and ill-treated. The Home Office was ordered by the courts to return him to the UK. He was subsequently recognised as a refugee, because it was recognised that he was at risk of persecution in Uganda. In that case Sir George Newman held that the Home Office was guilty of "a grave and serious breach" of the law. It was found as a fact that Mr Nyombi had been "deliberately misled" on the day of his removal and had been given no opportunity to get in touch with a lawyer or make a telephone call. The UK Border Agency admitted liability and Mr Nyombi was awarded £100,000 in damages.

Under Part 1 of Schedule 1 to the Legal Aid Sentencing and Punishment of Offenders Act 2012, legal aid remains available for applications and appeals under the Refugee Convention and based on Articles 2 (right to life) and 3 (prohibition of torture, inhuman or degrading treatment or punishment) of the European Convention on Human Rights and related provisions. It is no longer available for other immigration appeals.

Under the residence test proposed in the Ministry of Justice consultation Transforming Legal Aid, legal aid will not be available for judicial review, other than for persons seeking asylum, for persons who are not lawfully present in the UK and have clocked up 12 months lawful residence in the UK at some time in the past. There is proposed in the Ministry of Justice document Transforming Legal Aid: next steps exceptions for persons seeking asylum and limited exceptions for some, but not all, trafficked persons and some but not all survivors of domestic violence. A person who has a wrong decision and on but who does not have a right of appeal on protection or human rights grounds will have no option other than not to challenge the decision before any independent decision-maker or to bring a judicial review. The Committee, having grappled with these clauses, will understand the complexity of the cases involved. The issues at stake are whether a person can join or remain with a spouse, partner or child or Legal aid should be available for such appeals.

AMENDMENT 16

Mr David Hanson

Helen Jones

Phil Wilson

Clause 1, page 2, line 32, at end add-

‘(7) Regulations under subsection (6)-

(a) shall be made by statutory instrument, and

(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.’.

Purpose

To ensure that regulations as to the removal of family members of principals to be removed are subject to the affirmative procedure in parliament.

Briefing

ILPA support this amendment but considers that it does not go far enough. ILPA considers that provisions as to family members should be placed on the face of the Bill and subject to scrutiny by parliament not left to secondary legislation.

Clause 1 allows removal of ‘a member of the person [being removed]’s family’ with further particulars, including who is deemed to be a family member, whether they need be given notice of the decision to remove them and, if so, the effect of the notice, left to regulations subject to the negative procedure. It contemplates regulations that would allow family members to be removed without their ever having been notice of this. It also contemplates that any notice given would affect their current leave. The consequences could include their being excluded from employment and, as per this bill, from renting in the private sector, from the National Health Service and from driving.

Provisions to allow the removal of family members exist in respect of deportation (Immigration Act 1971, s. 3(5)(b)), illegal entrants (Immigration Act 1971, Sch. 2, paragraph 10A) and in the current Immigration and Asylum Act 1999 Act 10(1)(c). ILPA considers that as a matter of principle it is objectionable that an individual may be removed from the UK solely because of a family relationship with another individual in circumstances where their own immigration history gives no cause for concern. Why should someone possibly long and well established in the UK, be removed just because a member of his or her family requires but does not have leave to enter / remain?

New section 10(6)(c) will leave to regulations the effect notice of a decision. This is objectionable in view of the range of collateral powers associated with section 10 and that would be exercisable against the family member. They include that under current section 10, the giving of notice of a removal decision invalidates the person’s leave. That is an extremely harsh consequence for a person previously lawfully present (e.g. with Indefinite Leave to Remain). Those facing removal under this clause will be liable to arrest, search and detention [5] and force can be used against them [6] . Consequences of the decision to remove could include not being entitled to rent property, open a bank account or retain a driving licence. If clause 11 of this Bill becomes law, many will have no right of appeal against the decision, however erroneous it is.

A family member facing removal under these powers may have no right of appeal against such a decision if Clause 11 becomes law.

Primary legislation should fully demarcate the class of people to be subjected to these powers. It should not be left to secondary legislation as by the new section 10(6), and indeed, if this amendment is not accepted, legislation subject to the negative procedure (Clause 63(4)).

Primary legislation should specify that the power is exercisable only in respect of family members who themselves require leave to enter or remain. As currently drafted, the power may be exercised against British citizens and EEA nationals. The current section 10(1) limits the exercise of the power to ‘a person who is not a British citizen… The Minister said in oral evidence to the Committee that the power could not be used against such persons. ILPA has seen cases in which counsel, including leading counsel, for the Secretary of State has argued that a British citizen could be removed under the current 10(1)(c). For example this happened in the case that subsequently became ’). became Ahmad and others (removal of children over 18) [2012] UKUT 00267(IAC) where the Secretary of State was represented by leading counsel. In that case, leading counsel subsequently acknowledged that she was mistaken to have argued that given the wording of the current section 10. But her having taken the argument in the first place indicates that absent express provision to the contrary, the Government might seek to rely on the power to remove British citizens.

Primary legislation should clearly and expressly define who are the family members who may be removed. Contrast the Immigration Act 1971, section 5(4) (deportation of family members) which says

For the purposes of deportation the following shall be those who are regarded as belonging to another person’s family – (a) where the other person is a man, his wife [or civil partner] and his or her children under the age of 18; and (b) where the other person is a woman, her husband or civil partner and her or his children under the age of 18 [ and continues with reference to adopted children etc].

A definition should include a further requirement that only those who have obtained leave to enter or remain as a dependant of the person to be removed under new s. 10(1) are to be regarded as members of the person’s family. There would then be at least some nexus between the unlawfulness that makes the person liable to removal under s. 10(1) and the removal of his or her family. Absent such a nexus, it is impossible to see any legitimate justification for the power.

Regardless of whether the amendment is accepted, assurances should be sought from the Minister that

· Only persons who require leave to enter or remain will face removal under this clause

· Only those who have their leave to enter or remain as dependants of the person being removed will face removal under this clause

· Family members will always be given written notice of removal in a language they understand or that is explained to them in a language they understand

AMENDMENT 39

Dr Julian Huppert

Clause 1, page 2, line 32, at end add-

‘(7) The Secretary of State shall by order-

(a) ensure that children are not detained for immigration purposes; and

(b) ensure that if a child requires accommodation prior to departure for-

(i) a minimal pre-departure period with their family, or

(ii) the period until they can leave the country, where a child arrives at a port of entry without a required visa, and makes no claim for visa or asylum on arrival, such accommodation must be provided.

(8) Accommodation set out in subsection (7) should be-

(a) suitable so as to ensure the child’s welfare needs can be met, and

(b) for the least amount of time practicably possible.

(9) Where subsection (7)(b) applies, the officer responsible must ensure that children are only separated from their parents and carers for the purposes of child protection.’.

Presumed purpose

The amendment would give the Secretary of State power by order to ensure that children are not detained for immigration purposes and power to provide accommodation for children.

Briefing

ILPA opposes the detention of children under Immigration Act powers. Two hundred and forty-two children were detained in 2012 [7] , 130 of whom were subsequently released [8] . Where the children were ultimately released then it appears that the time in detention was to no purpose. Certainly it did not mean that removal was effected.

In 2011 the Government opened a new ‘Pre-departure Accommodation’ facility for families called "Cedars". This is a detention centre and operates under immigration act powers. Concerns have been raised by the treatment of families at the facility Her Majesty’s Chief Inspectorate of Prisons,, including regarding the use of force against pregnant women. [9] The 2012 report of the Chief Inspector of Prisons on the Cedars centre in which families are detained found:

HE.18 Substantial force had been used in one case to take a pregnant woman resisting removal to departures. The woman was not moved using approved techniques. She was placed in a wheelchair to assist her to the departures area.

When she resisted, it was tipped-up with staff holding her feet. At one point she slipped down from the chair and the risk of injury to the unborn child was significant. There is no safe way to use force against a pregnant woman, and to initiate it for the purpose of removal is to take an unacceptable risk.

The Inspectorate called for force not to be used. Instead the Agency offered a consultation. It was only in the face of a legal challenge that it backed down. The case of R (on the application of Yiyu Chen and Others) v Secretary of State for the Home Department (CO/1119/2013) was an urgent judicial review claim challenging the Secretary of State’s failure to have a policy in place in respect of the use of force against children and pregnant women. The claim was issued on 31 January 2013 following the Secretary of State’s rejection of the Her Majesty’s Inspectorate of Prisons’ recommendation, made in the report cited above, that she use force against these two groups only in situations where there is a risk of harm to self or another.

The Claimants sought urgent interim relief in the form of an injunction, prohibiting the Secretary of State from using force against these two groups until the issues were determined. On 12 February 2013 Mr Justice Collins granted an injunction prohibiting the Secretary of State’s from using force against the four claimants (a pregnant woman and three children, all at risk of an enforced removal).

On 22 February 2013 the Secretary of State reinstated the former policy from

Chapter 45 of the Enforcement Instructions and Guidance, which states that the UK Border Agency cannot use force against pregnant women, save to prevent harm.

On 10th April 2013, Lord Taylor of Holbeach told the House of Lords that:

The recommendation in the report by HM Inspectorate of Prisons on Cedars pre-departure accommodation that force should never be used to effect the removal of pregnant women and children was rejected by the UK Border Agency [10] .

The Government response to the Home Affairs Select Committee Eighth Report of session 2012-2013: The work of the UK Border Agency (April - June 2012) states:

The UK Border Agency would prefer that pregnant women, vulnerable adults and under 18s who form part of family groups in Cedars left the UK voluntarily and compliantly. It would not be practical to consider a blanket ban on the use of physical intervention on pregnant women and under 18s as this might encourage non-compliance and render the Agency unable to maintain effective immigration controls.

Bhatt Murphy solicitors, who acted for the claimants in Chen, wrote to the Home Affairs Select Committee on 28 March 2013, saying

We are concerned that the policy position set out in that response [the

government’s response to the Committee, described above] directly contradicts the assurances which have been given to the Court and the parties in this action, which is now reflected in policy guidance published on the UK Border Agency’s website, and upon which the Claimants have been invited by the Home Secretary to withdraw their claim for judicial review.

The Minister should be invited to confirm that the Agency will not sanction the use of force against pregnant women or children.

The separation of families is also a matter of grave concern. In April 2013, Bail for Immigration Detainees produced Fractured Childhoods, a report on the separation of families for the purposes of immigration control (http://bit.ly/11qcGhl). The report examined the cases of 111 parents who were separated from 200 children by immigration detention, and found that the Home Office repeatedly failed to safeguard children when making decisions to detain and deport parents. Eighty-five of the 200 children were in fostering arrangements or local authority care during their parent’s detention. Some children moved between unstable care arrangements, were neglected, and were placed at risk of serious harm.

The Minister should be asked what lessons the Government has learned from the Fractured Childhoods report and how it has implemented these.

CLAUSE 1 STAND PART

ILPA opposes clause 1 in its present form standing part of the Bill. This is because of the lack of a requirement of written notice to be given and because of the provisions as to family members, as explained above.

Clause 1 makes new provision for administrative removal from the UK. Unlike deportation, which is used for those who have committed a criminal offence or whose presence is deemed not conducive to the public good, administrative removal is used for those who require leave but do not have it, for example because an extension of leave has been refused or leave curtailed, because they are overstayers or because they never had leave.

The new power in clause 1 is not the magic wand that the Home Office factsheet suggests. It will not bring instant efficiency or certainty. People do not vanish at the moment of refusal and decisions can be wrong. We recall the comments of Lord Justice Sedley in R (Mirza) v SSHD [2011] EWCA Civ 159:

…while many… reasons…for non-removal will already be known and can be advanced when leave is sought, those which by definition cannot yet be known include explanations of or excuses for factors which have brought about an unanticipated refusal of leave to remain... 

It is already the case that the Home Office can serve a refusal and notice of removal at the same time. It is the Home Office that chooses not to do so. In respect of the backlog (legacy) its instructions, available at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/cross-cut/request-removal/req-remove?view=Binary say

You must not make a removal decision at the same time as refusing leave to remain in these cases, other than in asylum cases. The applicant is expected to leave the UK voluntarily when the application is refused.

Only in exceptional cases will make a decision to remove, those where, according to the instruction, one of the following apply:

· the refused application for leave to remain included a dependant child under 18 who has been resident in the UK for three years or more

· the applicant has a dependant child under the age of 18 who is a British citizen

· the applicant is being supported by the UK Border Agency or has provided evidence of being supported by a local authority (under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989), or

· there are other exceptional and compelling reasons to make a removal decision at this time.

Until a removal decision is made, no appeal can take place. The Home Office can and does stop the clock, leaving people in limbo. Cases such as that of Mirza, cited above, were cases about trying to make the Home Office make a decision to remove. The Court of Appeal in Mirza held:

40. It is evident that each of these appellants is being denied a removal decision, following a legitimate refusal of leave to remain, as part of a generalised practice, either manifested in or deriving from the internal organisation of the Border Agency, of separating the two decisions by a frequently substantial period of time.

41. Such a practice is in my judgment contrary to the policy and objects of the legislation, which are, as nearly as can be done, to deal compendiously with all issues concerning the lawfulness of a person’s continued residence in the United Kingdom. A practice of deferral for a short period may meet a legitimate rationale of allowing or encouraging foreign nationals who no longer have leave to remain to depart voluntarily, but this cannot extend to a contravention of statutory policy or to the application of unfair pressure on individuals to forfeit what may be their legal rights.

Only in the topsy turvey world of the former UK Border Agency do you have to fight for a decision to remove you.

Powers of Immigration Officers

Clause 2 and Schedule 1 Enforcement Powers

AMENDMENT 17

Mr David Hanson

Helen Jones

Phil Wilson

Clause 2, page 2, line 35, at end add ‘(Schedule 1 is subject to existing regulatory

systems under-

(a) the Chief Inspector of Borders and Immigration,

(b) IPCC, and

(c) HM Inspector of Prisons.’.

And

AMENDMENT 40

Mr David Hanson

Helen Jones

Phil Wilson

Clause 2, page 2, line 35, at end add-

‘(2) The enforcement powers provided for in Schedule are subject to oversight by-

(a) the Chief Inspector of Borders and Immigration,

(b) the Independent Police Complaints Commission, and

(c) HM Inspector of Prisons.’.

Presumed purpose

To confirm that the new powers granted to immigration officers under Schedule 1 will be subject to oversight of the three regulators listed. The second amendment relates solely to enforcement powers in the Schedule, whereas the first ranges across the schedule as a whole.

Briefing

In ILPA’s view the new powers will be subject to oversight by the bodies listed and we therefore assume that the desired confirmation will be given.

The difficulty, as highlighted by our briefing to Amendment 39, is that the former UK Border Agency does not always abide by the recommendations of the bodies listed. As described therein, Her Majesty’s Chief Inspectorate of Prisons raised concerns about the use of force against pregnant women [11] . The Inspectorate called for force not to be used. On 10th April 2013, Lord Taylor of Holbeach told the House of Lords that:

The recommendation in the report by HM Inspectorate of Prisons on Cedars pre-departure accommodation that force should never be used to effect the removal of pregnant women and children was rejected by the UK Border Agency [12] .

Instead the Agency offered a consultation. It was only in the face of a legal challenge that it backed down and agreed not to use force on pregnant women and children.

The Independent Police Complaints Commission does not have jurisdiction in all relevant cases. In R (Salimi) v (1) SSHD & (2) IPCC [2012] EWCA Civ 422, the Court of Appeal ruled that the Commission did not have jurisdiction to investigate allegations of mistreatment in the course of an enforced removal to Iraq because the alleged mistreatment took place outside of the UK. In October 2007, in responding to the consultation on extending the jurisdiction of the Commission to investigate what is now the UK Border Agency, we identified several concerns about the limitations of the proposed (and now implemented) jurisdiction – including the question of mistreatment outside the UK, including at juxtaposed controls. ILPA’ response to that consultation is available at: http://www.ilpa.org.uk/data/resources/13115/07.10.12-BIA-IPCC-oversight-of-Incidents-and-Complaints-Consultation.pdf .

The amendments provide an opportunity to secure more information about the Agency’s use of powers akin to those granted by the schedule, in particular the use of force. In the light of the report by Karen Monoghan QC on the death of Jimmy Mubenga , we should particularly welcome assurances from the Minister that

· The new powers will be exercised solely by immigration officers and never by private contractors such as G4S or Serco

Ms Karon Monoghan QC provided to Mr Mubenga’s family, to the Home Office, to G4S and to the three G4S guards who restrained him: Stuart Tribelnig, Terry Hughes and Colin Kaler, a 30-page Rule 43 report following the jury’s verdict of unlawful killing. This is designed to present further fatalities. While the report has not been published it has been very widely distributed to the press who have reported her criticisms in detail. These include evidence of ‘pervasive racism’ ‘endemic’ among G4S detention custody officers, and of inappropriate behaviour among them; evidence of use of dangerous restraint techniques, shortcomings in training, a system of financial incentives for managing to effect a removal, including by containing the detainee until the ‘plane takes off.

Ms Monaghan identified that while G4S had lost the contract many of the guards had transferred to the new company ‘…it cannot be assumed that the mere change in contractor will eliminate these cultural problems’ as many of the guards are automatically transferred to the new company. Ms Monoghan identified an agreement between the Home Office and G4S to dispense with the need for accreditation.

The Minister should be asked what the government is currently doing to tackle abuse and inappropriate use of force by private contractors and by Immigration Officers, and what lessons have been learned from abuse of female detainees at Yarls Wood Immigration Removal Centre.

See also our briefing to the clause stand part debate.

AMENDMENT 29

David Hanson

Helen Jones

Phil Wilson

Schedule 1, page 51, line 23, after ‘premises’, insert ‘within 24 hours of

application.’.

Presumed purpose

To ensure that immigration officers must execute a warrant issued by a Justice of the Peace to search premises within 24 hours of the application for that warrant having been made.

Briefing

These are powers to search premises occupied or owned by third parties, rather than against persons against whom the enforcement action is being taken. We suspect that the amendment makes demands of the former UK Border Agency that it is not in a position to meet and that were the amendment accepted then either the Agency would not use these powers of search or it would use them in a way that was unsafe due to inadequate preparation and thereby put persons at risk.

CLAUSE 2 STAND PART

Briefing

For the reasons given in the briefings on individual amendments above, in ILPA’s view, clause 2 should not stand part of the Bill. ILPA does not consider that the case for additional powers has been made out and has particular concerns about the extension of the power to use reasonable force in paragraph 5 of Schedule 1.

Paragraph five of the schedule extends immigration officers’ powers to use reasonable force when exercising powers under the Immigration Act 1971 and the Immigration and Asylum Act 1999, to the exercise of all powers under any of the Immigration Acts, current or future.

A failing organisation inadequately resourced and managed should not be given additional powers to use force. Parliament should require the case to extend the use of force to be argued for power by power.

In FGP v Serco [2012] EWHC 1804, 5 July 2012, the claimant had been detained at an immigration removal centre staffed by Serco. F was held in handcuffs and a chain hen he was taken to hospital. The court held that Serco had breached Article 3 of the European Convention on Human Rights by this unnecessary use of restraint.

Baroness Nuala O’Loan DBE produced a Report to the United Kingdom Border Agency n Outsourcing Abuse in March 2010, while HA was being held in detention in conditions that violated Article 3 of the European Convention on Human Rights. Baroness O’Loan highlighted the rhetoric reality gap with specific reference to

training:

14. Over the period under investigation there was inadequate management of the se of force by the private sector companies. This resulted, on occasion, in failures properly to account for the use of force by recording fully the circumstances and justification for the use of force. The use of force training which officers receive does refer to the legal obligations governing the use of force. However this was not reflected in the bulk of the case papers which I examined. I have therefore made recommendations to address this issue.

This is far from being the first report on the issue. In 2004 the Medical Foundation for the Care of Victims of Torture published Harm on removal. On 16 December 2008 the UK Border Agency’s own Complaints Audit Committee

published it final annual report, which was severely critical of the Agency’s handling of serious complaints. In July 2011, Amnesty International UK’s report, ‘Out of Control – the case for a complete overhaul of enforced removals by private contractors’, highlighted mistreatment going back many years.

The Home Affairs Select Committee has produced a report Rules governing enforced removals from the UK and made recommendations. It states:

16. Although the Agency and its contractors deny that head-down restraint positions are used, the O'Loan Report noted that "under current Control and Restraint techniques a person's head will be held down to prevent them from biting",[ ] and Outsourcing Abuse describes several incidents in which detainees claim to have been restrained with their heads held down or with their bodies bent forwards.[ ] It is difficult to believe that all these accounts are complete fabrications.

17. It is sensible for a single agency-HM Prison Service-to take the lead in

developing and evaluating safe control and restraint procedures. However, there is the danger that the specific needs of other agencies, including the UK Border Agency, might be overlooked. This is particularly true of techniques which can be used safely in the confined, crowded and public space of an aircraft. Reports of head-down restraint positions are troubling in the light of recent evidence which shows that the prolonged use of such positions might carry a risk of death. Equally troubling is the denials by G4S management that such techniques are ever used, by which they appear to mean that staff are not trained to use seated, head-down positions and that the use of such techniques is not reported back to them.[ ]

18. We are not persuaded that head-down restraint positions are never used, even though they are not authorised. We recommend that the Home Office issue urgent guidance to all staff involved in enforced removals about the danger of seated restraint techniques in which the subject is bent forwards. We also recommend that the Home Office commission research into control and restraint techniques which are suitable for use on an aircraft. The use by contractors of unauthorised restraint techniques, sanctioning their use , or failing to challenge their use, should be grounds for dismissal [13] .

ILPA is aware of many substantial settlements in claims for damages involving enforced removals (and false imprisonment) in which aggravated damages and damages for personal injury have been awarded for, inter alia, the use of force, restraint and assaults during enforced removals.

Bail

Clause 3 Immigration bail: repeat applications and effect of removal directions and Schedule 8 part II

AMENDMENT 18

Mr David Hanson

Helen Jones

Phil Wilson

Clause 3, page 3, line 6, at end insert-

‘(5) In deciding whether to give consent to bail the Secretary of State will consider whether the applicant is pregnant.’

Presumed purpose

Clause 18 requires the Secretary of State to give consent to release on bail hearing if removal directions are in force requiring the removal of the person within 15 days of the decision that the person is to be released on bail. This amendment would require her, in deciding whether or not to give consent, to take into account if the person seeking bail was pregnant.

Briefing

The amendment highlights that pregnant women can be and are detained. ILPA continues to call for a end to the detention of pregnant women, most recently in a meeting with representatives of Immigration Enforcement on 23 October 2013. We were left in no doubt whatsoever that our calls were rejected.

Pregnancy should be a consideration in deciding whether a person should be in detention and should also be a consideration when a removal is contemplated, not least because the heavily pregnant will not be allowed to fly. See our briefing to amendment 39 above re the use of force against pregnant women.

Making pregnancy a consideration is not, alas, the same as not detaining pregnant women.

The clause as drafted contemplates a decision that a person should be released on bail. Thus, what appears to be in contemplation is that an independent tribunal judge of the First-tier Tribunal has determined that a grant of bail would be appropriate. If this is correct, that tribunal judge will no doubt have been made aware by the Secretary of State’s representative at the hearing that removal is imminent. What sort of hearing is it where if the tribunal judge does not come up with the desired conclusion, one party can say to the tribunal "your decision has no effect"?

Even if the amendment were included in the Bill, the tribunal judge of the First-tier Tribunal might say "I have decided to release this person on bail because she is pregnant" and the representative of the Secretary of State might say "No you are not, because I do not consent".

That situation could be prolonged. Noting on the face of the clause prevents the Secretary of State from making removal directions, cancelling and resetting them so that she retains control over whether the person is released on bail. The Home Office is required to act reasonably but as the clause is written there would be no option to hear a bailing hearing if removal directions had been set and she had not consented, so it would be difficult to ascertain whether she had acted reasonably or not. The Minister should be asked for an assurance that in the event of more than one set of removal directions being sent, the Secretary of State would undertake to ensure that a person was not prevented from accessing a court more than once in 16 days by virtue of her withholding her consent.

AMENDMENT 32

Dr Julian Huppert

Clause 3, page 3, leave out lines 7 to 19.

Purpose

To maintain the status quo rather than introduce the new provision proposed in this subclause whereby tribunal procedure rules must make provision for the dismissal without a hearing of bail applications made within 28 days of a previous decision to dismiss a bail application unless the appellant can demonstrate a material change of circumstances. This amendment is concerned with paragraph 25 to Schedule 2 of the Immigration Act 1971 which is about the period when the Secretary of State is considering a person’s application to be allowed to enter (in the legal sense) the UK or at the end of the process, when all appeals have been exhausted and the Secretary of State is endeavouring to remove the person from the UK.

And

AMENDMENT 33

Clause 3, page 3, leave out lines 31 to 42.

Mr David Hanson

Helen Jones

Phil Wilson

Purpose

To maintain the status quo rather than introduce the new provision proposed in this subclause whereby tribunal procedure rules must make provision for the dismissal without a hearing of bail applications made within 28 days of a previous decision to dismiss a bail application unless the appellant can demonstrate a material change of circumstances. This amendment is concerned with applications for bail under paragraph 29 of Schedule 2 to the Immigration Act 1971, which is concerned with bail for persons who have a pending appeal.

Briefing

The two amendments contemplate detention at different stages in the process, but the comments below are, for the most part, relevant to both.

The Tribunal Procedure Committee is appointed by the Lord Chancellor, the Lord Chief Justice, the Lord President and at the request of the Senior President of Tribunal sunder Schedule 5 to the Tribunals Courts and Enforcement Act 2007. It is an advisory non-departmental public body. The Home Office argued that it should be allowed to set procedure rules for the Immigration and Asylum Chambers of the Tribunals [14] , but its view did not prevail [15] . The Committee is best placed to make decisions as to the appropriate rules for the First-tier Tribunal when dealing with applications. Moreover, the needs of the Tribunal may change over time and a prescriptive approach to the contents of the rules in primary legislation stands in the way of this.

The Bill as drafted risks simply substituting disputes about whether a change is material are thus substituted for bail hearings.

An application for bail is different from a challenge to the lawfulness of detention, by an application for habeas corpus or for permission to bring a judicial review. A detainee may be bailed if the Tribunal considers that detention is no longer proportionate, for example if the Home Office has failed to progress a case towards removal over several months. Persons in detention may opt for a bail application for reasons of ease of access and cost where it is available, rather than apply to the High Court.

If the possibility of applying for bail is removed it is likely that they will apply to the High Court. Such decisions are already complicated by the absence in bail hearings of detailed records of proceedings and detailed determinations outlining what has been discussed and concluded by the Tribunal. Thus, the proposal is inefficient.

It is also unjust. One consequence will be an increased risk of periods of unlawful detention for certain individuals. Immigration detention is by administrative fiat, without limit of time, and without any independent oversight unless the detainee him/herself makes an application to a tribunal. Article 5(4) of the European Convention on Human Rights provides

‘everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.

Bail applicants reliant on the Home Office providing an address for release, viz those seeking bail accommodation under section 4 (1)(c )of the Immigration and Asylum Act 1999 but who are forced to wait for 28 days before re-lodging where "material change in circumstances" is disputed or after an error of any kind on the part of the Tribunal, will lose the bail accommodation when it lapses (only 14 days validity) and can expect to wait for weeks or months for a new bail address to be granted before they can apply again for release.

The First-tier Tribunal has repeatedly made it clear that each bail decision stands alone without reference to preceding decisions. Bail guidance for First-Tier Tribunal tribunal judges already provides for circumstances where a bail applicant applies again for release within 28 days of a refusal but with no new evidence and no new ground (arguably the same thing as the no "material change" of the bill), making provision for a curtailed hearing, reduced evidence, and shorter consideration in these cases:

"67. First-tier Tribunal Judges can decide how they conduct a hearing to best suit the circumstances of an application. Two particular circumstances should be noted.

· Most bail hearings are conducted by video link. Separate guidance exists as to the arrangements for such video link hearings (see Annex 6).

· In the following situation the Tribunal will restrict the length of a bail hearing, the evidence that will be heard and the opportunity for an applicant to have a period of consultation over a video link prior to the hearing. The first condition is that immigration bail has previously been refused by a First-tier Tribunal Judge after a full hearing of the application within the previous 28 calendar days and the second is that the fresh application contains no new evidence and no new ground. The Tribunal will issue directions to the parties in such cases with the notice of hearing setting out the restrictions." [16]

Earlier this year the Tribunal Procedures Committee queried whether a 28 day block on further bail applications following a refusal and no new circumstances was appropriate period. The Committee said in the consultation document at paragraph 104:

"If the TPC decides to introduce such a Rule, it will need to consider whether 28 days is the appropriate length of time" (TPC, 2013).

 

And at paragraph 102:

"The TPC is conscious… that bail applications, by their very nature, involve vital issues of personal liberty. Any restriction must be considered extremely carefully."

They also appeared to suggest that any 28 day block on new applications (by means of decision without hearing of such applications) would be discretionary, saying:

"This consultation on the proposed Tribunal Procedure (First-tier Tribunal)(IAC) suggests the following Draft Rule 38(2):

"Where, within 28 days of an application to be released on bail being refused, another application to be released on bail is made, the Tribunal may decide the application without a hearing, unless there has been a change in circumstances" (, 2013)

The Tribunal Procedure Committee was suggesting that a 28 day bail application could be heard on the papers only, but the Bill proposes that there be no hearing and no decision.

In the absence of any other new circumstances or new grounds in a bail application but where the detained applicant applies for release less than 28 days after a refusal, there will have been a further period spent in detention during which the Secretary of State has not removed the applicant from the UK. More days in detention without removal is always a material change in circumstance, never mind anything else. As the senior courts have indicated ***, even very short periods of detention – sometimes a matter of days - may be found to be unlawful under certain circumstances. Paragraph 21 of the bail guidance (2012) provides:

"A period of weeks might be disproportionate where one of the effects of detention is to keep a parent apart from young children" [17]

The Tribunal system is required by the existing Procedure Rules and the Tribunals, Courts & Enforcement Act 2007 to be fair and accessible to all parties, including those who have no legal representation. In our experience it will be beyond the ability of the vast majority of unrepresented applicants to prepare a bail application in such a way as to demonstrate the existence of new circumstances or new evidence.

Cases where we should contemplate bringing a new application within 28 days despite there being no material change in circumstances would include

· Cases where the Tribunal at the previous bail hearing appears to have done something very different to what is contemplated by the Procedure Rules. For example, reliance for decision-making on evidence not made available to both parties, or not made available even to the Tribunal.

· Cases where the Tribunal at the previous bail hearing appears to have done something very different to what is suggested in the Bail Guidance.

· Cases where the conduct of the proceedings at the previous bail hearing amounted to procedural unfairness.

· Such cases would include those where inappropriate personal conduct, in creating an impression of partiality on the part of the tribunal, jeopardises procedural fairness in tribunal decision making.

· Cases where the bail applicant has waited several weeks or months to obtain a bail address from the Home Office, as part of the support the Home Office provides under Section 4 (1)(c) of the Immigration and Asylum Act 1999. The proposal penalises applicants reliant on such accommodation.

Examples of such cases follow.

Case of F

Mr F had been detained for nearly three years at the date of hearing. He was without travel documents and therefore could not be removed until this was resolved. He had a significant history of self-harm and suicide attempts in detention. He was refused bail at a hearing in 2012 because the First Tier judge did not know that Home Office initial accommodation [‘Section 4 bail accommodation’] at Barry House in southeast London had the facility to monitor electronic tags where they were fitted as a condition of bail. The Home Office Presenting Officer did not enlighten the Tribunal.. Counsel for the applicant had stated that monitoring was possible (Barry House was after all the release address for most detainees bailed in the south east), and was able to telephone Barry House and ask the manager to fax through confirmation of this to the hearing centre within minutes. Despite this bail was refused.

Counsel’s attendance note stated: "It was submitted by the HOPO in answer to a question by the IJ that Barry House did not allow electronic monitoring. I contacted Barry House while still at the hearing centre to confirm the tagging point but was told by the manager that they do permit electronic tagging and in fact they had residents with tags on there currently. I asked him to send a fax to the Tribunal immediately confirming this since bail had been refused on the false basis that tagging was unavailable at Barry House. He agreed to this and did indeed send the fax. I immediately told the usher of the Court to inform the IJ who was dealing with another application that this confirmation was coming through and that I wished her to reconsider the application in light of this. IJ received the fax but refused to reconsider the application stating that she would add the fax to the file for the next application.

"When I told the HOPO about my telephone conversation and that I was awaiting confirmation she went and took instructions and maintained her position that Barry House does not permit electronic tagging. This is either dishonest or a very severe case of the left hand not knowing what the right hand is doing. Either way it is unacceptable.

"In my opinion the IJ should have reconsidered the application in light of the correct information about tagging at Barry House being provided within minutes of her refusal. She had commented that tagging provides certainty and she refused bail because she considered the applicant was a substantial risk of absconding"

.

Case of M

Liberian national Mr M was detained in November 2009 after serving a 42-month sentence. Two and a half years later on 23rd March 2012, in preparation for making a bail application, he applied for a Home Office Section 4 bail address. In July 2012, by which time Mr M had been waiting four months, BID wrote the first of series of letters of complaint at the delay, in line with the Home Office complaints process. A telephone call to a UKBA Section 4 caseworker on 20th November 2012 revealed that UKBA was still unable to provide a bail address. Mr M was then granted a bail address on 28th November 2012 eight months after application during which time he had not been removed by the Home Office.

Case of P.

Mr P had been detained for over two years at the time of the bail application, and had a longstanding history of mental illness. He had attempted suicide while in detention and had made "an enormous number of cuts" on himself in one day according to an independent medical report. During the bail hearing the judge was taken to photographic evidence of self-harm while in detention including a scarring diagram, and an independent medical report detailing clinical evidence of multiple suicide attempts while in detention and the opinion that detention had caused deterioration in mental state rendering him unfit for detention. Mr P himself showed the judge the extensive scarring on his body via the videolink. The judge noted that further evidence was required of both self-harm and suicide risk, and went on to note that Mr P had not been successful in any of his suicide attempts to date, saying

"Well he has not actually done it though has he? Well he has not actually committed suicide, he has only tried to do it".

Once the application had been withdrawn, counsel’s attendance note shows that the judge then said that in his experience "suicide has the potential to be self-serving". Bail for Immigration Detainees wrote to the Tribunal to raise concerns about the conduct of the bail hearing, including comments made about Mr P’s previous suicide attempts that had prompted counsel to withdraw the application in the belief that Mr P was not receiving a fair hearing. Bail for Immigration Detainees lodged a further bail application for Mr P without waiting for 28 days despite having no new grounds other than the passage of time and further time spent in detention

.

There will be cases where a hearing in less than 28 days can be dealt with expeditiously but will require an oral hearing. For example cases in which

· An unrepresented applicant, or applicant with little or no ability to read or write English or who is otherwise illiterate or lacks capacity, does not understand the procedure at Tribunals.

· An applicant is being advised incorrectly or by someone who is not an accredited immigration advisor (including other detainees) in the absence of legal aid for bail.

· The applicant is mentally ill - possibly severely mentally ill - and as a means of addressing his/her frustration at the ongoing detention lodges bail applications every week or so.

The Minister should be asked for assurances that consent will not be withheld in these circumstances.

All people held in administrative detention must get the chance to have representation at the hearing; the provision to refuse entirely a hearing on an application for release within 28 days of a previous refusal is in effect to disallow representation in court when there may be very strong reasons to return before the Tribunal in less than 28 days.

The option outlined in the current President’s guidance on bail to judges (2012) allows for rapid consideration of such cases within a truncated hearing, while retaining the option of appearance (generally via videolink, with an interpreter if required) for the applicant. The current position on bail applications, as outlined in bail guidance to judges at paragraph 67, of a truncated but full hearing where a bail application has been refused within the previous 28 days, remains the fairest and safest option for the Tribunal and immigration detainees appearing before it.

The Home Office Enforcement Guidance and Instructions at Chapter 55 [18]

55.1.1. General

The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used

Yet, despite this, the UK Border Agency was, not once but four times, been found to have breached Article 3 of the European Convention on Human Rights, the prohibition on torture, inhuman and degrading treatment, for its treatment of mentally ill persons in detention [19] and other cases have settled or are ongoing. In 2012 there were 208 incidents of what statistics call "self-harm" (which includes attempted suicide) requiring medical attention and 1804 detainees formally recognised as being at risk of such harm [20] . Statistics are not collected on those who in this category who do not require medical attention. This type of case, where detention is immediately injurious to the health, including mental health of the detainee illustrates why it is important to preserve prompt access to the Tribunal.

The Bingham Centre for the Rule of Law’s recent publication, written by Michael Fordham QC, Immigration Detention and the Rule of Law: Safeguarding Principles [21] , has as principle 23:

SP23….A detainee has the right to have the lawfulness of detention reviewed by a court empowered to order release.

They cite, inter alia:

UN Commission on Human Rights Resolution 2004/39: Arbitrary

Detention, 19 April 2004, E/CN.4/RES/2004/39, §3: "Encourages the

Governments concerned: (c) To respect and promote the right of anyone

who is deprived of his/her liberty by arrest or detention to be entitled to

bring proceedings before a court, in order that the court may decide without

delay on the lawfulness of his/her detention and order his/her release

if the detention is not lawful, in accordance with their international

obligations".

UNHCR Detention Guidelines (2012), Guideline 7, §47(v): "… the right to

challenge the lawfulness of detention before a court of law at any time

needs to be respected … the authorities need to establish that there is a

legal basis for the detention in question, that the detention is justified

according to the principles of necessity, reasonableness and proportionality,

and that other, less intrusive means of achieving the same objectives

have been considered in the individual case".

WGAD [UN Working Group on Arbitrary Detention] Annual Report 2003, E/CN.4/2004/3/Add.3, 15 December 2003,

§75: "Any person detained for reasons related to immigration should have

an opportunity to request a court to rule on the legality of his or her detention before the expulsion order is enforced".

WGAD Annual Report 1999, E/CN.4/2000/4/Annex 2, 28 December 1999

(Deliberation No. 5), Principle 8: "Notification of the custodial measure

must be given in writing, in a language understood by the asylum-seeker

or immigrant … it shall set out the conditions under which the asylum seeker

or immigrant must be able to apply for a remedy to a judicial

authority, which shall decide promptly on the lawfulness of the measure

and, where appropriate, order the release of the person concerned".

European Convention on Human Rights (1950), Art 5(4): "Everyone who

is deprived of his liberty by arrest or detention shall be entitled to take

proceedings by which the lawfulness of his detention shall be decided

speedily by a court and his release ordered if the detention is not lawful".

Council of Europe, Twenty Guidelines on Forced Return (2005),

Guideline 8(2): "In every case, the need to detain an individual shall be

reviewed at reasonable intervals of time. In the case of prolonged detention

periods, such reviews should be subject to the supervision of a judicial

authority". Guideline 9: "1. A person arrested and/or detained for the

purposes of ensuring his/her removal from the national territory shall be

entitled to take proceedings by which the lawfulness of his/her detention

shall be decided speedily by a court and, subject to any appeal,

he/she shall be released immediately if the detention is not lawful. 2. This

remedy shall be readily accessible and effective".

To maintain the current position that the First-tier Tribunal (Immigration & Asylum Chamber) retains its powers to grant bail where a detainee has been served with directions for removal from the UK to take effect within 14 days of the date of application.

CLAUSE 3 STAND PART

ILPA opposes clause three’s standing part of the Bill. We consider that more checks on powers to detain are needed, not fewer. The proposals in the clause demonstrate the increasingly casual disregard for the liberty of persons under immigration control.

According to UK Border Agency statistics, as of 30 June 2012, 174 persons in detention on that date had been detained for over a year, down from a peak of 255 at 31 December 2010. The Minister could be asked to provide the latest statistics. According to UK Border Agency statistics, of detainees leaving detention after more than a year in 2011, 62% were released and 38% removed or deported. These proportions were exactly reversed, for detainees released after less than a year. Detention Action’s September 2010 report "No Return No Release No Reason" monitored the cases of 167 long-term detainees, of whom only a third (34%) were removed or deported. Between 2007 and 2010, overall numbers of enforced removals and notified voluntary returns declined by 6%. Yet in the same period the number of persons detained at any one time increased by 38%.

In R (BA) v Secretary of State for Home Department [2011] EWHC 2748 (Admin), one of the cases in which the Government was found to have breached Article 3 of the European Convention on Human Rights, the prohibition on torture, inhuman or degrading treatment, the judge speaks of the "callous indifference" to his suffering.

Persons detained without limit of time suffer considerable distress. The Home Office paid out £3 million in 2008-09 and £12 million in 2009-10 in compensation and legal costs arising from unlawful detention.

Even before one contemplates these human costs, the financial costs of keeping persons in immigration detention are high.

Part 2 of Schedule 8 applies the new provisions on bail to proceedings before the Special Immigration Appeals Commission. By the amendments effected by clause 3, paragraph 29 of Schedule 2 to the Immigration Act 1971 is amended to the effect that the consent of the Secretary of State to a bail hearing will be required if removal directions in force require the person’s removal from the UK within 14 days.

In cases before the Special Immigration Appeals Commission the Secretary of State would be required to consent in every case because it is a matter of settled law that the alternatives to a bail hearing, viz. an application for habeas corpus or judicial review of the lawfulness of detention, are insufficient to comply with Article 5 of the European Convention on Human Rights in cases before the Commission.

Article 5(4) of the Convention provides that:

‘everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.

The Government’s view is that:

The bail provisions in the Bill have the potential to engage art 5(4) ECHR but they are compatible because: i) the provisions requiring the FTT and SIAC to reject bail applications without a hearing limit, rather than remove, the power to grant bail; and ii) the provisions allowing the Secretary of State to prevent bail being granted within 14 days of removal do not require the Secretary of State to prevent bail in these circumstances, in any event bail applications in the FTT do not determine the lawfulness of detention – judicial review and habeas corpus are the appropriate remedies and even those subject to SIAC bail (which may review lawfulness) may still apply to the High Court for judicial review or a writ of habeas corpus. See Immigration Bill, European Convention on Human Rights, Memorandum by the Home Office, paras 25-26.

The Secretary of State (and her agents) is not a ‘court’ for the purposes of Article 5(4). The question is, therefore, whether the remedies of judicial review and habeas corpus are sufficient to secure compliance with Article 5(4).

In Chahal v United Kingdom (1996) 23 EHRR 188 (paragraphs 58-61), the European Court of Human Rights held that neither judicial review nor habeas corpus provided an adequate basis for challenging a deportation on national security grounds because closed material could not be disclosed in these proceedings. These principles can be applied to challenging a decision to detain. The High Court would not be able to undertake a full review of the lawfulness of the detention sufficient to comply with article 5(4). The point is not addressed in the Government briefing which assumes that judicial review and habeas corpus provide adequate remedies. ILPA has already drawn this concern to the attention of the Home Office.

The Bingham Centre for the Rule of Law’s recent publication, written by Michael Fordham QC, Immigration Detention and the Rule of Law: Safeguarding Principles [22] sets out the following principles, supported by a wealth of international authority of which the extracts below are just examples:

SP1. LIBERTY. Everyone, whatever their immigration status,

has a basic freedom from detention.

"The fundamental right … to liberty … of person [is] expressed in all

international and regional human rights instruments, and [an]

essential component … of legal systems built on the rule of law."

(UNHCR Detention Guidelines (2012), Guideline 2 §12)

International Covenant on Civil and Political Rights (1966), Art 9(1):

"Everyone has the right to liberty … of person".

Universal Declaration of Human Rights (1948), Art 3

European Convention on Human Rights (1950), Art 5(1): "Everyone has

the right to liberty … of person".

Charter of Fundamental Rights of the EU (2000), Art 6: "Everyone has the

Right to liberty … of person".

SP17. MAXIMUM. The duration of detention must be within a prescribed applicable maximum duration, only invoked where justified.

UNHCR Detention Guidelines (2012), Guideline 6: "To guard against arbitrariness, maximum periods of detention should be set in national legislation.

Without maximum periods, detention can become prolonged, and

in some cases indefinite".

UNHCR/OHCHR Summary Conclusions from Global Roundtable on

Alternatives to Detention of Asylum-Seekers, Refugees, Migrants and

Stateless Persons (2011), §2: "Maximum time limits on … administrative

[immigration detention] in national legislation are an important step to

avoiding prolonged or indefinite detention". §11: "Lack of knowledge

about the end date of detention is seen as one of the most stressful

aspects of immigration detention, in particular for stateless persons and

migrants who cannot be removed for legal or practical reasons".

Report of UN Special Rapporteur on the Human Rights of Migrants,

Gabriela Rodríguez Pizarro, E/CN.4/2003/85, 30 December 2002,

§75(g): "Governments should [ensure] that the law sets a limit on detention pending deportation".

UN Working Group on Arbitrary Detention [WGAD] Annual Report 1999, E/CN.4/2000/4/Annex 2, 28 December 1999 (Deliberation No. 5), Principle 7: "A maximum period should be set bylaw".

Council of Europe, Committee of Ministers Recommendation (2003)5,

§5: "Measures of detention … should be applied only under the … maximum duration provided for by law. If a maximum duration has not been provided for by law, the duration of the detention should form part of the review by the … court".

SP23….A detainee has the right to have the lawfulness of detention reviewed by a court empowered to order release.

[discussed in relation to amendments 22 and 23 above]

SP21. AUTOMATIC COURT-CONTROL. Every detainee must

promptly be brought before a court to impose conditions or order release.

"Any asylum-seeker or immigrant placed in custody must be

brought promptly before a judicial or other authority."

(UN Working Group on Arbitrary Detention, Annual Report 1999

E/CN.4/2000/4/Annex 2, 28 December 1999 (Deliberation No. 5),

Principle 3)

EU Agency for Fundamental Rights, Detention of third-country nationals

in return procedures (2011), p.44: "The right to judicial review of the

detention order must be effectively available in all cases. This can best be

achieved by requiring a judge to endorse each detention order, as many

EU Member States already do".

WGAD [UN Working Group on Arbitrary Detention] Annual Report 2003, E/CN.4/2004/3, 15 December 2003, §86: "… any decision to place [illegal immigrants and asylum-seekers] in detention must be reviewed by a court or a competent, independent and impartial body in order to ensure that it is necessary and in conformity with the norms of international law".

WGAD Annual Report 1997, E/CN.4/1998/44, 19 December 1997, §33(c):

"Appeal and review procedures" should include "an automatic review by a judge after a specific period".

UNHCR Detention Guidelines (2012), Guideline 7 §47: "asylum-seekers

are entitled to the following minimum procedural guarantees: … (iii) to be bought promptly before a judicial or other independent authority to have the detention decision reviewed. The review should ideally be automatic, and take place in the first instance within 24–48 hours of the initial decision to hold the asylum-seeker. The reviewing body must be independent of the initial detaining authority, and possess the power to order release to vary any conditions of release".

The UK is falling short of all these stands. The Home Office Enforcement Guidance and Instructions state at Chapter 55 [23]

55.1.1. General

The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used

In practice, this is not happening, as evidenced by the number of persons detained then released. As other safeguards, being brought automatically before a court and a maximum time limit on detention, they are no part of UK law. There is not enough judicial oversight as it is, the consequences in human suffering and breaches of the law are documented and an increase in powers to resist release from detention is wholly unwarranted.

CLAUSE 4 STAND PART

No amendments have been laid to Clause 4. Clause 4 introduces new requirements for those applying for transit visas or for documents as third country national family members of European nationals to provide biometric information.

Members of the Committee may wish to ask the Minister:

· What is the estimated effect of the proposal on the volume of passengers opting to transit via the UK rather than other European airports?

· Whether the Government considers that the provisions as to third country national family members of European nationals are compatible with European Union law and if so, why?

· For how long it is intended to retain and store this information?

CLAUSE 5 STAND PART: AMENDMENT 19

Mr David Hanson

Helen Jones

Phil Wilson

Page 4, line 23, leave out Clause 5.

No amendments have been laid to clause 5 so there is only the stand part debate. ILPA agrees that Clause 5 should not stand part of the Bill. The clause would allow biometric information to be taken not only from persons detained, but anyone liable to be detained. The Explanatory note is laconic in the extreme. The groups liable to be detained include anyone who has arrived in the UK (Immigration Act 1971, Schedule 2 paragraph 16) including transit passengers, the crew, and other passengers, for the purposes of establishing inter alia, whether they are British citizens. In other words, anyone. And not just anyone arriving at port. The Home Office Enforcement Guidance and Instructions at Chapter 31 [24] rely on the (dubious) authority of Singh v Hammond [1987] 1 All ER 829, [1987] Crim LR 332 as authority for its stop and search operations, for example at tube stations. In that case, the Court held that:

‘An examination [under paragraph 2 of Schedule 2 to the Immigration Act 1971] … can properly be conducted by an immigration officer away from the place of entry and on a later date after the person has already entered … if the immigration officer has some information in his possession which causes him to enquire whether the person being examined is a British citizen and, if not, … whether he should be given leave and on what conditions.’

The Enforcement Guidance and instructions go on to say

Reasonable suspicion that an individual may be an immigration offender could arise in numerous ways but an example might be where an individual attempts to avoid passing through or near a group of IOs who are clearly visible, wearing branded UKBA clothing, at a location which has been targeted based on intelligence suggesting that there is a high likelihood that immigration offenders will be found there. This behaviour could not necessarily be considered to be linked to, for example, evading payment of the train fare if IOs are wearing vests or other items of work wear which clearly show which agency they belong to. In such circumstances the IO could legitimately stop the individual and ask consensual questions based on a reasonable suspicion that that person is an immigration offender.

IOs should not engage with and question all persons in an attempt to demonstrate that they are undertaking these operations in a non-discriminatory manner. Stopping or requesting identification from all individuals in a particular location is not consistent with stopping only those people in relation to whom the IO has a reasonable suspicion that they may be an immigration offender. Instead, IOs must be able to demonstrate and record the objective evidence on which they base the ‘reasonable suspicion’ which forms the basis for their initial engagement with an individual in all cases. The reasons recorded should be sufficient to demonstrate that their actions are compliant with the Equality Act 2010 (see 31.19.5).

In short, any of us, anywhere, if we so much as seek to avoid crossing the path of an immigration officer, will be liable to have the Home Office take whatever comes to be defined as biometric information from us unless and until such time as we are able, if we are, to establish that we are British Citizens or Commonwealth citizens with a right of abode (see Section 143 of the Immigration and Asylum Act 1999 as amended by Schedule 8).

Biometrics

Clause 6 Provision of biometric information with citizenship applications

AMENDMENT 34

Dr Julian Huppert

Clause 6, page 4, line 36, at end insert-

‘(1ZA) Subsection 1(bza) does not apply to persons who were-

(a) born before 1 January 1983 outside the United Kingdom to a British

mother; or

(b) born before 1 July 2006 outside the United Kingdom to a British father

who was not married to their mother.’.

Presumed purpose

New subsection 1 (bza) imposes a requirement to provide biometric information with citizenship or nationality applications, information that will be destroyed if the person becomes a British citizen and obtains a British passport (clause 6(3) inserting subparagraph 1ZD). May also be an opportunity to probe the treatment of the two groups identified.

Briefing

ILPA supports this amendment. A person born before 1 January 1983 outside the United Kingdom to a British mother did not become a British citizen, whereas a person so born (legitimate) to a British father did. Section 4C of the British Nationality Act 1981 makes provision for such persons to register as British citizens, subject to passing a good character test and meeting other requirements. Otherwise the person might be able to naturalise as British in their own right, on the grounds for example of their having worked in the UK, married a British citizen or become a refugee in the UK.

A person before 1 July 2006 to a British father not married to his/her (non-British) mother did not become a British citizen. The law changed on 1 January 2006 so that on proof of paternity such children are recognised as having been born become British citizens. Those born before 1 July 2006 who are still children may be registered by discretion under section 3(1) of the British Nationality Act 1981 as British citizens. Those who are now adults have no route to registration because of their British father, but might be able to naturalise as British in their own right, on the grounds for example of their having worked in the UK, married a British citizen or become a refugee in the UK.

Such persons are in the position in which they find themselves because of the present day effects of historical discrimination. The amendment seeks to lift one of those effects. There is of course very much more work to be done. To give just one example, the grandchild of British mother, born in the UK after 1983, whose father, born to that mother overseas before 1983, has died, has no route back into British citizen through her grandmother. The link has broken. Had the father registered during his lifetime and before her birth, the child, by virtue of her birth in the UK and her father’s British citizenship would herself have been a British citizen.

AMENDMENT 20

Mr David Hanson

Helen Jones

Phil Wilson

Clause 6, page 5, line 10, after ‘citizen’, insert ‘or after three years’.

Purpose

To remove the power to retain photographs of a person who naturalises or registers as a British citizen indefinitely and replace this with a limit of three years.

Briefing

ILPA supports the amendment but considers that it does not go far enough. Biometric information taken under Immigration Act powers must be destroyed when it transpires that a person is, or when they become, British citizens (Immigration and Asylum Act 1999 s 143). New subsection (1ZD) will provide an exception to this so that photographs can be retained until such time as the person obtains a British passport. But there is no obligation to obtain a British passport and, as discussed during the oral evidence sessions, not everyone has one. We recall the words of one young British citizen who naturalised subsequent to being recognised as a refugee, cited in a study by the Scottish Refugee Council:

…it’s the most expensive thing I own, my British passport, I think…

What I did I waited a year from the time I got my indefinite status and then I had to apply for Nationalisation, well I waited more than a year because, to be honest, I couldn’t afford it, I didn’t apply for nationalisation until December. So I had to…first I had to go for a test to prove that I can speak English, which still costs a lot of money £35, which is really a lot of money, then after doing that test, I had to apply for nationalisation [25]

The principle that biometric information is not held about British citizens who are not on police databases is threatened by Clause 5 and openly flouted by this provision.

If it is suggested that it will save people having to send in passport photographs (if indeed it will) then perhaps they should be asked if they wish their trouble to be saved in this way.

CLAUSE 6 STAND PART

ILPA opposes Clause 6’s standing part of the Bill. Under section 143 of the Immigration and Asylum Act 1999, even once it has been amended by Schedule 8 Part 3 of this Bill, the retention of biometric information by a person who is a British citizen or a Commonwealth citizen with a right of abode is prohibited. Clause 6 requires such information with applications for citizenship and naturalisation. Information is to be destroyed when the person is granted citizenship but otherwise can be retained. Even if citizenship is granted, photographs may be retained until a person gets a passport, and indefinitely if they never do so.

In the case of those whose applications are successful, persons, many of whom will have supplied biometric information in connection with previous applications, are being required to supply information which is supposed to be destroyed a few weeks later. Section 143 says that information must be destroyed "as soon as reasonably practical" after the person is found to be/becomes British. This clause creates additional work for an already very overstretched Home Office and, we suggest that there is a real danger that the information will not be destroyed. The Minister could usefully be asked:

· How long is it taking to destroy information pertaining to British citizens at the moment

a) when it is discovered that a person from whom information is taken is British?

b) when a person becomes British?

CLAUSE 7 STAND PART

No amendments having been laid to Clause 7 there is only the Stand Part debate. Regulations under s 7(2) of the UK Borders Act 2007 as amended by clause 7 could place the Secretary of State under a duty to refuse an application if biometric information is not supplied. Biometric information retained in connection with the exercise of immigration and nationality functions may be used for such other purposes are specified in regulations. A study of Part 4, Access to Services, gives some clue as to the range of uses to which information could be put and should be read with this section.

Clause 8 Meaning of "biometric information"

CLAUSE 8 STAND PART

ILPA opposes Clause 8’s standing part of the bill. The clause would allow any information about a person’s physical characteristic as long as it did not specify information about a person’s DNA. This would not prohibit other information, including information not related to external physical characteristics to retained. The definition of biometric information, and thus the powers associated with its being required, its use and its retention, should be limited to what is set out on the face of primary legislation.

We agree with Liberty’s comments in its second reading briefing

We are concerned at the amount of information, including biometrics, being held in relation to foreign nationals at present. A vast amount of personal information is already provided by applicants for visas, including ten images of their fingerprints. Anyone over the age of six who requires a visa to enter and live in the UK is required to provide this information. We are concerned about this drive to retain ever more sensitive material and believe that the Government has not made the case for the decision to extend retention further. We further note that, under clause 8, new types of biometric information to be required in relation to immigration applications may be specified by the Secretary of State. It is not clear why the Government seeks this new order making power. There is (and there will continue to be under the Bill) provision to collect and record information about external characteristics as part of a record of biometric information and it is difficult to identify relevant biometric information (not including DNA or anything that cannot be ascertained via and external search) which could be included in an order. Nonetheless, we are concerned at the inclusion of an order making power which could allow for intrusive additional provision in the absence of proper parliamentary scrutiny. If the Government wishes to extend the kind of information recorded, it should do so on the face this legislation and make its case to Parliament.

CLAUSE 9 STAND PART

No amendments have been laid to Clause 9 and thus there will be only the stand part debate on this clause. The clause is an improvement on the current situation, putting safeguards for children into primary legislation and for that reason ILPA does not oppose its standing part of the Bill. The provisions appear modelled on section 141 of the Immigration and Asylum Act 1999, which deals with fingerprinting.

However, the treatment of children remains of concern. All children over five may have their fingerprints taken [26] . As we understand it that is because fingerprinting of under 5s is not reliable, rather than for any reasons of child protection the interests of the child. The Minister should be asked to set out and the explain the lower age limit at which biometric information may be taken. Will we see it taken from babies?

ILPA is concerned at subparagraph 9 inserted by this Clause into Schedule 2 to the Immigration Act 1971 which will allow an "authorised person" to take biometric information to be taken from a person whom they reasonably believe to be over 16. Sixteen and seventeen year olds are children, and their best interests are required to be a primary consideration. ILPA’s long experience of age disputes [27] is that beliefs in this area can be far from reasonable. That report documents a child who did not know her age identified by her social workers as 14, whose being a child at all was disputed by the UK Border Agency as 17 or 18. When documentation was obtained it showed her to be 11.

Clause 10 Use and retention of biometric information

AMENDMENT 21

Mr David Hanson

Helen Jones

Phil Wilson

Clause 10, page 6, line 37, after ‘offence’, insert ‘for which, if convicted, the

offender would be liable to a term of imprisonment exceeding eight weeks’.

Presumed purpose

To provide that biometric information may not be used in connection with the prevention, prosecution or investigation of offences for which the maximum term of imprisonment is eight weeks or less. Thus it could not be used in connection with offences not punishable by imprisonment.

Briefing

ILPA supports this amendment which places some limits on the other uses to which information taken for immigration purposes can be put.

There are potentially ugly consequences with stocking databases of biometric information with data on foreign nationals where powers to hold data on British citizens are limited. Where a foreign national commits a crime they will be found on the database, in circumstances where a British citizen, because their identity is not on the database, will not. This could lead to inaccurate overrepresentation of foreign nationals in statistics about, for example, hits on databases relating to crime.

It is also necessary to look at how databases are working. If for example, they match only a limited number of indicators, for example, points on a fingerprint or face then sooner or later two fingerprints or faces, that may be very different, will have the same profile. Imagine a contour map. Two mountains, with a valley between, would have the same profile as a plateau of the same height if the points on the map being measured were the mountain tops. Where the plea of a defendant is mistaken identity, it helps them enormously if they can show that they were not the only hit on, for example, the police national computer. Meanwhile the risk of innocent people being called in for questioning will be high. Much depends on how sophisticated the databases are but the risk is that storing information about persons with no criminal record will make it more difficult to catch criminals, not easier.

AMENDMENT 22

Mr David Hanson

Helen Jones

Phil Wilson

Clause 10, page 7, leave out lines 1 to 3.

Presumed Purpose

To confine the power to use information retained to purposes listed on the face of the statute.

Briefing

ILPA supports the amendment but considers that there is also scope to restrict the purposes set out in the face of the statute. The amendment provides an opportunity to probe what other purposes, if any, are contemplated.

If the Secretary of State wishes information for one purpose to be available for use for other, this should be set out on the face of the Bill and scrutinised by parliament. There should be no open ended power to use information for any purpose.

As to the provisions of the face of the statute in clause 10(3), the powers to retain information in connection with national security (10(3)(b))are not necessary as this would be covered by retention for the prevention etc. of crime under subsection (10(3)(a)). Consent should be sought and medical ethics apply if using the information in connection with illness or injury in subsection (10(3)(c)). Retaining information for the purposes of ascertaining whether a person has acted unlawfully is covered by the prevention of crime provisions in (10(3)(a)).

CLAUSE 10 STAND PART

ILPA is opposed to Clause 10 standing part of the Bill. Schedule 8 removes the 10 year limit on the retention of information taken under the Immigration Act 1999 and the Nationality, Immigration and Asylum Act 2002, opening the door to the indefinite retention of such information. The need to justify the collection and storage of biometric information applies to both citizens and third country nationals and these provisions are insufficiently justified and contain insufficient safeguards.

The Secretary of State has not justified the retention of biometric information beyond the 10 year long stop for which provision is made in the UK Borders Act 2007. Meanwhile, Part 4 of Schedule 8 (paragraph 7) provides for removal of the provisions of section 143 of the Immigration and Asylum Act 1999 which provides for the destruction of fingerprints of Commonwealth citizens as soon as reasonably practicable and provides that they shall be retained for no longer than ten years. Paragraph 10 of Schedule 8 would remove provisions of section 126 of the Nationality, Immigration and Asylum Act 2002 which provides, inter alia, that regulations must make provision for information to be destroyed at the end of 10 years beginning on the day on which it is obtained, thus allowing for data to be retained indefinitely.

The need to justify the collection and storage of biometric information applies to both citizens and third country nationals and these provisions are insufficiently justified and contain insufficient safeguards.

November 2013


[1] Clause 1, s 10(5) inserting powers in Schedule 2 to the Immigration Act 1971.

[2] Appealed to the Court of Appeal sub nome MA, BT & DA v SSHD

[3] Much of the early part of this history is set out in ILPA’s 24 November 2006 letter at http://www.ilpa.org.uk/data/resources/13131/06.11.624.pdf

[4] See

[5] Clause 1, s 10(5) inserting powers in Schedule 2 to the Immigration Act 1971.

[6] Immigration and Asylum Act 1999, s. 146, as amended by Schedule 1, paragraph 5.

[7] Home Office Immigration Statistics April to June 2013 https://www.gov.uk/government/publications/immigration-statistics-april-to-june-2013/immigration-statistics-april-to-june-2013#detention-2

[8] Home Office Immigration Statistics April to June 2013

[8] https://www.gov.uk/government/publications/immigration-statistics-april-to-june-2013/immigration-statistics-april-to-june-2013#detention-2

[9] See for example HM Inspector of Prisons (2012) Report on an announced inspection of Cedars Pre-Departure Accommodation; The Guardian, 11 January 2013.

[10] HL Deb, 10 April 2013, c313W.

[11] See for example HM Inspector of Prisons (2012) Report on an announced inspection of Cedars Pre-Departure Accommodation; The Guardian, 11 January 2013.

[12] HL Deb, 10 April 2013, c313W.

[13] Eighth Report of session 2012-2012, Cm 563, available at

[13] http://www.publications.parliament.uk/pa/cm201012/cmselect/cmhaff/563/56303.htm (accessed 3 June

[13] 2013).

[14] "Immigration Appeals, Fair Decisions; Faster Justice", Home Office UK Border Agency 21 August 2008 available at http://217.35.77.12/CB/england/papers/pdfs/2008/immigrationappealsconsultation.pdf

[15]

[16] Tribunals Judiciary, ‘Presidential Guidance Note No 1 of 2012. Bail guidance for judges presiding

[16] Over immigration and asylum hearings’, (2012)

[17] With reference to the case of MXL and others [2010] EWHC 2397 (Admin), para.45ff.

[18] See http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/enforcement/detentionandremovals/chapter55.pdf?view=Binary

[19] R (HA) (Nigeria) v SSHD [2012] EWHC 979; R (S) v SSHD [2011] EWHC 2120 (Admin); R (D) v SSHD [2012] EWHC 2501 (Admin); R (BA) v SSHD [2011] EWHC 2748 (Admin).

[20] Response to Freedom of Information of information requests, see http://www.ctbi.org.uk/96 . See also the evidence of the Association of Visitors to Immigration Detainees to the Home Affairs Select Committee for its report on Asylum, Seventh report of session 2012-2013, HC 71, 8 October 2013 http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/71/71vw32008_HC71_01_VIRT_HomeAffairs_ASY-73.htm . See also HL Deb, 27 June 2012, c71W.

[21] October 2013. Available at http://www.biicl.org/binghamcentre/activities/immigrationdetention/final_documents/

[22] October 2013. Available at http://www.biicl.org/binghamcentre/activities/immigrationdetention/final_documents/

[23] See http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/enforcement/detentionandremovals/chapter55.pdf?view=Binary

[24] http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/enforcement/oemsectione/chapter31?view=Binary

[25] GF10, female, southern Africa, 20’s, British citizen, cited in Becoming British citizens? E xperiences and Opinions of Refugees Living in

[25] Scotland, Emma Stewart and Gareth Mulvery, Scottish Refugee Council, February 2011.

[26] http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/apis/fingerprinting.pdf?view=Binary

[27] See our 2007 publication When is a child not a child? (Asylum, Age disputes and the process of age assessment) available at http://www.ilpa.org.uk/data/resources/13266/ILPA-Age-Dispute-Report.pdf

Prepared 20th November 2013