Immigration Bill Committee

Written evidence submitted by ILPA (IB 14C)

ILPA drafting group proposed amendments for House of Commons Committee Part 3 enforcement

Clause 19 Powers in connection with examination, detention and removal

PROPOSED AMENDMENT

Clause 19, page 23, line 10, at end insert -

"(2A) In paragraph 2(2) after "examine" insert "at the point of entry into the United Kingdom."

Purpose

Schedule 2, paragraph 2 of the 1971 Act (ostensibly a power dealing with individuals on arrival in the UK for the purposes of determining whether they have, or should be given leave to enter or remain) has been used by the Home Office as justification for conducting speculative, in-country spot-checks involving ‘consensual interviews’. This proposed amendment would expressly limit this power to examination at the point of entry.

Briefing

ILPA supports this proposed amendment, which has been proposed by Liberty as "end speculative spot check".

The Home Office Enforcement Guidance and Instructions at Chapter 3124 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.

The Home Office takes the 1987 case of Singh v Hammond as authority for the proposition that Schedule 2, paragraph 2 examinations in relation to those ‘who have arrived in the United Kingdom’30 can be carried out in-country. Its enforcement guidance and instructions provide at Chapter 31

In Singh v Hammond, 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 provide

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 Immigration Enforcement 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 body armour 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, can be subject to such powers 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).

Clause 20 Search of premises in connection with the imposition of a civil penalty

PROPOSED AMENDMENT/STAND PART

Clause 20, page 25, line 11, leave out from line 11 to page 26, line 11 (Clause 20)

Purpose

To remove powers to search any premises for documents which might be of assistance in determining whether an employer or a landlord/landlady is liable to the imposition of a civil penalty, to seize and retain those documents.

Briefing

This clause creates a power for an immigration officer lawfully on any premises, be these a private home, a shop or a place of business, to search that premises without a warrant if the immigration officer has reasonable grounds for believing that there are documents which might be of assistance in determining whether an employer or landlord/landlady is liable to the imposition of a civil penalty on those premises. Such documents could include an employer’s personnel and other records or a landlord/landlady’s rent book or diary.

Under existing provisions, augmented by this Bill, an employer, employee or landlord/landlady can be guilty of a criminal offence. The Bill proposes to make it a criminal offence to work without permission. Remaining in the UK without leave is already a criminal offence. Paragraph 25A of Schedule 2 to the Immigration Act 1971 provides powers of entry and search of premises for the purposes of finding and retaining documents which may establish the person’s identity, nationality or citizenship, or the place from which he or she has travelled to the UK or intends to travel from the UK. The powers it confers on immigration offers were extended as recently as last year, by Schedule 1 to the Immigration Act 2014. Inter alia, paragraph 3(3) of that Schedule extended the premises which may be entered and searched from the premises on which a person was found, or which he or she controls or occupies to other premises, but only under the authority of a warrant issued by a justice of the peace if certain conditions are met. These conditions essentially described circumstances where it is not practicable to seek and obtain the permission of whoever owns, or is entitled to enter, these premises.

A document may be retained only be retained under these amendments for such time as an immigration officer has reasonable grounds for believing that the arrested person may be liable for removal and the document may facilitate the person’s removal.

The Schedule also amended Section 146(1) of the Immigration and Asylum Act 1999 to permit immigration officers to use reasonable force in exercising powers under any of the Immigration Acts past, present and future, including any Act resulting from this Bill.

The powers of an immigration officer are set out in Chapter 16 to the Home Office Enforcement Instructions and Guidance. [1] It is not a straightforward document to understand if one is not familiar with the powers in the first place but it gives an idea of just how extensive the powers are. Members of the Committee should request a more detailed version of the tables therein so that they can properly understand existing powers of search, seizure and retention of documents.

Immigration Officers already have extensive powers to search without warrant in connection with a criminal offence. Thus what is envisaged here is to give them powers to search premises without a warrant in circumstances where they do not have any reasonable suspicion that a criminal offence has been committed. There is no restriction in the clause authorising an immigration officer to act only where it is not practicable to obtain a warrant etc.

Powers of search of private homes and places of business of citizens and others in connection with a civil infraction are disproportionate.

Immigration Officers cannot be relied upon to exercise these powers responsibly. In October 2014, in R v Ntege et ors, [2] a prosecution of persons accused of arranging sham marriages, His Honour Judge Madge stayed the prosecution because of both bad faith and serious misconduct on the part of the prosecution. He held "I am satisfied that officers at the heart of this prosecution have deliberately concealed important evidence and lied on oath."

In Abdillaahi Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453 the Court of Appeal concluded that the conduct of what was then the Immigration and Nationality Directorate and HM Prison Service in the unlawful imprisonment of Mr Muuse "was not merely unconstitutional but an arbitrary exercise of executive power which was outrageous". Indeed, it is clear that each of the Lord Justices considered that the Secretary of State was fortunate to avoid a finding of reckless indifference to legality, which would have established misfeasance in public office by officials of his department.

At paragraphs 73 and 74 of the judgment, Thomas LJ lists the key actions or omissions on the part of the officials and of the department which the Court found to exhibit the outrageous nature of the conduct of the officials and the department in this case. In the paragraphs that follow, Thomas LJ sets out what has been done to address the inevitable concerns arising from the findings of fact in this case. The Court’s conclusion, justifying the grant of exemplary damages in the case, was that:

"Given the absence of Parliamentary accountability for the arbitrary and unlawful detention of Mr Muuse, the lack of any enquiry and the paucity of the measures taken by the Home Office to prevent a recurrence, it is difficult to see how such arbitrary conduct can be deterred in the future and the Home Office made to improve the way in which the power to imprison is exercised other than by the court making an award of exemplary damages."

The Guardian and The Observer newspapers covered allegations of rape, abuse and ill-treatment at Yarls Wood removal centre [3] . It was suggested in those cases that an attempt was made to remove the victims from the jurisdiction before they could bring a case. Such allegations are not new. We recall for example the comments of Mr Justice Munby in R (Karas and Miladinovic) v Secretary of State for the Home Department [2006] EWHC 747 (Admin):

I am driven to conclude that the claimants’ detention was deliberately planned with a view to what in my judgment was a collateral and improper purpose - the spiriting away of the claimants from the jurisdiction before there was likely to be time for them to obtain and act upon legal advice or apply to the court. That purpose was improper. It was unlawful. And in my judgment it renders the detention itself unlawful.

What the present case and others like it reveal, in my judgment, is at best an unacceptable disregard by the Home Office of the rule of law, at worst an unacceptable disdain by the Home Office for the rule law, which is as depressing as it ought to be concerning.

Clause 24 Search for nationality documents by detainee custody officers etc.

PROPOSED AMENDMENT

Clause 24, page 30, line 13, leave out lines 13 to 16

PROPOSED AMENDMENT

Clause 24, page 30, line 17, at beginning insert "A strip search"

Purpose

The first amendment removes the power to conduct a strip search. The second amendment introduces an express prohibition.

Briefing

Give the very grave concerns about the treatment of immigration detainees, including about sexual abuse (see further the annex), it is not acceptable to give detainee custody officers powers of strip search. The potential for abuse is enormous and those being searched might previously have been stripped as a prelude to torture or other treatment. A search may not be carried out in the presence of a person of the opposite sex, but can it be carried out by such a person? Given that the powers can be exercised in a young offenders' institution, is it proposed that a child could be strip searched? What of a child in a family detained?

The specific mention of reasonable force (not in connection with this power) in paragraph ((10) provides no reassurance as in the Immigration Act 2014 immigration officers were given powers to use reasonable force in carrying out any of their functions. Commenting on that power, Lord Ramsbotham, former HM Chief Inspector of Prisons and former chair of an independent commission on enforced removals said at second reading of the Bill that became the Immigration Act 2014:

"I do not believe that paragraph 5 of Schedule 1 which allows untrained and unlicensed immigration officers to use unspecified but allegedly ‘reasonable force’ when there is such an authentic catalogue of unreasonable force being used by those on Home Office contracts, including a charge of unlawful killing, should be allowed to stand. I go further by suggesting that it would be wholly irresponsible of this House not to try and ensure that current practice is wound up in favour of something more akin to our claim to be a civilised nation" [4]

PROPOSED AMENDMENT

Clause 24, page 30, line 45 leave out from "might" to the end of line 3 on page 31 and replace with

"-

(a) establishes a person’s nationality or citizenship"

Purpose

To narrow the definition of nationality document to mean a passport or identity card.

Briefing

By Clause 24 detainee custody officers, prison officers and prison custody officers are given powers to search for nationality documents. "Nationality document" is broadly defined to mean a document which "might" establish a person’s nationality, identity or citizenship or indicate the place from which a person has travelled to the UK or to which they intend to go. Under this definition an air ticket could be a "nationality document". So could a diary. So could a tourist brochure or a lonely planet guide.

The powers in subsection 24 exist if "the Secretary of State has reasonable grounds to believe a relevant nationality document" will be found if the power is exercised" (clause 24(4)). Given the breadth of the definition, clause 24 (4) appears to provide no restriction or safeguard at all. If what the Secretary of State wants is the power to rifle through the possessions of detainees at will, then that is what she should ask parliament for and that is what should be discussed.

What is a document which "might" establish a person’s nationality, identity or citizenship? Is it what we should understand as an identity document, with the "might" indicating that the document may not be genuine? Or are a broader range of personal documents envisaged: a signed letter purporting to be from a parent or sibling etc.? Powers to search, including to strip search, persons in detention, where there have been allegations of the most serious abuse, as detailed in the annex are being given to search for nationality documents.

Lord Ramsbotham, former HM Chief Inspector of Prisons and former chair of an independent commission on enforced removals said at second reading of the Bill that became the Immigration Act 2014:

"I do not believe that paragraph 5 of Schedule 1 which allows untrained and unlicensed immigration officers to use unspecified but allegedly ‘reasonable force’ when there is such an authentic catalogue of unreasonable force being used by those on Home Office contracts, including a charge of unlawful killing, should be allowed to stand. I go further by suggesting that it would be wholly irresponsible of this House not to try and ensure that current practice is wound up in favour of something more akin to our claim to be a civilised nation" [5]

We provide further details of abuse and other problems in immigration detention in the annex to this briefing to try to give some sense of what the cases involved and also commend to you the evidence submitted to the detention inquiry conducted by the All Party Parliamentary Groups on Refugees and Migration. [6]

It is against this background that the proposals extensions to enforcement powers in Part 3 should be evaluated.

Clause 25 Seizure of Nationality Documents by Detainee Custody Officers

PROPOSED AMENDMENT

Clause 25, page 31, line 28, leave out lines 38 to 40

Purpose

To remove the proposed power for the Secretary of State to direct an officer to dispose of a seized passport or other "nationality document in such a manner as she directs if she thinks that it would not be appropriate to return it.

PROPOSED AMENDMENT

Clause 25, page 32, line 12, leave out lines 12 to 14

Purpose

To remove the proposed power for the Secretary of State to direct an officer to dispose of a passport or other "nationality document" that "comes into her possession" in such a manner as she directs if she thinks that it would not be appropriate to return it.

Briefing

Under the law of many countries, property in a passport vests in the issuing authority. It is not the property of the Secretary of State to direct be disposed of as she directs. A wider range of documents are envisaged by this clause than passports issued by States, but they are among the documents captured by the very wide definition of a "nationality document" at Clause 24(15).

Will the Secretary of State notify a person of the disposal of their passport ?

Will the Secretary of State in cases where this does not present a danger to an individual (e.g. an asylum case) return the document to the issuing authority?

How will the Secretary of State determine that the return the document to the issuing authority does not present a danger to a person?

Clause 27 and Schedule 3 Amendments to search warrant provisions

GOVERNMENT AMENDMENT 24, 25 28-30

Stated purpose

To provide that the definition of "specific premises warrant" in section 28K(13A) of the Immigration Act 1971 inserted by paragraph 5(8) of Schedule 4 to the Bill applies to any warrant under that Act which is not an all premises warrant

Briefing

The amendment betrays the haste with which instructions have been given to those drafting the Bill. If so many errors have been discovered at an early stage it does not bode well for the clarity of the legislation or its fate in the courts.

Nor does it contribute to democratic scrutiny when the explanation is so opaque. It is unclear whether it is intended that

(a) a specific premises warrant is always for a single premises

or

(b) a specific premises warrant is for a warrant in which all premises to be entered are specified, as opposed to a multiple premises warrant where premises as yet unknown can be entered.

A warrant should be applied for each set of premises it is proposed to enter. Premises should be identified in the warrant. ILPA opposes the amendment.

In his March 2014 report An inspection of the use of the power to enter business premises without a search warrant , the Chief Inspector of Borders & Immigration, March 2014 examined powers of entry without a warrant. In 59% of the cases in his sample entry without warrant had been effected when the required justification for entry without warrant was not made out and in a further 12% the evidence on file did not allow him to determine whether it was made out or not. Recording was inadequate.

Failure to comply with guidance was widespread. In only 5% of cases was there evidence that whether to apply for a warrant had been considered. Speculative grounds were replied on and training was inadequate, with managers as well as staff under them not displaying knowl edge of the correct procedures.

I n the circumstances, anything t hat reduces the scrutiny the courts can bring to immigration officers powers of entry and search is undesirable.

GOVERNMENT AMENDMENTS 49 to 53

Stated purpose

To provide that provisions regarding warrants in sections 28J and 28K of the Immigration Act 1971 as amended by Schedule 4 also apply to a warrant obtained for entering premises to detain a vehicle.

Briefing

These amendments are concerned with the matters that must be specified when applying for a multiple entry warrant. They extend them to cases where it is proposed to detain a vehicle in connection with the new offence of driving when not lawfully present inserted by Clause 17. ILPA’s objections are to multiple entry warrants (and to the new driving offence and attendant power to detain a vehicle) rather than the extension of the procedure for multiple entry warrants to multiple entry warrants applied in connection with the detention of a vehicle.

GOVERNMENT AMENDMENTS 26 and 27

Stated purpose

To reflect Scottish criminal law by removing the requirement for immigration search warrants obtained in Scotland to be returned to the clerk of the district court or the sheriff clerk after they have been executed, allowing for them to be retained for use by the Procurator Fiscal in court.

.

Briefing

This continues the "we have not got time for Scotland" theme evidenced by clauses such as clause 15. It is evidence that clauses have been drafted without taking the situation in Scotland into account. While the drafting can be rectified, the amendment evidences that there has not been consideration of whether the provisions are suitable for Scotland, including whether they might have adverse effects on devolved matters such as criminal law.

ILPA suggests that the amendments should not be accepted at this time but that time should be provided to discuss them with the devolved administration and those Scots MPs leading on immigration matters at Westminster.

GOVERNMENT AMENDMENT 54

Stated purpose

This amendment provides for the supplementary provisions about warrants in sections 28J and

28K of the Immigration Act 1971 to apply to warrants issued under Schedule 5 for entry into

premises to search for and arrest named persons.

Briefing

If warrants are to be issued, all safeguards should be applied. The sections are an important reminder of the safeguards that are mitted when search without warrant is permitted.

Sections 28J and 28K read as follows:

28J.- Search warrants: safeguards.

(1) The entry or search of premises under a warrant is unlawful unless it complies with this section and section 28K.

(2) If an immigration officer applies for a warrant, he must-

(a) state the ground on which he makes the application and the provision of this Act under which the warrant would be issued;

(b) specify the premises which it is desired to enter and search; and

(c) identify, so far as is practicable, the persons or articles to be sought.

(3) In Northern Ireland, an application for a warrant is to be supported by a complaint in writing and substantiated on oath.

(4) Otherwise, an application for a warrant is to be made ex parte and supported by an information in writing or, in Scotland, evidence on oath.

(5) The officer must answer on oath any question that the justice of the peace or sheriff hearing the application asks him.

(6) A warrant shall authorise an entry on one occasion only.

(7) A warrant must specify-

(a) the name of the person applying for it;

(b) the date on which it is issued;

(c) the premises to be searched; and

(d) the provision of this Act under which it is issued.

(8) A warrant must identify, so far as is practicable, the persons or articles to be sought.

(9) Two copies of a warrant must be made.

(10) The copies must be clearly certified as copies.

(11) "Warrant" means a warrant to enter and search premises issued to an immigration officer under this Part or under paragraph 17(2) or 25A(6A) of Schedule 2.

28K.- Execution of warrants.

(1) A warrant may be executed by any immigration officer.

(2) A warrant may authorise persons to accompany the officer executing it.

(3) Entry and search under a warrant must be-

(a) within one month from the date of its issue; and

(b) at a reasonable hour, unless it appears to the officer executing it that the purpose of a search might be frustrated.

(4) If the occupier of premises which are to be entered and searched is present at the time when an immigration officer seeks to execute a warrant, the officer must-

(a) identify himself to the occupier and produce identification showing that he is an immigration officer;

(b) show the occupier the warrant; and

(c) supply him with a copy of it.

(5) If-

(a) the occupier is not present, but

(b) some other person who appears to the officer to be in charge of the premises is present,

subsection (4) has effect as if each reference to the occupier were a reference to that other person.

(6) If there is no person present who appears to the officer to be in charge of the premises, the officer must leave a copy of the warrant in a prominent place on the premises.

(7) A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued.

(8) An officer executing a warrant must make an endorsement on it stating-

(a) whether the persons or articles sought were found; and

(b) whether any articles, other than articles which were sought, were seized.

(9) A warrant which has been executed, or has not been executed within the time authorised for its execution, must be returned-

(a) if issued by a justice of the peace in England and Wales, to the designated officer for the local justice area in which the justice was acting when he issued the warrant;

(b) if issued by a justice of the peace in Northern Ireland, to the clerk of petty sessions for the petty sessions district in which the premises are situated;

(c) if issued by a justice of the peace in Scotland, to the clerk of the district court for the commission area for which the justice of the peace was appointed;

(d) if issued by the sheriff, to the sheriff clerk.

(10) A warrant returned under subsection (9)(a) must be retained for 12 months by the designated officer

(11) A warrant issued under subsection (9)(b) or (c) must be retained for 12 months by the clerk.

(12) A warrant returned under subsection (9)(d) must be retained for 12 months by the sheriff clerk.

(13) If during that 12 month period the occupier of the premises to which it relates asks to inspect it, he must be allowed to do so.

(14) "Warrant" means a warrant to enter and search premises issued to an immigration officer under this Part or under paragraph 17(2) or 25A(6A) of Schedule 2.

Before Clause 29 Immigration Bail

PROPOSED AMENDMENT

Before Clause 29, page 33 line 7

Leave out heading "immigration Bail"

Clause 29 Immigration Bail

PROPOSED AMENDMENT

Clause 29, page 33 line 8

Leave out name of clause "Immigration Bail" and replace with "Temporary admission"

CONSEQUENTIAL AMENDMENTS (including to Schedule 5 Immigration Bail )

Clause 29, page 33 line 9 leave out "immigration bail" and replace with "temporary admission"

Clause 29, page 33 line 13 leave out Bail" and replace with "temporary admission"

Schedule 5, page 78, line 25 rename the schedule "Temporary admission"

Schedule 5, in all places in schedule 5 where the words "immigration bail" or "bail" appear, rename this "temporary admission.

Purpose

To rename immigration bail temporary admission. Further consequential amendments (to the Immigration Act 1971 and thence to secondary legislation e.g. the Tribunal Procedure Rules) would be required fully to achieve the proposed change but these amendments will suffice to debate the point.

Briefing

The Bill creates a single status to replace bail, temporary admission and temporary release. Temporary admission is used for persons at liberty on the territory of the UK who have applied for leave but do not have it. While it can be used generally for persons in cases where an immigration officer is deliberating whether to admit them to the UK and does not detain them while these deliberations are taking place, it is used most often for persons seeking asylum. Turning someone back at port of entry is likely to take hours or at most days whereas the determination of an asylum claim takes months so many of those who remain on temporary admission for any significant period are persons seeking asylum.

The terminology of "immigration bail" suggests that detention is the norm and liberty an aberration. It also suggests that persons those with this status, in particular those seeking asylum are a form of criminal. In international law, Article 31 of the 1951 Refugee Convention expressly protects those who claim asylum from being treated as criminals and UNHCR and other international guidance recognises that detention of persons seeking asylum must always be the exception.

Persons seeking asylum have greeted with consternation the notion that they might be termed "on bail." These are persons who have presented themselves to the authorities and asked to regularize their status: they have applied for leave as a person seeking asylum. They include refugees, children, survivors of torture and trafficked persons. Anything that increases the possibility that they will be treated as criminals, by anyone, should be strenuously avoided. If one unified term be given to all those awaiting a decision we ask that it not be "immigration bail." We carry no special torch for "temporary admission," if the Government wishes to propose other neutral terms without connotations of criminality.

Schedule 5 Immigration Bail

PROPOSED AMENDMENT

Page 78, line 30 before subparagraph 1(1) insert

(*)     The following provisions apply if a person is detained under any
provisions set out in paragraph (* - current Schedule 5 paragraph 1(1))

(a)   the Secretary of State must arrange a reference to the First- tier Tribunal for it to determine whether the detained person should be released on bail;

(b)   the Secretary of State must secure that a first reference to the First-tier Tribunal is made no later than the eighth day following that on which the detained person was detained;

(c)   if the detained person remains in detention, the Secretary of State must secure that a second reference to the First-tier Tribunal or Commission is made no later than the thirty-sixth day following that on which the detained person was
detained and every twenty-eighth day thereafter;

(d)   the First-tier Tribunal hearing a case referred to it under this section must proceed as if the detained person had made an application to it for bail; and

(e)   the First-tier Tribunal must determine the matter-

(i)   on a first reference, before the tenth day following that on which the person concerned was detained; and

(ii)   on a second and subsequent reference, before the thirty-eighth day
following that on which he was detained.

(* )     For the purposes of this paragraph, "First-tier Tribunal" means-

(a)   if the detained person has brought an appeal under the Immigration Acts, the chamber of the First-tier Tribunal dealing with his appeal; and

(b)   in any other case, such chamber of the First-tier Tribunal as the Secretary of State considers appropriate.

(* )     In case of a detained person to whom section 3(2) of the Special Immigration Appeals Commission Act 1997 applies (jurisdiction in relation to bail for persons detained on grounds of national security) a reference under sub-paragraph (3)(a) above, shall be to the Commission and not to the First-tier Tribunal.

(7)     Rules made by the Lord Chancellor under section 5 of the Special
Immigration Appeals Commission Act 1997 may include provision
made for the purposes of this paragraph."

Purpose

To make provision for automatic bail hearings, after eight days, 28 days and every 28 days thereafter.

Briefing

The amendment is directed toward the same end as that proposed by Liberty, but is slightly different in form. The amendment is modelled on Part III of the Immigration and Asylum Act 1999, never brought into force and repealed in 2002. A version of it was tabled at House of Lords Committee stage of the Bill that became the Immigration Act 2014. It is in simplified form but what appears suffices to debate the principle of automatic bail hearings.

Detention under Immigration Act powers is by administrative fiat, without limit of time and a detained person is not brought before a tribunal judge or a court unless s/he instigates this. The lack of any time limit adds greatly to the stress of the detention. It may render the detention arbitrary.

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

SP21. AUTOMATIC COURT-CONTROL.

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

As set out in that publication, this is in accordance with international standards.

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’.

The UN Commission on Human Rights Resolution 2004/39: Arbitrary Detention of 19 April 2004, E/CN.4/RES/2004/39 provides:

"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".

Organization of American States, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (2008), Principle VI: "Competent, independent, and impartial judges and tribunals shall be in charge of the periodic control of legality of acts of the public administration that affect, or could affect the rights, guarantees, or benefits to which persons deprived of liberty are entitled, as well as the periodic control of conditions of deprivation of liberty"

.

UNHCR Detention Guidelines (2012), Guideline 7 §47: "asylum-seekers are entitled to the following minimum procedural guarantees: … (iii) to be brought 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 or to vary any conditions of release".

In 1999 the then Government introduced provision for routine bail hearings. At second reading Lord Williams of Mostyn for the then Government said

Part III introduces important new safeguards for immigration detainees. [see below for full passage, quoted by Baroness Anelay] . [1]

He later explained:

Perhaps I may set out our intention in setting time-limits for routine bail hearings and their determination. One element that is lacking in the present system-I do not disagree with what has been said in part-is any degree of certainty or structure with regard to bail hearings. We intend that the first routine bail hearing-to use the word "routine" is not to play down its importance, but to underline the fact that it must be regular-should take place about seven days after the original detention. In practice, the reference will normally be made much earlier. [2]

What has changed since 1999 so that a sense the gravity of the shortcomings of the system of immigration detention, and the urgency of addressing them, has gone so entirely? In 2002 the then Government, decided to repeal that part of the Immigration and Asylum Act 1999 that would have introduced a new bail regime. Baroness Anelay of St Johns, with support from all around the house, tried to stop them. She said:

In another place the then Home Secretary, Mr Straw, said in a debate on 22nd February 1999 at col. 39 of the Official Report: Part III fulfils the commitment in the White Paper to introduce a more extensive judicial element in the detention process. That will be achieved by introducing routine bail hearings for those detained under immigration legislation." In this House the noble and learned Lord, Lord Williams of Mostyn, when moving the Second Reading of the same Bill on 29th June 1999, at col. 178, said,

Part III introduces important new safeguards for immigration detainees. It introduces a more extensive judicial element into the detention process by means of a system of routine bail hearings, but the Government have decided that we should go further. The Government intend to bring forward amendments during the proceedings in this House to provide for a statutory presumption of bail, with exceptions to ensure effective immigration control and enforcement. Part VIII of the Bill provides a proper statutory framework for all aspects of the management and administration of detention centres and for the escort of detainees. Taken together, the provisions regarding bail and detention centres will provide significant additional safeguards for immigration detainees".

I am sure Members of the Committee will recall that the noble and learned Lord moved the amendment of which he spoke at Second Reading on 19th July in Committee when he said,

I hope that the amendment will meet with the universal acclamation of the Committee".-[Official Report, 19/7/99; col. 725.]

That amendment is now Section 46 of the 1999 Act and it is those very provisions in Part III of the Act, so eloquently spoken to by the noble and learned Lord, Lord Williams, three years ago, which today the Government propose to repeal under Clause 57(6) of this Bill. We acclaimed it; the Government now dispose of it.

There was an extensive debate on this matter in Standing Committee in another place. But the justification given at that time by Miss Angela Eagle was unconvincing. Members of the Committee will note that the provisions have never been brought into force. The Minister said that they were not brought into force because

"we have been trying since the 1999 Act to work out the frequency and logistical implications of automatic bail hearings for each detainee. We concluded that it would be a logistical nightmare that would divert scarce resources from processing asylum applications … Implementing the Part III bail provisions would significantly increase the burden on the Immigration Appellate Authority".-[Official Report, Commons, Standing Committee E, 14/5/02; co1.256.]

I cannot believe that the provisions in the 1999 Act which were described as important and significant by the noble and learned Lord, now the Leader of the House, and the implications of which were doubtless considered in detail by the Home Office when the White Paper was drawn up, when the 1999 Bill was drafted and when the amendments were proposed, are now to be dismissed as a logistical nightmare. I cannot believe that the noble and learned Lord, Lord Williams, would have put his name to such a measure and spoken in favour of it if he were not entirely certain that it was eminently workable and its implications had been fully thought through by the time the Act was passed by this House.

One final but important point on Amendment No. 173 is this. In another place my honourable friend Mr Malins moved an amendment which would have brought the provisions of Part III of the 1999 Act into effect. The Minister argued in response that to do so would be administratively unworkable and would cause chaos and catastrophe in the system. Amendment No. 173 meets the Government's point. It would not bring the provisions into effect but it would stop their repeal. The effect of that would be to allow the Government to bring them into force at a time when the administrative concerns which the Minister cited in another place had been allayed.

If the Minister were to resist the amendment, surely he would have to cast aside the mask of administrative unworkability that was taken up in another place and reveal the real policy reasons behind the Government's change of position. I invite him today to give us better justification on this matter than in another place. I beg to move [3] .

In 1999 Lord Hylton [4] put forward an amendment that would have meant regular reviews throughout the period of detention. All speakers, with the exception of the Minister, supported him. [5]     Contrast this with the current Home Office guidance on review, not by a court or tribunal, but by the officials detaining the person [6] :

There is a statutory requirement above, detention should also be reviewed during the initial stages, that is, the first 28 days. This does not apply in criminal casework cases where detainees come from prison, or remain there on completion of custodial sentence, and their personal circumstances have already been taken into account by the Home Office when the original decision to detain was made. However, criminal casework cases involving the detention of children must be reviewed at days 7, 10, 14 and every seven days thereafter…in practice, this will apply only to those exceptional cases where an FNO under 18 is being detained pending deportation or removal.

Unless an immigration detainee applies for bail, s/he will never be brought before a court or tribunal to consider either release on bail or the lawfulness of detention. For those held in the prisons, there are no legal surgeries and the difficulties of obtaining any legal representation at all are increased. People with a mental illness are among the least likely to be able to take the necessary steps to instigate a bail hearing.

The lack of procedural protection and effect access to a court or tribunal in the UK renders detention under immigration act powers in particular cases arbitrary within the definitions used by the UN Human Rights Committee in resolution 1997/50 and by the UN Working Group on Arbitrary Detention: where it is clearly impossible to invoke any legal basis justifying the deprivation of liberty of a particular individual [7] and where an asylum seeker, immigrants or refugees are subjected to prolonged administrative custody without any possibility in practice of administrative or judicial review or remedy. [8]

Schedule 5 Paragraph 2 Conditions of immigration bail

PROPOSED AMENDMENT

Page 79, line 42, delete ‘, occupation or studies’ and replace with ‘or occupation’

Purpose

To remove the restriction on a person’s studies from the list of conditions to which a person may be subject when on immigration bail.

Briefing

The introduction of a restriction on studies as a condition either of temporary admission or bail for those subject to immigration control is new. No reason for the restriction is given in the Explanatory Notes to the Bill.

Breach of a condition of immigration bail is a criminal offence and therefore has serious consequences. Those lawfully present and in touch with the authorities should not be restricted from undertaking studies.

As all those subject to immigration control will be on immigration bail, not just persons released from detention, the condition could potentially be applied to children and young people, from accessing further education and even preventing them from attending their school.

Those previously on temporary admission will henceforth be on "immigration bail." This will include persons seeking asylum. The condition could be applied to them, preventing them from learning English or undertaking other studies whilst their asylum claim is pending. This would put those recognized as refugees at a disadvantage as they start to rebuild their lives in the UK. Those refused asylum are more likely to have an incentive to return if they know that return with skills or qualifications and such skills and qualifications may also help to rebuild countries recovering from war.

Persons seeking asylum currently face considerable delay in the determination of their asylum claim, during which time they are not permitted to work. The Home Office now has a target of six months for the initial decision on an asylum claim if the case is straightforward and a target of 12 months for deciding a case that it considers not to be straightforward [9] . Only if a person waits for more than 12 months for a decision will they be permitted to work and then only in an occupation on the shortage occupation list. A person who does not wait more than 12 months for their initial decision will not be permitted to work while waiting for a decision on their appeal, however long the appeal may take.

Should a person appeal against a wrongful refusal they will wait a long time for an appeal. At the moment the First-tier Tribunal is listing appeals for June and July 2016. That is the initial appeal; some cases will proceed to the Upper Tribunal and higher courts

By the time an individual is recognized as a refugee, they have large gaps in their employment history which make it more difficult to get a job and to begin to rebuild their lives in the UK. Placing an additional restriction on persons seeking asylum that would prevent them from learning English or other skills they may need to integrate into the UK will limit their prospects of integration on recognition as a refugee.

PROPOSED AMENDMENT

Schedule 5, page 80, line 1, leave out lines 1-2

Purpose

To remove the power to impose such other conditions on immigration bail as the person granting bail thinks fit.

Briefing

The Bill makes explicit that conditions requiring a person to appear before the Secretary of State or tribunal at a specified time or place can be imposed on immigration bail. It makes explicit that conditions restricting work, occupation, studies (see amendment above) or as to residence, reporting and electronic monitoring may also be imposed. But this detailed list is otiose, for the power to impose bail conditions is at large.

· What conditions are envisaged?

· Why can these not be specified on the face of the Bill?

PROPOSED AMENDMENT

Schedule 5, page 80, line 5, omit sub-paragraphs (3)-(5).

PROPOSED AMENDMENT

Schedule 5, page 83, line 4, omit sub-paragraph (5).

PROPOSED AMENDMENT

Schedule 5, page 83, line 12, omit sub-paragraphs (8)-(10).

Purpose of the three amendments

This set of proposed amendments would remove provision which would allow the Secretary of State to override a decision of the Tribunal with regard to electronic monitoring or residence conditions placed on immigration bail.

Briefing

ILPA adopts Liberty’s proposals for these amendments. The tribunal is mocked by provisions that allow the Home Office to impose bail conditions it has not seen fit to impose or change conditions it has imposed. As barrister Colin Yeo explained when giving oral evidence on 22 October 2014, it renders the hearing before the tribunal a charade. The tribunal hears argument and determines not to impose a particular condition. The very next day the Secretary of State imposes it.

PROPOSED AMENDMENT

Schedule 5, page 80, line 32, omit "in that person’ interests or

Purpose

To remove a power to use immigration detention on the basis that it is in the person’s best interests to be detained under immigration Act powers.

Briefing

A version of this amendment is also proposed by Liberty.

The risks of using immigration detention rather than act to make appropriate provision have been illustrated by cases in the annex to this briefing, including the repeated cases in which the Home Office has been found to be in breach of Article 3 of the European Convention on Human Rights (the prohibition on torture and ill-treatment) for its treatment of the mentally ill held under immigration act powers and the case in which only when a judicial review was brought did it desist from using force on children despite not having any policies in place governing its use.

PROPOSED AMENDMENT

Schedule 5, page 83, line 22, omit paragraph 7, sub-sections (1), (2), and (3) and insert-

"The Secretary of State must provide, or arrange for the provision of, facilities for the accommodation of persons released on immigration bail."

Purpose

To maintain existing powers of the Secretary of State to provide accommodation for those released on bail and to ensure that these powers are not limited

(a) to persons already granted bail

(b) to exceptional circumstances

PROPOSED AMENDMENT

Schedule 5, page 83, line 30, leave out lines 30 to 33.

Purpose

To remove the purported limitation on the use of the power to circumstances where the Secretary of State considers that there are "exceptional circumstances" justifying its use.

Briefing

In part five of this Act the Home Office is making changes to the arrangements for it to provide to support to persons under immigration control. One set of circumstances in which it provides such support is to persons released on bail who would otherwise be destitute. This support is provided under section 4(1)(c) of the Immigration and Asylum Act 1999 which is worded in identical terms to the words it is proposed to substitute in this amendment.

The reason why we do not consider that the new powers are satisfactory is that the wording in subparagraph 7(1) "when a person is on immigration bail" may not be wide enough to encompass the circumstances in which a person applies to the Home Office for an address so that they can make an application for bail in the first place. The new powers are also stated to be used only in "exceptional circumstances," a restriction to which we object for the reasons set out in the briefing to the separate amendment below.

When the Home Office consulted on restrictions to asylum support in preparation for this Bill, it proposed to leave out s 4(1)(c) and did not propose any replacement. ILPA argued that a replacement was required. Paragraph 7 appears to be response to those arguments but it is insufficient.

Section 4(1)(c) is used in cases where the Home Office needs urgently to release a person detained under Immigration Act powers because their detention is unlawful so that there is accommodation to which the person can be released. It also acts as an essential precursor for a proportion of detainees to being able to lodge and have heard an application for release on bail. Bail hearings are a means by which immigration detention is scrutinized. A failure to release a person for want of an address may lead to additional periods of unlawful detention in violation of Article 5 of the European Convention on Human Rights and the common law.

Immigration detainees seeking release on bail from the First-tier Tribunal (Immigration & Asylum Chamber) must propose a bail address. This may be private accommodation offered by family or friends, but where this is not available a detainee can apply to the Home Office for Section 4 (1)(c ) bail support, and once this is granted the detainee can lodge their application for release on bail to the specified address.

Any grant of immigration bail by the First-tier Tribunal (Immigration and Asylum Chamber) is a grant to a stated address. Bail cannot, therefore, be granted pending the provision of a bail address. While "bail in principle" could be granted, just as the commencement of a grant of immigration bail may be specified to be conditional under paragraph 3(8) of Schedule 5 to this Bill, In the experience of ILPA member Bail for Immigration Detainees, which provides representation in a substantial number of bail hearings, it is normal practice for Her Majesty’s Courts and Tribunals Service to refuse to list applications for hearing without a bail address, save in special circumstances and a grant of bail in principle, where the absent (but shortly to be supplied) missing element of the process is the bail address, is not a possibility in Bail for Immigration Detainee’s experience, given that consideration of the bail address is a primary and essential part of any bail decision. The Minister should be pressed on whether the matter has been raised with the Tribunal judiciary and provide their reply, as ILPA suggested be done in its response to the Home Office consultation on asylum support.

If it were possible for detainees to seek release on bail first, and subsequently seek financial support and accommodation via s 95 support, then detainees would already be doing so. They would not need to wait in detention, for periods of up to 24 months in extreme cases, for a bail address to be granted by the Home Office, as Bail for Immigration Detainees’ research and Home Office data indicates that they are doing.

On November 4 2014, there were 198 outstanding applications for Home Office Section 4(1)(c) bail support where the applicant was deemed unsuitable for Initial Accommodation. 28% of these detainees had been waiting six months or more, to date, of these 5% for over one year, and one detainee had already waited for two years. [1]

Data obtained by Bail for Immigration Detainees from the Home Office via Freedom of Information requests indicates that between three and four thousand applications are made to the Home Office each year for Section 4(1)(c ) bail accommodation. In 2014 the Home Office made 2860 grants of Section 4(1)(c ) bail accommodation for the purpose of lodging a bail application, although not all of these grants will have resulted in a bail application being lodged, and, if lodged, far from all will have resulted in release.

Home Office Section 4 (1)(c ) bail accommodation: applications, grants by accommodation type, and refusals of support since January 2010

Number of APPLICATIONS RECEIVED for

s4 (1) (c) bail accomm [1]

Number of

grants for

Initial Accomm

Number of

grants for

Standard Dispersal Accomm

Number of grants for

Complex Bail Accomm

Total number of grants for the year

2010 [1]

3,367

1,916

66

19

2001

2011

3,138

1,568

218

55

1841

2012

3,465

1,961

382

35

2378

2013

3,841

2,081

529

14

2624

2014

3635

2233

613

14

2860

(Source: Data obtained from the Home Office by Bail for Immigration Detainees through a series of freedom of information requests since 2011)

Bail for Immigration Detainees’ research in 2014 found that the average (mean) time to grant a Standard Dispersal bail address with no National Offender Management Service involvement in the case was 59.28 days (8.46 weeks), with a range from five to 175 days (one – 25 weeks). [2] See: Bail for Immigration Detainees, (2014),’ No place to go: delays in Home Office provision of Section 4(1)(c) bail accommodation’. [3]

A core part of bail decision-making by First-tier tribunal judges is the consideration of the suitability of the proposed bail address. In the words of current Bail Guidance to tribunal judges, the Home Office, as a party to the bail application, is also asked "to take a view as to whether they can maintain reasonable control of the person at that address." The guidance to tribunal judges states at 38i, that:

"The proposed place of residence must be set out clearly in the application for bail so that the immigration authorities can consider its suitability and make representations if they believe it is not suitable." [4]

Bail decision-making takes into account the nature of the accommodation, other residents at that accommodation, and the distance between the accommodation and any sureties. Immigration detainees who are on a National Offender Management Service release licence as a result of criminal convictions must seek the approval of their probation officer for any proposed immigration bail address. Tribunal judges of the First-tier Tribunal (Immigration and Asylum Chamber) must satisfy themselves that probation approval for a proposed bail address has been given. Without a bail address, under the current system, an immigration detainee, whether an asylum seeker or not, will not reach the point of release from detention on bail.

Detainees with severe and enduring mental illness may become estranged from family or friends who could otherwise stand surety at bail or offer bail accommodation on release; their illness or behaviour arising from their illness may have alienated those who were closest to them. Detainees in this position will often be reliant on Home Office bail accommodation.

One reason that longer term detainees are disproportionately reliant on Section 4(1)(c) is that their ties with family and friends who could offer accommodation and support are weakened by years spent in detention.

An unknown but presumed to be small number of former detainees, granted release on bail by the First-tier Tribunal Immigration and Asylum Chamber, are on a National Offender Management Service licence at the time of their release and are required by the terms of their licence to reside in premises approved by the National Offender Management Service. National Probation Service Approved Premises local managers nowadays may refuse to provide these individuals with an Approved Premises bed unless ‘move-on’ accommodation is in place. [5] For a proportion of immigration detainees their only option for ‘move-on’ accommodation is Home Office accommodation. They may have a home in the UK but precluded by some form of restriction order (e.g. non-molestation order, non-contact order] from occupying those premises on release.]) Immigration detainees required to reside in Approved Premises on release are entitled to apply for release on immigration bail but will be unable to do so in a number of cases if Home Office bail accommodation is not available.

Among Bail for Immigration Detainees’ caseload, which consists mainly of long term detainees and those with additional needs, clients were reliant on a Home Office bail address in 53% of the bail applications prepared by Bail for Immigration Detainees in 2013, and in 36% of cases during 2014.

There is currently no limitation to "exceptional circumstances" in the Home Office guidance on bail accommodation under s 4(1)(c) of the Immigration Act 1999. [6]

There is such a limitation in guidance on the provision of support to persons who have never made a claim for asylum under sections 4(1)(a) and (b) of that Act, as follows:

1.1.3 Applications from other immigration categories

Support under Section 4(1) (a) and (b) of the 1999 Act will only be provided to other immigration categories in truly exceptional circumstances. In considering whether such circumstances exist, Caseworkers should take account of the following:

Support should only be provided to other persons on temporary admission if:

· They are destitute; and

· They have no avenue to any other form of support; and

· The provision of support is necessary in order to avoid a breach of their human rights.

The consideration of whether support is necessary to avoid a breach of the person’s human rights will usually require an assessment of whether they are likely to suffer inhuman or degrading treatment if they are not provided with accommodation and the means to meet their essential living needs whilst in the UK. However, Caseworkers should only provide support for these reasons if it is clear that the person cannot reasonably be expected to leave the United Kingdom.

In considering all support cases on their individual merits caseworkers must take particular account of the following:

· Support should not be provided in cases where there are children in the household because an alternative avenue of support is available through the duties local authorities have to safeguard and promote the welfare of children under Section 17 of the Children Act 1989;

· Support should not be provided to persons who claim that the reason they cannot leave the United Kingdom is because they are at risk of persecution or serious harm in their own country. Individuals in this position should submit a protection claim. Support may be available for such individuals under the asylum support arrangements. :( Sections 95 and 98 of the Act, and Section 4(2) for certain failed asylum seekers);

Support should not be provided solely because the person has an outstanding non-protection based application for leave to remain in the United Kingdom (for example based on Article 8 of the European Convention on Human Rights or on long residence). A person in these circumstances can reasonably be expected to leave the United Kingdom to avoid the consequences of destitution.

The word "exceptional" is apt to be read as implying that a grant should only be made in exceptional cases. We recall the words of Lord justice Dyson, giving the judgment of the Court of Appeal in the Legal Aid exceptional funding cases of Gudanaviciene et ors v Director of Legal Aid Casework and the Lord Chancellor [2014] EWCA 1622

"… that section 10 is headed "exceptional cases" and that it provides for an "exceptional case determination" says nothing about whether there are likely to be few or many such determinations. Exceptionality is not a test. … there is nothing in the language of section 10(3) to suggest that exceptional case determinations will only rarely be made "

In that case the guidance was found to be unlawful in that it was leading to refusals of legal aid in meritorious cases.

ILPA’s response to the consultation on asylum support , from which this is adapted, can be read at http://www.ilpa.org.uk/resource/31352/ilpa-response-to-home-office-consultation-on-asylum-support-8-september-2015

Schedule 5

PROPOSED AMENDMENT

Schedule 5, page 83, line 29, at end insert –

"(*) If the Secretary of State decides not to provide support to a person under paragraph 7(2) of this Part, or not to continue to provide support for a person under paragraph 7(2), the person may appeal to the First-tier Tribunal (Asylum Support)."

Purpose

To provide a right of appeal to the First-tier Tribunal (Asylum Support) where the Secretary of State decides not to provide support or to discontinue support under this Part to enable a person to meet bail conditions.

Briefing

This section of the Bill provides the Secretary of State with the power to provide support and accommodation to individuals to enable them to comply with conditions of immigration bail. This is a necessary power to facilitate the right to liberty and release from detention .

This amendment provides for a right of appeal where the Secretary of State decides a person does not qualify for support under this provision. Without a right of appeal, there will be no scrutiny of Home Office decision-making in an area where decisions are frequently not sustainable.

The Asylum Support Appeals Project provides advice to those appealing Home Office decisions to refuse or withdraw their housing or financial subsistence in the absence of legal aid for this work. It is the experience of the project that it is rare for support to be granted to those eligible for support under similar provisions under section 4(1) of the Immigration and Asylum Act 1999. The project reports that in the 12 months from August 2012 to July 2013, it provided representation in 18 appeals involving section 4(1) of the Immigration and Asylum Act 1999, of which 11 were allowed, five dismissed, one withdrawn and one remitted.

Individuals in need of support under this provision, who would be affected by the absence of a right of appeal, include those who have never claimed asylum but who are attempting to return to their country of origin or former habitual residence and either their country will not admit them, they cannot be documented or there are delays in documenting them [7] . They may also be people who have never claimed asylum but have a claim pending before the Home Office to regularise their status such as people brought to the UK as children who are found to be have no lawful status.

Examples of destitute individuals represented by the Asylum Support Appeals Project whose cases were allowed only following appeal to the Asylum Support Tribunal include:

30 September 2011 A 21 year old man who arrived in the UK aged 15 and asserted that he was a British citizen. He had been waiting for seven years for the Home Office to decide his case (AS/11/09/27448, 30 September 2011).

22 November 2011 An appellant with severe mental health problems who had been certified by his doctor as unable to travel and had made a claim for leave to remain outside the immigration rules (AS/11/11/76787, 22 November 2011)

12 January 2012 A 43 year old homeless man who was waiting for a travel document so that he could return to India (AS/11/12/27777, 12 January 2012).

The consequences of a wrong decision are that a person may be left homeless and destitute and at risk of harm. Such cases may give rise to breaches of human rights under Articles 2 and 3 of the European Convention on Human Rights, as well as under Article 8. This means that the Home Office will be in breach of its international obligations and is likely to face challenges by way of judicial review (the cases may also sound in damages).

PROPOSED AMENDMENT

Schedule 5, page 84, line 33, leave out from "- (a) to "otherwise" in line 38

Schedule 5 Paragraph 8 Arrest for Breach of Bail

PROPOSED AMENDMENT

Schedule 5, page 84, line 33, leave out from "- (a) to "otherwise" in line 38

Purpose

To provide that a person arrested without a warrant and detained because it is considered that they are likely to breach any of their bail conditions or that there are reasonable grounds for suspecting that they have done so must be brought before the First-tier Tribunal. To bring the person before the "Secretary of State, " a Home Office official, will not suffice for this stage of the proceedings.

Briefing

Under this paragraph, an individual may be arrested without a warrant where an immigration officer or police constable has reasonable grounds for believing that they are likely to fail to comply with a bail condition or they have reasonable grounds for suspecting that the person is failing or has failed to comply with a bail condition. In these circumstances, the arrested person must be brought before the "relevant authority as soon as reasonably practicable and the "relevant authority" must decide whether the arrested person has broken or is likely to break any of the bail conditions.

Where breach of bail is considered by a court or tribunal, this is uncontroversial. The individual, who will have been arrested without a warrant by an immigration officer and will be in detention,, will be brought before a tribunal judge in an open and transparent process and questioned about the circumstances leading to the suspicion that the conditions of bail may be or may have been breached. The tribunal will make a decision as to whether maintain or revoke bail after hearing evidence from both the Secretary of State and the individual.

Under paragraph 9(a) the Secretary of State may act as the "relevant authority" where she has been authorised to exercise the power of bail by the First-tier Tribunal. The Secretary of State is not a judicial body and is not in a position to examine the individual in an open and transparent process. Nor one that has the appearance of fairness, given that an immigration officer has already deprived the person of their liberty for breach of conditions, and yet the Home Office is now asked to adjudicate on whether that was lawful and/or correct.

Section 24 of the Immigration act 1971 currently provides for the arrest without warrant in similar conditions to this paragraph. It provides that unless it was a condition of a person’s release that s/he was in any event to have reported before an immigration officer within 24 hours of the time of the arrest then s/he should be brought before the First-tier Tribunal or failing that, a Justice of the Peace or Sheriff. Why has a different approach been taken in the Bill?

The question as to whether a person has breached the conditions of his/her bail should be determined by an independent tribunal. This is all the more so given that the Bill permits the Secretary of State to impose such conditions as she thinks fit and to alter the conditions imposed by the Tribunal. The process envisaged would allow for the imposition of arbitrary and oppressive conditions.

Immigration Act 1971, s 24

(2) A person arrested under this paragraph-

(a) if not required by a condition on which he was released to appear before an immigration officer within twenty-four hours after the time of his arrest, shall as soon as practicable be brought before the First-tier Tribunal 1 or, if that is not practicable within those twenty-four hours, before in England and Wales, a justice of the peace, in Northern Ireland, ] 2 a justice of the peace acting for the petty sessions area in which he is arrested or, in Scotland, the sheriff; and

(b) if required by such a condition to appear within those twenty-four hours before an immigration officer, shall be brought before that officer.

(3) Where a person is brought before the First-tier Tribunal, a justice of the peace or the sheriff by virtue of sub-paragraph (2)(a), the Tribunal, justice of the peace or sheriff -

(a) if of the opinion that that person has broken or is likely to break any condition on which he was released, may either-

(i) direct that he be detained under the authority of the person by whom he was arrested; or

(ii) release him, on his original recognizance or on a new recognizance, with or without sureties, or, in Scotland, on his original bail or on new bail; and

(b) if not of that opinion, shall release him on his original recognizance or bail.

GOVERNMENT AMENDMENT 31

Stated purpose

This amendment clarifies that transitional arrangements will be detailed in regulations.

Briefing

Contrary to the stated purpose, this amendment does not "clarify" anything. It delegates to secondary legislation the definition if the purposes for which a person subject to transitional provision is to be treated as having been granted immigration bail Again it is an indication that insufficient time has been given for the purpose of this Bill. Concerns go beyond omissions in the drafting of a paragraph. The concern is that the whole question of transitional provision has not adequately been thought throw and that it is intended to change the status of many thousands of people in ways which may have unforeseen consequences, including for recognition of their documents and status.

There is no statement as to what consideration, if any, has been given to whether regulations should remain u under the negative procedure given this new addition.

PROPOSED AMENDMENT

Schedule 5, page 88, line 25 leave out "sub-paragraphs 2(a), (3) and (5) and replace with "subparagraph 2(a)"

Purpose

Consequential on the amendment below.

PROPOSED AMENDMENT

Schedule 5, page 88, line 33 leave out lines 33 to 34 and replace with

(*) subparagraphs 3-5 were omitted

Purpose

To provide that the Secretary of State cannot impose conditions of bail that the Special immigration Appeals Commission does not see fit to impose.

PROPOSED AMENDMENT

Schedule 5 page 88 line 37 leave out (4)

Purpose

Consequential on the amendment below

PROPOSED AMENDMENT

Schedule 5 page 88 line 39, after "Commission" insert

(*) subparagraph 4 were omitted

Purpose

Removes the restriction on the Special Immigration Appeals Commission’s granting bail is directions are in place for removal within 14 days which was imposed in 2014 at the same time as such restrictions were imposed on the Tribunal

PROPOSED AMENDMENT

Schedule 5 page 39 line 1, leave out lines 1 to 5 and replace with

(*) The words "subject to sub-paragraphs (3) and (4)" in subparagraph (2) were omitted and subparagraphs (3) to (5)) were omitted

Purpose

Provides that provisions allowing the Secretary of State to override the decisions of the Tribunal and impose conditions that the Tribunal did not impose will not apply Special Immigration Appeals Commission cases.

Briefing

The Special Immigration Appeals Commission is presided over by a High Court judge and
Should not be constrained in its powers to release on bail by statute.

As set out below, there are a number of Government amendments making further inroads into the Commission’ s jurisdiction and allowing Home Office officials to substitute their views fort hat of the Commission.

GOVERNMENT AMENDMENTS 33, 32, 34, 35

Stated purpose

The Bill already makes provision for bail conditions to be applied by both the First-tier Tribunal and the Special Immigration Appeals Commission. This amendment inserts some further consequential provision to give this full effect.

Briefing

For the reasons described above, ILPA does not consider it appropriate that the Secretary of State should be able to overrule the Commission.

Amendment 33 simply corrects a drafting error. There is no paragraph 2(2)(a) in schedule 5. The first part of amendment 32 has the effect that where arrangements are made for electronic monitoring they may involve the exercise of functions by persons other than the Secretary of State. Given the many problems there have been with subcontractors administering electronic tagging, including in the criminal justice service, as set out in the report of the National Audit Office, [8] there are arguments for insisting that the Home Office manage this directly.

The second part of amendment 32 has the effect that when the Commission has directed hat the Secretary of State should have the power to vary bail conditions, any financial condition is to be exercised by the Secretary of State. It is to be hoped that the Commission would never use the powers the Bill gives it to devolve to the Secretary of State power to vary conditions . Should it do so it is suggested that it should still be the Secretary of State, not the commission that takes the monies and retains oversight and therefore the amendment is opposed.

Amendment 34 has the effect that if the Commission gives a direction that the Secretary of State may exercise the power to amend or remove conditions then the Commission may not exercise such powers. ILPA opposes such amendments. The Commission is presided over by a High Court judge and is specialist in matters of national security. It should retain control of those released, overall control of conditions and control of the Secretary of State.

The first part of Amendment 36 corrects a typo, there is no reference to the tribunal in subparagraph 6(5). The change in subparagraph 9 (read with that in amendment 34 simply rewords a substituted reference from "Commission" to "Special Immigration Appeals Commission". What is significant in the amendment is the insert of "(10)". The effect of this will be to empower the Secretary of State to impose a different condition in place of the condition imposed or amended by the Commission. It mocks a specialist tribunal presided over by a High Court judge if the Secretary of State, having failed to convince it by argument, can simply turn around and substitute her view of the appropriate bail conditions for this view. It is also potentially dangerous as the "secretary of State" in this context is a member of her staff who, we suggest, is more likely to make mistakes in the handling of matters of national security than this specialist expert tribunal.

It is not difficult to describe what this section does. It is therefore to be regretted that the explanatory statements provided n the order paper obscure rather than illuminate and do not assist the committee in its work of scrutiny.

GOVERNMENT AMENDMENT 36

Stated purpose

This amendment clarifies how the immigration bail powers will operate in respect of a person

where a deportation order has been made in accordance with the UK Borders Act 2007

Briefing

More evidence of a Bill drafted in haste, more explanations of little use to those trying to scrutinize the bill. More use of the weasel word "clarification." As far as the amendment to the Bill goes, it simply tidies up the drafting. As to the overall effect of the amendment, it is to substitute "unless the person is granted immigration bail…" for the words "unless in the circumstances the Secretary of State thinks it inappropriate" in s 36(2) which, in its current form, is set out below.

The Minister should be pressed on whether a person against whom a deportation order is made will ever be granted bail in these circumstances, and if so, when.

Section 36 reads

36 Detention

(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State–

(a) while the Secretary of State considers whether section 32(5) applies, and

(b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.

(2) Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (c. 77) (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate.

(3) A court determining an appeal against conviction or sentence may direct release from detention under subsection (1) or (2).

(4) Provisions of the Immigration Act 1971 which apply to detention under paragraph 2(3) of Schedule 3 to that Act shall apply to detention under subsection (1) (including provisions about bail).

(5) Paragraph 2(5) of Schedule 3 to that Act (residence, occupation and reporting restrictions) applies to a person who is liable to be detained under subsection (1).

PROPOSED NEW CLAUSE

Richard Fuller

NC1

To move the following Clause-

"Detention of persons – exempted persons

In paragraph 16 of Schedule 2 to the Immigration Act 1971 after subsection (4)

insert -

"(5) A person may not be detained under this paragraph if they are a member of one

or more of the following groups of person-

(a) Pregnant women;

(b) Victims of trafficking;

(c) Victims of torture;

(d) Victims of sexual violence;

(e) Any other group as may be prescribed by the Secretary of State.""

Stated purpose

This amendment would provide that pregnant women, victims of trafficking, torture and sexual

violence, and any other group prescribed by the Secretary of State, may not be detained pending

an examination or decision by an immigration officer.

Briefing

ILPA opposes detention under immigration act powers and therefore supports the proposed amendment. See the Annex.

Reasons for detention all too often take the form of tick boxes and inadequate or inaccurate bail summaries served at the door of the bail hearing. In R (S) v SSHD [2011] EWHC 2120 (Admin) the judge held that "subsequent reviews failed to grapple with the need to understand and apply the policy requirement of exceptional circumstances, to recognise properly S's mental condition and to consider properly objective evidence as to the effect of detention on it." S was detained despite a clear (and documented) history of severe mental illness, and contrary to the clear expert advice of a number of mental health professionals without detention having to be justified at the time before any court or tribunal.

PROPOSED NEW CLAUSE

Richard Fuller

NC3

To move the following Clause-

"Time limit on detention

In paragraph 16 of Schedule 2 to the Immigration Act 1971 after subsection (4)

insert-

"(5) Subject to regulations under subsection (6), a person detained under this paragraph must be released on bail in accordance with Schedule 5 to the Immigration Act 2016 after no later than the twenty-eighth day following that one which the person was detained.

(6) The Secretary of State may by regulations make provision to vary by category of person the time limit under subsection (5).""

Presumed purpose

To impose a time limit of 28 days on detention under immigration Act powers. There is provision to limit the time limit to some rather than all detainees in subparagraph (6).

Briefing

ILPA supports a time limit on immigration detention.

When Lord Hylton moved amendments in 1999 [20] to set a maximum time limit on detention this was in the context of proposals that all detainees would be brought before a court or tribunal seven and 28 days after their detention started [21] and the number of persons detained beyond six months was 120 [22] . In May 2013, the UN Committee against Torture urged the UK to "(i)ntroduce a limit for immigration detention and take all necessary steps to prevent cases of de facto indefinite detention." [23]

Practice in the UK is that increasing numbers of persons are detained, some for years on end, [24] including in circumstances where eventual release is to liberty calling into question the necessity for detention at all. Home Office migration statistics [25] show that immigration detainees who are held for any periods above one year are more likely at the end of their detention to be released from detention into the community than to be removed from the UK. Home Office statistics further show that a greater proportion of detainees who are released after such long periods in detention are released on bail than are released on Temporary Admission by the Home Office.

For the full year 2014, 57% of people leaving detention who were held for 12 months or more were released into the community and 43% were removed from the UK. Of those released into the community, 58% were bailed. For that same year, 47% of those people held for any period from one day to 12 months were released into the community, but only 15% of them achieved this through bail. The vast majority (81%) were granted Temporary admission or release by the Home Office.

Trends in earlier years are similar. 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. Sixty-two per cent of those held for over a year were released in 2013. [26] 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%.

The UK does not conform to international standards including:

· 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/Office of the High Commissioner for Human Rights 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".

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

The UK is not a party to Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third country nationals, which sets a six-month limit on detention with the possibility of further detention for limited periods to a maximum of 18 months in toto where, despite the State’s reasonable efforts, lack of co-operation by the detainee or in obtaining documentation from third countries had caused time to be extended [27] .

In Mathloom v Greece [28] it was held that absent the time limits on detention, Greek

legislation on detention under immigration act powers did not meet the "in accordance

with the law" test laid down in Article 5 of the European Convention on Human Rights because it was not sufficiently precise or its consequences sufficiently foreseeable.

In the debates in on the bail provisions of the Immigration and Asylum Act 1999, Baroness Williams of Crosby said

One characteristic of a tyrannical or dictatorial regime is that it detains innocent people without any indication as to how long they will be detained. A few months ago, I had the obligation of visiting the last standing prison under the gulag archipelago system, Perm 65 in the Soviet Union as it then was, now Russia. I discovered that the most dreadful agony faced by people who had been at that detention centre was not knowing if or when they would ever get out. There was no clear procedure.

An obligation rests upon those of us who are more privileged in a democratic society to limit that sense of being almost totally lost within the system-not knowing when, if ever, the procedures will be concluded. The main purpose of the new clause is to limit that period to a maximum of six months. [29]

Lord Williams of Mostyn rebuked her gently

719 . The noble Baroness spoke of the Gulag. There is no automatic application after seven days paid for at public expense, nor after the further period paid for at public expense. No reasons are given in writing. There is no presumption of bail. I take the point, but we have produced a series of circumstances which are infinitely better than that. They are very significant advances. We seek to attack a machine which is not subject to judicial overview or written reasons without a presumption of bail. Without the automatic first and second routine bail applications, applications for bail can be made, or applications for judicial review [30] .

What would he say now? When detention is without limit of time, by administrative fiat, and the detainee will never ever be brought before a court or tribunal if s/he does not instigate this?

Litigation exposed that the Home Office had been operating an undisclosed, unlawful practice of detaining foreign national former prisoners on a blanket basis, without permitting officials to consider release in any circumstance [31] . Persons are detained in the UK for longer periods than in other EU countries. [32] On 11 September 2013, in response to a parliamentary question, the Minister for Immigration stated that as of 30 June 2013, 27 people had been detained for between 18 months and 24 months, 11 for between 24 months and 36 months and one for between 36 months and 48 months [33] . According to Home Office statistics, 220 people had been detained for over six months at 31 December 2013. In the context of a stated intention to reduce to an absolute minimum [34] the detention of children in families, the shortest possible time is envisaged as seven to 28 days. [35]

A significant number are unable to return to their country of origin. The majority of Bail for Immigration Detainees’ clients for whom it provides legal advice and information on Section 4(1)(c) applications have one or more legal or practical barriers to their removal [36] . These individuals may move repeatedly in a cycle of extended detention, release on bail with residence in s 4(1)(c) accommodation, and then re-detention.

Lack of travel documentation is frequently a reason why a person cannot be removed. This may be for a number of reasons, including the inability of an individual to provide adequate information to support the issue of a travel document if they first came at a young age, statelessness or practical problems in proving nationality or delays with in the issuing of travel documents (e.g. for returns to Algeria). There are currently no enforced removals to a small number of countries such as Somalia and Zimbabwe and some detainees are from these countries.

Other reasons why removal is not imminent, and indeed may never happen, include outstanding family court matters; pending judicial review hearings including challenges to unlawful detention and pending appeals, including Home Office appeals.

Case of Mr 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"

.

Clause 30 Power to cancel leave extended under section 3C of the Immigration Act 1971

PROPOSED AMENDMENT

Clause 30, page 33, line 25, leave out from "Power" to the end of line 26 and replace with

"Section 3C of the Immigration Act 1971

30. Section 3C of the Immigration Act 1971

Purpose

This amendment paves the way for both the proposed amendments below. It allows this part of the Bill to be used to correct existing problems with 3C leave.

We have presented both the problems below as separate amendments, so that the problems can be identified clearly and addressed. If they find favour, however, it will be necessary to produce a composite amendment dealing with both at once.

PROPOSED AMENDMENT

Clause 30, page 33, line 38, after "decision)" insert

"(a) In subsection 3C(1)(c) after "decided" insert "or declared invalid"

(b) I subsection 3C(2)(a) after "withdrawn" insert "nor declared invalid"

(c)"

Purpose

To ensure that a person who makes an application while they have leave (an "in time" application) which is later determined to be invalid benefits from "3C leave" for the period, if any, between the expiry of their original leave and the Secretary of State’s notification to them that the application is invalid and thus to give effect to the interpretation of the law for which counsel for the Secretary of State argued in the case of Iqbal.

Briefing

This amendment would reverse the effects of the judgment of the Court of Appeal in R(Iqbal v SSHD) [2015] EWCA 838 [37] which concerns the interpretation of section 3C of the Immigration Act 1971.

Section 3C of the Immigration Act 1971 provides that when a person makes an "in time" application (i.e. makes an application while they still have leave to be in the UK), their leave continues on the same terms and conditions until such time as the Secretary of State has made her decision on the application and then for the period during which an appeal or administrative review could be brought and while it is pending. People are asked not to apply until c. one month before their existing leave expires and it is very often the case that the application is not decided before, without the protection of 3C leave, their leave would have expired.

Section 3C reads as follows:

3C Continuation of leave pending variation decision

(1) This section applies if-

(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

(b) the application for variation is made before the leave expires, and

(c) the leave expires without the application for variation having been decided.

(2) The leave is extended by virtue of this section during any period when-

(a) the application for variation is neither decided nor withdrawn,

(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom] against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),

(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act), or

(d) an administrative review of the decision on the application for variation-

(i) could be sought, or

(ii) is pending.

] (3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.

The facts of the case can be summarised thus

Mr Iqbal was granted entry clearance in January 2007 to come to the UK as a student. He had leave to remain until 30 April 2011.  On the 19 April, before leave had expired, Mr Iqbal made an application for further leave to remain as a Tier 4) Student. Unfortunately he did not submit the appropriate fee with his application because he had not appreciated that it had recently been increased by some £29. On 26 April the application and supporting documents were returned to him and he received them on the 2 May, after leave had expired. He was informed that the failure to pay the proper fee meant that his application was invalid .

Mr Iqbal submitted a further application on 6 May 2012, after his leave had expired, to remain in a temporary capacity as a student. However the college at which he planned to study lost its licence before his application was considered and his application therefore fell for refusal because the college he had identified was no longer approved.

If he had been entitled to the automatic extension of leave under section 3C, then he would have been given 60 days in which to identify another approved institution which would accept him. This is a protection put in place for students who are the innocent victims of college failures. He was not given that opportunity because the Secretary of State considered that he had no right to remain because the relevant application had been made after his leave had expired.  

The Court of Appeal held that if a person such as Mr Iqbal makes an in-time application to vary their leave to remain which they genuinely (and even reasonably) think is a valid application, but after their leave expires it turns out that the application was not valid, they have been in the UK without leave and without the protection of 3C leave, even though they did not know this and had no reason to think it, between the expiry of the existing leave and the Secretary of State’s decision that the application was invalid.

This means that for that period the person is in the UK unlawfully, their landlord/landlady or employer is committing a criminal offence, they are not entitled to a bank account, or to drive, etc. Whether they are unlawfully present at all, and if so for what period, all depends on whether the Secretary of State decides their application before their existing leave expires (applicants are normally asked not to submit an application until one month before their leave expires).

Unsurprisingly, the Secretary of State was no more keen on this interpretation of the law than the claimant in Iqbal. The Secretary of State argued that an application which is invalid under the rules may nevertheless be an application which engages and brings into effect section 3C. However, she argued that when a person is notified that an application is invalid constitutes a decision on the application within the meaning of section 3C.

If that decision is made before leave has expired, the person’s original leave will simply expire in the normal way and section 3C has no role to play (see section 3C(1)( c)). If it is decided after the expiry, leave will terminate at the date of the decision: section 3C(2)(a).  The Court of Appeal however, held that the section could not be interpreted in this way.

The Court observed

27. A number of arguments have been advanced in support of the proposition that an invalid application still falls within the terms of section 3C.  

28. …as both counsel point out, it is a criminal offence for someone to work whilst here illegally, and indeed for the employer to employ them. However, it is often difficult to be sure whether an application properly complies with the rules or not. It follows that in an employment context there may be a bona fide but invalid application and unless leave is extended by section 3C, both the applicant and his employer will be committing a criminal offence once the original period of leave has expired. It may be true that a prosecution is unlikely in practice, but the risk is there and the statute should be construed so as to avoid this unfortunate result.  

29. Moreover, there are certain circumstances where the requirements for validity can arise after the application is made. For example, in some cases it is necessary to provide biometric information if it is sought by the Secretary of State. This will typically have to be provided weeks after the original application is lodged. The invalidity in such cases may result …in the failure to provide the information,  

30. I accept that there is merit in these submissions, and in particular in the concern that someone making a bona fide application may nonetheless unwittingly fall in breach of the criminal law. But ultimately I reject them. …Parliament would have known, therefore, that rules would be adopted regulating the form of applications, and identifying when breaches would render the applications invalid. It is true that Parliament would not have known how those powers would be exercised, but in my view it is a cogent reading of the section to construe the reference to an application as one which is a proper application as defined by rules which Parliament has permitted the Secretary of State to formulate.  

Is the notification of invalidity a decision within the meaning of section 3C?

31. It is the Secretary of State who advances this argument. She says that the notification of invalidity constitutes a relevant decision within the meaning of section 3C. In my judgment this is wholly unsustainable. In order to constitute a decision, there must be a determination of the application to vary. That is not what the rejection of an application achieves. It is effectively telling the applicant that no decision has been made because no proper application has been received. Indeed, Mr Iqbal was told that his attempted application could not be considered. Furthermore, an applicant may, after the rejection, make a fresh application (which may sometimes be before leave has expired) so as to have the substantive issue determined. If the original application has already been determined, I can see no room in such circumstances for another determination. Moreover, if the effect is to decide the application as one refusing leave, there would be a right of appeal, which the Secretary of State submits is not the case. Ms Broadfoot submits that this would not be the effect of the rejection of the application; but if it does not have that effect I cannot see how it can possibly be a relevant decision at all.  

32. In my judgment, if a decision on the application for leave was intended to include a decision that there is no valid application, Parliament would have had to say so in terms 

The effect of the amendment is to make the "wholly unsustainable" argument advanced by the Secretary of State sustainable.

PROPOSED AMENDMENT

Clause 30, page 33, line 38, after "decision)" insert

(a) leave out "and" at the end of subsection 1(b)

(b) leave out subsection 1(c)

(a) (c) In subsection 2

(c) In subsection (2) replace "The leave is extended by virtue of this section" with "The leave is extended from the day on which it would otherwise have expired"

Purpose

To correct an unintended consequence of the Immigration Act 2014 amendments whereby a person whose application is refused before their original leave expires can benefit from 3C leave is they appeal or bring an administrative review. Ensures that a person whose application is refused before their original leave expires and is still in time to bring an appeal or has brought an appeal by the time their original leave expires, benefits from the protection of 3C leave in the same way as they would had they been refused by the Secretary of State only after their original leave had expired.

Briefing

Section 3C of the Immigration Act 1971 provides that when a person makes an "in time" application (i.e. makes an application while they still have leave to be in the UK), their leave continues on the same terms and conditions until such time as the Secretary of State has made her decision on the application and then for the period during which an appeal or administrative review could be brought and while it is pending. People are asked not to apply until c. one month before their existing leave expires and it is very often the case that the application is not decided before, without the protection of 3C leave, their leave would have expired.

Without the protection of 3C leave, a person would become an overstayer, unable to work, rent property, open a bank account, drive etc., their employers and landlords/landladies liable to prosecution, even though the application was straightforward and indeed was approved without hassle as soon as the Secretary of State was able to deal with it. The only way of avoiding this situation without 3C leave would be for the Secretary of State to have to deal with all applications before the original period of leave expired, which would make enormous and unpredictable demands upon her.

Amendments were made to section 3C in 2014, as a consequence of the changes to the appeals and removals regime. In particular, provision was made for 3C leave while an administrative review could be brought or was pending.

But one effect of the redraft was to require that the original leave had already expired when the Secretary of State made her decision for the protection of section 3C to kick in for the period while an appeal could be brought or was pending. The consequence of the redraft is that if Secretary of State does manage to decide the application before their original leave expires, and refuses it, they do not benefit from section 3C while the appeal or administrative review could be brought or is pending. The problem is with s 1(c) below.

3C Continuation of leave pending variation decision

(1) This section applies if-

(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

(b) the application for variation is made before the leave expires, and

(c) the leave expires without the application for variation having been decided.

(2) The leave is extended by virtue of this section …

Paragraph 152 of the Explanatory Notes to the Bill implies that section 3C already covers such applicants, which may well be the intention. It says

"A person who currently has leave and applies to extend their leave to enter or remain may well find that their leave expires while their application remains undecided, or while an appeal or administrative review against a refusal decision remains pending. To prevent people being left without leave, section 3C…provides.." [emphasis added]

Persons refused before their original leave expires may have the right to appeal or apply for administrative review, but they are effectively prevented from doing so because they run the risk of overstaying if their leave expires before the conclusion of proceedings

What we are trying to ensure by this amendment is that a person who is refused an extension of leave before their original leave expires, continues to benefit from their original leave until it runs out, and then benefits from 3C leave for rest of any period during which an appeal could be brought and while that appeal is pending. We would thus ensure that those who make a variation application before their leave expires and whose application is refused before their leave expires are not prevented from bringing an appeal or applying for administrative review of the decision because they would become overstayers during that process, and at that point become subject to the measures in this Bill.

It may be that it will suffice to leave out subsection 3C(1)(c). The reason we have gone for a more complicated amendment is to make clear that the original leave continues until it expires and 3C leave only kicks in when the person has no leave and we are not wholly confident that the word "extended" in 3C(2) is sufficient to cover this.

Clause 30 Power to cancel leave extended under section 3C of the Immigration Act 1971

PROPOSED AMENDMENT / STAND PART DEBATE

Page 33, line 26, leave out clause 30

Purpose

To remove from the Bill the power to cancel leave extended under section 3C of the Immigration Act 1971.

Briefing

Section 3C of the Immigration Act 1971 automatically extends a person’s leave to enter or remain in the UK where they have limited leave to enter or remain, for example as a Tier 2 worker or as a student, and they make an application to extend or vary that leave before it expires. Their leave is extended on the same terms and conditions as their existing leave to cover the period until the Home Office decides their application, the period during which an appeal against, or administrative review of, the Home Office decision can be brought and the period during which that appeal or administrative review is pending until it is finally determined.

Clause 30 gives the Home Office the power to cancel leave extended under section 3C of the Immigration Act 1971 where it considers that the applicant has failed to comply with a condition of that to the leave or has used deception in seeking leave to remain.

The Home Office does not need a power to cancel leave extended by section 3C of the Immigration Act 1971. The Home Office bring leave under section 3C to an end, including in circumstances where it considers there has been a breach of conditions or the use of deception, by making a decision on the outstanding application and dealing with any appeal or administrative review.

This can be illustrated using the hypothetical example provided by the Government in the Explanatory Notes to the Bill (p.22, example 1). In this example, a student applies to extend his leave to remain as a student in the UK and his leave is automatically extended under section 3C of the Immigration Act 1971 whilst that application is considered. Meanwhile, the student is found to have breached his conditions because of the employment he has had and is discovered to have used deception in his application.

The Government is concerned that the student would continue to benefit from leave under 3C of the Immigration Act 1871 until the outstanding application is determined and any administrative review is concluded. However, in this scenario, the Home Office could immediately refuse the outstanding application as a breach of conditions and the use of deception are both material to the application. Leave under 3C of the Immigration Act 1971 would only continue if an administrative review were brought. Administrative review was introduced at the time of the coming into force of the Immigration Act 2014, for the Home Office to correct own casework errors in cases where, subsequent to the coming into force of that Act, there is no right of appeal. The Home Office aims to decide an administrative review within 28 days.

If the Home Office cancelled leave under section 3C of the Immigration Act 1971 instead, without making a decision on the outstanding application, the applicant would have no right of appeal or administrative review to challenge the cancellation of leave. There is currently no provision for administrative review of a cancellation of leave. The person would have no lawful status and no means of challenging any mistaken decision: the cancellation, because there is no administrative review of this and the original decision because to pursue their appeal they would have to remain unlawfully.

Even where the Home Office made a decision on the original application at the time of cancellation of 3C leave, if that decision were a refusal the applicant would have no lawful status and would be unable to work or study until any administrative review of this had been determined, despite having no control over the length of time the Home Office takes to determine their case.

Applicants unable to work would potentially lose their job whilst casework errors made by the Home Office were addressed and their case reconsidered. They would also be subject to all the proposed measures designed to create a hostile environment for those living unlawfully in the UK, including losing their home through being unable to rent and losing access to their bank account. Even where the applicant was ultimately successful the damage would have already been done through the loss of their work or home in the interim.

The quality of Home Office decision-making was highlighted as a concern during debates on the Immigration Act 2014 when appeal rights were removed. Whilst the use of deception or breach of a condition would be a valid reason to refuse an immigration application, mistakes are made, for example if the Home Office does not have sufficient evidence to support an assertion of deception; if a decision that a condition has been breached is made under the wrong rules and policy; or if a notification by an employer that an individual no longer works for them is linked to the wrong employee.

ILPA is aware of cases where applicants in a variety of categories have found themselves accused of deception where fraud was identified in the test centre that they used to take the English language tests for their visa, even though they were unaware of cheating having occurred and there was no evidence to suggest that they had cheated in the tests .

The Government argues in the Explanatory Notes that this clause addresses an anomaly with how it deals with cases where there has been a breach of conditions or the use of deception by an individual who has leave to enter or remain that is not "3C" leave. The second example in the Explanatory Notes, is of a student with valid leave to remain due to expire in two years’ time. This student may have his leave immediately curtailed and be given notice of removal on discovery of any use of deception.

The different outcome for the student with leave that is not 3C leave is should, however, be a matter of concern, because it was not what parliament was led to expect during the passage of the Immigration Act 2014.

The Immigration Act 2014 removed a number of rights of appeal against immigration decisions, including the right of appeal against a decision to curtail leave.

During the passage of the Bill that became the Immigration Act 2014, the Government stated that administrative review would provide a remedy in those cases where a right of appeal had been removed.

The Government’s Immigration Bill – Statement of Intent on Administrative Review in lieu of Appeals [38] said of administrative review:

1. Who will be able to apply for administrative review?

· Individuals who will no longer have a right of appeal as a result of changes to the appeals system.

[…]

14. Will existing leave continue while an administrative review is conducted?

· Yes where an individual with leave applies for further leave before their current leave expires and, following a refusal, applies for administrative review; their current leave will be extended until their administrative review has been concluded.

The Explanatory Notes accompanying the Bills, published on both 10 October 2013 [39] and 03 February 2014 [40] stated:

Where an application is refused and there is not a right of appeal, the applicant may be

able to apply for an administrative review. Similarly, an administrative review may be

sought when a person’s leave is curtailed or is revoked. The Immigration Rules will

set out when an applicant may seek an administrative review. In Schedule 8, Part 4

extends the effect of section 3C and 3D where an administrative review can be sought

or is pending. The question of whether an administrative review is pending will be

determined in accordance with the Immigration Rules.

Despite this however, when the Home Office subsequently published the immigration Rules on administrative review [41] , decisions to curtail leave were excluded from the scope of administrative review. ILPA raised this in its comments on a draft version of the rules, but no action was taken. The rules received limited scrutiny from parliament. Adding insult to injury, the Government now seeks, by clause 32 in this current Immigration Bill, to remove section 3D of the Immigration Act 1971 on the basis it is no longer necessary. Section 3D of the Immigration Act 1971 is the provision under which a person may have their leave automatically extended whilst they bring an administrative review against a decision to curtail their leave.

The Government could achieve parity of outcomes by providing an administrative review of a decision to curtail leave, as parliament had been led to understand, during the passage of the Bill that became the Immigration Act 2014, that it would do and by ensuring that section 3D of the Immigration Act 1971 is left intact so that right may be exercised.

Schedule 5 Paragraph 2 Conditions of immigration bail

PROPOSED AMENDMENT

Page 79, line 42, delete ‘, occupation or studies’ and replace with ‘or occupation’

Purpose

To remove the restriction on a person’s studies from the list of conditions to which a person may be subject when on immigration bail.

Briefing

The introduction of a restriction on studies as a condition either of temporary admission or bail for those subject to immigration control is new. No reason for the restriction is given in the Explanatory Notes to the Bill.

Breach of a condition of immigration bail is a criminal offence and therefore has serious consequences. Those lawfully present and in touch with the authorities should not be restricted from undertaking studies.

As all those subject to immigration control will be on immigration bail, not just persons released from detention, The condition could potentially be applied to children and young people, from accessing further education and even preventing them from attending their school.

Those previously on temporary admission will henceforth be on "immigration bail." This will include persons seeking asylum. The condition could be applied to them, preventing them from learning English or undertaking other studies whilst their asylum claim is pending. This would put those recognized as refugees at a disadvantage as they start to rebuild their lives in the UK. Those refused asylum are more likely to have an incentive to return if they know that return with skills or qualifications and such skills and qualifications may also help to rebuild countries recovering from war.

Persons seeking asylum currently face considerable delay in the determination of their asylum claim, during which time they are not permitted to work. The Home Office now has a target of six months for the initial decision on an asylum claim if the case is straightforward and a target of 12 months for deciding a case that it considers not to be straightforward [42] . Only if a person waits for more than 12 months for a decision will they be permitted to work and then only in an occupation on the shortage occupation list. A person who does not wait more than 12 months for their initial decision will not be permitted to work while waiting for a decision on their appeal, however long the appeal may take.

Should a person appeal against a wrongful refusal they will wait a long time for an appeal. At the moment the First-tier Tribunal is listing appeals for June and July 2016. That is the initial appeal; some cases will proceed to the Upper Tribunal and higher courts

By the time an individual is recognized as a refugee, they have large gaps in their employment history which make it more difficult to get a job and to begin to rebuild their lives in the UK. Placing an additional restriction on persons seeking asylum that would prevent them from learning English or other skills they may need to integrate into the UK will limit their prospects of integration on recognition as a refugee.

Annex Ill-treatment of persons deprived of their liberty under Immigration Act powers

During the evidence session on 22 October 2015 the following exchange took place between Mr Whittaker MP, the Government Whip and Jerome Phelps of Detention Action:

Craig Whittaker:     Do any of you have any evidence that there is any abuse in the detention centre?  

Jerome Phelps: The most apposite evidence would be the series of finding by the UK courts of breaches of article 3 in relation to highly vulnerable mentally ill migrants in detention, who should not be detained anywhere except for under exceptional circumstances. Article 3, on inhuman and degrading treatment, is a very high threshold. Until recently there had never been a case of this, but in the past four years there have been six cases of desperately vulnerable people who have had complete psychiatric collapse in detention, to the article 3 breach level.  

Q 229 Craig Whittaker:     I do not want to undermine or belittle the six cases by any stretch of the imagination, but from the thousands who have been through the system in the past four years, which is what you mentioned, it is an incredibly small part. It would therefore be very difficult to say that the system is broken. Is that right?  

Jerome Phelps: I do not think any of us have suggested that everyone in detention is abused. It is a small part but we have functioning safeguards, such as the bail system. What is concerning about the Bill is that it is removing some of those safeguards.   [43]

The exchange concerns breaches of Article 3 of the European Convention on Human Rights: the prohibition on torture, inhuman or degrading treatment or punishment. It is a right non-derogable at any time, including times of war or public emergency threatening the life of the nation. That torture inhuman or degrading treatment of mentally ill individuals can happen once does indeed suggest to us that the system is broken. That such a serious violation can happen more than once provides further evidence of this. We are aware of many more cases which have settled or are pending. Cases that are settled are now settled subject to confidentiality agreements so that further details cannot be given.

Cases in which the UK has detainees’ rights under Article 3 of the European Convention on Human Rights, the prohibition on torture, inhuman and degrading treatment and punishment [44] can be read at the links below. We draw particular attention to:

R (S) v Secretary of State of State for the Home Department [2011] EWHC 2120 (Admin) (5 August 2011)

The Court held that the circumstances in which S was detained at Harmondsworth constituted inhuman and degrading treatment in breach of article 3. Those circumstances included:

§ Detaining him despite a clear (and documented) history of severe mental illness, and contrary to the clear expert advice of a number of mental health professionals;

§ Serious deterioration in his mental state, with numerous acts of self-harm, psychotic symptoms, feelings of acute anguish and distress, and allowing him to reach such a deteriorated state that he lacked capacity to make decisions in his own best interests;

§ The failure to respond assessments by the in-reach psychiatrist that he was unfit for detention and required urgent compulsory treatment in hospital under the Mental Health Act; and

§ One incident in which officers encountered S, naked and bleeding, being pulled along a corridor by another detainee in view of a crowd of detainees after he had attempted suicide.

R (BA) v Secretary of State of State for the Home Department [2011] EWHC 2748 (Admin) (26 October 2011)

The Court held that the circumstances of his detention, at Harmondsworth, constituted inhuman and degrading treatment in violation of article 3 and the prohibition on torture, inhuman or degrading treatment. Those circumstances included:

§ Detaining him despite a clear and documented history of severe mental illness and contrary to expert advice that detention would be likely to cause deterioration. There was "a deplorable failure, from the outset, by those responsible for BA’s detention to recognise the nature and extent of BA’s illness" [45] ;

§ The serious deterioration in his physical and mental health, including allowing him to reach a state where he was assessed as unfit for detention and, at one stage, on the verge of death;

§ The failure, expeditiously, to make arrangements for his transfer to hospital once he had been assessed by medical staff as requiring urgent transfer; and

§ The failure within the Home Office to ensure that clinical information about his deteriorating condition was accurately communicated to senior officials responsible for deciding whether he should be released. The judge referred to "a combination of bureaucratic inertia, and lack of communication and co-ordination between those who were responsible for his welfare" and described the Assistant Director’s concern to manage press interest in the event of his death as "callous indifference to BA’s plight" [46] .

The judge carefully enumerates the shortcomings in the reviews "In common with the other detention reviews, no detention review checklist appears to have been completed" "The reasoning in this decision does not refer to BA's mental illness at all. It …does not comply with…the policy." He says "A crescendo of professional voices expressed the view in the course of July that he was unfit to be detained."

The case shows how much deterioration can happen in a short time:

 57… It is of concern that when BA had been seen on 31 March, his condition had been seen to be getting worse, but that a little more than a week later, he was obviously unwell to a layman, and was saying both that his medication had run out three days earlier, and that he had not been able to see the healthcare staff. This suggests that no-one was keeping an eye on his welfare, despite the warning signs seen on 31 March 2011. This is all the more worrying when it is recalled that incarceration, stress, and lack of medication were factors which had led to BA's becoming ill in the past. The GCID note for 8 April 2011 says "subject came to the centre from hospital and his psychiatric illness is acknowledged on IS91RA". On 11 April 2011, the healthcare unit at Harmondsworth IRC were asked for an assessment of BA's mental health. There was then to-ing and fro-ing about consent forms.  

58. BA was reviewed by the Harmondsworth IRC GP on 15 April 2011.  

59. On 27 April 2011, Mr Agbeni … asked for an assessment of BA's current mental health, his medication, and "the regularity of his appointments with the psychiatric doctor by return." Manuscript medical notes for 10 May 2011 record that an appointment to see the doctor was booked for BA for 12 May 2011 "as requested by UKBA". He was reviewed by a GP on 12 May 2011. He reported that BA was "disoriented, lying on the floor, keeps repeating 'I see demons'. H/O schizophrenia/on Olanzapine...Already on the waiting list to see psychiatrist (20.5.11)."  

BA finally saw a psychiatrist on 20 May. But it was not until 6 August that he was transferred to a mental health ward. The judge records

75. On 6 July 2011, Dr Agulnik provided a preliminary psychiatric assessment. He formed the view that BA's food refusal was related to his delusional ideas. His physical condition was "not my area of expertise....gives rise to grave concern, and without more intensive and sustained treatment, could result in a lethal outcome." His physical and mental state made him unfit for continued detention, a "view supported by the Healthcare Manager". The stress and uncertainty about his status had a role in his current "decompensation into a psychotic state". Dr Agulnik considered it highly unlikely that BA could be successfully treated in an immigration detention centre, and "indeed that continuing to do so courts a real risk that he could die." He needed urgent psychiatric care which must be outside detention….  

84. A file note on the same date indicates that UKBA knew that BA was considered unfit for detention,  

Even when the hospital told the Home Office that a bed was available for BA, no transfer took place for a further three days, despite the hospital’s chasing.

R (HA) v Secretary of State of State for the Home Department [2012] EWHC 979 (Admin) (17 April 2012)

The circumstances which led the Court to find that HA had been subjected to degrading treatment included:

§ Acts which "violated his own dignity" (prolonged periods of time in isolation; sleeping on the floor, often naked, in a toilet area; drinking and washing from a toilet; self-neglecting, including not eating properly and not washing or changing clothes for prolonged periods; and suffering from insomnia);

§ Not receiving appropriate medical treatment for a prolonged period of more than 5 months;

§ The use of force on him on several occasions; and

§ In the second period, detaining him when the Home Office had been explicitly warned by a psychiatrist that Harmondsworth did not have the medical facilities to treat him should he suffer a relapse and that an aspect of his mental illness was paranoia about detention centre staff.

The judge observes:

"…under the heading 'Changes in Circumstances' the same words that had been used in the previous two reviews were repeated without in fact any record being given of any changes since the last review…" "The Defendant had no real answer to these submissions. In substance her response was to accept that the Claimant was in need of a transfer at about that time for assessment and, if necessary, treatment in a psychiatric setting but to deny that it was her responsibility that this did not happen as quickly as it might have done, that responsibility lying with others such as the Primary Care Trust."

R (D) v Secretary of State for the Home Department [2012] EWHC 2501 (Admin) (20 August 2012).

Another case involving a schizophrenic in which a violation of Article 3 was found. Each review contains the formula "and as there are no medical or compassionate issues highlighted to date" despite the increasing evidence of mental illness. The judge describes the Home Office approach as "irrational" and "laisser-faire". The Secretary of State maintained throughout that there had been no error and no breach of Article 3 or even of Article 8 even though the Official Solicitor was acting as D’s litigation friend by the time of the hearing because D’s mental state was such that he could not instruct his solicitors.

Women in detention have been subjected to abuse by the staff of centres. [47] It was suggested in those cases that an attempt was made to remove the victims from the jurisdiction before they could bring a case. Such allegations are not new. We recall for example the comments of Mr Justice Munby in R (Karas and Miladinovic) v Secretary of State for the Home Department [2006] EWHC 747 (Admin):

I am driven to conclude that the claimants’ detention was deliberately planned with a view to what in my judgment was a collateral and improper purpose – the spiriting away of the claimants from the jurisdiction before there was likely to be time for them to obtain and act upon legal advice or apply to the court. That purpose was improper. It was unlawful.

HM Chief Inspector of Prisons has reported on an 84 years’ old frail Canadian man suffering from dementia who died in detention in handcuffs having been kept handcuffed for five hours. [48]

Deaths, including suicides, and incidents of what is called "self-harm" but includes suicide attempts, are recorded. Home Office figures for the period July to September 2013 show 624 people on "self-harm watch" (what would elsewhere be called suicide watch) in immigration detention and 94 incidents of "self-harm" (which includes attempted suicide). In 2012 there were 208 incidents of what statistics call "self-harm" requiring medical attention and 1804 detainees formally recognised as being at risk of such harm [49] . There no figures for self-harm not requiring medical attention. Persons are detained for administrative convenience, although not for correct and sustainable decisions on applications for international protection, in the detained fast-track. In the last two years, the courts have made unprecedented findings that mentally ill men have been subjected to inhuman and degrading treatment in contravention of Article 3 of the European Convention on Human Rights [50] .

A case has revealed that the Home Office and its contractors had been operating an unlawful policy on the use of force on pregnant women and children in immigration detention. [51] 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 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. [52]

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] 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.

Another case exposed "disturbing" evidence of systemic failures concerning the detention of survivors of torture. [53]

25 October 2015


[1] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/330367/Chapter16_v6.pdf

[2] See www.ilpa.org.uk/resources.php/30347/r-v-ntege-and-others-on-abuse-of-process-by-immigration-officers-21-october-2014

[3] Yarl's Wood affair is a symptom, not the disease, Nick Cohen, The Observer, 14 September 2013.

[4] Hansard, 10 February 2014: Column 515.

[5] Hansard, 10 February 2014: Column 515.

[6] http://detentioninquiry.com/

[1] HL Deb 29 June 1999 vol 603 cc176-257.

[2] HL Deb 19 Jul 1999 : Column 707.

[3] HL Deb 17 July 2002 vol 637 cc1257-305

[4] HL Deb 19 July 1999 vol 604 cc693-724

[5] Ibid. col 704

[6] Enforcement Instructions and Guidance 55.8.

[7] Category One of the UN Working Group’s criteria

[8] Ibid., Category Four.

[9] UKVI, Non-straightforward cases: exclusions from the asylum processing aspiration, 10 June 2015

[1] Home Office response to BID FOI request dated December 2 2014.

[1] Some individuals made more than one application during this period.

[1] Note: June 2009: introduction of new practice of granting all Section 4(1)((c ) applicants shared initial accommodation (IA). January 2010: publication of new HO policy on Section 4(1)( c) support arranging bail accommodation for applicants convicted of serious offences, including new process that sought to determine whether IA or dispersal accommodation was suitable, the latter almost immediately being found to be in short supply under existing contractual arrangements.

[2] See: Bail for Immigration Detainees, (2014),’ No place to go: delays in Home Office provision of Section 4(1)(c) bail accommodation’. Available at http://bit.ly/1DqTEQL (accessed 4 September 2015)

[3] On November 4 2014, there were 198 outstanding applications for Home Office Section 4(1)(c ) bail support where the applicant was deemed unsuitable for Initial Accommodation. 28% of these detainees had been waiting 6 months or more, to date, of these 5% for over one year, and one detainee had already waited for 2 years. Source: Home Office response to BID FOI request dated December 2 2014. BID research in 2014 found that the average (mean) time to grant a Standard Dispersal bail address with no NOMS involvement in the case was 59.28 days (8.46 weeks), range from 5 to 175 days (1 – 25 weeks). See: Bail for Immigration Detainees, (2014),’ No place to go: delays in Home Office provision of Section 4(1)(c) bail accommodation’. Available at http://bit.ly/1DqTEQL

[4] Tribunals Judiciary, (2012), ‘Bail guidance for judges presiding over immigration and asylum hearings’

[5] This requirement is intended by NOMS to ensure that approved premises beds are not blocked by individuals (UK citizens and foreign nationals) without access to housing and a known address to transfer to at the end of their supervision in Approved Premises.

[6] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/438472/asylum_support_section_4_policy_and_process_public_v5.pdf

[7] The charity Refugee Action reports that its clients from India, Pakistan, and Bangladesh wait on average for 32 days to receive travel documents but, in some cases, up to 133 days, Refugee Action Jan – June 2013

[8] https://www.nao.org.uk/report/the-electronic-monitoring-of-adult-offenders/

[8]

[20] HL Deb 19 July 1999 vol 604 cc 693-724.

[21] Immigration and Asylum Act 1999 s 44.

[22] HL Deb 28 July 1999 vol 604 cc1611-66, letter of Lord Williams of Mostyn to Lord Avebury, to which

[22] reference is made by Lord Avebury.

[22]

[23] Committee against Torture, Fifth periodic report of the United Kingdom, (6-31 May 2013)

[24] See, for example, R (Sino) v SSHD [2011] EWHC 2249 (Admin) (four years and 11 months) and R (Mhlanga) v SSHD [2012] EWHC 1587 (Admin) (five years two months). See The effectiveness and impact of immigration detention casework: A joint thematic review, Her Majesty’s Inspectorate of Prisons and the Independent Chief Inspector of Borders and Immigration, December 2012, available at http://www.justice.gov.uk/downloads/publications/inspectorate-reports/hmipris/thematic-reports-and-research-publications/immigration-detention-casework-2012.pdf (accessed 7 October 2014).

[25] Source: Home Office, Immigration statistics, January to March 2015’. Table dt_06: People leaving detention by reason, sex and length of detention. Available at http://bit.ly/1NuAxG3

[26] Home Office, Immigration Statistics January to March 2014, table at 06. See also Immigration Statistics: summary points: April to June 2014.

[27] See Case C-357/09, Kadzoev [2009] ECR I-11189, 30 November 2009.

[28] Application 48883/07, judgment 24 April 2012.

[29] HL Deb 19 July 1999 vol 604 cc693-724 Baroness Williams said

[30] Ibid. Col 719.

[31] R (Lumba) v SSHD [2012] 1 AC 245.

[32] See the joint Her Majesty’s Inspectorate of Prisons/Chief Inspector of Borders and Immigration report, The effectiveness and impact of immigration detention casework, December 2012 at 2.7. In France there is a limit of one and a half months on immigration detention, which is subject to automatic oversight by the courts. The Netherlands too has a maximum time limit of one and a half months and Spain a limit of two months.

[33] HC Deb, 11 September 2013, c 723W.

[34] HL Committee, Immigration Bill, 3 March 2014, col 1125 per the Lord Wallace of Tankerness.

[35] Immigration Act 2014, s 2.

[36] The Independent Chief Inspector of Borders and Immigration (ICIBI) carried out an inspection of the Home Office travel document processes and noted in 2014: "despite recommendations I have made previously, I was concerned to find that the Home Office was still keeping foreign criminals, who had completed their prison sentences, in immigration detention for months or even years in the hope that they would eventually comply with the re- documentation process. Given the legal requirement only to detain individuals where there is a realistic prospect of removal, this is potentially a breach of their human rights" (ICIBI, 2014: 2). (Source: Independent Chief Inspector of Borders & Immigration, (2014), ‘An Inspection of the Emergency Travel Document Process May-September 2013.’ Available at http://icinspector.independent.gov.uk/wpcontent/uploads/2014/03/An-Inspection-of-the-Emergency-Travel-Document-Process-Final-Web-Version.pdf)

[36]

[37] http://www.bailii.org/ew/cases/EWCA/Civ/2015/838.html

[38] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/254851/SoI_Administrative_review.pdf,

[39] http://www.publications.parliament.uk/pa/bills/cbill/2013-2014/0110/en/14110en.pdf, para 73

[40] http://www.publications.parliament.uk/pa/bills/lbill/2013-2014/0084/en/14084en.htm, para 77

[41] C 395, Appendix AR.

[42] UKVI, Non-straightforward cases: exclusions from the asylum processing aspiration, 10 June 2015

[43] http://www.publications.parliament.uk/pa/cm201516/cmpublic/immigration/151022/am/151022s01.htm

[44] For example R (BA) v Secretary of State for Home Department [2011] EWHC 2748 (Admin) ;R (S) v Secretary of State for the Home Department [2011] EWHC 2748 (Admin) (5 August 2011, R (HA) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) (17 April 2012), R (D) v Secretary of State for the Home Department [2012] EWHC 2501 (Admin) (20 August 2012); R(MD) V SSHD [2014] EWHC 2249 (Admin).

[45] Judgment, paragraph 236.

[46] Judgment, paragraph 237.

[47] Yarls' Wood affair is a symptom, not the disease, Nick Cohen, The Observer, 14 September 2013.

[48] Report of unannounced inspection of Harmondsworth Immigration Removal Centre, 2014, section 1, paragraph 1.3 available at http://www.justice.gov.uk/downloads/publications/inspectorate-reports/hmipris/immigration-removal-centre-inspections/harmondsworth/harmondsworth-2014.pdf

[49] 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.

[50] R (S) v Secretary of State for the Home Department [2011] EWHC 2120 (Admin) (5 August 2011), R (BA) v Secretary of State for the Home Department [2011] EWHC 2748 (Admin) (26 October 2011), R (HA) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) (17 April 2012), R (D) v Secretary of State for the Home Department [2012] EWHC 2501 (Admin) (20 August 2012).

[51] Chen and Others v SSHD CO/1119/2013.

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

[53] R (EO, RA, CE, OE and RAN) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin).

Prepared 27th October 2015