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Lord Avebury: Amendment No. 122, which deals with the power of curfew, is grouped with this set of amendments. When the Minister replies, perhaps he can say a bit more about how the Government intend to apply the power for the Secretary of State to make regulations. Under those regulations he can impose conditions requiring,
I do not suppose that there will be drainpipes outside the accommodation centres. But if the noble Lord proposes to impose that kind of restriction on people, then we should know about it at this stage and not wait until the regulations are published.
In any normal society in this country people go about their business in the evening. They go out to the cinema, to the pub and to visit friends. Obliging people in accommodation centres to return at a fixed hour every evening would place an unreasonable restriction on their freedom to do what every other person in this country can easily do without any restriction.
Furthermore, under the provision in the following subsection, if a person breaches that condition, he can immediately be deprived of his right to remain in the accommodation centre. As I understand it, he would be cast into outer darkness without any means of support. What do the Government think will happen in these cases? Let us suppose that the person who inadvertently comes in late one evening has a family. The offence is absolute; there is no qualification. The Bill does not say that he will be subject to the penalty if he has no reasonable grounds for failing to returning by the specified hour. That is why we need the Minister
Lord Kingsland: The mesmerising oratory of the noble Earl, Lord Russell, has almost expunged from my mind what I had intended to say. He is right, of course, to say that if the restrictions on the activities of someone in an accommodation centre are so severe that they amount in effect to detention, then those restrictions must meet all the legal criteria laid down, both by the convention and by our own courts, in permitting it.
In addition, I suggest that the Minister has to take into account bail criteria. It is not enough to say: "So long as I meet the detention criteria, I can introduce what restrictions I like". I suggest that the Minister must also apply the circumstances in which someone detained in an accommodation centre ought to have been granted bail and, therefore, freedom of movement. So there are two gateways through which these restrictions must pass in order to be valid in law.
I have a question of my own for the Minister. In circumstances where an asylum seeker breaches restrictions made on him in an accommodation centre before the final decision about his status is determined, would his so-called bad behaviour have any effect on the way in which the ultimate decision was reached?
Lord Filkin: I acknowledge with some appreciation the grouping that the noble Earl, Lord Russell, has undertaken. It allows for a potentially more efficient consideration of these issues. We need that, given the distance that we have to go in the proper scrutiny of the Bill.
My response at this stage will be the Government's view of these matters, but I do not want to be rapid or rash in my response to the points raised on these clauses by the noble Earl, Lord Russell. On this occasion, it may be useful if I take some time to reflect on them, and either respond or not on or before Report if it would seem wise to do so. I hope that both noble Lords will take this as an interim response pending further reflection.
I shall deal first with some of the specific points raised by the noble Earl, Lord Russell, and the noble Lord, Lord Kingsland, before painting the overall picture of the Government's view on these issues. On the points about Article 5 and the ECHR and preventing a person affecting an unauthorised entry, the meaning of this is subject to the decision of the House of Lords in the Oakington case, which we are still awaiting, as the noble Earl knows. In any event, there is no intention to detain at an accommodation centre. It is not our intention that the conditions set out in Clause 27 will amount to detention or to drift towards that, which was clearly the central thrust of the question.
With regard to withdrawal of support breaches under Article 3, the answer is: we believe not. Simple destitution alone would not in our view meet the minimum level of severity required under Article 3.
The noble Lord, Lord Kingsland, raised the question of whether bail rights should be considered. We suggest that this is not necessary because this is not detention. Essentially, the noble Lord's challenge was that if it moved towards detention, then bail rights might do so. We shall seek to ensure that it is not detention.
Lord Kingsland: My point, which I ought to have made more clearly than I did, was that, in looking at the limits to restrictions that can be placed on the freedom of movement of someone in an accommodation centre, the test should be, first, the detention test, providing a kind of floor below which the Secretary of State could not fall. Above that, there should also be the bail test; namely, even if an individual was in detention, given all the circumstances, would a court have granted that person bail? This provides a second gateway through which the Secretary of State has to pass before he can impose a restriction on an individual at an accommodation centre. That was the point that I wanted to make.
Lord Filkin: As usual, the noble Lord was not unclear. He was explicitly clear on his first point. What was not set out was my response. I am still going to leave that in store. I shall reflect on it and come back to him, if I might.
The noble Lord raised a point about breach of conditions on bad behaviour and whether that would engage the credibility of an asylum case. This is clearly extremely sensitive territory. It is obvious that it does not automatically do so. Perhaps I may give an example that was used in another place. If someone in an accommodation centre was frequently absent without the approval of the centre and without acceptable reasonable grounds, and if he was then found to be working illegally in a job which had been arranged before his arrival in the United Kingdom, such circumstances might be relevant to the credibility of the claim. Clearly, I am choosing my words carefully, but I seek to illustrate a circumstance in which it is possible that a breach of the understanding and expectations in an accommodation centre might engage the credibility of the asylum claim. I preface that with a clear statement that this is not by any means an automatic situationnot for one secondand one has to be extremely careful in these matters that there is a clear relationship between the two or more sets of events.
The Secretary of State is not obliged to withdraw support for breaches of conditions. Nor would it be right automatically to do so. Each decision to withdraw support would have to be taken individually. It would have to be proportionate and reasonable. In most circumstances, one would expect that it would be taken only after a process of proper warnings and communication. We are talking about human beings. One would seek to draw to the person's attention the fact that there was a breach, to hear any views about the breach, to affirm that the breach was serious if, in the light of that, it was felt to be so, and to point out potential consequences.
Lord Filkin: They would certainly be appealable. Therefore, I expect that they would also be judicially reviewable if there were felt to be a failure of process in the appeal. We shall come to that when I speak more fully in a moment.
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