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Lord Filkin: My Lords, the Detention Centre Rules 2001 require every detained person to be provided with
written reasons for detention at the time of his initial detention and monthly thereafter. The notice must be explained to the detainee, using an interpreter if necessary, and must be certified by an immigration officer.It is not the case that the current notice provides only generalised reasons for detention. It sets out the specific power of detention used and specifies the particular reasons and factors that apply to the decision to detain in the individual case concerned. The powers, reasons and factors that may be indicated on the notice are the only ones that can apply in any case.
Our view is that an individual letter would cite exactly the same information, so a letter or other document drawn up for each individual case, as required by this new clause, would provide no information that is not already given in the notice.
To strengthen the monthly review process we have recently set up a central unit to manage detained cases. The unit is responsible for reviewing continuing detention in all cases and will also track detained cases through the asylum and appeals process. In addition to regular monthly reviews, the unit will also conduct event-driven reviews at other times, thus ensuring that the matter of continuing detention is considered even more frequently. It will also continue to be the case that detention will be reviewed at a local level on a weekly basis.
As part of the changes to the system of monthly reviews of detention, we shall also be reviewing the notice given to detainees to let them know the outcome of the detention review. It may be that the notice should be revised to improve the way in which it provides reasons for continuing detention. We have not closed our eyes to such a need.
On the question from the noble Earl, Lord Russell, and the noble Lord, Lord Kingsland, on the powers, detention for immigration purposes is expressly authorised by Article 5.1(f) of the ECHR, which permits the lawful arrest or detention of a person to prevent his effecting unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
Earl Russell: My Lords, the Minister has just invoked Article 5.1(f) of the convention, but surely once a claim for asylum has been lodged, which must necessarily be true of all people under consideration now, that is overridden by Clause 31(1) of the 1951 Convention on Refugees. The matter came before Lord Justice Simon Brown judicially in a recent case and was determined without any ambiguity.
Lord Filkin: My Lords, as discussed in Committee and in the Home Office's response to the Joint Committee on Human Rights, we fully accept the implied limitations on the power to detain for a reasonable time for the purpose allowed by the power and the detaining authority acting with reasonable expedition. I shall consider the point raised by the noble Earl, Lord Russell. Without the clauses in front of me it would be flippant to dismiss it. However, I do
not want to imply that we consider, for a second, that we are not operating fully within the power of the law. In support of that I would advance that clearly any person who is detained has a right of challenge to the courts either under judicial review or under habeas corpus for their removal. Therefore, I would have expected that in that case, were there to be such a flaw, it would already have been found out. I am further advised that Article 31.1 of the 1951 convention refers to penalties. Immigration detention is not a penalty for these purposes.I indicated earlier, in what I said in terms of monthly reviews, that our minds are not closed as to whether improvements can be made with regard to the notification of initial decisions. The form is kept under review. We shall consider improvements. But currently we remain satisfied that the form is a right and appropriate way of giving the information that we are obliged to give. I should welcome receiving any representations made by your Lordships or other organisations if there are points that they want to bring to my attention.
Lord Avebury: My Lords, that is fairly helpful. I welcome what the Minister has said about the central unit, which is to review cases in detention and to conduct its own written reviews, which seems a good idea to me. It is also, most importantly from the point of view of this amendment, to look again at notices which are given to detainees. I am grateful to the Minister for his kind assurance that he will consult us and any of the agencies that are concerned in these matters, in order to see what they think should be done to improve the way that the forms are worded.
To the best of my knowledge, the noble Earl, Lord Sandwich, was correct that both the IS 91, which is given to a person on his initial detention, and the IS 151, given on the renewal of his detention, contain a checklist. That is what we consider to be inadequate. If a detainee receives a piece of paper which has been mechanically ticked and states, "You are likely to abscond if given temporary admission or release", we would consider that to be inadequate. A detainee is entitled to an explanation as to why an immigration officer takes the view that he is likely to abscond if he is given temporary release.
These are matters that we could discuss in detail. Therefore, I shall take up the Minister's invitation. I shall bring the experience of the organisation BID to that discussion and perhaps we may jointly have a meeting with it. Therefore, its input can be listened to by the Home Office officials. I am most grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dholakia moved Amendment No. 44:
- Leave out Clause 57.
The noble Lord said: My Lords, noble Lords will be aware that we raised this matter in Committee. We return to the same point because it seems that there were some discrepancies in our information at that stage. That is why we suggest that Clause 57 should not
stand as part of the Bill, a view very much supported by the voluntary immigration agencies that we have consulted.Paragraph 17 of Schedule 2 to the Immigration Act 1971 permits an immigration officer or a police officer to enter premises to search for a person who is liable to be detained pending examination or removal under paragraph 16 of the same schedule. Before they do so, however, they must have obtained prior approval and a warrant from a justice of the peace to enter those premises to search for and to arrest that person.
If a police officer arrests a suspect he will then be able to conduct a search of that person's pockets and outer garments in order to ensure that he is not in possession of anything that could assist his escape from custody, be used to harm himself or others or which could be used in evidence relating to the offence for which he was arrested. The power to search is conferred by Section 32 of the Police and Criminal Evidence Act 1984. An immigration officer has similar powers which derive from Section 28G of the Immigration Act 1971.
When exercising those powers a police officer will be required to act in accordance with the codes of practice attached to the Police and Criminal Evidence Act. If he acts in breach of such codes he will be liable to police disciplinary procedures and possibly subject to an investigation by the Police Complaints Authority, or he may face civil action in the courts.
An immigration officer will also be subject to the codes of practice, as adopted by immigration officers for use in connection with the exercise of a policing role, by Section 145 of the Immigration and Asylum Act 1999 and the Immigration (PACE Codes of Practice) Direction 2000.
Clause 57 proposes to change that situation. If enacted, it will mean that detainee custody officers, who are not public employees and are not directly accountable for their actions to any public service disciplinary process or any complaints procedure, will be able to enter premises and search the detainee without being subject to any code of practice or specific disciplinary procedure. This is the information that we had when we last discussed this matter.
It is also unclear to what extent their entry will be regulated by any warrant. In Committee, I asked the noble Lord, Lord Bassam, whether it was correct that the custody officer needed a warrant. He stated:
- "I think not; I think that the power is limited and that it can be exercised only when escorts are accompanying immigration or police officers to premises for which a warrant has been issued".—[Official Report, 15/7/02; col. 1077.]
It is for those reasons that we feel that there are these discrepancies in this clause. Therefore, it should not form part of the Bill. I beg to move.
5.45 p.m.
Earl Russell: My Lords, I should like to say a few words in support of Amendment No. 54A. This concerns the revoking of exceptional leave to remain. The Home Secretary has in the past week been giving out slightly contradictory messages. On the one hand he has been urging immigrants to integrate, with perhaps extreme zeal in the matter of language. There is nothing wrong with the urge to integrate. But at the same time he made remarks in the paper at the end of last week appearing to threaten large-scale revocation of ELR already granted to people in this country for perfectly good reasons.
Can the Minister confirm that the Government do not intend any substantial revocation of exceptional leave to remain already granted, except for the reasons contained in this clause? I declare an interest in that I am asking this question on behalf of someone whose future I view with some concern.
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