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Lord Filkin: My Lords, it might help the House if I spoke more fully at this point, so that I can put into the discussion more of the argumentation. As several noble Lords have said, it is important to understand it. With the leave of the House, I will do that, as it may focus the discussion. Perhaps I left too much for my closing speech and should have put more into my opening speech. If the noble and learned Lord, Lord Mayhew of Twysden, will bear with me on that I think it would help the discussion, leaving open for a second the procedural issue raised by the noble Lord, Lord Lester.
First, we accept that this is only one case.
Lord Dholakia: My Lords, will the Minister confirm that there will be an opportunity for other Members to speak and that this is not his closing speech?
Lord Filkin: My Lords, I am advised by the Table that the way that I have phrased it makes it clear that other Members can speak after me because I am giving information to the House, rather than making my closing speech.
We certainly accept that this is only one case, but it has significant ramifications. It is fundamental to the discussion that the clause does not authorise detention. For that reason we believe it is compatible with ECHR because we will not detain anyone as a result of the clause. No one will be detained but the power relates to the ability to grant temporary admission to people who are not detained. The judgment of the High Court is that one cannot detain someone if at that precise moment he cannot be granted temporary admission either. We want to be able to grant temporary admission and because there is no detention we believe there is no issue of incompatibility with Article 5. The judgment held that temporary admission is not available when the power to detain no longer exists.
Paragraph 16 of Schedule 2 to the Immigration Act 1971 allows certain categories of people to be detained pending a decision whether or not to give directions for their removal. I regret to say to the House that this statement will take some time because it is highly technical and highly legal material and I need to put it into the record in full. Where removal directions are given, they may then be detained pending removal. Paragraph 21 of that schedule provides that where a person is liable to detention or who is actually detained under paragraph 16 he can be admitted or released temporarily. This temporary admission or release can be subject to conditions requiring the person to live at a particular address and to report at specified times.
As noble Lords will be aware, there is no set time limit to the power to detain but for the detention to be lawful it has to be for the reasons stated and may go on for no longer than is reasonable in order to achieve the objective for which it is authorised. For example, if removal cannot be reasonably said to be pending, in the sense that it is not going to be possible to remove the person within a reasonable time, the person concerned cannot be detained. When this point is reached, the normal practice is to grant temporary release under paragraph 21. This will generally be subject to conditions of the kind I have described.
However, in the case I mentioned, Hwez and Khadir, Mr Justice Crane held that the term "liable to be detained" did not refer to the category of person, but in effect means the same as "could lawfully be detained at that moment". In other words, if the point is reached where someone can no longer be lawfully detained, the alternative of granting temporary release on conditions is not available. We may not detain, yet we may not impose restrictions on them (via the authorisation of temporary admission) while they remain in the United Kingdom. This is so even where it is our firm intention to remove the person concerned as soon as it is possible to do so.
Similarly, if a person is on temporary admission, and a point is reached where his removal cannot be described as pending, the temporary admission ceases to be valid. Although the point made in Hwez and Khadir related specifically to powers under Schedule 2 which apply to arriving passengers, illegal entrants and overstayers, it would apply equally to someone who is the subject of deportation action under Schedule 3.
Take the case of a person who has committed a serious offence and whom we wish to deport, possibly someone who has been recommended by a court for deportation. The 1971 Act allows that person to be detained after he has completed his sentence pending his deportation from the UK, but this is again subject to a test of what is reasonable in all the circumstances. Normally if such a person cannot lawfully be detained, he will be released subject to restrictions requiring him to live at a particular place and report on a regular basis. That way, the Immigration Service is able to keep in contact with the person concerned. Following the decision in Hwez and Khadir, there is no legal basis for imposing such requirements.
The ability to require someone who is physically present in the UK but does not have leave to reside at a particular address and to report to the police or Immigration Service on a regular basis is crucial if we are to stand any chance of being able to keep track of him. We believe the judge's interpretation is wrong, as we have indicated, and we have been granted leave to appeal to the Court of Appeal. However, the point is unlikely to be finally settled in the near future. Of course, we do not know what the eventual outcome will be.
As I say, the ability to be able to require people to live at a particular address or to report regularly are key to the concept of contact management. We fully accept that there are implied limitations on the power to detain. But we cannot have a position where those people subject to immigration control who do not have leave to be here and whom we may not lawfully detain are able to remain in the UK pending the next stage of the immigration process—for example, removal—without us being able to impose any sort of restrictions on them, such as residence or reporting restrictions.
To deal with the effect of the judgment, subsection (2) of the proposed clause therefore makes it clear that a reference to being liable to detention includes cases where for one reason or another a decision or removal is not pending. I should stress that we are not saying that such persons may lawfully be detained. All we are trying to do is to ensure that where the ability to impose restrictions on a person subject to immigration control rests on that person being liable to be detained—paragraph 21 of Schedule 2 to the Immigration Act 1971 and paragraph 2(5) and (6) of Schedule 3 to that Act—we can do so even where we may not lawfully detain the person concerned.
The clause will come into force on Royal Assent and is to be taken as having always applied. This will make it clear beyond question that a person is in one of the categories concerned to be given temporary admission even when he cannot be—or can no longer be—lawfully detained.
I should make it clear that this does not alter the position as regards the lawfulness of a person's detention. What it does is restore the option of granting release on conditions where detention is no longer possible which was generally believed to be the position before this judgment.
Lord Renton of Mount Harry: My Lords, I thank the Minister for giving way. Can he point out to me, as a non-lawyer, just where that point is made clear in this clause?
Lord Filkin: My Lords, let me receive that point, but I believe that I should finish what I have to say because some of it is so technical that it is only fair to the House to put it on the record. I will then seek to come back to answer that question.
Subsection (3) of the clause has the effect of—
Lord Mayhew of Twysden: My Lords, my noble friend Lord Renton of Mount Harry has asked a very
relevant question. I understood the Minister to say that the new clause does not make lawful continued detention. Is that what he intended to say? Is that what he believes to be the case? Certainly in the brief time one has had available to examine the Bill, that does not appear upon the face of the new clause.
Lord Filkin: My Lords, what I believe I said was that the clause does not authorise detention.
Lord Mayhew of Twysden: My Lords, how can that be justified? It does authorise continued detention. That is its whole purpose.
Lord Filkin: My Lords, before we go further perhaps I may deal with my response to the suggestion made by the noble Lord, Lord Lester of Herne Hill. What I am reading into the record now is of great complexity and there is clearly, as there should be, interest and concern in the House to look at it. I would not feel happy if we had a Division on an issue when it was almost impossible for people to be certain that they were in favour of dividing one way or another. Therefore I intend to read into the record of Hansard the full reasons for the Government's position on the matter, and do not intend to force the amendment today. That will allow the House the opportunity to consider the amendment. I should stress that this is to allow the House the opportunity to consider it before Third Reading because we wish to make progress at Third Reading. I hope that that is acceptable. Even though it is not the most attractive course of action, I feel that it is only fair to the House.
Lord Lester of Herne Hill: My Lords, that would meet my concern. It would give the House the opportunity to understand the proposed new clause—which, on its face, is not very clear—and it would give us time to think about it before we decide whether to make it a part of the law of the land.
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